The Demjanjuk Appeal
Summary by Asher Felix Landau

(Part 2 of 2)

The appellant, the Court continued, had pleaded an alibi both in regard to the period during which he was alleged to have been in Treblinka, and also after the extermination camps at Treblinka, Sobibor, and Belz had ceased to function. After dealing with the legal aspects of the defence of an alibi, and a close examination of the evidence relating to both these periods, the Court agreed with the District Court that the alibi relating to the relevant period (1942-1943) had had been completely rebutted while - in view of evidence received after the trial - the rebuttal in regard to the period after 1944 was not complete.

The Court then turned to the question of the identification of the appellant as having served in Treblinka, and his activities there. Citing numerous authorities, it dealt first with the general principles applicable relating, inter alia, to the identification of a suspect on the basis of photographs. It then examined, in great detail, the evidence of the eye-witnesses who had testified before the District Court, or whose statements had been admitted as evidence. In regard to the statements, it also reviewed the procedures which had been followed to meet the demands of section 15 of the Nazi Punishments Law which, as stated above, empowers the court to deviate from the rules of evidence 'if it is satisfied that this will promote the ascertainment of the truth, and the just handling of the case'.

After a searching analysis of the evidence of all the witnesses relating to the appellant's identity, and of defense counsels' arguments, the court found no basis for interfering with the District Court's findings based on that testimony. The Court dealt extensively, inter alia, with the professional literature relating to evidence of identification after many years, including the opinion that lapse of time does not, in itself, preclude identification.

The Court also pointed out that the District Court, in admitting depositions under section 15 above, had only deviated from the rules of evidence in admitting the depositions of witnesses who had died in the period between their examination and the trial, and only after those who had taken the depositions had given evidence and were available for cross-examination by the defense.

Before considering the additional evidence adduced after the appeal had been lodged, the Court rejected the criticisms of appellant's counsel of the manner in which the District Court had discharged its task.

The Court then turned to consider the additional evidence admitted at the stage of appeal. This evidence consisted of written depositions, relating to different periods, given in the U.S.S.R. by 'Wachmaner' who were examined in regard to their own crimes, and some of whom were sentenced to death. Their testimony related to Treblinka, where they served, and not a few of them mentioned a Ukrainian 'Wachman' called Ivan Marchenko as the person who operated the machines of the gas chambers in that camp.

In weighing the additional evidence, the court first dealt with the necessity of proof of the defendant's guilt 'beyond a reasonable doubt'. The authorities made it clear that the prosecution was not required to provide proof 'beyond all doubt'. Some lingering or fanciful doubt was not sufficient to justify an acquittal of the defendant. On the other hand, it had been said that the degree of proof 'need not reach certainty, but it must carry a high degree of probability'.

The Court explained that the expression 'reasonable doubt' was to be interpreted rationally. The evidence should be consistent, but if there were contradictions, the Court was entitled to decide what evidence it was prepared to accept. However, there had to be a reasonable basis for rejecting evidence as untrustworthy.

The Court then analyzed in detail the additional evidence, citing also the opinions of experts on identification. It was true that the direct additional evidence consisted only of depositions taken in the U.S.S.R., without the testimony of those who had taken them. The number of these depositions, however, created a reasonable doubt which could not be dispelled by speculation and surmise.

After the most careful consideration the Court had reached the conclusion that the evidence now before it created a reasonable possibility that the appellant was not the person called 'Ivan the Terrible' who operated the gas chambers at Treblinka. That was the crime with which he was charged in the indictment, and on that charge he was entitled to be acquitted.

On the other hand, the evidence before the District Court and the additional evidence showed that the appellant had served as an S.S. 'Wachman' in the Trawniki Unit, and one deposition (of a 'Wachman' called Danilchenko) described in detail the appellant's service in Sobibor. This deponent had also identified the appellant in three photographic 'identification parades', containing three different photographs of the appellant. Danilchenko died before the appellant's trial had begun.

Under section 216 of the Criminal Procedure Law (Consolidated Version) of 1982, the Court continued, the court may convict the defendant of an offence of which he is shown to be guilty by the facts proved before it even though those facts are not alleged in the indictment, provided the defendant has been given a reasonable opportunity to defend himself.

The facts proved the appellant's participation in the extermination process, the Court noted, and could perhaps sustain his conviction of other offenses under the Nazi Punishment Law. The application of section 216, moreover, could also require a reconsideration of the 'principle of specialty' in regard to such offenses.

In view, however, of the circumstances now existing, the Court had decided not to apply section 216 in the present case. Affording the appellant 'a reasonable opportunity' to defend himself now meant an additional extension of the hearings beyond an acceptable limit. Even taking into account the nature and extreme gravity of any charge or charges which could now be preferred against the appellant, a change in the basis of the extradition, more than seven years after the proceedings against the appellant were opened, would be unreasonable. The right of defense in a criminal trial was of the greatest importance, and was not to be sacrificed whatever were the reasons for the delays in the proceedings against the appellant.

The final result, therefore, was the acquittal of the appellant, on the basis of a reasonable doubt, Of the offence attributed to him in the indictment.

The question of the 'principle of specialty', within the framework of extradition proceedings, therefore fell away.

In conclusion, the Court reiterated that, more than seven years ago, Ivan Demjanjuk had been lawfully extradited from the United States to Israel. The extradition was based on prima facie evidence. There was testimony before both the District and the Supreme Courts that the appellant was a member of the 'S.S. Wachman Unit' of Trawniki, which was established for the sole purpose of learning and teaching its members to destroy, kill, and exterminate, in implementing the 'final solution' of the 'Jewish problem'.

There was also evidence that after the appellant received his 'Trawniki Certificate', he was posted to Sobibor, one of three extermination camps established by the German authorities of the Third Reich within the framework of the 'Reinhardt Operation'. It was also shown that he served with the S.S. in the Flossenberg and Regensburg concentration camps. The appellant was therefore a member of a group of 'S.S. Wachmaner' whose purpose was murder and whose objective was genocide, and whose like is unknown in the history of humanity.

The thrust of the indictment against the appellant was his identity as 'Ivan the Terrible', who operated the gas chambers in the Treblinka extermination camp. A number of survivors of the hell of Treblinka identified the appellant as 'Ivan the Terrible', one of the main murderers and persecutors Of the Jews who were brought to Treblinka on their way to suffocation in the gas chambers, and for this he was convicted in the District Court.

After the hearing of argument in the appeal, the Court admitted the statements of a number of in which some person other than the appellant was referred to as Ivan the Terrible of Treblinka. The court did not know the origin or authorship of these statements, but admitted them as evidence without formal proof of their authenticity. These statements raised reasonable doubts as to the identity of the appellant as Ivan the Terrible of Treblinka, and deterred the Court from convicting him on this charge.

In the result, the 'Wachman' Ivan Demjanjuk is acquitted, by reason of doubt, of the outrageous crimes attributed to Ivan the Terrible of Treblinka. Judges, who are only human, cannot reach perfection, and it is only right that they judge on the basis of what is placed before them, and on that basis alone.

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