John Demjanjuk

John Demjanjuk
File:John Demjanjuk 3.jpg Demjanjuk hearing his death sentence on April 25, 1988.
Born	(1920-04-03) April 3, 1920 Dubovi Makharintsi, formerly Kiev Governorate, presently Koziatyn rayon (district), Vinnytsia Oblast, Soviet Union
Occupation	Retired auto worker

John Demjanjuk, born Ivan Nikolayevich Demjanjuk (Russian: Иван Николаевич Демьянюк; Ukrainian: Іван Миколайович Дем'янюк; Polish: Iwan Demianiuk; born April 3, 1920; in Dubovi Makharintsi, formerly Kiev Governorate, presently Koziatyn district, Vinnytsia Oblast, Soviet Union) is a retired auto worker and former United States citizen, who gained notoriety after being accused of war crimes.

Born in the Soviet Union during the Polish–Soviet War (when territories in Ukraine quickly changed hands), Demjanjuk migrated to the United States in 1951. He was deported to Israel in 1986 and later sentenced to death there in 1988 for war crimes, based on his identification by Israeli Holocaust survivors as "Ivan the Terrible," a notorious SS guard at the Treblinka and Sobibor extermination camps during the period 1942–1943 who committed murder and acts of extraordinarily savage violence against camp prisoners. His conviction for crimes against humanity was later overturned by Israel's highest court in 1993 due to a finding of reasonable doubt based on evidence suggesting that Demjanjuk was not "Ivan the Terrible" and had, in fact, been a guard at camps besides the one at Treblinka. After the trial, he was returned to Cleveland, Ohio. He eventually moved to nearby Seven Hills, Ohio.

Demjanjuk was put on trial again in 2001 on charges that he had served as a guard at the Sobibór and Majdanek camps in occupied Poland and at the Flossenbürg camp in Germany. His deportation was again ordered in 2005, but he remained in the United States as no country would agree to accept him. On April 2, 2009, it was announced that Demjanjuk would be deported to Germany and would face trial there on charges of accessory to 29,000 counts of murder. On April 3, 2009, a judge ordered that Demjanjuk be given a temporary stay, pending a judicial decision on his newly filed (April 2) motion to reopen his deportation order, on the ground that deporting him would amount to torture under the applicable international convention. The stay was overturned on April 6.

On April 14, 2009, immigration agents began Demjanjuk's deportation, removing him from his home in a wheelchair. He was scheduled to fly to Munich from Burke Lakefront Airport in Cleveland, but the legal order was again reversed and another stay granted by the court. On May 7, 2009, the U.S. Supreme Court rejected Demjanjuk's appeal and on May 8, 2009, he was ordered to surrender to U.S. Immigration agents for deportation to Germany. On May 11, Demjanjuk left his Cleveland home by ambulance, and was taken to the airport, where he was deported by plane to Germany. He arrived there the next morning on May 12. On July 13, 2009, Demjanjuk was formally charged with 27,900 counts of acting as as an accessory to murder, one for each person who died at Sobibor during the time he is accused of serving as a guard at the Nazi death camp. The charges are one of the final steps before an expected trial.Gdidaniels (talk) 14:59, 14 July 2009 (UTC)

Background to alleged Holocaust involvement

In 1942, Demjanjuk, who was a member of the Red Army, became a German prisoner of war and was moved to a German camp. He survived the ordeal and was sent to the Trawniki concentration camp, later serving in Majdanek, Sobibor and Flossenbürg Nazi camps. In early 1945, Demjanjuk joined the Vlasov Army, which was closely aligned with Nazi Germany against the Soviets.

Demjanjuk, his wife and their child arrived in New York aboard the USS General W. G. Haan on February 9, 1952. On November 14, 1958, Demjanjuk became a naturalized citizen of the United States. He and his wife, whom he met in a displaced persons camp, moved to Indiana with their daughter (they later had two more children) and then to Cleveland, Ohio suburb Seven Hills, where Demjanjuk became a diesel engine mechanic for the nearby Ford auto plant.

In August 1977, the Justice Department submitted a request to the United States District Court for the Northern District of Ohio that Demjanjuk's citizenship be revoked on the basis that he had allegedly concealed his involvement with Nazi death camps on his immigration application in 1951. The request followed a lengthy investigation by the INS after Demjanjuk was identified by Holocaust survivors on a photo spread used in the investigation of Fedor Fedorenko, a Treblinka Concentration Camp guard. Fedorenko was later extradited to Ukraine on his admission that he was such a guard and that he lied on his US immigration applications.

On June 23, 1981, District Court Judge Frank J. Battisti ruled that Demjanjuk had lied on his application, that he had served as an SS guard at Treblinka and for a brief period at Sobibór, and that he had undergone training at the Trawniki SS training camp. Demjanjuk's attorneys appealed this ruling.

Trial in Israel

In October 1983, Israel issued an extradition request for Demjanjuk to stand trial on Israeli soil under the Nazis and Nazi Collaborators (Punishment) Law of 1950. Demjanjuk was deported to Israel on February 28, 1986. He was put on trial between November 26, 1986, and April 18, 1988, before a special tribunal comprising Supreme Court Judge Dov Levin, and Jerusalem District Court Judges Zvi Tal and Dahlia Dorner.

The prosecution team consisting of Yonah Blatman, the State Attorney, Michael Shaked of the Jerusalem District Attorney's Office, Dennis Goldman and Eli Gabay of the International Section of the State Attorney's Office, Michael Horowitz and Gabi Finder and others, claimed during the trial that Demjanjuk had been recruited into the Soviet army in 1940, and that he had fought until he was captured by German troops in the Eastern Crimea in May 1942.

Demjanjuk was then, according to the prosecutors, brought to a German prisoner of war camp in Chelmno in July 1942. Prosecutors claimed that Demjanjuk volunteered to collaborate with the Germans and was sent to the camp at Trawniki, where he was trained to guard prisoners and was given a firearm, a uniform, and an ID card with his photograph. The principal allegation was that Demjanjuk was "Ivan Grozny" or "Ivan the Terrible" of Treblinka, who operated the diesel engines sending gas to the death chamber. Prosecutors based part of these allegations on an ID card, but defense attorneys countered that the card was forged by Soviet authorities to discredit Demjanjuk. The card had Demjanjuk's photograph, which he identified as his picture at the time, as well as signatures of various Nazi officers who were deposed and confirmed the authenticity of their signatures. The paper and ink on the card were tested by internationally renowned experts who confirmed that the card was authentic. The original of the card was presented in court in Israel as supplied by the Soviets. Demjanjuk admitted that the scar under his armpit was an SS tattoo, which he removed after the war. During the trial, Demjanjuk was again identified on the photo spread by Otto Horn, a former Nazi guard at Treblinka.

Demjanjuk testified during the trial that he was imprisoned in a camp in Chelmno until 1944, when he was transferred to another camp in Austria, where he remained until he joined an anti-Soviet Russian military unit funded by the German government until the surrender of Germany to the Allies in 1945.

On April 18, 1988, the court found Demjanjuk guilty of all charges. One week later it sentenced him to death by hanging. Demjanjuk was placed in solitary confinement during the appeals process.

On July 29, 1993, five Israeli Supreme Court judges overturned the guilty verdict on appeal. Their ruling was based on the written statements of former guards at Treblinka that identified Ivan the Terrible as "Ivan Marchenko." US officials had originally been aware, without informing Demjanjuk's attorneys, of the testimony of two of these German guards. However, the American officials suspected that Demjanjuk used "Marchenko" as an alias, and the Israeli justices mentioned how Demjanjuk had incorrectly listed his mother's maiden name as "Marchenko" in his 1951 application for U.S. visa. Demjanjuk says he just wrote a common Ukrainian surname after he forgot his mother's real name. The former guards' statements were obtained after World War II by the Soviets, who prosecuted Ukrainians who assisted the Nazis as auxiliary forces during the War. Most of the guards were executed after the war by the Soviets, and their written statements were not obtained by Israeli authorities until 1991, when the Soviet Union collapsed.

The Israeli Supreme Court's 405-page ruling read: "The main issue of the indictment sheet filed against the appellant was his identification as Ivan the Terrible, an operator of the gas chambers in the extermination camp at Treblinka ... By virtue of this gnawing [new evidence indicating mistaken identity] ... we restrained ourselves from convicting the appellant of the horrors of Treblinka. Ivan Demjanjuk has been acquitted by us, because of doubt, of the terrible charges attributed to Ivan the Terrible of Treblinka. This was the proper course for judges who cannot examine the heart and mind, but have only what their eyes see and read." They also added: "The facts proved the appellant's participation in the extermination process. The matter is closed — but not complete, the complete truth is not the prerogative of the human judge."

The court judgment also addressed evidence against Demjanjuk that was not included in his indictment. The judges agreed that Demjanjuk most likely served as a Nazi Wachmann (guard) in the Trawniki unit and had been posted at Sobibor and two other camps. Evidence to assist this claim included a certificate from Trawniki bearing Demjanjuk's picture and his exact personal information — allegedly found in the Soviet archives — in addition to German documents that mentioned Wachmann Demjanjuk and mentioned his date and place of birth. Statements of another Wachmann (Denilchenko), both in 1949 and again in 1979, identified Demjanjuk as the Wachmann who served with him at Sobibor. Demjanjuk's Trawniki certificate also implies that he served at Sobibor, as do the German orders of March 1943 posting the Trawniki unit to this area.

After Demjanjuk's acquittal, the Israeli Attorney General decided to release him rather than to pursue charges of committing crimes at Sobibor. Ten petitions against the decision were made to the Supreme Court. On August 18, 1993, the court rejected the petitions on the grounds that (1) the principle of double jeopardy would be infringed, (2) that new charges would be unreasonable given the seriousness of those of which he had been acquitted, (3) that conviction on the new charges would be unlikely, and (4) that Demjanjuk was extradited from the United States specifically to stand trial for offenses attributed to Ivan the Terrible of Treblinka, and not for other alternative charges.

Demjanjuk was released to return to the United States. In 1993, the Sixth Circuit Court of Appeals ruled that Demjanjuk was a victim of fraud on the court, as United States federal government trial lawyers with the Office of Special Investigations had recklessly failed to disclose evidence, and his US citizenship was restored. In a report submitted to the Sixth Circuit prior to the Israeli acquittal, federal judge Thomas Wiseman, Jr. concluded that American federal officials had erred in asserting that Demjanjuk was Ivan the Terrible, but that evidence instead pointed to Demjanjuk being a lesser SS agent.

New charges and deportation

Restoration and revocation of U.S. citizenship

On February 20, 1998, Federal District Court Judge Paul Matia ruled that Demjanjuk's citizenship could be restored.

On May 20, 1999, the Justice Department filed a new civil complaint against Demjanjuk. No mention was made in the new complaint of the previous allegations that Demjanjuk was Ivan the Terrible. Instead, the complaint alleged that Demjanjuk served as a guard at the Sobibór and Majdanek camps in Poland under German occupation and at the Flossenburg camp in Germany. It additionally accused Demjanjuk of being a member of an SS-run unit that took part in capturing nearly two million Jews in the General Government of Poland.

Demjanjuk was put on trial again in 2001, and in February 2002, Matia ruled that Demjanjuk had not produced any credible evidence of his whereabouts during the war and that the Justice Department had proved its case against him.

On April 30, 2004, a three-judge panel of the 6th US Circuit Court of Appeals ruled that Demjanjuk could be again stripped of his US citizenship because the Justice Department had presented "clear, unequivocal, and convincing evidence" of Demjanjuk's service in Nazi death camps. Demjanjuk vowed to appeal the ruling.

New deportation (or removal) order

On December 28, 2005, an immigration judge ordered Demjanjuk deported to Germany, Poland, or Ukraine. In an attempt to avoid deportation, Demjanjuk sought protection under the United Nations Convention against Torture, claiming that he would be prosecuted and tortured if he were deported to Ukraine. Chief U.S. Immigration Judge Michael Creppy ruled that there is no evidence to substantiate Demjanjuk's claim that he would be mistreated if sent to Ukraine.

On December 22, 2006, the Board of Immigration Appeals (the Board or BIA) upheld the deportation order. On January 30, 2008, the Court of Appeals for the Sixth Circuit denied Demjanjuk's request for review. On May 19, 2008, the U. S. Supreme Court denied Demjanjuk's petition for certiorari, declining to hear his case against the deportation order. The Supreme Court's denial of review meant that the order of removal was final; no other appeal was possible.

Deportation proceedings and actions

One month after the U.S. Supreme Court's refusal to hear Demjanjuk's case, on June 19, 2008 Germany announced it would seek the extradition of Demjanjuk to Germany. Germany's top Holocaust crimes prosecutor, Kurt Schrimm, said that there is enough evidence to convict Demjanjuk. He said that Demjanjuk could be brought to Germany by the end of 2008; however, this did not occur.

On November 10, 2008, German federal prosecutor Kurt Schrimm directed prosecutors to file in Munich for extradition, since Demjanjuk once lived there. On December 9, 2008, a German federal court declared that Demjanjuk could be tried for his alleged role in the Holocaust. Some three months later, on March 11, 2009, Demjanjuk was charged with more than 29,000 counts of accessory to murder of Jewish prisoners at the Sobibor extermination camp. The German foreign ministry announced on 2 April 2009 that Demjanjuk would be transferred to Germany the following week, and will face trial later in the year.

Demjanjuk sued Germany on April 30, 2009, to try to block the German government's agreement to accept Demjanjuk from the US. His filing with the German Administrative Court in Berlin claims the procedure by which he is to be moved from the US to Germany is illegal, and asks the Court to suspend the declaration by the German government that allows Demjanjuk to enter the country pursuant to US deportation, until a court determination is made. The German Administrative Court rejected Demjanjuk's claim on May 6; Demjanjuk's German attorney stated that he would appeal the decision.

Motion to reopen the case

Filing of Motion

On that same day — April 2, 2009 — Demjanjuk filed a motion in an immigration trial court in Virginia. The motion sought to reopen the matter of the removal order against him; that order of removal had been originally issued by an immigration court in 2005, had been upheld by the BIA on administrative appeal in late 2006,, and was further upheld by the Sixth Circuit Court of Appeals; after these two appeals, the U.S. Supreme Court had, as noted above, denied any review. In connection with the motion to reopen, Demjanjuk also asked the immigration court to stay the removal order, pending the decision on whether or not to reopen the matter.

On April 3, 2009, U.S. Immigration Judge Wayne Iskra temporarily stayed Demjanjuk's deportation, but reversed himself on April 6. As the Government noted, a motion to reopen, such as Demjanjuk's, could only properly be filed with the Board of Immigration Appeals in Washington D.C., and not an immigration trial court. The issuance of the stay by the immigration trial court was therefore improper, as that court had no jurisdiction over the matter. Accordingly, Demjanjuk re-filed his motion to reopen, and for an attendant stay, with the Board of Appeals.

Demjanjuk's motion to reopen argued that, under the circumstances, his deportation to Germany would constitute torture. His attorney stated that his health had deteriorated seriously in the last four years. Demjanjuk argued that his request was supported by the past actions of the very same Office of Special Investigations where in the Tannenbaum case the DOJ allowed another sick old man to remain in the United States who had admitted to mistreatment of prisoners in a Nazi camp. On April 10, the Board of Appeals found that "there is little likelihood of success that [Demjanjuk's] pending motion to re-open the case will be granted," and accordingly denied his motion for a stay pending the dispositon of his motion to reopen. This removed any obstacles to federal agents seizing him at any time for deportation to Germany.

The Government has responded to Demjanjuk's "torture" claim as a basis for reopening the deportation order — a case that was decided against Demjanjuk in 2005 and that has been thrice affirmed against him on appeal — by stating that his claim is "patently frivolous" and

[is an] ...incredible and unsupported surmise. . . . This is . . . a grotesque debasement of the word "torture," a characterization that makes a mockery of the terrible suffering inflicted on genuine victims of torture at places like the Sobibor extermination center. Ironically, [Demjanjuk]. . . has been confirmed by U.S. courts — including this Court — to have contributed to the mass-asphyxiation of thousands of civilians at a human extermination center [as part of] . . . the largest-scale tortures and murders in history.

Sixth Circuit Stay

On April 14, 2009 immigration agents removed Demjanjuk from his home in preparation for deportation. The same day, Demjanjuk's son filed a motion in the Court of Appeals for the Sixth Circuit asking that the deportation be stayed, which was subsequently granted. The Government argued that the Court of Appeals has no jurisdiction to review the decision of the Board of Immigration Appeals, which denied the stay. Demjajuk later won a last-minute stay of deportation, shortly after US immigration agents carried him from his home in a wheelchair to face trial in Germany. The BIA denied Demjanjuk's motion to reopen his deportation case. The Sixth Circuit, whose stay of the deportation order remained in effect, asked lawyers for both parties to provide it with more information from the government, physicians and Demjanjuk himself. On April 20, the government filed a motion with the Sixth Circuit asking for the stay against deportation to be lifted, arguing that Demjanjuk had sought the stay in order to provide an opportunity for the BIA to rule upon his motion to reopen the deportation order. Since the BIA denied the motion, the government argued, the basis for the Sixth Circuit's stay was no longer valid, and the stay should accordingly be dismissed. The Jerusalem Post also reported that the Simon Wiesenthal Center had declared Demjanjuk to be the most wanted Nazi war criminal on its list, displacing SS doctor Aribert Heim. According to a spokesman for the Center, the revised ranking was intended to reflect the importance attributed to the US efforts to deport Demjanjuk to Germany to stand trial.

Sixth Circuit's Lifting Stay

On May 1, 2009, the Sixth Circuit lifted the stay that it had imposed against Demjanjuk's deportation order. The Court stated in its opinion that

Based on the medical information before the court and the government's representations about the conditions under which it will transport the petitioner, which include an aircraft equipped as a medical air ambulance and attendance by medical personnel, the court cannot find that the petitioner's removal to Germany is likely to cause irreparable harm sufficient to warrant a stay of removal.

The Court also ruled that it was unlikely that Demjanjuk could demonstrate that he would be "tortured" in Germany and that this claim did not sufficiently support his request for a stay. Although the stay was lifted, and the government free of legal constraints that prevented it from deporting Demjanjuk, his appeal for the substantive review of the BIA decision on the merits (wherein the BIA effectively upheld the deportation order itself, by refusing to reopen the case on the ground that "torture" in Germany was more likely than not) was still pending before the Court of Appeals. However, the Court stated in its opinion denying the stay (in the process of addressing the question of the extent to which Demjanjuk was likely to succeed on the merits of his motion to reopen) that:

...the petitioner has not shown a strong or substantial likelihood of success on the merits of his challenge to... the [BIA's] denial of his motion to reopen. At most, he has offered speculation that German authorities may not adequately attend to his medical needs while he is in ... custody.

Petition to Supreme Court

On Tuesday May 5, 2009 Demjanjuk announced through counsel that he was filing a petition with the U.S. Supreme Court, seeking review of the adverse decision of the Sixth Circuit Court of Appeals that had denied his stay. His counsel expected the filing to be made on Wednesday May 6. The filing characterized the unanimous decision of the three-judge Sixth Circuit panel as "incomprehensible."

On Thursday May 7, 2009, the United States Supreme Court, acting through Justice John Paul Stevens, declined to consider Demjanjuk's case for review, thereby denying Demjanjuk any further stay of deportation. Justice Stevens issued his decision without comment. Demjanjuk's counsel thereafter stated that his client would not seek to have the entire Court consider Justice Stevens' decision and that accordingly all legal avenues in the United States to halt the deportation had been exhausted. The suit filed by Demjanjuk in Germany is not affected by the US decision and as of May 7, that case is still pending on Demjanjuk's appeal from an adverse decision by the Administrative Court in Berlin.

"Torture" as basis for reopening the case

Demjanjuk's motion to reopen is based on the claim that he will be tortured as a result of being deported. Demjanjuk claims that, because he is old and sick, transferring him to Germany will constitute "torture" within the meaning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention), and that this circumstance is sufficient to reopen consideration of his case. His attorney, John Broadley, argued before the BIA that deporting Demjanjuk would constitute torture because of his health problems, including pre-leukemia, kidney problems, spinal problems and "a couple of types of gout." There is no allegation that the German authorities intend to subject him to unusual treatment or to deny him medical attention, as a method aimed at getting him to confess or to divulge information about others. To summarize the foregoing, his essential contention in his legal pleadings and public statements is, that it would be very hard on him, and perhaps life-threatening, to be taken away from his home in his present condition. He claims that this circumstance constitutes "torture."

While Demjanjuk was removed from his house in a wheelchair and appeared to be "slack-jawed and unmoving," on April 23, 2009, federal prosecutors submitted surveillance video evidence taken after the removal of Demjanjuk; the footage showed Demjanjuk walking with no assistance to a car in a parking lot while "alert and engaged in conversation." They also provided the Court of Appeals with a medical report that supported their claim that Demjanjuk is medically fit to be moved to Germany; a flight surgeon who examined Demjanjuk while in government custody for alleged back pain later noticed that Demjanjuk "moved his back with apparent ease." The government lawyers stated that even if the court lifts the stay, they would defer deportation until at least May 1, to allow Demjanjuk time to file an appeal to the U.S. Supreme Court. On April 23, 2009, a group of students petitioned the Sixth Circuit Court of Appeals to uphold the deportation order.

Deportation to Germany

Demjanjuk was deported to Germany, leaving Cleveland (USA) on 11 May 2009 to arrive in Munich (Germany) on May 12. Upon his arrival, he was arrested in Munich's Stadelheim prison.

Demjanjuk deemed fit to stand trial

On July 3, 2009, prosecutors deemed Demjanjuk fit to stand trial. On July 13, 2009, prosecutors charged him with 27,900 counts of accessory to murder. Doctors have restricted the time Demjanjuk can be tried in court each day to two sessions of 90 minutes each, said Munich State Prosecutor Anton Winkler.

Displaced person claim

On April 21, 2009, The Australian reported that Demjanjuk registered in 1948 as a displaced person. This category was reserved mainly for former concentration camp prisoners and forced laborers. The International Tracing Service, a German agency that maintains data on Nazi victims, provided a copy of Demjanjuk's March 3, 1948, application to the Australian.

In that application, Demjanjuk claimed to be a refugee, sought assistance, and asked for transfer to Argentina. His application stated that he worked as a driver at the Sobibor concentration camp; it did not mention any work as a guard at that camp. When interviewed in connection with the story, historian Hans-Jürgen Bömelburg (University of Giessen) stated that war criminals sometimes tried to escape justice after 1945 by presenting themselves victims of Nazi persecution, rather than as perpetrators.

According to Gitta Sereny's The German Trauma (2000, ISBN 978-0-140-29263-3) there was a strong reason why Demjanjuk could have put down Sobibor as the place where he worked from 1937 to 1943 as a farmhand (according to Sereny) in the application he made on the March 3, 1948. Applicants for displaced person status had to fill in a form that required them to say where they had been for the previous twelve years. Unless they could show that they had been living outside the Soviet Union on September 1, 1939, they could not, under the terms of the Yalta agreement, be accepted as displaced persons and would be returned to the Soviet Union. Officials of the International Refugee Organisation, which operated the Landshut office, therefore encouraged applicants to select places outside the Soviet Union. Sobibor was such a place. Sereny further relates that at Demjanjuk's trial in Israel on the Treblinka charges, Judge Dov Levin had asked Demjanjuk, "Why did you put Sobibor?" Demjanjuk had replied that he had no idea what to put on the form and that another applicant had had an atlas and told him to put down Sobibor as there had been many Ukrainians there.

Evidence that Demjanjuk might have been at Sobibor rather than Treblinka contributed to his successful appeal against his conviction in Israel on the Treblinka charges. He was not prosecuted in Israel on any charges relating to Sobibor as, inter alia, his extradition from the USA had been obtained on the basis of the Treblinka charges.

See also

• Charles Zentai

External links

• Demjanjuk - Compilation of The Plain Dealer articles at Cleveland.com