P. Savaryn The New Pathway 07-Feb-1987 Poor prospects for a fair trial

P. Savaryn The New Pathway 07-Feb-1987 Poor prospects for a fair trial

Ukrainian World Congress of Free Ukrainians on the Demjanjuk Case

JUSTICE WILL NOT BE SEEN TO BE DONE

In the free world an accused person is presumed innocent until proven guilty whatever the crime alleged against him. The accused is entitled to a fair trial and guilt must be proved beyond a reasonable doubt. Not only must justice be in fact done but it must be seen to be done.

John Demjanjuk was born in Ukraine, he emigrated to the United States in 1952 and subsequently became a U.S. citizen. Since 1980 he has been the subject of denaturalization proceedings in the United States and incarceration in Federal prisons. There proceedings were carried on under the Holtzman amendment (1978) which set up the Office of Special Investigations (O.S.I.) within the United States Department of Justice to hunt Nazi war criminals. The basis for his denaturalization was untruthful statements about his past on entering the United States.

In February 1986 John Demjanjuk was extradited to Israel. Presently he is in an Israeli prison charged with crimes against the Jewish people contrary to a 1950 law of the State of Israel. He is accused as being in fact "Ivan the Terrible," the notorious guard at the Treblinka Nazi death camp who is alleged to have committed vicious crimes against the inmates of that camp where nearly one million Jews were annihilated during 1942-43. Demjanjuk has consistently denied that he is that "Ivan the Terrible." He maintains that he is a victim of mistaken identity.

Notwithstanding years of investigation by the O.S.I., Demjanjuk languished in prison for over seven months while Israeli prosecutors were preparing an indictment against him which was finally presented on September 29, 1986. The trial is set to begin on February 16, 1987.

The indictment raises serious concerns that Demjanjuk's fundamental rights will not be respected and that if he is found guilty justice will not be seen to be done. Here is why.

The sole basis for Israel's jurisdiction is that it is the victim of the alleged crimes. That in itself raises doubts about an impartial trial. Justice ordinarily does not flourish when an alleged wrongdoer is turned over to his victims.

Equally disturbing is the question as to the ability of the accused to present full answer and defence after all these years. In a criminal case an accused in Demjanjuk's position could seek out and call alibi witnesses who could confirm that he was not at Treblinka at the relevant time. After 44 years how is he to search for them? Those still alive are likely behind the Iron Curtain. Certainly he cannot go looking for them and his lawyers cannot expect any co-operation from the Communist authorities there.

Three witnesses in Poland are apparently prepared to swear that Demjanjuk is not the man they knew as "Ivan the Terrible." The Government of Poland will not allow them to testify. How can guilt be proved beyond a reasonable doubt in these circumstances?

Finally, the cornerstone of the case against Demjanjuk is an identification card obtained from the Soviet Union. There is formidable evidence that it is a KGB forgery. A fair trial would demand that if reliance is to be placed on this evidence, full disclosure be made to the accused's lawyer as to all the circumstances of its production. That has not and will not likely happen.

To aggravate the situation, the indictment makes it clear that Demjanjuk is not being tried solely on the basis of allegations against him. Also accused are Ukrainians in general of whom Demjanjuk is one. With this scenario, the trial will be a replay of the Holocaust designed to damn the Ukrainian people as a whole.

The indictment which commences with the rise of Nazi power goes on to allege that Nazi-trained auxiliaries made up of Soviet prisoners of war were partners in the annihilation of the Jews. These were, it says, "in the main Ukrainians" of which Demjanjuk was one. Treblinka, it says, was manned by Ukrainian auxiliaries. This gratuitous and unfounded allegation is to hang as a prejudicial cloud over Demjanjuk's head during his trial as though he is on trial in part for being a Ukrainian.

This creates an atmosphere of vengeance rather than justice. Concern was recently expressed in a letter to Shimon Peres and other members of the Knesset by "Americans for Human Rights in Ukraine" about accusatory statements made in Israel by representatives of the government and others which might prejudice the case. The following bombshell was dropped by the Deputy Speaker of the Knesset in responding to the letter. The Deputy Speaker said, in part:

At first, I did not want at all to reply, because since the days of Bogdan Chelmenitzky, the Jewish people has a long score to settle with the Ukrainian people.
...
To you and your friends, I suggest that you go to church not only on Sunday but also every day of the week, and that you kneel there until bleeding at the knees in asking forgiveness for what your people has done to ours.

In addition there is reason to be concerned that Israel would consider an acquittal a serious setback to Holocaust remembrance. As the Jerusalem Post put it in urging the prosecutor to get on with the case, "otherwise Israel will be embarrassed by the affair and Holocaust-deniers around the world will have a field day" (Oct. 11/86). Thus, the issues of fact in this case will become overshadowed by the interests of the State of Israel. This combined with the general prejudicial atmosphere surrounding the trial will create a propitious climate for a conviction at any cost.

The World Congress of Free Ukrainians holds no brief for the real "Ivan the Terrible," nor for any other criminal who participated in the Nazi campaign to exterminate Jews. The Holocaust was a heinous crime against humanity, but in prosecuting its alleged perpetrators we must not forget about civil liberties � the Holocaust became possible when the Nazi regime abrogated civil liberties in Germany. The more heinous the crime, the greater is the danger that civil liberties will be trampled in the rush for the public's natural desire for vengeance. Civil liberties exist so that justice will prevail no matter how shrill the demand for retribution.

Civil liberties organizations in the United States, Canada and Israel seem to be strangely silent with respect to this case. Perhaps a stand on Demjanjuk would be just too unpopular. But is this not just the time when they should be heard from? We would have preferred them to speak out, but since they have not, we feel we must.

P. Savaryn
President

J. Bilak
Chairman, Human Rights Commission

M. Barabash
General Secretary

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