The Demjanjuk Case
Factual and Legal Details
(July 28, 1993)
ONE - THE DEMJANJUK CASE - U.S.A. (1975 - 1986)
CHAPTER TWO - THE TRIAL
(1986 - 1988)
CHAPTER THREE - THE APPEAL
- STAGE I (1988 - 1990)
FOUR - RELATIONS WITH THE SOVIET UNION TO THE SECOND STAGE OF THE APPEAL
AND THE PLEADINGS THEMSELVES
The following pages present a review, outlining in
broad strokes the chain of events of what eventually became the legal
case of the State of Israel
versus Ivan Demjanjuk.
The review presents the broader view of the history of the case and
has no pretensions to giving an exhaustive account of or even encompassing
the sea of factual and legal issues dealt with in the past 15 years
in various courts of law in the United States and Israel.
CHAPTER ONE - THE DEMJANJUK
CASE - U.S.A. (1975 - 1986)
1. In October 1975, there came into the possession of certain members
of the U.S. Senate a list of Nazi war criminals living so the document
alleged in the U.S. The list gave the suspects' names and personal particulars,
in most cases also stating what they had done during World War II.
The information listed evidently emanated from material collated in
the Soviet Union, consisting of authentic German documents captured
by the Red Army when occupying territories under Nazi control in the
summer of 1944.
One of the names appearing on the list was that of John Ivan Demjanjuk
a U.S. resident since 1951 and a citizen of Cleveland, Ohio since 1958.
2. As listed, Demjanjuk (born April 3, 1920 in the Ukraine) was a soldier
in the Red Army who, falling into German captivity, volunteered for
service in the S.S, underwent
training and preparation at the S.S. training camp in the township of
Trawn iki, Poland, where
he served from March 1943 as an S.S. Wachman at the Sobibor
death camp, and later at the Floenbuerg concentration camp. ('S.S. Wachman'
was the Nazi code name for the non-German S.S. hobnail-booted soldiers
who aided the Germans in exterminating the Jews throughout the war years.
The Wachmans actually fulfilled many functions in the process of realization
of the 'final solution':
commencing with the physical expulsion of Jews from their ghetto
homes during 'actions', through packing them into cattle-trucks at the
'umschlagplatz', escorting and guarding them on the trains while shooting
escapees, to mass executions, in which victims were forced into gas
chambers at the death camps).
3. Nothing in U.S. statute provided for preferment of criminal charges
for war crimes against suspects of Demjanjuk's kind. The only way the
State could take any legal action against him at all was by conducting
a trial, starting with the filing of a complaint on grounds of obtaining
citizenship on false pretenses, and ending with stripping the defendant
of his citizenship. The fraud consisted of having concealed past actions
that, had the authorities known of in real time, would not have granted
him an entry visa to the United States, much less American citizenship.
Once he was denaturalized, the authorities had the option of initiating
deportation proceedings against the defendant (if he did not preempt
them by emigrating from the United States of his own volition) and/or
proceedings for extraditing him to another country.
4. Once in possession of the list, some of the aforesaid senators hastened
to forward it to the legal instance in charge at that time of filing
lawsuits for the negation of citizenship (I.N.S.) a section in the U.S.
Justice Department affiliated to the Department of Immigration and Naturalization.
After a while, an analysis of the list was begun along with an initial
research on the data it presented.
5. The preliminary I.N.S study of the Demjanjuk case focused on his
immigration and naturalization dossier dating from the fifties. Among
the papers in this file were forms he had filled out, applications he
had submitted, and summations of interviews conducted with him by U.S
immigration officers in Germany, during the years 1947-1951 when, as
a displaced persons camp inmate, he expressed the wish to immigrate
to the United States.
The said examination revealed that in one of the more important of
these forms, dated March 4, 1948, where he was required to give particulars
of members of his family and describe his own doings during the war,
Demjanjuk himself warranted in writing that during and before the war
he was a 'farmer in Poland in a settlement called Sobibor'. (Demjanjuk
signed his name to this form).
6. Cross-referencing between the information shown on the list (deriving,
it will be recalled, from the U.S.S.R.), whereby Demjanjuk served with
the S.S. as a Wachman at the Sobibor death camp and Demjanjuk's own
entries on the form he had himself signed in Germany, stating that he
was in fact at a place called 'Sobibor' eventually assumed great significance.
7. A. The investigative activities of the I.N.S. at that time (1976),
insofar as they related to nazi criminals, went on to target other suspects
named by the same list in connection with incriminating information
or indications of it. Thus for example, they researched the past of
another criminal, Fyodor Federenko who, the list alleged, had been an
S.S. Wachman at the Treblinka death camp in Poland, and later at the
Stutthof concentration camp (Poland).
B. As regards both Demjanjuk and Federenko, the I.N.S. decided that
apart from interrogating them and their families, an attempt would be
made to locate witnesses in various parts of the world who might remember
them and what they did during the war, in addition to any possible documentary
evidence yielding proof of their crimes.
C. The I.N.S. investigative effort was directed, inter alia, towards
Israel. Operating in Israel at that time was a police unit for the investigation
of nazi crimes (INC), successor to the '06 Bureau' founded as part of
the preparations for the trial of Adolf Eichmann.
D. Since the Eichmann trial, INC had undertaken numerous investigations
most of them pursuant to official applications by investigatory authorities
in various parts of the world. Evidence collected by the unit in Israel
served as proof of nazi crimes in court cases conducted in various countries
from time to time.
E. On February 20, 1976, I.N.S. sent INC a memorandum naming certain
Ukrainians who were suspected of involvement in persecution and acts
of cruelty towards people during the war, in the service of Nazi Germany.
Ivan Demjanjuk and Fiodor Federenko were named in the memorandum as
having operated in the Sobibor death camp (Demjanjuk) and Treblinka
(Federenko). (This after undergoing training at the S.S. training camp
INC was asked to make an effort to ascertain whether available witnes
ses such as eye witnesses, able to supply information on any one of
the suspects could be found in Israel.
F. Annexed to the memoranda were snapshots (of the passport photograph
variety) of the suspects. These were to be shown to potential witnesses
while being debriefed, and statements were to be taken from them on
the subject. The photographs were mostly taken from immigration dossiers
in the United States, proximity to real time being two years to eight
years after the event.
8. A. In 1976 the INC called in for questioning a number of Israeli
citizens listed as having been rescued from the inferno of Treblinka
B. Most of these citizens, survivors of Treblinka, summoned for questioning
due to the possibility of their having been acquainted with and able
to recognize the nazi criminal Federenko - pointed in the course of
their interrogation, when shown all of the photographs or part of them,
to the photograph of Demjanjuk as of that of a Wachman they knew from
Treblinka and remembered as 'Ivan' who operated the gas chambers there.
(Some recalled that this individual was known as 'Ivan the Terrible'
because of his notorious cruelty). Some on this occasion also identified
the photograph of Federenko whom they knew as a ranking Wachman in Treblinka
and of whom they also reported remembered details of his crimes there.
C. A female INC interrogator (a lawyer by profession) who was coordinating
investigations concerning both Federenko and Demjanjuk, responded with
surprise to the identification of Demjanjuk as a criminal from Treblinka.
She did all she could to suggest to the interrogees the possibility
that they might be mistaken, if only by reason of the fact that according
to the information in the I.N.S. memorandum, Demjanjuk was an S.S. Wachman
at the Sobibor camp; but to no avail. The interrogees stuck to their
spontaneous identification, insistently repeating that this was a snapshot
of 'Ivan the Terrible' of Treblinka.
D. All depositions taken from these interrogees, concerning both Federenko
and Demjanjuk, were forwarded that same year (1976) to the I.N.S. for
9. A. Denaturalization proceedings in the United States are inherently
civil proceedings and accordingly subject to civil procedure laws and
their derivative rules. In the course of these proceedings an exchange
of correspondence took place in the Demjanjuk file, between them and
the Court. Pleadings were written, interrogatories were exchanged, discovery
of documents was instituted, depositions were taken in preliminary interrogations,
and thus thousands more pages accumulated in the file before court hearings
B. In the summer of 1977, the I.N.S. instituted denaturalization proceedings
against Federenko and Demjanjuk in respect of crimes committed during
by them during World War II, as S.S. Wachmans. The action against Federenko
was brought in Miami, Florida, and that against Demjanjuk in Cleveland,
C. Demjanjuk was cited as having concealed acts of murder and abuse
of thousands of persons at the Treblinka death camp (as operator of
th chambers) and at Sobibor (after having trained for the job at the
S.S. training camp at Trawniki); and consequently of having fraudulently
obtained U.S. citizenship.
10. A. Federenko's trial commenced as early as 1978, ended in 1979
with his denaturalization (Federenko admitted to having been a Wachman
at Treblinka, thereby confirming the camp survivors' identification
of him. In his defense, however, he pleaded that he had not brought
to the ground a single hair of the heads of the Jews at that camp, and
that evidence against him was accordingly untrue. The District Court
upheld the defense pleadings, dismissing the action against him; but
on appeal, his defense was set aside and he was stripped of his U.S.
The commencement of Demjanjuk's trial, by contrast, was long delayed,
and it was not until February 10, 1981 that the parties and the court
were satisfied that the case was ripe for evidence to begin to be heard.
B. One of the reasons for the delay was that in 1979, after a series
of congressional debates, (initiated by congresswoman Elizabeth Holtzman,
a jurist) there was formed in the criminal division of the U.S. Department
of Justice, a body given the title of 'Office of Special Investigations'
(O.S.I.). The O.S.I. was mandated to do just one job to identify nazi
criminals living in the United States, to investigate them, collect
evidence against them, bring them to trial, strip them of their U.S.
citizenship and deport or extradite them. To do this job, the O.S.I.
assembled a team of jurists, attorneys-at-law, historians, researchers
and service personnel; and was allocated an initial budget of U.S.$
C. With the creation of the O.S.I. (over the course of 1979) and upon
completion of its initial formation stages, the I.N.S. transferred handling
of the entire 'nazi issue' to the O.S.I.
D. The Demjanjuk investigation was then in full swing, and his file
was examined by the newly created O.S.I. Thus it was not until February
1981 that the case crystallized and the Demjanjuk trial commenced in
13. Demjanjuk was stripped of his U.S. citizenship by Federal Court
Judge Frank Batisti of the northern district of Ohio, Cleveland, on
June 25, 1981. In a lengthy, reasoned decision, the judge reviewed the
historical background of relevant events, the evidence advanced by the
prosecution and the defense's counter pleadings, the evidence of the
counsel for the defense and its pleadings and the weight they carried,
and reached the conclusion that Demjanjuk had deceived the Court, that
the version of the witnesses for the prosecution was the truth, and
that Demjanjuk had obtained his citizenship under false pretenses, in
as much as he had concealed the fact of his service with the S.S. in
Treblinka and Trawniki. (The Court notes that since it had established
findings regarding Treblinka and Trawniki, which sufficed for the defendant's
denaturalization, it had not gone into the details of Demjanjuk's service
with the S.S. at the Sobibor death camp).
14. A. Following Judge Batisti's decision between the years 1981-1986
(when Demjanjuk was physically extradited to Israel), various legal
proceedings took place in the United States concerning him.
B. Altogether, the various aspects of the subject were studied in the
United States before ten legal instances which heard pleadings, reexamined
evidence and studied factual and legal aspects of the case. Time and
again the Courts reached the conclusion that Demjanjuk was a nazi war
criminal against whom there existed evidence founded on crimes committed
by him in the service of the S.S. in general and in the Treblinka camp
in particular. It was accordingly decided that his denaturalization
was just and his deportation and extradition to Israel based on solid
15. A. On February 26, 1986, Demjanjuk was brought to Israel accompanied
by two U.S. government Marshals. This concluded a five-year chapter
that had commenced with contacts between the U.S. government and Israel
on the issue of the extradition of nazi criminals living in the United
States and ended with Demjanjuk's extradition.
CHAPTER TWO - THE TRIAL (1986
1. Demjanjuk's trial before the special tribunal (Supreme Court Judge
Dov Levin, and Jerusalem District Court Judges Zvi Tal and Dahlia Dorner)
was opened with the reading out session on November 26, 1986. For practical
purposes, the hearings commenced only on February 16, 1987 and this
primarily in response by the Court to applications for postponement
filed by the defense, to enable it to prepare properly for the trial.
2. Demjanjuk was represented by Advocates Mark O'Connor and John Gil
(U.S.A.) who were authorized by the Minister of Justice to represent
him in Israel, and by the Israeli lawyer, Yoram Sheftel. At a later
stage of the trial, the defense was joined by Adv. Paul Chumak (Canada).
(Adv. O'Connor was dismissed toward the end of the hearing of the evidence
for the prosecution and before the hearing of the evidence for the defense
3. A. The entire trial took place in the Binyanei Ha'uma, Jerusalem,
where an appropriate infrastructure was set up, which would meet the
complex needs of the conduct of this trial. In fact, everything involved
in the conduct of the trial was assembled in one building: the courtroom,
the judges' chambers, Demjanjuk's detention room where he also met with
his attorneys, the offices of the prosecution and the defense, the interpreters'
offices and translation rooms. Offices in which the recorded minutes
could be taken down and typed simultaneously in Hebrew and in English.
Offices for the security and guard services, telephone and facsimile
services, and communication services for the general public and the
press and more.
B. One of the considerations that tipped the balance in favor of exposing
the entire course of the trial to the public in Israel and the rest
of the world was the loudly voiced complaints as to the inability of
the judiciary system in Israel to conduct a trial properly against one
suspected of nazi crimes, since this was the 'victims' state'. The accessibility
of the judiciary hearings as stated enabled anyone who wished to follow
the course of the trial.
C. Another important reason adduced as to why the trial should be held
in the Binyanei Ha'uma, was the unprecedented interest of the media
and the general public at home and abroad in this trial. This interest
led the parties concerned to conclude that the 'open court' principle
would be duly put into practice at this trial, only if everyone who
so wished could be part of the public in attendance in the courtroom
or could watch the proceedings through the media.
4. A. The general framework of the conduct of the case in Israel was
dictated in practice long before Demjanjuk was brought to trial. This
by the very fact that the State of Israel's application for extradition
was based on the testimony of the identification witnesses from Treblinka
as given to INC as early as 1976 and 1979 and as confirmed either in
evidence (in the United States) or in depositions (in Israel) in the
years that followed. It thus appeared that the fulcrum of this case
would stabilize around Demjanjuk's crimes at Treblinka and the evidence
proving those deeds of his would rest on the testimony of the identification
witnesses, as described. In practise, the case proceeded along three
channels of evidence, whose accumulation was intended to prove (the
acts) imputed to Demjanjuk in the indictment: membership in the S.S.,
training at the camp at Trawniki, crimes at the Treblinka death camp
as operator of the gas chambers there and at the Sobibor death camp.
B. The defense claimed all along that Demjanjuk had fallen into German
captivity where he remained throughout the war, that he never volunteered
to serve with the S.S. and that he was therefore not a member of the
killing team at the camps of Treblinka and Sobibor or an operator of
the gas chambers as alleged in the indictment.
5. A. The court sittings were held continuously morning and afternoon
on Mondays, Tuesdays, Wednesdays and Thursdays.
B. The inaugural session, on February 16, 1987, was dedicated to the
hearing of all questions relating to the competence of the State of
Israel to judge Demjanjuk (general competence and specific competence
in light of the laws of Israel and the United States and the inter-
state treaty), written summations were presented (including pleadings,
appendices and judgments) and oral pleadings were heard. After the Court
had given its decision whereby the indictment and the offenses imputed
to Demjanjuk were consistent with the wording of the extradition treaty
and the intention of the U.S. authorities and that the Court was competent
to judge him, the opening arguments of the prosecution were heard and
the recital of the evidence for the prosecution began.
6. Its first twenty-one sessions (February 1 through March 20, 1987)
were dedicated to the issue of Demjanjuk's crimes at the Treblinka death
camp. The prosecution also put on the witness stand those survivors
of Treblinka who had pointed to the photograph of Demjanjuk as the man
they remembered as operating the gas chambers at the camp. Likewise,
written evidence was submitted and the testimony was heard of the police
interrogators who had conducted the investigation in which the aforesaid
identification was made back in 1976.
7. The months April to July 1987 were devoted to the hearing of testimony
and the submission of evidence on the other two central issues:
A. Proof of Demjanjuk's being an S.S. man who had volunteered to serve
at Trawniki and Sobibor.
B. Refutation of the alibi alleged by Demjanjuk.
8. As to Demjanjuk's enlisting in the S.S., his preparation and training
at Trawninki and his service as a member of the killing team at the
Sobibor camp the 'Trawniki certificate' constituted a central axis of
evidence. The 'Trawniki certificate' is an original nazi certificate
of Demjanjuk's containing his portrait photograph, his personal particulars,
his S.S. service number (1393) and a record of his being posted to two
places where he served during the war period Okshov and the Sobibor
The certificate was sent to Israel from the U.S.S.R., having been located
there in an archives in which were kept nazi documents captured by the
Red Army in the summer of 1944 and thereafter.
Contrary to the approach which governed the proceedings in the United
States, the certificate was perceived by the Prosecution in Israel as
a most important piece of evidence in proving Demjanjuk's guilt from
both the factual and the legal point of view.
First, the prosecution was of the opinion that this was preponderant
unambiguous evidence of Demjanjuk's being an S.S. soldier, who underwent
training and preparation at the S.S. camp at Trawninki, which is to
say that it determines his general status. Not an innocent man as he
pleaded but a nazi criminal of the worst kind.
Second, the certificate enables the determination to be made that Demjanjuk
was one of a limited number of Wachmans chosen to serve as murderers
at the death camps particularly Sobibor on March 27, 1943. Out of several
million Russian prisoners of war, held at the POW camps of nazi Germany,
only about 5,000 volunteered to serve the S.S. in various capacities.
Of these, serving at camps whose sole purpose was nothing but killing
(as distinct from concentration camps or forced labor camps) about 500
Wachmans only. This determination has a direct bearing on Demjanjuk's
crimes. And indirectly the Prosecution alleged, it also placed him nearer
Treblinka. A not less important incidental result was the absolute refutation
of the alibi plea based on the certificate, since it was not possible
to be a POW in detention, and an S.S. man holding such a certificate
at one and the same time.
This view of matters prompted the prosecution to invest great efforts,
so that the proof of the veracity of the certificate, with all that
that implied, would be completely unbreachable. What made the point
even sharper was the fact that since the case began to be conducted
in the United states and all along the way the main plea of the defense
was that the certificate was a KGB forgery, that no such certificates
were ever issued to Wachmans, and that this one had been created from
scratch and sent to the United States in order to incriminate Demjanjuk
in the eyes of the U.S. authorities.
Accordingly the need to prove the bona fides of the document from every
possible aspect led the prosecution to present in court three sets of
evidence on the subject.
- An historical set: which was analysed with the aid of experts from
Germany having a perspective and historical expertise on the one hand
and German witnesses having served with the S.S. at Trawniki in the
relevant years on the other hand everything written on the certificate,
including stamps, signtures, ranks etc., so as to prove that they were
consistent with the facts as they had actually been in real time.
- A forensic set: proved with the aid of local and foreign experts
the authenticity of each element found on the certificate and which
was verifiable: either by analyzing the document and the signatures
and examining them by way of document comparison, or by chemical and
other analyses of the paper on which the certificate was written, fountain
pen ink, typewriter ribbon ink, the ink of the stamps on the certificate,
the printed lettering, the typed lettering, the photographic paper of
Demjanjuk's photograph on the certificate, glue and other stains on
it, marks of attrition, grooves, creases, perforations etc.
- Attributing the certificate to Demjanjuk: an application to prove
that writing and entries on the certificate correspond to his personal
particulars, including a comparative anthropological analysis of his
facial features, as appearing on the passport photograph thereon with
other known passport photographs of Demjanjuk's.
Also testifying was a Prison Service physician Dr. Zigelbaum, as regards
two important medical details: the location of a scar on Demjanjuk's
back a detail appearing in the German entries on the Trawniki certificate
as a special identifying mark of the bearer of the certificate and thereby
imparting to the certificate yet another touch of authenticity. A scar
was likewise found under Demjanjuk's left armpit remaining from the
S.S. tattoo that existed there in the past, and which was removed by
Demjanjuk after the war, by reason of being so incriminating.
9. To the matter of the alibi: Apart from the need to prove that Demjanjuk
lied in his contradictory versions regarding his alibi, expert witnesses
were called to prove the implausibility of his version under the conditions
and circumstances he described, in view of the knowhow existing from
an historic point of view. Here numerous documents submitted in evidence
were combined with the testimony of expert witnesses being military
historians and researchers specializing in the matters under review.
10. During this period, two enquiries were held in Germany on behalf
of the prosecution:
(A) On June 9, and June 11, 1987 the testimony was heard in Berlin
of Otto Horn German S.S. man at Treblinka who in a photographs identification
session identified, even during the O.S.I. investigations (1979), the
photographs of Demjanjuk as Ivan, operator of the gas chambers at Treblinka.
This enquiry took place before an examining magistrate in the presence
of the Israeli court which travelled to Berlin for the purpose. The
hearing was conducted in a manner similar to the Israeli hearing, i.e.
Horn was subjected to a main examination and to reexamination, and the
Israeli court judges were also enabled to ask a number of questions.
(B) On May 18, 1987 an enquiry was conducted in Cologne, Germany, of
Helmut Leonardt, an 'administration officer' at Trawniki. Here too,
the enquiry was held before an examining magistrate; the parties were
enabled to question the witness in examination in chief, cross examination
and reexamination. This witness cast additional light on the question
of the authenticity of the Trawninki certificate in recognizing also
the type of document and the signatures and particulars set forth therein.
11. On July 20, 1987, the case for the prosecution was concluded and
the case for the defense began.
After the opening argument of the counsel for the defense, Demjanjuk
was called to the witness stand as No. 1 witness for the defense. His
interrogation lasted five days (between the end of July and the beginning
of August) covering everything he had done during the pre-war period,
during the war, after the war (when he spent several years in Europe)
and during his life in the United States until his being extradited
At the other sittings up to August 19, 1987 (7 sittings), the defense
put on the witness stand two female expert witnesses from the United
States who were to prove that the Trawniki certificate was a forgery.
Due to the illness of one of the panel judges, hearings in the trial
were suspended until after September 19, 1987, and resumed only on October
Between October 26, 1987 and January 11, 1988, (30 sessions) the defense
called to the witness stand:
(A) Additional expert witnesses to prove its allegation regarding the
forgery of the Trawniki certificate. These witnesses were primarily
from the United States and Europe while two were from Israel.
(B) Expert witnesses historians to prove the plausibility of the Accused's
alibi plea and to contradict the testimony of the prosecution's expert.
(C) An expert witness on issues of memory and identification parades:
a Professor of psychology from the Netherlands.
(D) In January 1988 there took place in Germany an enquiry of the German
S.S. officer, Rudolf Rais 'administration officer from Trawniki'. This
enquiry, this time on behalf of the defense, took place in a format
identical to that of the prosecution's enquiries. (The Court was not
present at this enquiry). This enquiry too, related to the allegations
of the certificate's being a forgery.
12. The summings-up in the case were heard at two stages:
(A) First stage summings-up by the prosecution end of January beginning
of February 1988 (8 sessions).
(B) In March 1988 the defense submitted additional written evidence.
(C) Second stage completion of the summings-up of the prosecution and
the defense after the aforesaid additional evidence March 1988 (3 sessions).
13. A. The protocols of the Demjanjuk trial (not including the verdict)
hold 10,684 pages (in Hebrew) and some 15,000 pages (in English).
B. To date of the verdict, there were submitted on behalf of the prosecution
290 exhibits; and on behalf of the defense 177 exhibits. The exhibits
hold some 5,000 additional pages (usually in both the original language
14. On April 18, 1988 the verdict was given, occupying 144 pages. Demjanjuk
was convicted on all counts imputed to him in the indictment.
The greater part of the judgment naturally relates to the question
of the quality of the identification and its veracity, based on the
entire body of evidence adduced. A not inconsiderable part of the judgment
of course discusses all the other questions and aspects reviewed above,
including the authenticity of the Trawniki certificate, Demjanjuk's
service at the Sobibor death camp and the refutation of his alibi.
The verdict ends with the conclusion that there was no doubt left in
the mind of the Court as to Demjanjuk's having been a Wachman in the
service of the S.S., who was trained for the work of murder at Trawniki,
operated the gas chambers at Treblinka and there earned the nickname
of 'Ivan the Terrible', and also as having served later as a Wachman
at the Sobibor death camp.
15. On April 25, 1988, after the pleadings of both sides regarding
the penalty were heard, Demjanjuk was sentenced to death.
CHAPTER THREE - THE APPEAL
- STAGE I (1988 - 1990)
1. The notice of appeal filed by the defense occupied 101 pages and
reopened the hearing on all matters and all bones of contention that
had come up between it and the prosecution in the district court. A
plea that constantly recurred in the entire notice of appeal, was that
the court that had sat in judgment was biased against the defense counsel
and against the appellant, and this fact had clouded its judgment and
made it blind to the reality of the evidence. Accordingly, the defense
counsel said, inasmuch as this defect touched on the root of the matter,
the Court had issued a judgment that was entirely erroneous, and the
Appellant ought rightfully be acquitted of all charges.
2. In the period from April 25, 1988 (date of sentence) to May 14,
1990 (date of commencement of the hearing of the appeal) there took
place numerous sessions of the Supreme Court, in which various issues
of the case were discussed, additional evidence was admitted in appeal,
and an additional enquiry was conducted in Germany of a female defense
witness, whose testimony was alleged vital to establishing the plausibility
of Demjanjuk's alibi plea.
3. A. On May 14, 1990, the Supreme Court convened in a panel of five
judges to hear the appeal itself. Heading the panel was Justice Meir
Shamgar, along with Deputy President Menahem Eilon and Justices Aharon
Barak, Eliezer Goldberg and Yaakov Meltz, and the hearing of the appeal
B. The defense pleaded its case May 14-29, 1990 (ten sessions). The
prosecution responded by pleading its case May 31-June 20, 1990 (twelve
sessions). The defense counsel responded last June 26-28, 1990 (three
4. As stated, the appeal itself related to all the subjects reviewed
before the lower court most of them factual matters, even though legal
issues also featured prominently.
A. The defense again attacked the identification issue in detail, and
again produced its version as to the Trawninki certificate being a forgery
analyzing the testimony of the experts and attacking the findings of
the lower court, even in matters of decision based on the confidence
placed by the court in a certain expert, preferring him over an expert
of conflicting opinion. The defense again advanced the Appellant's sweeping
alibi plea, n amely that throughout the period relevant to the indictment
the Appellant was being held in a prison camp and never enlisted in
the service of the S.S. and above all, the following plea was repeatedly
advanced: 'The Court had a deep-seated bias against the Accused and
against the defense counsel from which it did not free itself throughout
the trial period. This bias nourished itself from the press and found
expression in overt hostility toward the defense counsel, in erroneous
interim decisions and in a judgment which is fundamentally tainted'.
B. The prosecution, in its reply, answered the pleas put forward by
the counsel for the defense, relying on the evidence before the court,
including that which had been added, and with reference to the determination
of the lower court on the subject.
5. Upon conclusion of the hearing of the parties' pleas in the appeal,
the court adjourned to study the material in evidence, in voluminous
protocols and pleadings in order to give its decision on the case.
6. A. In the period from the passing of judgment in April 1988 to the
end of the hearing of the parties' pleadings in the appeal there occurred
number of developments obliging the prosecution, in line with its concept
of its role in the case in general and in this trial in particular,
to endeavor to thoroughly investigate various aspects of the issues
reviewed in the trial.
B. The prosecution assessed that evidence material found in the U.S.S.R.
might shed light on these issues and that the thaw in international
relations between the two states should be utilized for initiating measures
that would perhaps afford it access to the aforesaid potential material.
C. The account of the prosecution's contacts with the U.S.S.R., including
the discovery of the evidence material there described in the next chapter.
CHAPTER FOUR - RELATIONS WITH
THE SOVIET UNION TO THE
SECOND STAGE OF THE APPEAL AND THE PLEADINGS THEMSELVES
1. A. Even before Demjanjuk was extradited to Israel by the U.S., the
State of Israel made attempts to apply to the prosecution authorities
in the Soviet Union, in any possible way. The prosecution sent the Prosecutor
General of the U.S.S.R. lengthy and detailed applications, both written
and oral, explaining its intention of bringing Demjanjuk to criminal
trial, giving details of the offenses imputed to him, in the spirit
of the indictment about to be brought against him, and in accordance
with the facts already established in various courts in the United States.
B. In these applications an attempt was made to secure the assistance
of the U.S.S.R. in all relevant evidence material found in its possession
and which might adduce further information on Demjanjuk's crimes in
the era of nazi rule, about Treblinka in general, and specific additional
aspects connected with the evidence material in the file, including
an effort to resolve the problems therein.
C. Despite the aforesaid effort (which lasted also throughout the hearing
of the case before the special tribunal in Jerusalem), no relevant evidence
material was received from the U.S.S.R., except for the Trawniki certificate
which arrived even before the trial commenced, and three other certificates
of the same kind which arrived in Israel in the summer of 1987, and
were likewise submitted in evidence in the trial (at the stage of the
2. A. Immediately after judgement was pronounced in the spring of 1988,
the prosecution embarked on a new series of contacts, with the aim of
arriving at direct dialogue with members of the Soviet Prosecution General.
B. In the then situation of absence of diplomatic or other relations
between the two states, the prosection had perforce to act indirectly,
through brokers, both in the west and in the East Bloc. Thus there were
operating at the same time persons close to the ruling junta in the
U.S.S.R. and office holders having regular working relations with the
Prosecution General and other sources.
C. After several months, various sources contrived to mediate between
the offices, and representatives of the Israeli Prosecution me representatives
of the Chief Prosecutor's Office of the Soviet Union.
D. Even if the meeting, by nature, could not yield immediate fruit,
these qualified relations, once having been created, were cultivated
by the Israeli prosecution for a period of two years, while awaiting
an opportune moment in which it would be possible to widen the tiny
aperture and even take some practical steps in the U.S.S.R.
3. The opportune moment arrived with the change in the political situation
within the Soviet Union in 1990. Then too, relations between the two
Prosecution offices thawed to the point where after a series of applications
and mutual discussions, the General Prosecutors's Office of the U.S.S.R
consented to allow representatives of the Israeli prosecution to come
to Moscow, as official visitors, to study there any protocol of the
trial conducted against the criminal Fiodor Federenko in the summer
of 1986, in the town of Semapropol in the Crimean Peninsula [Federenko,
it will be recalled, was a Wachman at Treblinka, who was deported from
the United States to the Soviet Union after being denaturalized]. The
prosecution believed it ought to study these Soviet files if only by
reason of the fact that they consisted of twenty two thick volumes of
investigation and trial material and might yield evidence relevant to
the present trial too. Thus, in December 1990, (about six months after
the end of the pleadings in Demjanjuk's appeal before the Supreme Court
as stated), two representatives of the prosecution went to Moscow and
there studied the Federenko file and all the material of the investigation
and trial contained in it (all of it being in Russian) for several days.
From an examination of the material in the file and from talks with
representatives of the Soviet prosecution who had conducted the trial
in 1986 and with members of Office of the Prosecutor General in Moscow,
it became apparent that as early as 1944 and thenceforth, the investigative
and judiciary authorities in the Soviet Union had been spotting Wachmans,
being citizens of the Soviet Union, who had operated at the death camps
and concentration camps to all intents and purposes as S.S. officers.
These criminals had been arrested, interrogated and tried, some had
been executed and others had been sentenced to long prison terms. The
investigations and trials were held in various states throughout the
Soviet Union, but primarily in the Ukraine. Inter alia, it transpired
that investigations and trials had been conducted against S.S. Wachmans
who had committed crimes at the death camps of Treblinka and Sobibor.
Passages from these investigations as expressed in statements, testimony
and documents were submitted in evidence at the trial of Federenko in
1986 insofar as they pertained to his crimes or to crimes of Wachmans
in general, at the camps where Federenko had operated.
As to matters relating to the trial of Demjanjuk in Israel, the representatives
of the prosecution found in Federenko's file an abundance of relevant
material, except that the trouble was that most of it, as presented
there, was split up and copied in various parts from the originals meaning
from the files of the investigations and trials of other Wachmans that
had been conducted throughout the U.S.S.R. during 1944 and 1962.
From December 1990 to June 1992 the two representatives of the Israeli
prosecution engaged, in the course of several visits to Moscow, and
later also Kiev, in reading a great deal of evidence material collected
for them, at their request and in accordance with their directives,
from various K.G.B. archives throughout the U.S.S.R.
The subject material concerned crimes of Wachmans who had engaged in
the killing of Jews at Treblinka, Sobibor and other camps. It emanated
from the investigation and trial dossiers of those criminals.
Out of this whole sea of material, the prosecution brought to Israel
the essentials of the evidence, directly impacting on key issues, under
review in the Israeli court during the years the case was being conducted
here. (This due to constraints of language, quantity and, of course,
the Russians' preparedness to cooperate).
It should be noted that the prosecution actually managed to persuade
the Muscovite judiciary authorities to enable the defense itself to
study all the evidence material in Moscow. Dates were set for this and
the defense counsel was informed of them, but the defense did not appear
to study the material throughout the entire week allotted to it.
4. Essentially, the evidence material found by the prosecution contained
A. Statements and evidence by Wachmans from Treblinka (including photographic
identification parades), which in addition to describing the horrors
perpetrated by them there related to other Wachmans who took part together
with them in these crimes. Inter alia, it emerged from their depositions,
that the name of the operator of the gas chambers at Treblinka was Ivan
Marchenko (some actually pointed to various photographs as bearing the
picture of this same Marchenko) for example, the 'passport' photograph
found on the official certificate from Trawniki Personalbogen No. 476
belonging to a Wachman named Ivan Marchenko, or a photograph of two
Wachmans, of which one it was said that he was the aforesaid Marchenko).
Note: In view of the defense allegations based on this evidence, that
it emerged unequivocally from the statements that the operator of the
gas chambers at Treblinka was Ivan Marchenko and not Ivan Demjanjuk
the prosecution analyzed the evidence in great detail and pointed to
the significant difference existing between a superficial reading of
it on the one hand and its true contents on the other. This of course
has implications for the issue of the identity of the operator of the
gas chambers at Treblinka.
B. Statements and testimony by Wachmans from Sobibor some of whom had
previously served at Treblinka and who describe the horrors of their
deeds there, emphasize the absolute identity between the two 'death
factories' as they put it Treblinka and Sobibor.
C. In statements of the Wachman Ignat Danielczinko, the file of whose
1949 trial was located and brought in its entirety to be studied in
Moscow, it it emerges that even in 1949 he attested in the course of
his interrogations to the fact that together with him, in the spring
of 1943, there served at the Sobibor death camp a Wachman named Ivan
Demjanjuk. Danielczinko gives identifying details as to Demjanjuk and
especially adds that after their acts at Sobibor, he and Demjanjuk transferred
together to the Fluessenberg concentration camp, where they were tattooed
with the S.S. inscription under their left armpits. (Demjanjuk had such
a tattoo which he had removed after the war). In the file is also a
certificate of service of Danielczinko, which is identical to the Trawniki
certificate of Demjanjuk and many other important details).
D. Original German posting lists, from the era of the nazi rule, in
which S.S. Wachmans are posted for service at various death camps and
One of the items found was a list of postings of Wachmans to the Sobibor
death camp dated March 26, 1943, containing Demjanjuk's name together
with all his true personal particulars (date of birth, where born etc.).
Also found was a list of Wachman postings from October 1943 to the Fluessenberg
concentration camp, where Demjanjuk's name also appears as one of the
Wachmans sent to serve there, with all his personal particulars alongside
his exact name.
E. In addition to the above mentioned lists, there was discovered in
another archives in the (former) Soviet Union a disciplinary complaint
sheet against Demjanjuk and three other Wachmans, for a breach of orders
prohibiting them from leaving the area of the Maidanek concentration
camp in January 1943.
F. The representatives of the prosecution also sorted out from these
files authentic German documents, statements and depositions, directly
impacting a wide diversity of topics that came up during the years of
hearing the case.
5. This evidentiary material was naturally collected in stages, and
between one stage and the next the prosecution in Israel would analyze
it and form a view on where to look for additional material so as to
complete the picture (the material, most of which is written in Russian
handwriting, was of course translated into Hebrew, to enable both the
defense and the Court to study it in depth).
From the first time the representatives of the prosecution returned
from the Soviet Union and met for a hearing in court together with the
defense, the prosecution kept the Supreme Court informed of each and
every stage of the discovery of this material. The prosecution informed
the court of the content of the material and eventually the material
original and translation was submitted in evidence to the court. The
defense counsel for his part, would apply to the court whenever the
prosecution delivered to it material from the U.S.S.R. with vigorous
applications to conclude Demjanjuk's trial 'at once and with a complete
acquittal' of all the offenses with which he was charged. His argument
was that the material brought by the prosecution probably indicated
that the operator of the gas chambers was another man named Ivan Marchenko,
and not Ivan Demjanjuk the Appellant.
All these applications were reviewed at length by the Court. In the
hearings the parties set forth their pleadings in great detail, citing
quotations from the evidence already given, and the Supreme Court decided
once more not to release Demjanjuk at once, and to enable the prosecution
to go on investigating and to continue to bring all relevant evidence
material that it could find from the K.G.B. archives.
6. Following the discovery and deciphering of the evidence material
relating directly to the Appellant in various documents in the U.S.S.R.
an effort was made to trace additional material in his case in the west
(this time in the context of his service in the Fluessenberg concentration
camp a concentration and death camp located on the border between west
Germany and Czechoslovakia). This attempt resulted in the discovery
of the end of a thread found in the National Archives of West Germany
in the town of Koblenz, Germany.
Two representatives of the prosecution established contact with the
directors of the archives and after ascertaining that a body of evidence
did in fact exist, that concerned the Fluessenberg concentration camp,
they made the trip, sought among tens of thousands of documents, and
found three authentic German documents relating directly to Demjanjuk.
1. 'Ascent of Guard' Form - A list, dated October 1944, of Wachmans
accompanying prisoners to forced labor at the Fluessenberg concentration
camp, with Demjanjuk's name appearing in the list together with his
personal number from Trawniki 1393 (the same number appearing in the
certificate!) (also the name of Danielczinko appears along with his
personal number 1016 identical to what was already found in the U.S.S.R.
in his trial dossier there dating from 1949).
2. Wachmans postings list - List of 117 Wachmans from Fluessenberg
with Demjanjuk's name appearing with personal number 1393.
3. Armory ledger - A ledger containing exact entries of all weapons
distributed to Wachmans on their arrival to serve at the Fluessenberg
camp with inter alia the names of Demjanjuk and Danielczinko as having
received a rifle and a bayonet on October 8, 1943.
7. In June 1992, 'supplementary pleadings' were heard in the appeal
in the course of which the parties summed up all the evidence in the
case, with everything existing in it, especially in view of the great
amount of material added to the file by the prosecution from the end
of the pleadings in the appeal in the summer of 1990 to June 1992.
Altogether the prosecution adduced an additonal 100 exhibits on its
behalf, all of them from the Soviet Union. These documents occupy about
1,800 pages in Russian handwriting and along with their Hebrew language
translation. The defense added about 30 exhibits.
8. With the conclusion of the summing up of the parties as aforesaid,
the Supreme Court turned to an examination of the case which had doubled
The decision of the Israeli
Supreme Court will be presented on Thursday, July 29, 1993.