Globe and Mail | 12May2011 | David Rising

Demjanjuk convicted in Nazi death camp case

A German court convicted retired U.S. autoworker John Demjanjuk on Thursday of taking part in the murder of tens of thousands of Jews as a Nazi death camp guard, breaking legal ground that could pave the way for the prosecution of many low-level cogs in Hitler's machinery of destruction.

The 91-year-old Demjanjuk was sentenced to five years in prison on 28,060 counts of accessory to murder -- one each for the number of people killed at the Sobibor death camp during the six months in 1943 when he was convicted of standing guard there.

But Mr. Demjanjuk will spend no immediate time behind bars. Presiding Judge Ralph Alt ordered him released from custody pending his appeal -- a process that could take at least a year. It was not immediately clear when Mr. Demjanjuk would be released or where he would go.

The case was considered groundbreaking because although scores of Nazi war criminals have been tried and convicted in Germany, in this case there was no evidence that Mr. Demjanjuk (dem-YAHN'-yuk) committed a specific crime.

His prosecution was based on the theory that if Mr. Demjanjuk was at the camp in Nazi-occupied Poland, he was a participant in the killing there -- the first time such a legal argument has been made in German courts.

“This case is a door opener,” said Thomas Walther, a former federal prosecutor who led the investigation that prompted Germany to put Mr. Demjanjuk on trial.

The Ukrainian-born Demjanjuk was a Soviet Red Army soldier captured by the Germans in Crimea in 1942. He is accused of then agreeing to serve as a “Wachmann,” or guard, the lowest rank of the “Hilfswillige,” former POWs who were subordinate to German SS men.

Mr. Walther said his office has many cases that have been investigated but shelved and could now be reopened. Although it's hard to say how many living suspects might fall into the same category as Mr. Demjanjuk, it could be hundreds or more, Mr. Walther said.

“It could be very soon that more are brought to the table,” he told The Associated Press.

The prospect of Mr. Demjanjuk's release pending appeal, though common under the German justice system, drew immediate ire from those who had been pushing for his conviction.

“We don't think that that's appropriate given the heinous nature of his crimes,” Efraim Zuroff, the chief Nazi hunter at the Simon Wiesenthal Center, said in a telephone interview from Jerusalem.

Still, Mr. Zuroff called the conviction “a very important victory for justice.”

“The verdict sends a very powerful message that even many years after the crimes of the Holocaust, the perpetrators can be brought to justice,” he said. “We're hopeful that this verdict will pave the way for additional prosecutions in Germany.”

Mr. Demjanjuk lawyer Ulrich Busch said he was appealing the decision and expressed confidence he would succeed. Mr. Demjanjuk “will not see one day in jail,” he said.

Judge Alt said Demjanjuk did not pose a flight risk because of his age, poor health and the fact that he is stateless after being deported from the U.S. two years ago.

That meant there were no grounds to hold him, Judge Alt said. “It's the law, and so it's justice,” he told the AP. “I say he's guilty, but it's not a final verdict.”

Mr. Demjanjuk's son, John Demjanjuk Jr., said his father needs daily medical attention and would likely need to be moved into an assisted care facility -- the costs of which would be paid by the German government.

“We're in the planning stage and I can't say where he's going to go,” he told the AP in a telephone interview from Ohio.

Still, he said he was relieved by the decision to free his father “because he has never deserved to sit in prison for one minute.”

The younger Demjanjuk said he planned to visit his father, though he was not sure when. Mr. Demjanjuk's 85-year-old wife, Vera, is in poor health and unable to travel.

In handing down the court's ruling, Judge Alt called Mr. Demjanjuk a piece of the Nazis' “machinery of destruction.”

“The court is convinced that the defendant ... served as a guard at Sobibor from 27 March 1943 to mid-September 1943,” Alt said, referring to a period when the Nazi genocide machine was operating at full force.

Mr. Demjanjuk sat in a wheelchair in front of the judges as they announced their verdict after the nearly 18-month trial, but showed no reaction. He has denied the charges but declined the opportunity to make a final statement to the court.

Integral to the prosecution's case was an SS identity card that allegedly shows a picture of a young Demjanjuk and indicates he trained at the SS Trawniki camp and was posted to Sobibor.

Though court experts said the card appears genuine, the defence maintains it is a fake produced by the Soviet KGB.

The U.S. Department of Justice's Office of Special Investigations also has said the card is genuine, but documents recently unearthed by the AP indicate the FBI at one time had doubts similar to those aired by Mr. Demjanjuk's defence -- though the material was never turned over to his lawyers.

JudgeAlt noted that in addition to the card the court found other credible evidence, including transfer lists indicating a guard named Demjanjuk with the same Trawniki number was sent to serve in Sobibor and elsewhere.

Rudolf Salomon Cortissos, whose mother was gassed at Sobibor along with thousands of other Dutch Jews, cried softly in a back row of the courtroom, wiping his tears with a white handkerchief, as Judge Alt somberly read out the names of his mother and others who were killed in the death camp.

“It's very emotional. It doesn't happen every day,” he said, adding that he was happy with the verdict and sentence. “For me it is satisfying.”

Vera John de Jong of Belgium, whose parents were gassed in Sobibor, was stoic about the decision to release Mr. Demjanjuk for the time being.

“He's been convicted, and that's what is important,” she told AP. “He was probably better off in prison than he will be now because he was very well looked after there.”

Mr. Demjanjuk has been stripped of his U.S. citizenship and has been in custody in Germany since his deportation.

Three Sobibor survivors and about three dozen other people who lost family members at the death camp joined the trial as co-plaintiffs as allowed under German law.

Cornelius Nestler, a lawyer for the co-plaintiffs, said Demjanjuk likely would serve three years at most, given the time he has already spent in German custody.

But he said he, too, was satisfied with the sentence, which came close to prosecutors' call for a six-year term. That call took into account Mr. Demjanjuk's age and the time he had already served in Israel in the 1980s.

Charges of accessory to murder carry a maximum term of 15 years in Germany, which does not allow consecutive sentences for multiple counts of the same crime.

The verdict won't entirely end more than 30 years of legal wrangling. Along with the German appeal, proceedings continue in the United States.

In the 1980s, Mr. Demjanjuk stood trial in Israel after he was accused of being the notoriously brutal guard “Ivan the Terrible” at the Treblinka extermination camp. He was convicted, sentenced to death and then freed when an Israeli court overturned the ruling, saying the evidence showed he was the victim of mistaken identity.

Mr. Demjanjuk has always maintained he was a victim of the Nazis -- first wounded as a Soviet soldier and then captured and held as a prisoner of war under brutal conditions before joining the Vlasov Army, a force of anti-communist Soviet POWs and others that was formed to fight with the Germans against the Soviets in the final months of the war.

Prosecutors said that after his capture, the evidence shows Mr. Demjanjuk agreed to serve the German SS and was posted to Sobibor.

Now in the U.S., new litigation is under way following the AP report that brought to light the 1985 FBI report questioning the legitimacy of the Trawniki identity card used in the current prosecution. That revelation has led to new court action, with a federal judge in Cleveland agreeing this week to appoint a public defender to represent Mr. Demjanjuk there.