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Kyiv Post | 18Jul2011 | Associated Press

New investigation of Demjanjuk in Germany (updated)

BERLIN (AP) — Bavarian prosecutors have opened a new investigation of John Demjanjuk after a German attorney filed a complaint accusing him of additional war crimes.

The 91-year-old retired Ohio autoworker was convicted in May of 28,060 counts of accessory to murder after a Munich court found that the evidence showed he was a guard during the war the Nazis' Sobibor death camp in occupied Poland.

The precedent-setting case was the first time someone was convicted in Germany on evidence of being only a guard, without evidence of a specific killing.

The court ruled that guarding a death camp meant, in legal terms, that Demjanjuk was an accessory to the murder of the people who were killed in the camp's gas chambers even if it could not be proven that he was directly involved in the extermination process.

Demjanjuk was sentenced to five years in prison but was immediately released pending appeal, which could take as long as two years, and is now living in a nursing home south of Munich. Neither his attorney nor his family could immediately be reached for comment on Monday's announced by Bavaria.

The new complaint accuses Demjanjuk of 4,400 additional counts of accessory to murder for the time when he allegedly guarded the Flossenbuerg concentration camp in Bavaria.

Even though thousands died or were killed in Flossenbuerg, its entire purpose was not extermination like Sobibor, Auschwitz or the other Nazi death camps.

But in the new complaint filed by Cornelius Nestler, who represented the families of Sobibor victims at the Demjanjuk trial as co-plaintiffs, the Cologne-based attorney argues there should be no distinction made between concentration camps and death camps.

"Legally, it doesn't make a difference if the purpose is to murder everybody there, or if the purpose is to murder a third of the people there," he told The Associated Press. "It's still murder."

The complaint was also filed against Alex Nagorny, who testified during the Demjanjuk trial that they were both guards at Flossenbuerg together and then had lived together in Germany after the war.

When asked to identify Demjanjuk, however, Nagorny told the court the man on trial bore "no resemblance" to the Demjanjuk that he knew.

Nestler, who filed his complaint jointly with Thomas Walther, a former federal prosecutor who led the investigation that prompted Germany to put Demjanjuk on trial, said the purpose is not to heap more jail time on one person, but to open the door to other possible convictions.

It was initially filed in Munich but then turned over to the Weiden prosecutors office because the former camp was located in its jurisdiction.

Weiden prosecutor Gerd Schaeffer said his office has opened an investigation and is reviewing evidence, but that he did not know how long it might take to decide whether to file charges.

Munich prosecutors have already declined to file charges against Nagorny on the Flossenbuerg evidence, saying the Demjanjuk precedent does not apply to concentration camp guards, and Weiden is only investigating the Demjanjuk case.

A Munich state court in June also refused to extradite Demjanjuk to Spain on Flossenbuerg-related charges.

"The service as a guard alone in a concentration camp, which was not a so-called death camp, is not enough," the court said in its ruling.

Nestler said, however, that neither the Munich prosecutors nor the court made any legal arguments to back their statements that guards at concentration camps cannot be prosecuted without evidence of a specific crime.

"If the prosecution sticks to its position, then they would actually be playing the card of Demjanjuk's defense, who always said this is one case that it is being singled out," Nestler said. "If the prosecution now says that, after we've achieved the conviction of Demjanjuk, then they kind of admit they took an exceptional approach for Demjanjuk."