Ukrainian News | 23Aug2006 | Marco Levytsky
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Judge weighs balance against Ukrainians

Recommends revocation of citizenship for Furman, Skomatchuk despite ruling that states it can't be done

A federal court judge has ruled that both Josef Furman of Edmonton and Jura Skomatchuk of St. Catherines "obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances" and thus may be eligible to have their citizenship revoked by the Governor in Council (cabinet).

Justice Judith Snider on Aug. 17, 2006 ruled in two separate, but almost identical reports that both Furman and Skomatchuk hid their membership in the Trawniki concentration guard units during World War II, when they came to Canada in 1949 and 1952 respectively.

Skomatchuk is now 85, while the 87-year-old Furman suffers from dementia and currently resides in Edmonton in a long-term care facility.

Both are ethnic Ukrainians.

Justice Snider notes that: "The Court's determination does not, in itself, constitute a decision to revoke or terminate the citizenship of a person. Rather, the decision of this Court provides the Minister with a factual basis for the report and may constitute the foundation of a decision of the Governor in Council. Only the Governor in Council has the duty and power to decide whether to revoke citizenship. While the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)), a decision of the Governor in Council may be judicially reviewed (see for example, Oberlander v. Canada (Attorney General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL))."

In fact the Oberlander decision she refers to may very well mean the government cannot proceed with revocation against either one of these two men because action against both was brought by the War Crimes Unit of the Justice Department under the government's Denaturalization and Deportation guidelines announced in 1995.

When that policy was brought forward the government stated: "The key criterion in all these proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered."

But neither Skomatchuk, nor Furman were charged with any individual crimes when the statements of claims were filed against them in 2004.

Justice Snider alludes to this in both reports when she states in Section 72 of her Skomatchuk report: "It should be made clear that the Minister does not assert that, during this period, Mr. Skomatchuk carried out any particular acts of violence;" and in Section 96 of the Furman report: "It should be made clear that the Minister does not assert that, during this period, Mr. Furman carried out any particular acts of violence."

In the unanimous May 31, 2005 ruling by Justice Robert Décary, with the concurrence of Justices J. Edgar Sexton and B. Malone the Federal Appeal Court decided to reinstate the citizenship of 80-year-old Kitchener-Waterloo resident Helmut Oberlander, an ethnic German from Ukraine, which was removed by a Governor in Council (cabinet) decision in 2001 because there was no evidence that Oberlander committed any war crime.

At that same time the court told the government that it has to adhere to its own guidelines in pursuing these cases -- namely that there had to be evidence of individual crimes.

"The Governor in Council is not, of course, deciding as a matter of law whether a person is a war criminal, but it cannot apply the war criminals policy to a person unless it first satisfies itself, to use the very words of the policy, that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity'," reads the ruling.

"The (Immigration) Minister's Report does refer to the 'no safe haven' policy but does not analyse why it is that Mr. Oberlander fits within the policy which, the Report fails to mention, applies only to suspected war criminals," the ruling adds.

"In face of the express finding by Mr. Justice MacKay that no evidence was presented about any personal involvement of Mr. Oberlander in war crimes, one would expect the Governor in Council to at least explain why, in its view, a policy which, by its very -- and underlined -- words applied only to suspected war criminals, applied to someone who served only as an interpreter in the German army. I note that neither the Minister in her report nor the reviewing Judge even refer to the fact that Mr. Oberlander had asserted that he had not joined the German army voluntarily and that Mr. Justice MacKay has not made a definite finding as to whether Mr. Oberlander had been conscripted or not.

In neither the Furman nor the Skomatchuk reports did the justice find their service was voluntary.

In Furman's case, the report states that he was recruited from among Soviet prisoners of war in 1942.

"The evidence also indicates that Soviet prisoners of war did not volunteer for service in the German units… although I have no detailed information about the selection process, I feel no hesitation inferring that the only viable choice given to the selectees was service. Indeed, (government witness historian) Dr. (Johannes) Tuchel specifically and emphatically commented at trial that he would never refer to the Soviet prisoners of war who joined the Trawniki Training Camp as 'volunteers'," she states.

"Many prisoners of war died from starvation and disease in the camps, and the 1941/1942 winter was particularly brutal, killing most of the Soviet prisoners of war (in particular, the inmate population at the Poniatowa camp was completely devastated, vacating it for later use as a Jewish labour camp)," Justice Snider adds.

In the case of Skomatchuk, who would have been among the Trawniki guards recruited from the Ivano-Frankivsk region in 1943, Justice Snider said she could find no evidence one way or another because he did not appear before the court. Skomatchuk could not appear in court for health reasons.

But in a similar case -- that of Wasyl Odynsky, Justice Andrew MacKay found that Odynsky was forced into service as a Trawniki camp guard under threat of death.

"Mr. Odynsky and his four colleagues did not report as ordered. They hid in Beleluja and the surrounding fields until German officers and Ukrainian police appeared in the village in late March or April and directed that if they did not report without delay they would be severely punished when caught or their families might suffer," he wrote in the March 2, 2001 ruling.

"The five young men from Kolomyja all turned themselves in and they were taken to Snyatyn and jailed for a time there, before being transferred to Kolomyja. There they were held in detention, first threatened with death, then told that there was a reprieve and they would be sent for training, but any further attempt to escape service would lead to their execution when caught, and if they avoided capture their families would be sent to concentration camps."

Justice Snider devoted the bulk of her report to testimony by Dr. Tuchel and Dr. Jack Terry, a holocaust survivor about the reported history of the Trawniki guards, and documents provided by the ex-KGB.