Israel Information Service Gopher
Director: Chaim Shacham, First Secretary
Information Division Israel Foreign Ministry – Jerusalem
Mail all Queries to [email protected]
DECISION OF ISRAEL SUPREME COURT ON PETITION CONCERNING
JOHN (IVAN) DEMJANUK ON AUGUST 18, 1993
UNOFFICIAL SUMMARY OF DECISION
On August 18, 1993 the Supreme Court of Israel sitting as the High Court
of Justice gave its decision on 10 petitions brought by survivors of the
Holocaust and others demanding that John (Ivan) Demjanjuk should be
brought to trial on charges of war-crimes at Sobibor and other
concentration camps. These petitions follow the decision of the Supreme
Court to acquit Demjanjuk, by reaason of doubt, of the brutal offenses
attributed to Ivan the Terrible of Treblinka.
The court of three judges dismissed the petitions.
JUSTICE SHLOMO LEVIN considered in detail the reasons set out in the
opinion of the Attorney-General which argued against bringing Demjanjuk
to trial. This opinion was based on four arguments:
1) That a further trial would infringe the rule of ‘double jeopardy’ in
that Demjanjuk would be standing trial for offenses in respect of which
he had already been tried and acquitted.
2) That the Supreme Court, in acquitting Demjanjuk of charges attributed
to Ivan the Terrible of Treblinka, had stated that it did not think it
reasonable to commence new proceedings against him, in view of the
seriousness of the offenses with which he had originally been charged
and the nature and circumstances of the alternative charges.
3) That on the basis of the evidence available, it was unlikely that
Demjanjuk would be convicted of the alternative charges, and that
risking a further acquittal was not in the public interest.
4) That Demjanjuk was extradited form the United States specifically to
stand trial for offenses attributed to Ivan the Terrible of Treblinka,
and not for other alternative charges.
Justice Levin noted that under Israeli law, it was established that
authority in criminal matters is vested with the Attorney-General, who
is authorized to bring charges in any case where there is sufficient
evidence, unless he believes that there is no public interest in bringing
the case. He further noted that the Attorney-General has a wide
discretion in making such a decision and that the Court should only
intervene when the decision is so untenable as to be totally
Justice Levin went on to consider the arguments put forward by the
Attorney-General. He found that it was not unreasonable to consider that
bringing charges against Demjanjuk might infringe the ‘double jeopardy’
rule. Similarly, it was not unreasonable to estimate that chances of
convicting Demjanjuk were small, particularly in view of the fact that
none of the survivors of the Sobibor camp had identified him. Justice
Levin also held that, although the opinion of the Supreme Court as
regards further proceedings only related to the case before it, the
Attorney-General could not be criticized for giving weight to the
Court’s comments in this regard.
Justice Levin considred a number of other arguments raised by the
petitioners, among them that a failure to bring Demjanjuk to trial would
effectvely broadcast a message that the time when Nazi war criminals
could be brought to trial has passed. This, he said, was not so. The
obligation to bring Nazis and collaborators to trial remains binding on
every state, when there is evidence to substantiate the charges.
JUSTICE GAVRIEL BACH noted the difficulties involved in releasing a
defendant who may be guilty of the barbaric and bestial offenses
committed by the Nazis.
Justice Bach stated that he differed from his colleagues in that he did
not attach any significant weight to some of the arguments put forward
by the Attorney-General. Among these was the argument that the decision
of the Supreme Court acquitting Demjanjuk of the crimes attributed to
Ivan the Terrible contained a direction, express or implied, not to
institute further proceedings against him. The relevant portion of the
court’s decision, stated Justice Bach, related only to the specific
question whether the case should be referred back to the District Court.
A case should be referred back to a lower court when new evidence which
may cast light on the charge in question is presented to the court. This
was not the situation before the Supreme Court; the question was
whether the defendant should be convicted of offenses at Sobibor and
Trawniki, charges substantially different from those in the indictment
before the Court. For this reason, stated Justice Bach, the court was
unable to refer the case back to the lower court. It was not the Court’s
intention , however, to instruct the prosecutorial system on the issue
of whether to bring additional charges.
As regards the argument that Demjanjuk had been extradited specifically
to stand trial for offenses attributed to Ivan the Terrible of
Treblinka, Justice Bach found that this also was not persuasive. Even if
the consent of the United States authorities was required in order to
bring further charges, such consent could be requested. If the request
was refused, no charges need be filed and the defendant could be
Accordingly, if the decision of the Attorney-General had been based on
these considerations alone, Justice Bach stated that there would have
been grounds to intervene in the decision.
However, a number of other arguments put forward in favor of the
decision were not unreasonable. Among these was the possibility that the
‘double jeopardy’ rule would be infringed. The Attorney-General’s
concern in this regard was supported by the fact that Demjanjuk’s
presence in the Sobibor camp had been mentioned in the indictment and in
other documents submitted as evidence in the original trial and in the
appeal. Moreover, the prosecution had argued in the appeal that the
Court could convict Demjanjuk of offenses committed at Sobibor since
these had been proved before the Court, and the defendant had had an
opportunity to defend himself against these charges. Similarly, the
presence of Demjanjuk at Trawniki had also been considered by the Court.
Justice Bach also considered the argument that bringing further charges
would not serve the public interest, since evidentiary difficulties
raised the likelihood of a further acquittal. He did not feel that this
consideration was unreasonable.
Accordingly, Justice Bach concurred in dismissing the petitions. He
emphasized, however, that this should in no way be taken to imply that
war criminals can no longer be brought to trial. The Israeli legislator
placed no statute of limitations on offenses committed by Nazis and
their collaborators, and in many cases no evidentiary difficulties in
proving the identity and activiites of the defendant arise. Nazis and
collaborators should continue to be found and brought to trial, as long
as they live.
JUSTICE MISHAEL CHESHIN noted the grave responsibility that rests on the
Court when deciding whether to intervene in an administrative decision.
He also noted the inadequacy of the legal system, which is designed to
deal with behavioral norms, when confronted with the scale of the
atrocities committed by the Nazis.
Justice Cheshin then considered the decision of the Supreme Court not to
convict Demjanjuk of the charges other than those relating to offenses
committed at Treblinka. In this decision he saw more than a hint to
conclude the proceedings against Demjanjuk. He concerred with Justice
Levin in finding that the Attorney-General was entitlted to take
guidance from the comments of the court, even though strictly they
related only to the proceedings actually before the Court.
Justice Chesin stated that he saw no room to intervene in the decision
of the Attorney-General, and that he concurred with the view and
reasoning of Justice Levin.
Subject: Demjanjuk Case – Appeal Summary
Organization: The Nizkor Project, Vancouver Island, CANADA
Subject: Unofficial Summary of Supreme Court Decision: Demjanjuk