the record before us lends no support to this very serious charge, and we reject it. Witnesses fully qualified to testify on the subject stated their opinions that the Trawniki documents were authentic. Even if this documentary evidence had been rejected, the eyewitness evidence alone was found sufficient. Since the district court did not rely on the "Trawniki card", its validity is not before the court.
The prosecution team consisted of State Attorney Yonah Blatman, Michael Shaked of the Jerusalem District Attorney's Office, Dennis Goldman and Eli Gabay of the International Section of the State Attorney's Office and others. According to prosecutors, Demjanjuk had been recruited into the Soviet army in 1940, and he had fought until he was captured by German troops in Eastern Crimea in May 1942. He was then brought to a German prisoner of war camp in Chełm in July 1942. Prosecutors claimed that Demjanjuk volunteered to collaborate with the Germans and was sent to the camp at Trawniki, where he was trained to guard prisoners and was given a firearm, a uniform, and an ID card with his photograph. The principal allegation was that three former prisoners identified Demjanjuk as "Иван Грозный" (Ivan Grozny, Russian for "Ivan the Terrible") of Treblinka, who operated the diesel engines sending gas to the death chamber.
Demjanjuk testified during the trial that he was imprisoned in a camp in Chełm until 1944, when he was transferred to another camp in Austria, where he remained until he joined an anti-Soviet Ukrainian army group. At that time, Ukrainian military groups like the Ukrainian National Army were forming in western Austria. Demjanjuk claimed that a few months later he joined an anti-Soviet Russian military organization, the Russian Liberation Army (Vlasov Army) funded by the Nazi German government until the surrender of Nazi Germany to the Allies in 1945. Demjanjuk's memory regarding specifics of this period may have been impaired by severe trauma and malnutrition during his internment as a POW in Nazi concentration camps. The reliability of witnesses' memory (including issues of confabulation, stress-impaired memory, memory errors) and the psychology of witnesses' testimony (such as unconscious transference and mistaken identity, positive response bias, weapon focus effect, confirmation bias) were also key issues of expert testimony.
He survived the ordeal, and volunteered to be sent to the Trawniki concentration camp division utilized for the training of Hiwi guards recruited from Soviet POWs, later allegedly serving in Majdanek, Sobibor and Flossenbürg Nazi camps, and during the Warsaw Ghetto Uprising. Demjanjuk claims that, in early 1945, he joined the Russian Liberation Army (Russian: Russkaya osvoboditel'naya armiya, Русская освободительная армия, abbreviated in Cyrillic as РОА, in Latin as ROA, also known as the Vlasov army), led by Andrey Vlasov, which was organized by Nazi Germany to fight against the Soviet Red Army. Many Soviet prisoners of war volunteered to serve under the Nazi command in order to get out of the POW camps, where 2.8 million Soviet POWs died through starvation, exposure, and summary execution. Such non-German volunteers that served in Germany's foreign legions were referred to by the German command as Freiwillige. the German word for volunteer, and also as Hilfswilliger, literally one willing to help, often shortened to Hiwi, in auxiliary non-combat paramilitary and civilian capacities. According to Allied general Lt. Gen. Władysław Anders, by 1942, there were about a million such volunteers from the USSR alone.
One remarkable event involved a star witness for the prosecution, Eliyahu Rosenberg. Asked by the prosecution if he recognized Demjanjuk, Rosenberg asked that the defendant remove his glasses "so I can see his eyes." Rosenberg approached and peered closely at Demjanjuk's face. When Demjanjuk smiled and offered his hand, Rosenberg recoiled and shouted "Grozny!" meaning "Terrible" in Polish and Russian. "Ivan", Rosenberg said. "I say it unhesitatingly, without the slightest Shadow of a doubt. It is Ivan from Treblinka, from the gas chambers, the man I am looking at now." "I saw his eyes, I saw those murderous eyes", Rosenberg told the court, glaring at Demjanjuk. Rosenberg then exclaimed directly to Demjanjuk: "How dare you put out your hand, murderer that you are!" It was later revealed with great embarrassment for the prosecution that Eliyahu Rosenberg had previously testified in a 1947 deposition that "Ivan the Terrible" had been killed during a prisoner uprising.
Demjanjuk, his wife and their child arrived in New York City aboard the USS General W. G. Haan on 9 February 1952. On 14 November 1958, Demjanjuk became a naturalized citizen of the United States. He and his wife, whom he met in a displaced persons' camp, moved to Indiana with their daughter and then to the Cleveland suburb of Seven Hills. He became a United Auto Workers (UAW) diesel engine mechanic at the nearby Ford automobile factory where a friend from back in Regensburg, Ukraine, had found work. Demjanjuk and his wife, who began work at a General Electric facility, later had two more children.
In 1975, Michael Hanusiak, an Editor of Ukrainian News, presented a list of ethnic Ukrainians living in the United States suspected of collaborating with Germans in World War II to what was then the US Immigration and Naturalization Service; Demjanjuk's name was on that list. Soviet newspapers and archives had provided the names during Hanusiak's visit to the Soviet Union in 1974. Hanusiak also handed over a purported copy of a Nazi ID card issued to Demjanjuk at Trawniki.
In August 1977, the Justice Department submitted a request to the United States District Court for the Northern District of Ohio that Demjanjuk's citizenship be revoked on the basis that he had allegedly concealed his involvement with Nazi death camps on his immigration application in 1951. The request followed a lengthy investigation by the INS after Demjanjuk was identified by five Holocaust survivors on a photo spread used in the investigation of Feodor Fedorenko, a Treblinka concentration camp guard. Fedorenko was later extradited to the USSR on his admission that he was such a guard and that he lied on his US immigration applications.
During the trial, he was again identified on the photo spread by Otto Horn, a former German SS guard at Treblinka. This testimony became controversial later because it was discovered by Yoram Sheftel that on 14 November 1979, Otto Horn was interviewed by the newly created US Department of Justice Office of Special Investigations (OSI). The OSI showed him the picture of Demjanjuk, but at that time Horn failed to identify Demjanjuk as Ivan the Terrible, or even as a guard from Treblinka, or as anyone he ever knew in the SS forces. The OSI report regarding Otto Horn's failure to identify John Demjanjuk as Ivan the Terrible would have been exculpatory, but was withheld by the OSI.
Yoram Sheftel, the Lawyer who represented Demjanjuk during the Israel trial in the 1980s, criticized the German court for conducting a show trial. "There was a shameful farce here", he said. "Certainly the German court did not believe its own ruling." "Nothing has changed since then", he said. "Even during the trial in Germany, there was not one person who testified that Demjanjuk was Ivan from Sobibor, by virtue that he was seen there, and as such the conviction is a farce." Sheftel said he was convinced that the Israeli Supreme Court's acquittal and ruling regarding Demjanjuks innocence was correct. Sheftel said there was "no credible evidence to produce any crime against Demjanjuk to convict him on any charge connected to the Holocaust."
The appeal was dismissed on 31 October 1985. The Trawniki card was later authenticated in subsequent trials.
Demjanjuk was at first represented by N.Y. attorney Mark J. O'Connor, but fired him in July 1987 just a week before he was scheduled to testify at his trial. In his place, Demjanjuk hired Israeli trial Lawyer Yoram Sheftel whom O'Connor had hired as co-counsel. One of the reasons why Yoram Sheftel defended Demjanjuk was that he was convinced he was not at Treblinka. The defense originally used testimony from other Ukrainian auxiliary police (such as Ignat Danielchenko) to place Demjanjuk in different camps (specifically Sobibor) to prove (and they did) that he was not at Treblinka, however halfway through the trial, Sheftel subtly moved away from this method, fearing Future prosecution on other charges. Most Trawniki-trained camp guards with the exception of Eastern-European Volksdeutsche did not know German. The Volksdeutsche who relayed the orders for them were predominantly from ethnic German colonies in Ukraine and Russia, or were taught German. John Demjanjuk had no significant fluency in German.
On 18 April 1988, the court found Demjanjuk "unhesitatingly and with utter conviction" guilty of all charges and being Ivan the Terrible. One week later it sentenced him to death by hanging. Demjanjuk was placed in solitary confinement during the appeals process.
The unique nature of the legal argument he was convicted under has been noted. Christiaan F. Rüter, Professor of Law and expert on NS trials in Germany, who researched the subject at the University of Amsterdam for 40 years, expressed reservations against the commencement of proceedings stating that to him "it is a complete mystery, how anyone who knows the German jurisdiction up to now, would be able to assume that Demjanjuk could be sentenced based on the given evidence." The trial has been criticized for its lack of evidence other than an interview summary supposedly conducted by the Soviet Union KGB of another prison guard who died some time in the 1990s, and a Soviet-supplied ID card from the Trawniki camp that a 1985 report from the Cleveland office of the FBI concluded was "quite likely" a KGB forgery.
On 5 March 1992, German magazine Stern published a claim that the Israeli prosecution concealed crucial information about the Travniki card being a forgery, and that the Israelis had the full co-operation of the German police and the Ministry of Justice. The article stated that on 23 January 1986, three weeks before the trial, Superintendent Amnon Bezaleli took the original Trawniki card for examination at the German police force's main criminal-identification laboratory at the Federal Criminal Police Office (BKA) in Wiesbaden. Bezaleli was the prosecution's central witness on the Trawniki document. According to Stern, the BKA, after a cursory examination, told Bezaleli that this was a counterfeit document forged in a more or less amateur way. The laboratory's preliminary analysis addressed the following points: the face in the photograph, which the prosecution identified as Demjanjuk's, had been pasted onto the uniform using photomontage techniques; the picture was not originally attached to the card, but had been transferred from another document; there was no match between the seal on the Travniki picture and that on the document itself. The analysts did not have time to compare Demjanjuk's known signature with the Demjanjuk signature on the Travniki document. Dr. Louis Ferdinand Werner, head of the BKA, speculated to Bezaleli in a private conversation that the card was counterfeit. Bezaleli consulted people from the state prosecutor's office in Jerusalem, then instructed Werner to stop all tests on the card.
Demjanjuk was released to return to the United States. In 1993, the Sixth Circuit Court of Appeals ruled that Demjanjuk was a victim of fraud on the court, as United States federal government trial lawyers with the Office of Special Investigations had recklessly failed to disclose evidence, and the extradition order previously granted was rescinded. In a report submitted to the Sixth Circuit prior to the Israeli acquittal, federal judge Thomas A. Wiseman, Jr. concluded that American federal officials had erred in asserting that Demjanjuk was Ivan the Terrible, but that evidence instead pointed to Demjanjuk being a lesser SS agent. After the Court of Appeals remanded the matter to Judge Wiseman, Judge Wiseman dismissed the denaturalization petition proceedings in 1998, effectively restoring Demjanjuk's citizenship. Transcripts of Demjanjuk's 1988 trial, and the character of Demjanjuk himself, appear in Philip Roth's 1993 novel Operation Shylock.
Yoram Sheftel's 1994 book The Demjanjuk Affair: The Rise and Fall of a Show-Trial became an immediate best-seller in Israel. In reviewing many issues pertaining to the law, Sheftel revealed serious errors, deliberate fabrications, and "fraud on the court" perpetrated by the US Department of Justice Office of Special Investigations (OSI) lawyers in their prosecution of the Demjanjuk case.
On 20 February 1998, a Federal District Court judge, Paul Matia, ruled that Demjanjuk's citizenship could be restored. On 19 May 1999, the Justice Department filed a new civil complaint against Demjanjuk. No mention was made in the new complaint of the previous allegations that Demjanjuk was Ivan the Terrible. Instead, the complaint alleged that Demjanjuk served as a guard at the Sobibór and Majdanek camps in Poland under German occupation and at the Flossenburg camp in Germany. It additionally accused Demjanjuk of being a member of an SS-run unit that took part in capturing nearly two million Jews in the General Government of Poland. He was put on trial again in 2001. In February 2002 Judge Matia revoked Demjanjuk's US citizenship. On 21 February 2002, Judge Matia ruled that Demjanjuk had not produced any credible evidence of his whereabouts during the war and that the Justice Department had proved its case against him. On 30 April 2004, a three-judge panel of the 6th US Circuit Court of Appeals ruled that Demjanjuk could be again stripped of his US citizenship because the Justice Department had presented "clear, unequivocal and convincing evidence" of Demjanjuk's Service in Nazi death camps. The United States Supreme Court declined to hear his appeal in November 2004.
On 28 December 2005, an immigration judge ordered Demjanjuk deported to Germany, Poland or Ukraine. In an attempt to avoid deportation, Demjanjuk sought protection under the United Nations Convention against Torture, claiming that he would be prosecuted and tortured if he were deported to Ukraine. Chief US Immigration Judge Michael Creppy ruled there was no evidence to substantiate Demjanjuk's claim that he would be mistreated if he were sent to Ukraine.
On 22 December 2006, the Board of Immigration Appeals upheld the deportation order. On 30 January 2008, the Court of Appeals for the Sixth Circuit denied Demjanjuk's request for review. On 19 May 2008, the US Supreme Court denied Demjanjuk's petition for certiorari, declining to hear his case against the deportation order. The Supreme Court's denial of review meant that the order of removal was final; no other appeal was possible.
On 10 November 2008, German federal prosecutor Kurt Schrimm directed prosecutors to file in Munich for extradition, since Demjanjuk once lived there. On 9 December 2008, a German federal court declared that Demjanjuk could be tried for his alleged role in the Holocaust. Some three months later, on 11 March 2009, Demjanjuk was charged with more than 29,000 counts of accessory to murder of Jewish prisoners at the Sobibor extermination camp. The German foreign ministry announced on 2 April 2009 that Demjanjuk would be transferred to Germany the following week, and would face trial beginning 30 November 2009.
On 30 November 2009, Demjanjuk's trial, expected to last for several months, began in Munich. Demjanjuk arrived in the courtroom in a wheelchair pushed by a German police officer.
On 24 February 2010, a star witness for the prosecution, Alex Nagorny, who agreed to serve the Nazi Germans after his capture, raised doubts about the case against Demjanjuk, telling the court the man on trial in Munich state court didn't look like his fellow guard at the Flossenbürg camp. (There were three different former guards named Nagorny and it was not immediately clear whether the man who testified in the Demjanjuk trial was the same who allegedly served in Treblinka.) Nagorny told the Munich state court that he knew Demjanjuk from the Flossenbürg camp. "We were brought there and Ivan was already there", the 92-year-old testified, referring to Demjanjuk by his birth name. "He was a guard there. He did the same thing I did. I did not know him before Flossenbürg." Nagorny has previously told investigators he arrived at Flossenbürg with Demjanjuk. Nagorny testified he lived with Demjanjuk in a barracks room in Flossenbürg and then shared an apartment with him in Landshut, Germany, after the war. When asked to identify Demjanjuk in the courtroom, Nagorny could not. Nagorny walked over to the bed where Demjanjuk lay and looked at him closely. When Demjanjuk removed the sunglasses that he was wearing, Nagorny said quickly: "That's definitely not him – no resemblance." Nagorny also cast doubt on the provenance of the Trawniki card testifying that in the final days of the war the Trawniki guards destroyed their cards before being taken prisoner by the Americans.
The feasibility of mistaken identity was bolstered when on 11 June 2011, the Kyiv Post reported that in his home village of Dubovye Makharintsy, Vinnytsia Oblast of Ukraine, records show that two Ivan Demjanjuks served in the Soviet Red Army in WW II. Reportedly, one Ivan Andriyevych Demjanjuk committed suicide in 1971, after he learned that Soviet KGB agents had come to question him. According to a Red Army veteran and witness, in the early 1980s, the KGB came to Dubovi Makharyntsi and took all of John Demjanjuk's family photos and letters he had written to his mother and sister, who remained in the village after the war.
In early June 2012, Ulrich Busch, Demjanjuk's attorney, filed a complaint with Bavarian prosecutors claiming that the pain medication Novalgin (known in the US as metamizole or dipyrone) that had been administered to Demjanjuk helped lead to his death. Busch asked prosecutors to open an investigation of five doctors and a nurse on suspicion of manslaughter and causing bodily harm. The investigation was closed in November 2012 after no evidence emerged to support the allegations.
On 6 April 2013 the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes announced it would charge 50 former guards at Auschwitz concentration camp with accessory to murder. The investigation lacked direct witnesses, but the agency hoped that available written records would suffice in court, as was the case with Demjanjuk. In April 2015, the trial of Oskar Gröning began.
The court judgment addressed evidence against Demjanjuk that was not included in his indictment. The judges agreed that Demjanjuk most likely served as a Nazi Wachmann (guard) in the Trawniki unit and had been posted at Sobibor extermination camp and two other camps. Evidence to assist this claim included an identification card from Trawniki bearing Demjanjuk's picture and personal information — allegedly found in the Soviet archives – in addition to German documents that mentioned Wachmann Demjanjuk and mentioned his date and place of birth. The 1949 statement of another Wachmann (Danilchenko), identified a Demjanjuk in passing as someone who allegedly served with him at Sobibor in 1944 (a year after the camp was razed) and noted he had been born the same year as himself (1923). In 1979, Danilchenko made another statement adding that Demjanjuk was allegedly three years older than himself and had been in Sobibor in 1943. None of Danilchenko's allegations were ever subjected to cross-examination. The alleged Trawniki certificate also implied that he served at Sobibor, as did the German orders of March 1943 posting the Trawniki unit to the area.