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Communiqué on the Spanish ruling ordering the prosecution and the handing over of John Demjanjuk for crimes against humanity and complicity in genocide at KL Flossenbürg

- Background:

On September 17th, 2009, the Central Investigating Court (JCI) No. 2 of the National Court in Spain issued a ruling bringing formal charges against Johann Leprich, Anton Tittjung and Josias Kumpf for complicity in Genocide and Crimes Against Humanity pursuant to articles 607 and 607 bis of the Criminal Code.

In its decision issued on September 18th, 2009, the Court resolved to address an International Rogatory Commission to the competent authorities in the Federal Republic of Germany (Munich Court) in accordance with the European Convention on Mutual Assistance in Criminal Matters adopted at Strasbourg on April 20th, 1959, and the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between Member States, and articles 48.1 and 53.1 of the Convention Implementing the Schengen Agreement, in order to be informed of the facts for which the accused, John Demjanjuk (Iván Nikolaiewich Demjanjuk) was being prosecuted before the German judicial instances, in case they could be related to those that were being investigated in Spain.

The Munich Prosecutor's Office responded to the Rogatory Commission on June 7th, 2010 stating that the facts being investigated in Germany were different, their being focused on the activities of the accused Demjanjuk in the Sobibor concentration camp (Poland) in 1943 for which he was accused in the proceedings 115Js 12496/08.

In its decision issued on July 1st, 2010, the Court ordered the documentation that had been received from the German authorities in response to the Rogatory Commission to be sent to the Public Prosecutor and to the accusing parties. The accusing parties represented by Equipo Nizkor replied by filing on July 13th, 2010 a writing requesting the Court to bring formal charges against John Demjanjuk, as well as to adopt the relevant precautionary measures and to issue the corresponding European Arrest Warrant so that he be delivered to Spain by the German authorities.

Following the writing submitted by Equipo Nizkor, the Spanish National Court's Prosecutor issued a favourable report on November 17th, 2010 stating that in light of the response obtained from the German authorities through the Rogatory Commission, the Prosecutor's Office considered that the Court should grant the plaintiffs' request.

- Ruling ordering the prosecution and the handing over of John Demjanjuk issued by JCI No. 2 of the National Court on January 7th, 2011:

Based on the aforementioned judicial background, the judge in charge of JCI No. 2 issued a ruling on January 7th, 2011 ordering that formal charges be brought against John Demjanjuk and that he be handed over to the Spanish authorities, since: "In light of the proceedings, it can be asserted that during the Second World War... John Demjanjuk (Iván Nikolaiewich Demjanjuk) was a member of the Totenkopf SS, and served as an armed guard in places dedicated to the persecution of persons on political, ethnic and racial grounds, inter alia, namely the concentration camp Flossenbürg (Germany)". "In view of the evidentiary documentation brought to the proceedings by the plaintiffs, especially the documents annexed to the writing filed on October 28th, 2008: General Statistical Chart: Nationality in relation to the cause of Detention of Prisoners in Flossenbürg , prepared by United States authorities at the end of the Second World War, where from the row dedicated to Spanish prisoners, it can be observed that, according to this chart, there were 155 Spanish prisoners at Flossenbürg, of whom 60 died (Ref. National Archives and Records Administration (NARA), Doc. No-393); list of Spanish inmates at the Flossenbürg concentration camp, which has been retrieved from the documentation deposited with the NARA, particularly from the four volumes prepared by the US 3rd Army Corps and which contain, among other documents, the list of inmates at Flossenbürg (Ref. NARA 238/110/13/26/01) and; by 8 files obtained from the International Tracing Service (ITS) corresponding to 8 Spanish prisoners at Flossenbürg", there exists a series of circumstancial and sufficiently accredited facts that lead the judge in charge of JCI No. 2 to dispose as follows:

    "CHARGES ARE BROUGHT, in this case and subject to further conclusions, against JOHN DEMJANJUK for complicity in Genocide and Crimes Against Humanity as laid out in the factual background of this ruling. [...]

    The Court orders that the accused be placed under provisional imprisonment without parole and with visiting rights. Due to the accused's currently being in Germany and being tried in the case 115JS12496/08 before the competent judicial instances in Munich, the Court orders that a European Arrest Warrant be issued and delivered directly to the competent authority for the purpose of its execution, and to the Office SIRENE ESPAÑA in the manner pursuant to Law 3/2003 [...]"

The resolution of the Spanish Court is therefore in harmony with what we informed in our communiqué of September 22nd, 2009 in relation to the now accused John Demjanjuk: At that time, given the various and confusing explanations that had appeared in the media with respect to the procedural status of the case against John Demjanjuk, we noted that:

"[T]he investigating Judge has addressed a Rogatory Commission to the German legal authorities having jurisdiction over him since 12th May 2009 seeking information as to the acts of which he is accused in that jurisdiction, so he can then determine whether or not they are the same as those which are the subject of this lawsuit.

We understand that the facts are different, and that the Munich Prosecutor's Office accuse him of acts of murder committed in the extermination camp of Sobibor (racial extermination camp) whereas the case before the National Court concerns acts committed in KL (Konzentrationslager) Flossenbürg against Spanish nationals constituting crimes against humanity.

Thus, theoretically, if the acts are different, it would be possible to order his arrest and once tried in Germany he could be placed at the disposition of the Spanish legal authorities to be tried for the acts of which he is accused here."

- The non-coincidence of the facts being under prosecution in Germany and Spain having been confirmed, and in view of this ruling of the Spanish National Court, Equipo Nizkor reiterates the statements expressed in its communiqué dated September 22nd, 2009 with relation to the State and Government of Spain:

1) We agree with the procedural steps which have been taken, which signify acceptance by the Spanish justice system of the fact that there were more than 7,000 Spaniards who, because of their Republican views, became victims of National Socialism and its system of forced labour and extermination camps, in particular the camps of KL Mauthausen, Sachsenhausen and Flossenbürg.

2) This is a recognition of all the other nationalities who were victims of war crimes and crimes against humanity at KL Flossenbürg, specialized in the extermination of political and social prisoners.

3) This is a recognition of the victims of genocide perpetrated against Jews, gypsies and Slavs, among other races and ethnicities, as well as against social prisoners who were persecuted and eliminated under the racial laws of the III Reich in the concentration camps of Sachsenhausen and Flossenbürg.

4) We hope that these proceedings serve to convince the Spanish State to modify its position, unchanged since it was adopted by the Franco regime, which provides legal protection to National Socialist and Fascist war criminals.

5) Independently of the outcome of these proceedings and whether or not there is a judgement which constitutes a genuine legal act of reparation to the few survivors and their families, we hope that the Government, and in particular Congress and the political parties take note of the legal and moral incongruity which results from the enactment of the so-called "Law of Memory" which recognises the legality of the Franco regime and places beyond the law crimes against humanity committed by Spaniards within Spanish territory and which stands in the way of any legal recognition of Spanish collaboration with National Socialism before, during and after the Second World War, making the State of Spain an ignominious "exception".

Gregorio Dionis
President of Equipo Nizkor
Madrid and Charleroi, January 12th, 2011

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