Communiqué on the issue of arrest warrants for three members of the SS Totenkopf who served in concentration camps with Spanish victims
On 17th September 2009 the presiding judge of Central Investigating Court No. 2 of the National Court in Madrid issued a decision in reference to Case No. 56/2009-C to indict Johann Leprich, Anton Tittjung and Josias Kumpf. In the same decision he ordered their search and capture and their pre-trial detention.
The investigating Judge authorised the issue of an International Arrest Warrant through the Commissioner of Police of the National Central Bureau of INTERPOL, to effect the arrest of the defendants located in the United States, Johann Leprich and Anton Tittjung.
The decision also orders the issue of a corresponding European Arrest Warant (EAW) through the Police Commissioner of the SIRENE Office in Spain (International Police Co-operation Unit) to arrest the defendant located in Austria, Josias Kumpf, who was deported there by the United States on 19th March 2009.
This decision, for the first time in the Spanish legal system, enables the commencement of a judicial investigation to determine the responsibilities of Johann Leprich, Anton Tittjung, Josias Kumpf and Iwan (John) Demjanjuk, members of the SS Deathīs Head Batallion (SS Totenkopf-Sturmbann).
Central Investigating Court No. 2 of the National Court admitted this lawsuit concerning Spanish victims of Nazi concentration camps in its decision of 17th July 2008, a lawsuit prepared by Equipo Nizkor and filed on behalf of various individual plaintiffs on 19th June 2008.
The decision to admit the case for investigation was the direct consequence of a report of the Prosecutor's Office of the National Court dated 9th July 2008 which agreed that the Spanish courts had jurisdiction in this case.
As we advised in our earlier communiqué of 20th March 2009, Equipo Nizkor has been appointed as representative of the victims and their relatives who, for the first time in 60 years, come before the justice system of Spain. Until now, the State has refused to recognise these victims and in most cases, it has not even returned to them the Spanish nationality which was taken from them (under the Franco regime). Some of the plaintiffs in this case are even forced to litigate before the Spanish courts with the nationality that was granted them by countries such as Belgium, Austria and France. There are a total of 18 individual plaintiffs in this case so far.
The Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime [Asociación de Familiares y Amigos de Represaliados de la II República por el Franquismo (AfarIIREP)] and the Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile - AGE (Archive of War and Exile)[Asociación para la creación del Archivo de la Guerra Civil, las Brigadas Internacionales, los Niños de la Guerra, la Resistencia y el Exilio Español (AGE)] have also given Equipo Nizkor authority to represent them as plaintiffs in this action..
The State Federation of Fora for Memory, Politeia and the Foundation Action Pro Human Rights (Fundación Acción Pro Derechos Humanos) are also admitted as plaintiffs in these proceedings.
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Given this important development in the proceedings Equipo Nizkor makes the following statement:
I. With reference to the procedural steps taken by Central Investigating Court No. 2 of the National Court:
1) With respect to the arrest warrants, we trust that the Government of the United States of America will comply with its own national legislation, particularly with section 241 (8 U.S.C. 1231) of the Immigration and Nationality Act, and § 241 (b)(2)(E)(vii) thereof as well as with existing agreements of mutual legal co-operation, respecting its duty of justice. We also trust that it will apply the same standards as it considered in handing over John Demjanjuk to the Public Prosecutor of Munich on 12th May 2009 as this will lead to the efficient hand over of Johann Leprich and Anton Tittjung.
2) Although we understand that Josias Kumpf is subject to some form of supervision by the Austrian authorities, we are surprised and concerned by the statements of the spokesperson for the Austrian Justice Ministry, Mrs. Katharina Swoboda which appear in the Spanish and international press, and which fail to recognise international law or the fact that crimes such as war crimes, crimes against humanity and genocide are not subject to prescription.
These statements also fail to recognise the applicable law concerning the European arrest warrant which logically has been issued in this case.
3) We respect the right to a defence which is the right of all persons accused of a crime as well as the right to due process and to all procedural guarantees but we are aware that the arguments used in this type of case often include:
a) the use of old age as a form of legal defence, an argument with no legal merits whatever.
b) the use of health reasons, including mental health or insanity, as a basis to avoid indictment or trial, as alleged by the defence of John Demjanjuk simultaneously in the German and American courts in appeals which were rejected in both countries.
Although these arguments can be legitimately used in the exercise of a right to a defence, we advocate that they should not be raised as a means of support for the defendants by mobilising emotions which are contrary to justice.
4) Given the various and confusing explanations that have appeared in the media with respect to the procedural status of the case against John Demjanjuk, who is also a defendant in this case, we note that the 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 Prosecutorīs 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 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.
II. With reference to the Spanish State and the Government:
5) 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 y Flossenbürg.
6) This is also a recognition of all the other nationalities who were victims of war crimes and crimes against humanity at KL Mauthausen, including, Albanians, Argentinians, Austrians, Belgians, British, Bulgarians, Chinese, Cubans, Czechoslovakians, Dutch, French, Estonians, Finns, Germans, Greeks, Hungarians, Italians, Latvians, Lithuanians, Luxembourgers, Norwegians, Poles, Portuguese, Rumanians, Russians, Swedes, Swiss, Turks, Uruguayans and Yugoslavians, who were exterminated because of their political views. There was also a large group of Jews from various countries at that time who, because of their political ideas, were sent to this camp which was classified specifically for the extermination of political prisoners. In addition, Russian, French, North American and English officers who were prisoners of war were sent to Mauthausen to be killed.
7) This is also 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.
8) 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, a fact which has been denounced by various organizations and in particular, in the annual reports of the Simon Wiesenthal Center in Jerusalem.
9) 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".
President Equipo Nizkor
Madrid, 22nd September 2009
This document has been published on 22Sep09 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.