About the closing of the last possible case for the Spanish victims of the WWII extermination camps as a result of the recent amendment to the Organic Law of the Judicial Power
The Szehinskyj Case
By disclosure of the relevant documents, we are for the first time making public the details of the Szehinskyj Case which was submitted to the National Court within the existing proceedings against various members of the SS Totenkopf; this is because the future of this case and the proceedings as a whole are an example of the problem of impunity in Spain and therefore they should be seen as further strengthening of the model of impunity and not as a matter of "universal justice".
On 15th March 2014 the Organic Law 1/2014 of 13th March concerning universal justice entered into force, amending Organic Law 6/1985 of the Judicial Power (of 1st July).
The new wording of Article 23.4 LOPJ in relation to crimes against humanity, genocide and war crimes is as follows:
"4. Likewise, the Spanish courts will be competent to hear cases where the acts were committed by Spanish nationals or foreign nationals outside national territory if, according to Spanish law, they are capable of being characterised as one of the following crimes and when they comply with the specified conditions:
a) Genocide, crimes against humanity or against persons or protected property in the event of an armed conflict provided always that the proceedings are brought against a Spanish citizen or a foreign citizen who is habitually resident in Spain, or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities."
The sole Transitory Provision of this Law provides:
"Those cases which are pending at the moment that this Law comes into force for the crimes [crimes against humanity, crimes of war, etc.] to which this Law refers shall be discontinued until they can be shown to have complied with the provisions of the same"
We have reason to believe that the real motive underlying this recent amendment to the Organic Law of the Judicial Power [Ley Orgánica del Poder Judicial (LOPJ)] which limits the jurisdiction of the Spanish courts and effectively closes several cases, is the opposition to the above proceedings, known as the "Mauthausen Case". This is the ONLY case which is procedurally able to proceed to trial and judgement, and the fact that this has not happened to date is the result of a deliberate decision by the Prosecutor's Office of the National Court and the Judge in the case; as of a year ago the necessary procedural requirements had been met to ensure that one of the accused was brought onto Spanish territory and was made available to Spanish justice. (As is well known, there is no system of trial in contempt or in absentia in Spain and therefore it is only possible to bring a case to trial if the accused is/are available to the Spanish judicial authorities).
Theodor Szehinskyj lives in the United States, although his US citizenship has been revoked following denaturalisation proceedings based on his past as a Nazi and his participation in the persecution carried out by the German National Socialist Government against prisoners because of race, religion, national origin, or political opinion during the period in which he served as an armed concentration camp guard in the Second World War.
Among other places, he served as a SS Totenkopf guard at the Sachsenhausen concentration camp (located in the outskirts of the city of Oranienburg, about 29 km to the North of Berlin). In this camp, hundreds of Spanish nationals were imprisoned, including Francisco Largo Caballero, the historic leader of the Spanish Socialist Workers Party (Partido Socialista Obrero Español) and the General Workers Union (Unión General de Trabajadores). In 1936 and 1937 Caballero served as the Prime Minister of the Second Spanish Republic during the Spanish Civil War.
The accusing parties in the proceedings, represented by Equipo Nizkor, sought to widen the case with respect to Theodor Szehinskyj by means of a submission filed on 16 November 2011 in the National Court on the basis of the violation of the laws and customs of war in effect as of the date of the acts, and for systematic acts of murder, persecution on political grounds, slavery, illegal imprisonment, torture and other inhuman acts committed against Spanish nationals -both as members of the civilian populations and as prisoners of war-, all of which amount to crimes against humanity.
The head of Central Court No. 2 of the National Court, Judge Ismael Moreno, issued preliminary charges against him on 7th December 2011 and also issued a Letter Rogatory to the United States, so that the US authorities could certify as to the evidentiary documents submitted against the defendant.
On 11th September 2012, some days after the US authorities had, after several months, responded to the court confirming the evidentiary documents, the accusing parties represented by Equipo Nizkor sought the indictment of the defendant and the issue of an International Arrest Warrant against him.
On 20th November 2012, the parties represented by Equipo Nizkor submitted a request to the presiding judge of Court No. 2 that he ordered the Spanish General Directorate of Consular Affairs to issue travel documents in the name of the accused "given that he is no longer a citizen of the United States, his whereabouts in that country are known and he is subject to 'removal' proceedings", proceedings which consists of simply handing over the accused and not of an extradition process.
On 26th February 2013, the presiding judge of Court No. 2 issued an order do indict Theodor Szehinskyj, but instead of ordering an International Arrest Warrant as he had done in respect of other defendants in the same case, he ordered "the communication to the Headquarters of the Spanish Police and the Civil Guard that they proceed to carry out the search and capture of the accused, his detention at the disposition of this Court and the issue of the corresponding summonses" notwithstanding that it is clear from the proceedings that the accused is located in the United States and "has been the subject of a removal order by the judicial authorities of that county and could be removed to Spain."
The significance of this is that, at least from the date of the order of indictment against Theodor Szehinskyj, the said Court could have obtained the handover of the accused to the Spanish authorities by simply ordering the General Directorate of Consular Affairs to issue a valid travel document, and there is no doubt of this given "a written communication of March 2013, whereby the US Embassy in Spain confirmed (to the Court) that upon receipt by the US authorities of the corresponding travel document the accused can be removed to Spain". Once the travel documents had been issued, the handover of the accused could have occurred within approximately two months.
Since then, both the Prosecutor's Office of the National Court and the Court have resorted to all sorts of procedural delaying tactics, and this is particularly grave in light of the advanced age of the victims, the family members and of course of the accused himself.
Not only does this case concern Spanish victims, it is also related to Spain's history: the alliance of Spain with the Axis Powers during the Second World War and the extermination of Spanish nationals, particularly in the camp of Mauthausen.
A particularly cruel aggravating factor related to the closing of this case, required by Law 1/2014, is that given the age of the victims and the perpetrators, the law effectively closes the door to any possibility of historic justice in Spain for these crimes.
On April 14th, 2014, coinciding with the anniversary of the proclamation of the Second Republic in Spain (1931), Judge Ismael Moreno issued a ruling closing the case and transferring the case record to the Criminal Chamber of the National Court, for it to determine whether the present proceedings comply with the new provisions of the LOPJ.
In any event the accusing parties represented by Equipo Nizkor will make all necessary appeals and seek all possible remedies, including possibly before the Constitutional Court. We say "possibly" because Government capacity to engage in legal and political manoeuvring is enormously imaginative when it comes to maintaining the model of impunity.
It is an act of disrespect for the victims of Francoism and one which continues to protect the National Socialist and Francoist war criminals; these actions, in an essentially definitive and manifestly inequitable way, foreclose any legal accountability for the crimes committed against the Spanish republicans during the Second World War.
Together with the Amnesty Law, the Law of "Memory" and the doctrinal argument of impunity existing at all levels of the judicial hierarchy and within almost all the political parties, any opportunity for justice is now closed.
It matters not that international agreements and applicable international criminal law prevail over the Constitution. The fact that the Constitution guarantees the right to effective legal protection matters not. Over and above this falsely protective discourse is the defence of the Francoist regime and its leaders and, naturally, of its National Socialist allies.
This is the further perfection of what we described in our 2004 report as the "Spanish model of impunity" with all its iniquity, pitilessness and inhumanity.
Effective judicial protection vs universal justice
We should remember that the "Mauthausen case" is based on the Spanish nationality of the victims and that is not a question of "universal justice" but of "effective judicial protection"; in other words, the right of access to justice and to the protection of the judges and the courts which every citizen is meant to have, as is provided for under article 24 of the Constitution currently in effect.
It is precisely the right to effective judicial protection which this law, submitted, and diligently processed in Parliament, by the Government of the Partido Popular (Popular Party), has just ended and not universal jurisdiction which ceased to exist for the Spanish courts following the reform of the Organic Law of Judicial Power carried out by the Government of Rodriguez Zapatero in 2009. (Organic Law 1/2009, of 3rd November, complementary to the Law for procedural reform to institute the new judicial Office by which the Organic Law of Judicial Power of 6/1985 of 1st July was amended).
The majority of the cases that will now be closed (about 12 according to media information) are based on the Spanish nationality of the victims and not on universal jurisdiction, but the only case that was at the point where it could proceed to trial was that of the republican victims of the National Socialist extermination camps of Mauthausen, Sachsenhausen and Flossenbürg.
Charleroi and Madrid, 18 March 2014
Background to the proceedings:
On 19th June 2008, a criminal lawsuit was presented in the National Court of Madrid on behalf of several survivors and families of Spanish victims of the National Socialist regime. (List of individual plaintiffs in the case of the Spanish victims of the extermination camps of the Third Reich available at: http://www.derechos.org/nizkor/espana/doc/plaintiffs.html). Owing to the type of proceedings initiated, this case represents in particular the Spanish victims of the Concentration Camps ("KL" - Konzentrationslager) of Mauthaussen, Sachsenhausen y Flossenbürg.
After more than sixty years, these individuals came before the Spanish justice system for the first time, a system which has not hitherto acknowledged them as victims. In fact, as the Spanish state has never actually recognised its collaboration with the National Socialist regime of the Third Reich, no representative of the Spanish state has apologised to the victims.
The complaint alleges that acts constituting crimes against humanity were committed against Spanish nationals and the nationals of other countries in the National-Socialist camps of Mauthausen, Sachsenhausen and Flossenbürg, and seek the indictment and handover of Johann Leprich, Anton Tittjung, Josias Kumpf and John Demjanjuk, (all of whom were members of the criminal organisation of the SS Totenkopf), to be tried by the Spanish Courts.
All four defendants had their naturalization certificates revoked by the competent U.S. courts on the grounds that they had obtained their citizenship illegally by concealing their participation in the persecution of persons because of race, religion, national origin, or political opinion under the direction of, or in association with, the Nazi government of Germany. Hence, all of them were subjected to removal proceedings within the U.S. (See INA Sections 241 [8 U.S.C. 1231], particularly § 241 (b)(2)(E)(vii) and § 241 (b)(3); 237(a)(4)(D) [8 U.S.C. 1227] and 212(a)(3)(E)).
On 9th July 2008, the Public Prosecutor's office of the National Court issued a report supporting the admission of the case, and determining that the Court had jurisdiction over it (see: http://www.derechos.org/nizkor/espana/doc/prosecutor3.html). The case was then admitted to the Central Investigative Court No. 2 of the National Court on 17th July 2008. (see “Text of the Ruling declaring admissible the complaint in the case of the Spanish victims of the National Socialist camps” at http://www.derechos.org/nizkor/espana/doc/klm10en.html and Equipo Nizkor's Communiqué at http://www.derechos.org/nizkor/espana/doc/klm12en.html).
On 30th March 2009 Judge Ismael Moreno, head of Central Court of Investigation No. 2, took the testimony of two Spanish survivors of the extermination camp Mauthausen. This was the first time in over 60 years that Spanish victims of National-Socialism have testified in Spanish jurisdiction.(see http://www.derechos.org/nizkor/espana/doc/witnesses.html)
On September 17th, 2009, the Court 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 the same decision, the Court ordered the issuance 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. (See: http://www.derechos.org/nizkor/espana/doc/klm32en.html)
The decision also ordered the issuance of the 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, a removal that Austria accepted as a consequence of the proceedings in Spain. He is presumed dead as of 15th October 2009 at the Hospital of Wilhelminen, in Vienna (Austria).
Regarding Johann Leprich and Anton Tittjung, their respective medical reports have not allowed their removal to Spain.
On January 7th, 2011, the Court issued a ruling 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... 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)". (See: http://www.derechos.org/nizkor/espana/doc/demjanjuk32en.html)
Regarding John Demjanjuk, on 19th June 2008, the same day that Equipo Nizkor filed the initial lawsuit in Madrid on behalf of several survivors and victims' family members, the German authorities announced their interest in seeking the handover of Demjanjuk from the United States. John Demjanjuk arrived at Munich airport on flight N250LB on Tuesday 12th May 2009 after having been deported from the United States.
Following Demjanjuk's handing over to the German authorities, Radio Nizkor broadcasted a programme in May 2009 clarifying certain facts relating to the existing evidence, much of it of an undisputable nature, and summarised Demjanjuk's background relating to various National Socialist extermination camps. (See Radio Nizkor's "Demjanjuk's detention leads to a reassessment of impunity in Europe" at: http://www.derechos.org/nizkor/espana/doc/demjanjuken27.html).
The Prosecutor's Office in Munich brought formal charges against Demjanjuk and issued the corresponding arrest warrant in March 2009 for complicity in the assassination of approximately 28,000 Jews in Sobibor concentration camp located in occupied Poland.
In parallel, the proceedings against John Demjanjuk in Madrid continued to take their course. The Munich Prosecutor's Office response to a Letter Rogatory that the Spanish Court addressed to the German authorities made it clear that the facts for which Demjanjuk was being tried in Germany were different from the facts under investigation in Spain.
John Demjanjuk was convicted in May 2011 to five years of imprisonment in the Federal Republic of Germany for his collaboration in the murder of 28,000 prisoners as an armed guard of the SS Totenkopf in the Sobibor extermination camp. On May 13th, 2011, Demjanjuk left the Stadelheim prison in Germany and was set free awaiting the outcome of his appeal. He died at a nursing home in Germany on 17th March 2012. (For the procedural saga concerning this defendant in Spain and Germany see: "Update on the Repercussions of Demjanjuk's Conviction in Germany, Spain and the United States" at http://www.derechos.org/nizkor/espana/doc/demjanjuk5en.html).
If the ordinary procedural path had been followed, John Demjanjuk should have been handed over to the Spanish authorities for trial right after his conviction in Germany. However, between the date of his conviction and the date of his death, mainly between June and November 2011, it is worth noting that a very efficient synchronization between the Spanish and German authorities took place in order to prevent the defendant's surrender to Spain. To this end, both authorities resorted to deceitful procedural tactics.
John Demjanjuk's was never notified of the European Arrest Warrant issued by Spain. After his death, on the 20th of April. 2012, the Interpol Service sent a Telefax to the Court in Madrid stating that: “Por lo que respecta a la orden europea... se participa que revisada la documentación obrante en este Servicio no consta haberse recibido, por lo que no se ha podido difundir su reclamación”. ("Regarding the European Arrest Warrant... we hereby inform you that after review of the documents available in this Service, no such warrant has been received, therefore, it cannot have been transmitted").
The essential point that should be remembered in this procedural saga is that as soon as legal action for crimes against humanity was brought in Madrid, the German Prosecutor's Office announced that it was willing to request the American authorities to hand over Demjanjuk for offenses of complicity in murder, as a common crime, which is a criminal offense that in Germany is not subject to any statute of limitations.
What was really at stake here is the application of international criminal law and the criminal characterisation of crimes against humanity by ordinary courts in European countries. The proceedings in Spain have been and continue to be silenced precisely because of the fact that they are based on crimes against humanity, and not mere common crimes. In fact, the criminal characterisation of crimes against humanity was conceived to make it possible to determine individual criminal responsibility of those who participated in the preparation and execution of a preconceived plan for committing various systematic and/or large scale crimes.
In November 2011, when the proceedings were about to be closed in Spain because of the outcome with respect to all four defendants, the plaintiffs represented by Equipo Nizkor filed for an extension of the initial lawsuit, this time to include Theodor Szehinskyj, and this, following the amendment of the jurisdictional regime under the Organic Law of the Judiciary, resulted in the above outcome.
Documents relating to the case of the Spanish victims of the Concentration Camps of Mauthaussen, Sachsenhausen and Flossenbürg.
Documents relating to the reforms introduced by the Zapatero Government and the ending of "universal" jurisdiction effected by the Government of the Partido Popular.
Documents relating to impunity in Spain and Francoist crimes
This document has been initially published on 22Apr14 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.