In my last post I put up a review
of The Collini Case by Ferdinand Von
Schirach. In that review I said there were topics I wanted to address but felt
a discussion about them would include huge spoilers. Thus I warn readers of this post not to venture further in the post if
you do not want spoilers.
The theme for this post is
limitation periods. Much of the book revolves around a carefully worded change
to the German constitution which prevented Meyer from being charged with as an accessory to murder
with regard to his actions as a German officer in Italy during WW II. He could
have been charged for his role in reprisal
killings of Italian partisans but the quiet passage in 1968 of a bill that “certain
accessories to murder were now sentenced as if they were accessories to
manslaughter instead”. By operation of German laws providing limitation periods
for all crimes except murder the change meant there was an amnesty for former
soldiers such as Meyer.
In Canada there are no limitation
periods for charging an accused with indictable offences, serious charges.
Meyer could have been charged with being an accessory to murder or manslaughter
in Canada even 70 years after the war.
While the book clearly challenges
a law that allowed some war criminals (the question of charging soldiers for
reprisals is uncomfortable for all armies in WW II were involved in reprisals
though none of the Western armies on the scale of the German army) to escape
prosecution because too much time had elapsed I have experience with the
difficulty of defending people who have been charged decades after alleged
It is ever more difficult to get
at the truth the longer the time period between the alleged crime and trial.
As a lawyer you test the
recollections of witnesses by what else was going on at the time of the alleged
crime. What are the details of the timing of events, of the place where the
alleged crime took place, of who was involved and of what was said? Decades
later it is credible for a witness to say they lack those specific memories but
it is more dangerous to the accused than the prosecution to lack those details.
The more prominent the accusation
the more likely the public will assume guilt. Just using the phrase war
criminal is to tar an accused beyond redemption in the court of public opinion.
When dealing with charges of
crimes allegedly committed decades ago the fate of the accused is left to an
assessment of the credibility of the witnesses and the accused if he or she
should testify. It will be rare there is forensic evidence in these old cases.
I say there is as much injustice
done in Canada because there are no limitation periods in Canada as there is in
Germany where there are limitation periods.
Highly public cases of sexual
abuse have led the way against limitation periods in Canada. Little attention
is given to the cases involving families where accused faced trials many years
Recently, in a review of Once We Were Brothers by Ronald D.
Balson, I touched upon these same evidentiary challenges in civil proceedings
being launched six decades after the war.
In that book Ben Solomon was suing wealthy Chicago
philanthropist, Elliott Rosenzweig, for stealing from his family in WW II
Poland because he could not sue for wrongful death due to civil limitation
I referred to in posts at that
time to the real life cases of John Demjanjuk.
He was found not guilty of being the sadistic WW II
concentration guard, Ivan the Terrible, by Israel's appellate court when massive
evidence assembled after trial showed he was not Ivan.
Demjanjuk was subsequently charged again in Germany as an accessory to murder and was undergoing trial in
Germany in 2012 at 91years of age when he died before the end of the trial. Was
justice being served in charging Demjanjuk a second time over six decades after
Publicly it was stated that it was
a necessary charge to show war criminals will always be hunted down. It was
essentially a symbolic charge. It was a race to see if the would survive the
criminal process and he did not live to hear his final verdict. It was a modern show trial.
How Demjanjuk, a Ukrainian, could be charged in
Germany with being an accessory to murder as a prison camp guard while Meyer in
this books could not be charged as a German officer is a question I have not
A balance is necessary in legal
systems. I say it is wrong that murderers or accessories to murder should ever
be able to avoid being charged. At the same time I think we are better served
as societies by having limitation periods on other offences. The occasional, I
would say rare, prominent case that would go unpunished is countered by the
number of innocent accused who avoid trials many years later. Our Anglo /
Canadian legal systems are based on some guilty being found not guilty to avoid
any innocent being found guilty. Limitation periods support that principle.