The Collini Case by Ferdinand Von Schirach With Spoilers

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 offences.

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 later.

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 periods.

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 the war?

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 researched.

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.