The opinion of the court was delivered by: MISHLER
MEMORANDUM OF DECISION AND ORDER
The United States Attorney, upon the request of the Federal Republic of Germany (Germany) made to the Secretary of State, initiated this extradition proceeding for the surrender of the detainee Hermine Braunsteiner Ryan to Germany (18 U.S.C. § 3184).
The request is based on an extradition treaty signed in Berlin on July 12, 1930, which treaty by its terms became effective April 26, 1931.
The detainee is charged under §§ 211, 47 and 74 of the German Penal Suit Code
with multiple crimes of murder from October 1942 until March 1944 while she was an S.S. Supervisory Warden assigned to the Lublin concentration camp in Poland. These criminal statutes were in effect during the period of the National Socialist regime and at the time the alleged crimes were committed. The penalty at that time was death. The penalty at this time is life imprisonment. No defense under German law is available based upon a claim of carrying out secret "Fuehrer's orders" in violation of German law. Certification by Judge Halbach, Presiding Judge, Duesseldorf District Court, dated April 9, 1973.
Various defenses are raised. Only two warrant discussion.
Mrs. Ryan claims (1) lack of evidence of probable cause and (2) that a judgment by the County Court for Criminal Cases, Vienna, sitting as a People's Court, dated November 22, 1949, convicting and acquitting her of certain "war crimes," bars extradition for the charges set forth in the Extradition Bench Warrant.
1. The Claim of Lack of Probable Cause
Mrs. Ryan's argument apparently is that because there is no eyewitness testimony to killings (statement of Mr. Barry at oral argument on April 24, 1973, tr. p. 6) there is insufficient evidence of criminality under Article I of the Treaty to justify her extradition. The claim is spurious.
The extraditing magistrate's function is to determine whether there is any evidence sufficient to establish reasonable or probable cause to believe that the detainee committed the crimes charged. Fernandez v. Phillips, 268 U.S. 311, 45 S. Ct. 541, 69 L. Ed. 970 (1925); Shapiro v. Ferrandina, 478 F.2d 894 at 905 (2d Cir. 1973). Article X specifies the nature and competency of the evidence to be considered.
Further, 18 U.S.C. § 3190 provides that:
"[depositions], warrants, or other papers or copies thereof . . . shall be received and admitted as evidence . . ." in extradition hearings.
The depositions supporting the Extradition Bench Warrant were made by former inmates of the concentration camp. They give eyewitness accounts in minute detail of Mrs. Ryan's participation as a supervising warden in the alleged mass murders committed periodically at the camp. These former inmates say that Mrs. Ryan actively assisted in the macabre "selections" that consigned women, children, elderly and others to the gas chambers. Eyewitnesses Danuta Czaykowska-Medryk and Boleslawa Janiszek state that she supplied candidates for extermination on her own when she felt that they had been overlooked by the selecting officer. The deposition of Lucyna Domb describes a brutal, unprovoked assault on a female inmate who died the next day. The deposition of Maria Kaufmann-Krasowski describes the hanging of a young girl in September, 1943. It states that Mrs. Ryan ordered her to stand on a stool to be hung by S.S. guards. The deposition states that this young Jewish girl hoped to avoid the gas chamber by claiming Polish parentage. As an object lesson, the other inmates were ordered to witness the hanging. One of those on-lookers was Maria Kaufmann-Krasowski.
There is competent and sufficient evidence to establish probable cause to believe that Mrs. Ryan committed each of the acts charged in the bench warrant. A determination of probable cause in an extradition proceeding may rest entirely upon hearsay. Shapiro v. Ferrandina, supra; cf. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956).
2. The Double Jeopardy Claim
The double jeopardy claim must also fail. There is no constitutional right to be free from double jeopardy resulting from extradition to the demanding country. The fact that the full range of our constitutional protections will not be available to the detainee at her trial will not bar extradition. "Those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country." Neely v. Henkel, 180 U.S. 109, 21 S. Ct. 302, 45 L. Ed. 448 (1901); Holmes v. Laird, 148 U.S. App. D.C. 187, 459 F.2d 1211, 1217-1219 (1972). The extraditing court will not inquire into the procedures which await the detainee upon extradition; "the conditions under which a fugitive is to be surrendered to a foreign country are to be determined solely by the non-judicial branches of the Government." Gallina v. Fraser, supra 278 F.2d at 79. Cf. Wilson v. Girard, 354 U.S. 524, 77 S. Ct. 1409, 1 L. Ed. 2d 1544 (1957), in which the Supreme Court did not consider the nature of the procedures in Japanese courts in refusing to enjoin the Secretary of Defense from turning over an American soldier for prosecution in Japan for crimes committed on Japanese soil.
The only Treaty reference to nonextraditability for an offense for which a fugitive may claim prior conviction or acquittal is found in Article VI.
That provision bars extradition where the ...