UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
May 1, 1973
In re the Extradition of Hermine RYAN (nee Braunsteiner), a fugitive from the justice of the Federal Republic of Germany
Mishler, Chief Judge.
The opinion of the court was delivered by: MISHLER
MEMORANDUM OF DECISION AND ORDER
MISHLER, Chief Judge.
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 fugitive has been convicted or acquitted in the asylum country.
Assuming arguendo that some protection against double jeopardy were available to the detainee, her reference to her conviction in Austria for "war crimes" and her acquittal on a charge of "war crimes"
is valueless. The judgment of conviction recites that Mrs. Ryan is guilty of having taken advantage of her official power as supervisor of the concentration camp at Ravensbruck (Germany) during the years 1941 and 1942 by injuring and offending the human dignity of inmates. The same court on the same day acquitted her of similar charges while acting as a supervising warden of the concentration camp at Majdanek (Lublin).
The Fifth Amendment right not "to be twice put in jeopardy of life or limb" is available only to prosecutions in this country. The essential elements of a plea of double jeopardy are indemnity of successive sovereigns, Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); United States v. Feinberg, 383 F.2d 60 (2d Cir. 1967); United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971), and an identity of alleged offenses, United States v. Feinberg, supra. There is clearly no identity of sovereignty between Austria and the Federal Republic of Germany. The murder charges in this proceeding are not the charges of which Mrs. Ryan was acquitted in Austria.
The petition is granted. The court certifies to the Secretary of State that sufficient evidence has been presented in this hearing to sustain the charges set forth in the Extradition Bench Warrant dated March 6, 1973, issued by the Presiding Judge of the Duesseldorf District Court and that the charges contained therein are extraditable offenses, i.e. "Murder including the crimes designated by the terms assassination, manslaughter and infanticide." (Article III subd. 1), and it is further
Ordered that Hermine Braunsteiner Republic of Germany is made, and it is further
Ordered that surrender to the Federal Republic of Germany is stayed to May 4, 1973, at 2:00 P.M., to afford the detainee the opportunity to application for relief she deems appropriate in the premises.