Ivan Polyukhovich

12.04.2016 ( Last modified: 14.06.2016 )
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facts

Ivan Polyukhovich was born in Serrniki, Pinsk region, Ukraine around 1924. He has got five brothers and sisters.

After the German invasion of the Soviet Union in 1941, Ukraine was occupied by Nazi troops and some Ukrainians chose to collaborate with the Wehrmacht, among them, Ivan Polyukhovich. Polyukhovich was employed by a forestry department and allegedly participated in the execution of about 850 people from the Jewish ghetto in Serniki village in occupied Ukraine and further executions of civilians in the same area between August and September 1942. When the Germans retreated from Ukraine, Ivan Polyukhovich and his second wife Maria left with the German troops and later Polyukhovich was given work in Germany.

On 28 December 1949, Ivan Polyukhovich, his wife Maria and two step-daughters arrived in Melbourne, Australia. In 1958 he and his family received Australian citizenship.

On 26 December 1986 the newspaper Adelaide Advertiser received a telex from Soviet Ukraine outlining war crimes accusations against Polyukhovich. According to the information received, limited examinations outside the town of Serniki of 533 selected crania confirmed that 410 of the men, women, and children exhumed had been shot in the head. Ivan Polyukhovich denied the accusations.

On 20 December 1988 Australia’s federal parliament passed the War Crimes Amendment Bill which allows prosecutions against suspected European criminals in ordinary Australian civilian courts

On 25 January 1990 Polyukhovich was arrested following an arrest warrant issued by the Adelaide Magistrates Court that charged him with 24 counts of murder and complicity in 850 counts of murder.

legal procedure

On 25 January 1990 Polyukhovich was arrested following an arrest warrant issued by the Adelaide Magistrates Court that charged him with 24 counts of murder and complicity in 850 counts of murder.

On 3 September 1990 the High Court began hearing a challenge to the constitutional validity of the War Crimes Amendment Act that enabled the prosecution of Polyukhovich. The primary question was whether the material relied on, established that in 1989 there was either an obligation under customary international law or a matter of international concern that war criminals from the pre-1945 years be sought out and tried for their offences

On 14 August 1991 the war crimes legislation was endorsed by the High Court. According to the High Court, “the Act discharges an international obligation or meets an international concern that persons alleged to be guilty of war crimes and crimes against humanity be sought out, brought to trial and, upon conviction, punished, irrespective of the place where the crime was committed or where the alleged offender is found and irrespective of the citizenship or residence of the alleged offender or the victim”.

The High Court ruled that “Australia’s international personality would be incomplete if it were unable to exercise a jurisdiction to try and to punish offenders against the law of nations whose crimes are such that their subjection to universal jurisdiction is conducive to international peace and order”.

On 28 October 1991 the prosecution opened the case against Polyukhovich in the Adelaide Magistrate Court. On 5 June 1992, however, Polyukhovich was committed for trial only on six murders, the rest of the charges were dismissed.

On 18 May 1993 Polyukhovich was acquitted of all charges due to the difficulty in presenting evidence and testimony clearly identifying the accused.

spotlight

Polyukovich versus The Commonwealth and Another (War Crimes Act Case) is a major case decided in the High Court of Australia regarding the scope of the external affairs power in section 51(xxix) of the Constitution and the judicial power of the Commonwealth that enabled the prosecution of Nazi criminals in Australia.

The War Crimes Act provided that any person who committed a war crime between 1 September 1939 and 8 May 1945 was guilty of an indictable offence. Ivan Polyukhovich was the first person in Australia to have been charged under the Act with war crimes that took place during the World War II in occupied Ukraine.

Polyukhovich argued that the law was beyond the scope of Commonwealth legislative power in section 51(vi) (defence) and section 51(xxix) (external affairs) of the Constitution. He further argued that the attempt to make past criminal conduct an offence was an invalid attempt to usurp the judicial power of the Commonwealth, that power being vested by the Constitution in Chapter III courts, by enacting what was effectively a bill of attainder, i. e. declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.

By a majority of 6 to 1 the High Court held that the Act was a valid exercise of the external affairs power.

context

After the Second World War numerous trials against war criminals and those responsible for Nazi crimes took place in Germany and other countries. It is not possible here to give an overview of all the trials. Below are the main facts concerning the major trials of war criminals at Nuremberg.

BASIS UNDER INTERNATIONAL LAW

The German armed forces surrendered unconditionally on 7-8 May 1945. The Allies (USA, Soviet Union, Great Britain and France) took over all governmental functions in Germany, instituted the Allied Control Council and divided Germany into four zones of occupation.

After the adoption of the London Charter of 8 August 1945, the Allies set up the International Military Tribunal (IMT) in order to judge the major German war criminals. Annex III of the Agreement contains the Statute of the International Military Tribunal (IMT Statute [2]).

NUREMBERG TRIAL OF MAJOR WAR CRIMINALS

According to Articles 1-3 of the London Charter, war criminals with offenses having no particular geographical location were to be judged by the IMT. However in accordance with Articles 4 and 6 of the Convention, the principle of territoriality was to apply to the other German war criminals, with the courts of those states where crimes had been committed having the competence to try these criminals on the basis on their national laws.

Crimes within the jurisdiction of IMT:

– Crimes against peace;

– War crimes and

– Crimes against humanity (Article 6 of IMT Statute).

The IMT was composed of four judges and four substitutes who were appointed by the four Allied powers (Article 2 IMT Statute). In application of Article 13 of the IMT Statute, the Tribunal drew up its own Rules of Procedure

The IMT indicted 24 people in total. The trials took place from 14 November 1945 until 1 October 1946. Twelve defendants were sentenced to death, three were acquitted and seven others were sentenced to prison terms ranging from 10 years to life imprisonment. In one case, the procedure was suspended for health reasons and in another the defendant committed suicide before his trial.

Fact Sheet
Name: Ivan Polyukhovich
Nationality: Australia
Context: Nazi Germany
Charges: War crimes,Protection of civilians
Status: Acquitted
Judgement Place: Australia
Particulars: Indicted for war crimes in Australia; acquitted in 1993