Judge finds "probability" that Bogutin was Nazi collaborator in Ukraine (03/22/98)

Judge finds "probability" that Bogutin was Nazi collaborator in Ukraine

by Andrij Kudla Wynnyckyj
Toronto Press Bureau

TORONTO - The Canadian Justice Department marked its first in-court success in its latest round of efforts to deal with the war crimes issue on February 20.

That day, in Ottawa, Federal Court Justice William McKeown handed down a decision in the government's case against Toronto resident Wasily Bogutin, 88, finding that he "concealed that he was a collaborator during the Nazi occupation [of Ukraine]," and that Mr. Bogutin "falsely presented himself to ... Canadian immigration officials as a Romanian national."

According to the ruling, both circumstances made Mr. Bogutin's application for a visa for entry into Canada in 1951 and for Canadian citizenship in 1958 illegal.

Judge McKeown found that there was "proof on a balance of probabilities" in the evidence before the court that Mr. Bogutin was a collaborator who in 1941 voluntarily joined the Nazi-run local auxiliary police force in Selydove (Selidovo), a town about 30 kilometers from Donetsk in southeastern Ukraine, served until the Germans withdraw from the area in August 1943, and then retreated with them to Romania and thence to Austria.

However, the federal court judge dismissed the federal war crimes unit's allegations that Mr. Bogutin participated in executions carried out by the Nazis in the Selydove area in 1942-1943. "I am not satisfied that the minister [of citizenship and immigration] has met the burden of proof upon her to demonstrate that Mr. Bogutin was involved in any of the executions," Justice McKeown wrote, adding that "Speculation is not evidence."

In handing down his decision, Judge McKeown discounted much of Mr. Bogutin's testimony as untrustworthy. Mr. Bogutin had asserted that he was a civilian warehouse worker, an adjunct of the police excluded from direct service because of his Jewish background, and denied that he participated in the round-ups of Ostarbeiter (forced laborers).

Instead, Judge McKeown considered the testimonies of witnesses whose depositions were taken in Ukraine, particularly that of a certain Mr. Podolyak who also served in the auxiliary police at the time; of Mr. Bogutin's daughter, who remained in Ukraine and said Soviets threatened her family with execution because "they were known as policemen's kids'"; and of the prosecution-called expert on World War II, Prof. Frank Golczewski of the University of Hamburg department of East European history.

Mr. Bogutin's attorneys tried to contend that their client concealed his place of birth (Selydove) in order to avoid being repatriated by Soviet authorities. Their efforts were complicated, however, by the aging respondent's stubborn insistence that he had never presented his birthplace as anything other than Ukraine, despite clear documentary evidence to the contrary.

Judge McKeown found that a correct response about Mr. Bogutin's place of origin would have led Canadian authorities to questions about his wartime activities, and therefore would have led them to exclude him as a candidate for immigration to Canada.

"[Mr. Bogutin] went though a screening process in Salzburg [Austria]," Judge McKeown wrote. "I find he must not have disclosed his membership in the Selidovo District Police during the Nazi occupation ... Mr. Bogutin gained admission to Canada for permanent residence by false representation or fraud, or by concealing material circumstances."

No appeal allowed

According to Section 18 of Canada's Immigration Act, under which this proceeding was held, there is no avenue of appeal of the judge's findings. Justice McKeown's ruling is, in effect, a compendium of legal facts presented to Citizenship and Immigration Minister Lucienne Robillard based on which she can proceed with the move to strip Mr. Bogutin of his citizenship by referring the matter to the Cabinet, headed by Prime Minister Jean Chrétien. The Cabinet alone has the power to deprive Canadian citizens of their status.

On February 24, Ukrainian Canadian Congress President Oleh Romaniw sent Mr. Chrétien a letter with a plea that any recommendation to denaturalize and deport Mr. Bogutin be rejected. "We make this appeal for a stay against his denaturalization and deportation on humanitarian and compassionate grounds. The severity of the punishment - Mr. Bogutin's deportation - compared to the nature of his transgression - fraud - simply does not accord with the principles of natural justice," the letter read.

"Mr. Justice McKeown noted specifically that 'there was no evidence linking [Mr. Bogutin] directly with any executions' during the second world war," stated Mr. Romaniw's letter.

"Mr. Bogutin testified that he was not involved in any criminal activity. Unless there is compelling evidence proving that Mr. Bogutin is guilty of a war crime or crime against humanity, we do not believe justice will be served by forcing him to leave Canada," the UCC's petition continued.

Christian Amerasinghe, lead prosecutor on the case, told The Weekly that "from a legal standpoint, for us what was significant about Judge McKeown's ruling was that he accepted evidence from Ukraine, formerly in the Soviet Union, as credible evidence."

"Now [Ukraine is] a free country, and that will make all the difference in the world when it comes to admitting the testimony of witnesses interviewed there," Mr. Amerasinghe said. The prosecutor pointed out that the decision against Mr. Bogutin was based on the testimony of witnesses examined with Judge McKeown presiding in Ukraine.

Standard of power lowered

"We are also happy that Justice McKeown decided to correct the standard of proof necessary in these kinds of cases," added Mr. Amerasinghe, a Toronto-based senior counsel at the Canadian Department of Justice.

In his ruling, Judge McKeown explained that in this civil proceeding the "balance of probabilities" standard of proof applied, rather than the higher "beyond a reasonable doubt" standard that was required in a criminal court action.

In fact, in this latest decision, Judge McKeown apparently lowered the standard required in such cases that had been set in the government's deportation of Jacob Lutjens in 1992, from "high probability" (as required in cases of fraud) to "a balance of probabilities."

Defense reaction

Defense counsel for Mr. Bogutin, Orest Rudzik and Nestor Woychyshyn, both Toronto-based lawyers, appear to have won a number of skirmishes, such as the exclusion of a raft of prosecution witness testimonies compiled prior to the proceedings and the granting of costs to travel to Ukraine along with the prosecution team last June. However, they lost the main battle.

"We were fighting two cases," Mr. Rudzik explained, "One, a technical matter of misrepresentations on immigration documents, and another, the serious and historically freighted issue of war crimes guilt."

He added that the defense team would be making a comprehensive representation to Immigration Minister Robillard, asking her to set aside a decision on this case, or at the very least allow the defense to be privy to or made aware of further hearings by the executive branch on the matter.

According to the terms of reference set out in the report submitted by the Deschenes Commission on War Criminals in Canada in December 1986, war crimes are "violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any purpose of civilian population of or in occupied territory."

Judge McKeown found that Mr. Bogutin had assisted in "the round-up of young girls, all of whom were forced to go to Germany as part of the [Ostarbeiter] forced labor program."

Mr. Bogutin's attorney insisted, however, that "most of the criminal allegations were dismissed."

"It was basically because of his presentation of Romania as his place of origin, taken as an attempt primarily to hide his membership in the police, that Judge McKeown made his decision," Mr. Rudzik said.

"To our mind that comes nowhere near him being found a war criminal," he added.

"[The prosecution] initially suggested Mr. Bogutin participated in executions and manifest violence against civilians," Mr. Rudzik said, "but instead they found him to have beaten some youngsters with a garden hose for having stolen beehive frames and unearthed suggestions he might have participated in the round-up of young people for forced labor in Germany."

"It produces a very difficult standard to rebut," Mr. Rudzik said.

"Clearly the war crimes unit's principal allegations," the defense attorney said," particularly [the] attempt to implicate [Mr. Bogutin] in the murder of a Jewish family, proved to be entirely speculative."

Mr. Rudzik said the government was deviating from a statement of policy set out on January 31, 1995, in a press release issued jointly by the departments of Citizenship and Immigration, and the Ministry of the Department of Justice which asserted that "only when demonstrable criminality was involved" would the denaturalization and deportation option be pursued.

Following a proceeding that put his client on the brink of expulsion from Canada, the Toronto-based attorney expressed frustration with the apparent lack of an appeal process in such matters.

"In the case of Mr. Lutjens, they ruled that in a civil matter it's premature to appeal," Mr. Rudzik complained, "but when the hearings are over, it's in the hands of the executive, no longer the courts, so it's ostensibly too late for an appeal. It's a Catch-22."

As it stands, the Bogutin matter is the second time that the Canadian government's controversial war crimes unit has won a court case. The first victory was in 1991, involving Mr. Lutjens, a man convicted in absentia of Nazi collaboration in Holland in 1948.

This success is the first since the decision in 1995 to abandon prosecution of alleged war criminals through the criminal court system and pursue such cases exclusively as denaturalization and deportation proceedings. Thirteen other cases are pending.

John Sims, Canada's assistant deputy attorney general at the Ministry of Citizenship and Immigration, told the Toronto Star soon after Judge McKeown's ruling: "It's the first of the cases we have brought since 1995, and it's an important example of the effectiveness of our program. We're delighted."