Canada (Minister of Citizenship and Immigration) v. Baumgartner

Canada (Minister of Citizenship and Immigration) v. Baumgartner
Court (s) Database
Federal Court Decisions
Date
2001-08-31
Neutral citation
2001 FCT 970
File numbers
T-2701-97
Decision Content
Date: 20010831
Docket: T-2701-97
Neutral citation: 2001 FCT 970
IN THE MATTER OF revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER OF a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29;
AND IN THE MATTER OF a reference to the Court pursuant to Rule 920 of the Federal Court Rules
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MICHAEL BAUMGARTNER
Respondent
REASONS FOR JUDGMENT
McKEOWN J.
Introduction:
[1] The Respondent, Mr. Baumgartner, voluntarily joined the Waffen S.S. in March 1942 in Hungary. Mr. Baumgartner is of German descent but was born in Romania, and such a person is also sometimes described as Schwaben or Volksdeutsch. He arrived in Vienna as an S.S. recruit and went through postings with an S.S. calvary replacement battalion and then to Stutthof concentration camp. He was transferred to Sachsenhausen concentration camp and thence to driver's training at Appledoorn. After leaving Appledoorn, he apparently joined the Panzer Regiment Funf Wiking. He eventually ended up in a U. S. prisoner of war camp at Regensburg and obtained a discharge certificate on September 6, 1946. Following his discharge from POW camp he sought admission to an I.R.O. camp and did not disclose his Waffen S.S. background. He admitted he lied in respect of his application there, but he also made the same statements with respect to his residence application in Coburg, Germany. After failing to gain entry into the United States, he applied to Canadian immigration in 1953 and arrived in Canada on May 31, 1953. Mr. Baumgartner applied for and received Canadian Citizenship on October 16, 1959.
[2] The Minister of Citizenship and Immigration (the Minister) notified Mr. Baumgartner on September 24, 1997, pursuant to paragraph 18.1(a) of the Citizenship Act (the Act), that she intended to make a report to the Governor-in-Council pursuant to paragraph 10(1)(c) of the Act for revocation of his citizenship on the ground that he had been admitted to Canada for permanent residence and had obtained Canadian Citizenship "by false representations or fraud or by knowingly concealing material circumstances, in that [he] failed to divulge to Canadian immigration and citizenship officials [his] service during the Second World War in the Waffen S.S., and [his] collaboration and service with German authorities while engaged in activities connected with forced labour and concentration camps during the period 1942-1943, and in particular, [his] service as a guard at the Stutthof Concentration Camp in German occupied Poland, and later at the Sachsenhausen Concentration Camp, in Germany."
[3] Pursuant to paragraph 18(1)(b), the Defendant, Mr. Baumgartner, requested the Minister to refer the case to the Court for a hearing, and on December 15, 1997, the Minister referred the case to the Court.
[4] Mr. Baumgartner denied that he made misrepresentations to Canadian authorities. He denied that he voluntarily joined the Waffen S.S. and insisted he was coerced into joining. He further denied being in the calvary battalion and the Stutthof and Sachsenhausen concentration camps.
[5] I must decide whether Mr. Baumgartner has obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Pursuant to the provisions of ss. 10(2) of the Act, Mr. Baumgartner is deemed to have acquired his citizenship by false representation or fraud or by knowingly concealing material circumstances if he was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and has subsequently obtained his citizenship as a result of that admission to Canada.
[6] The central issue in this application is whether Mr. Baumgartner voluntarily enlisted in the Waffen S.S. in Hungary in 1942 or served as a guard in concentration camps at Stutthof or Sachsenhausen during part of World War II. The other issues relate to the process of his application to be admitted to Canada and the actual process of landing and in particular, would he have been interviewed and asked to disclose his World War II military service to Canadian immigration or security officials and what rejection criteria concerning prospective immigrants were in use in Munich on March 11, 1953 and in the period following to the date of landing on May 31, 1953. The credibility of Mr. Baumgartner must be determined with regard to each of these issues.
Burden of Proof:
[7] Before beginning my assessment of the factual issues, the determination of one legal issue must be made: what is the correct standard of proof in these proceedings. The Defendant submits that this Court should assess the case on an enhanced civil standard of proof. In MCI v. Bogutin (1998), 144 F.T.R. 1 (F.C.T.D.), I held that in citizenship revocation matters, the Court must apply the civil standard of proof (proof on a balance of probabilities), but it must scrutinize the evidence with greater care due to the serious allegations to be established by the proof that is offered. The Defendant's counsel submits, however, that the Court should reconsider the matter in light of the Supreme Court of Canada's decision in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). In Bogutin, supra I found that the Court was bound by the decisions of the Supreme Court of Canada in three cases, including the seminal case of Continental Insurance v. Dalton, [1982] 1 S.C.R. 164 (S.C.C.). I determined that it was not open to me to assess that case on a 'high degree of probability' standard, as was urged by the Defendant.
[8] In the case at bar, the Defendant submits that the decision in Oakes, supra overruled the holding in Continental Insurance, supra to the effect that a third standard of proof exists. The Defendant further submits that this third standard should be applied to the present matter. However, I do not accept the submissions of the Defendant on this point. The Oakes case was a Charter case. The Charter is not invoked in the present matter. In Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 at 175, the Federal Court of Appeal held that at the time of Collier J.'s decision in that case, section 7 of the Charter was not engaged and that the Defendant did not suffer deprivation of his "life, liberty and security of the person." The Court in these proceedings merely makes a finding of fact and reports to the Minister of Citizenship and Immigration. The Governor-in-Council is not compelled to revoke the Defendant's citizenship. While Charter rights may be engaged after citizenship is revoked, none are engaged at this stage in the process. As such, I cannot agree that Continental Insurance, supra was overruled by Oakes, supra for the purposes of citizenship revocation matters. The holding in Bogutin, supra stands and the applicable standard of proof in the present case is that of proof on a balance of probabilities, involving greater care in scrutinizing the evidence before the Court.
Historical Facts and Context:
[9] Dr. Johannes Tuchel was qualified as an expert witness to testify in regard to the Nazi terror apparatus from 1933-1945, including general information about concentration camps and more specifically about Sachsenhausen and Stutthof, the two concentration camps in which the Minister alleged that the Defendant served as a guard during the second world war. Dr. Tuchel was also qualified to testify about the ideological training and duties of concentration camp guards; the origins and evolution of the Waffen S.S.; the recruitment of Volksdeutsche for the Waffen S.S., particularly in Hungary in 1942; the evolution of the S.S. Division "Wiking" and its participation in major battles on the Eastern Front from 1940 to May 1945; and the authentication of Nazi period documents. For clarity, Dr. Tuchel's expertise does not extend to handwriting analysis or to analysis of the physical properties of paper and ink. In order to place the issues in this hearing in context, it is necessary to review the history of concentration camps and their role in the Nazi Regime.
The Establishment of the Nazi Terror Regime
Purpose and Administration of Concentration Camps
[10] Dr. Tuchel described the nature of the concentration camp system established by the Nazis prior to and during World War II. I note that he used the term "concentration camp" to connote only those camps under the administration of the Inspectorate of Concentration Camps or Group D of the S.S. Main Economic Administration, and not more generally the mass extermination or slave labour camps within the Nazi terror regime during World War II.
[11] The first concentration camps were created in March, 1933 and imprisonment in such camps was made possible by Von Hindenburg's "Reich President's Decree for the Protection of the Nation and the State", which effectively terminated civil rights in Germany and authorized the Nazi government to transfer individuals into concentration camps without following any recognized legal procedures.
[12] The original purposes of the concentration camps were to repress political enemies and to prevent the emergence of new political opposition to the Nazi regime. From 1936 onward, the camps were increasingly used for the racist persecution of the Jews. Later on in the war, some concentration camps came to be used for mass extermination. As such, the functions of the concentration camps evolved in stages. During the first stage (1933 to 1936), concentration camps were erected for the purpose of suppressing political enemies of the Nazis. From 1936 until 1939, these camps were also used for forced labour, first in service of the S.S. and later in service of the German armament industry. During the third stage (1939 to May 1945), concentration camps served as a tool to suppress people from all the occupied territories deemed to be enemies of the Nazis.
Restriction of Civil Rights for Inmates
[13] In 1935, there was a movement within the German Department of Justice to abolish the concentration camp system and squelch political opposition through the regular prison system. However this movement failed, and over the course of that year the judiciary lost its remaining jurisdiction over the camps; Hitler denied inmates of concentration camps access to legal representation; and the Third Reich foreclosed any possibility of investigating killings which occurred in the concentration camps. The movement toward restricting civil rights was also indicated by the 1934 transfer of administrative responsibility for concentration camps from the local and regional police to Himmler's S.S. Concentration camps became one of the most important instruments of internal security for the Nazi dictatorship.
Expansion of the Concentration Camp System
[14] Over time the prisoner population grew and new concentration camps were built from 1939 to 1941. In 1939, a concentration camp was established in Stutthof, near Danzig. Initially under the control of the Danzig S.S., it was later taken over by the Concentration Camps Inspectorate. The main concentration camps in operation during wartime included Dachau, Buchenwald, Ravensbrück, Sachsenhausen, Flossenbürg and Mauthausen.
Killings in Concentration Camps
[15] Auschwitz was established in 1940, while Lublin-Majdanek was built in 1941. Each camp had a dual function: they were concentration camps and mass extermination camps. In Auschwitz, between 1941 and 1944, at least 1,000,000 Jews were gassed to death. Those gassed had not been registered as camp inmates. A large number of Jews were also gassed at Lublin.
[16] Prior to the war, killings in concentration camps were covered up as executions of attempted escapees. During the war, concentration camp inmates were executed by order of Himmler as head of the Gestapo, for refusal to work for the war effort. Soviet prisoners of war who were deemed to be "political commissars" were routinely killed and the officers who carried out these killings were rewarded with holidays and bonus pay. Those to be executed were ordered to attend a medical exam in which they were instructed to stand at a height scale, at which point they would be shot by an S.S. officer through a hole in the wall above the scale.
[17] From 1939 until the end of the war, mentally ill, elderly and handicapped people were killed, as they were considered "useless mouths to feed".[1] By the spring and summer of 1941, doctors were performing these selections at concentration camps as well. The code "14F13" referred to the killing of ill prisoners by gassing in concentration camps in Germany. According to Dr. Tuchel, in 1941-42, at least 15,000 people, but probably up to 20,000, were murdered in the course of operation "14F13".
[18] Dr. Tuchel testified that according to a very conservative estimation, there were overall more than 2,000,000 inmates recorded in concentration camps. Of those 2,000,000, 1.2 million died in concentration camps between 1943 and 1945. This death toll does not include the Nazis' mass extermination program carried out at Auschwitz-Birkenau, Lublin, and other camps. In conclusion, by a very conservative estimate, more than 50% of those incarcerated in concentration camps died. Accordingly, anyone situated in a concentration camp during World War II would have seen people dying around him or her on a daily basis.
Living Conditions in Concentration Camps
[19] Dr. Tuchel described the concentration camps as "one of the worst places you can be in as a human being in the 20th century".[2] Those entering had less than a 50% chance of survival, and the official records show that this was intended by the Nazi authorities.
[20] An inmate's living conditions depended upon his or her status. Each concentration camp had an internal hierarchy, with Germans coming first, followed by Western Europeans, Slovaks, Jews and Gypsies.
[21] Dr. Tuchel referred to constant problems with the sanitation and living conditions of concentration camp inmates. Poor sanitary conditions lead to the spread of epidemics at the concentration camps. Overcrowding was also a problem, as many camps came to house over twice the inmate population that they had been built to house. Many camps were located in harsh climates that made life more miserable for inmates.
[22] Inmates often went hungry because their basic provisions were often stolen before they reached the inmates. Much of the meat fed to inmates was rotten. As of 1942, inmates were served only a water-based soup with very few potatoes and no meat, and bread baked from waste flour. Also as of 1942, pursuant to official orders, sawdust was included as an ingredient for bread. Most camp inmates weighed less than 50 kilograms and by the end of the war, a man measuring 1.80 metres would weigh under 40 kilograms.
[23] In forced labour camps, people in this weakened condition were expected to work, and if their work was deemed inadequate, they were beaten by fellow prisoners who acted as foremen, and who sometimes enjoyed better living conditions than the other prisoners. According to S.S. regulations, an inmate worked a minimum of 11 hours, but Dr. Tuchel testified that most concentration camps had a 12 or 13 hour work day. Dr. Tuchel cited the Chief of the S.S. Economic Administration Main Office Pohl's April 30, 1942 letter to Himmler, wherein Pohl stated that the inmate deployment for forced labour should be "exhausting in the strictest sense of the word, to achieve maximum performance ... The working time is not subject to any limitations." Himmler's handwritten note on this communication reads "agreed"[3].
[24] In 1942, after the invasion of Russia in 1941 and the failure of the blitzkrieg, the Nazi war machine was in need of additional and higher quality armaments, and concentration camps were given the added function of increasing productivity for the German Wehrmacht. The new role assigned to concentration camps is reflected in a letter from Gluecks, Head of the Department of Concentration Camps, S.S. Main Economic Administration Office, dated January 20, 1943, at Oranienberg, marked Secret and Personal. It stated the need to lower the death rate of prisoners in concentration camps, stating that these individuals should work in the camps until they collapsed, that is, "exhausting every possibility to preserve the prisoner's capacity for work"[4]. Dr. Tuchel noted this goal was not achieved, as even when there was a decline in the death rate for a short period, it was followed by an increase. In July and August, 1942, 8,329 and 12,000 inmates died, respectively. In 1943, the recorded inmate deaths per month were 9,000; 11,000; 12,000; and 8,000. Furthermore, according to Dr. Tuchel, the documents setting out these figures were initialled by Himmler, which shows that the S.S. leaders knew of the atrocities committed at concentration camps.
[25] Dr. Tuchel testified that there were four kinds of violence in concentration camps. The terrible living conditions constituted one type of violence, often resulting in death. There was also the violence inflicted on the prisoners by S.S. men, officers and NCOs. Third, there was the violence inflicted on inmates by their own fellow prisoners, by order of the S.S. men who commanded the prisoners to kill, on pain of being killed themselves. Fourth, there was the violence inflicted by guards who, during the war, fulfilled the function of guarding inmates while they were working. Although the official regulations of the S.S. forbade guards from beating inmates, this was easily circumvented by ordering certain of the inmates to beat other inmates. Moreover, there were numerous cases in which guards themselves beat inmates, contrary to the official regulations. Such infractions were easily covered up, since guards were ordered to shoot any prisoner who tried to attack a guard or to escape. It was specified that they were not merely to beat those who attempted to escape, but actually to shoot them. In some concentration camps, if a guard shot and killed a prisoner, he got a furlough or a medal in reward.
[26] Dr. Tuchel cited the "Camp Procedure Regulations" as the most important instrument of violence against the inmates. These regulations had been developed by Eicke in Dachau and were introduced at all camps in the summer of 1934, with a few minor local exceptions. They provided that:
... persons who in the camp, at the workplace and the places of accommodation, in kitchens and workshops, toilets and places of rest make political remarks for the purpose of agitation, give provocative speeches, meet with others for that purpose, form cliques or loiter, collect, receive or bury true or untrue information for the purpose of enemy atrocity propaganda about the concentration camp or its facilities ... will be hanged in accordance with revolutionary law! ... Persons who physically attack a guard or SS man, who refuse to obey or refuse to work at the workplace, who incite or induce others to those acts for the purpose of mutiny, who leave a marching column or workplace as mutineers or incite others to do so, who yell, shout, agitate or hold speeches while on the march or at work, will be executed on the spot or subsequently hanged as mutineers. These regulations remained in effect until the end of the war.
Stutthof Concentration Camp
[27] Stutthof concentration camp was located near Danzig, Poland just outside the small village of Stutthof. Stutthof was initially the site of a prisoner of war camp, but officially became a concentration camp in late 1941 in order to house the growing number of Soviet prisoners of war and use these prisoners to perform forced labour. This was closely related to the S.S. decision to use Soviet prisoners of war for forced labour in concentration camps. Jews were also interned at the camp until November, 1942 when Himmler ordered all Jews to be sent to Auschwitz.
[28] The camp was surrounded by water or bogs and covered from approximately 50 to 100 hectares of land. Prisoners were transported to Stutthof by a small-guage railway from Danzig. Inmates worked in Stutthof's factories which were mainly involved in brick production. After 1943-44, Stutthof began using inmate labour to support the German armament industry.
[29] The overall death rate at Stutthof was similar to those in other concentration camps. Of the 110,000 recorded inmates at the camp, at least 65,000 did not survive. The living conditions were as bad as at other concentration camps. Because it was surrounded by swamps, the spread of epidemics was particularly problematic.
[30] The conduct of guards was set out in a Stutthof Concentration Camp document entitled "Special Regulations for Escorting Prisoners" and dated September 7, 1942. These guidelines were essentially consistent for all concentration camps with only minor modifications to reflect local characteristics. Having regard to the guidelines themselves, there was a considerable difference between a regulation and the actual conduct of the guards. Dr. Tuchel cited as an example that the special regulations state that "[a]ny maltreatment and threatening of prisoners is strictly prohibited ". However, as Dr. Tuchel testified, this regulation was not followed. He also pointed to the section providing that "physical assault by prisoners is to be cut off not with physical force, but using one's firearm". According to Dr. Tuchel, when a guard felt threatened, he could and indeed had to shoot. Guards were taught to obey, and obey without thinking. As occurred at every other concentration camp, guards at Stutthof were given regular ideological education.
Sachsenhausen Concentration Camp
[31] In 1936, the Nazis planned to build modern-style concentration camps and Sachsenhausen was the first example of this plan. It was situated in a forested area near Oranienberg, north of Berlin. The camp was shaped as a triangle, the sides of which each measured approximately 680 metres long. In mid-1936 there were around 2,000 inmates. By the end of 1941 there were over 10,000 inmates. By January 1943 there were over 20,000 inmates. By the end of the war there were over 47,000 inmates.
[32] Dr. Tuchel described certain killing operations carried out at Sachsenhausen. There was a crematorium used for the huge mass killings of over 10,000 Soviet prisoners of war. At the end of May and beginning of June 1942, over 100 Jewish inmates at Sachsenhausen were killed by the S.S. in retaliation for the killing of S.S. Lieutenant General (Obengruppenführer) Reinhard Heydrich who had been killed by an association of Czech resistance fighters in Prague. In the summer of 1942, a group of mainly homosexual inmates were deliberately chased across the sentry line and allegedly "shot while escaping".
[33] The living conditions at Sachsenhausen were as bad as those in the other concentration camps generally. Between 1942 and 1944, Sachsenhausen had over 100 satellite camps in which prisoners were made to do forced labour. Of the 204,000 recorded inmates at the camp, 100,000 did not survive.
Formation of Guard Units in Concentration Camps
[34] In mid 1935 there were less than 5,000 inmates in concentration camps in Germany and around 2,000 male guards. In 1934, the S.S. was comprised of three groups: the general S.S., the guard or Death's Head units and the S.S. armed forces, which would later be known as the Waffen S.S. Originally, the Death's Head guards were young, well-trained soldiers, but the composition of the guard changed with the beginning of the war. In 1939, with the invasion of Poland, such guards were transferred to the Army and older members of the S.S. became concentration camp guards.
[35] In 1939, there were around 21,000 concentration camp inmates and 2,000 concentration camp guards. At that point, there were three Death's Head units: the S.S. Death's Head Division, a combat unit of the Waffen S.S.; the S.S. Death's Head Regiment, a unit established by special order of Himmler in 1939 specifically for combat in Poland; and the S.S. Death's Head Police Reinforcements, the guard units stationed in the concentration camps. These latter units were later renamed the S.S. Death's Head Battalion.
[36] In 1941, in addition to the older S.S. members who had become concentration camp guards two years earlier, German World War I veterans joined the guard units in concentration camps. In late 1941, ethnic Germans also became concentration camp guards. By October, 1943, of the 15,000 male concentration camp guards, 7,000 or over 40% were ethnic Germans or Volksdeutsche, and over 3,000 were from Romania. In January, 1945, there were over 37,000 male guards in concentration camps and over 3,000 female guards to take care of the increase in concentration camp inmates.
Background and Involvement of Michael Baumgartner in World War II
The Early Life of Michael Baumgartner
[37] The Defendant, Michael Baumgartner, was born on August 22, 1923 in Secunda, Romania. He was raised as a Roman Catholic. Secunda was a small farming town with a population of 700. There was no electricity, no water system and there were no paved roads. The town was situated near the Carpathian mountains. Mr. Baumgartner's father emigrated to the United States in 1925, when Mr. Baumgartner was two years old. Mr. Baumgartner's mother died in 1939, and he was raised by his grandmother from that time on. His sister Maria suffered from polio and was unable to work. His family had immigrated to Secunda in the 19th century from an area called the Schwaben, near Stuttgart. He referred to ethnic Germans outside of Germany as Schwaben. He testified that he spoke German and Hungarian as well as Romanian, which he had learned in school. He attended classes up to the eighth grade. Secunda was a relatively isolated village, as there were no paved roads in or out of the village. There were no motor vehicles and horse and carriage was the mode of transportation. There were no newspapers and, since there was no electricity, there were no radios except for one battery-operated radio which belonged to the local teacher. The nearest market was in Sathmar, about thirty kilometres from Secunda. Mr. Baumgartner went there about two or three times a year.
[38] Mr. Baumgartner first learned of the war from his teacher. He testified that he had very little notion of what war meant and that he and the other children would ask the community elders for information. No one in Mr. Baumgartner's family had fought in World War I. In 1940, Romania turned over Secunda to Hungarian rule. Mr. Baumgartner started to work on the family farm when he was still at school. The family farm consisted of approximately 50 to 75 acres, and produced wheat and corn that was farmed by crop share arrangement. The farm had been purchased with money sent by Mr. Baumgartner's father from the United States. When Mr. Baumgartner's mother died in 1939, the farm was left to him and his sister. He planned to make his living as a farmer so that he could support his sister, as well as himself.
Was Mr. Baumgartner a Volunteer in the S.S. or was he Conscripted?
[39] I now come to a very important issue in the case, and that is whether Mr. Baumgartner voluntarily enlisted in the Waffen S.S. or was he conscripted into military service.
[40] Mr. Baumgartner stated that he had been in the Levente, which was a reserve military force, from the age of 14 or 15, first for the Romanian government and then for the Hungarian government once it took over Secunda from Romania in 1940. Members of the reserve army were called Leventari.
[41] I do not find Mr. Baumgartner's description of his coercion into the S.S. to be credible. Mr. Baumgartner stated that until 1942 he knew nothing about Germany nor Adolf Hitler nor Nazi ideology. According to Mr. Baumgartner, Hungary had an agreement with the Germans with regard to the drafting of men for the German army and he stated that this was the only change resulting from the shift from Romanian to Hungarian rule. He testified that the German S.S. officers came to Secunda in November, 1941. He stated that the S.S. officers spoke to both the town's children and the boys' parents. He stated he did not understand what was happening since he was only around 17 years old at the time. He stated the parents and guardians of the young people said they would not send their children to fight for Germany.
[42] The German soldiers returned to Secunda in 1941 just before Christmas, and this time Mr. Baumgartner stated that they had "papers from the Hungarian government that they are entitled to take all the German descent, the Schwabiens in the army"[5]. Mr. Baumgartner testified he did not understand the meaning of these papers. He testified that the parents objected to their sons being made to fight for Germany, and he also recalled that he himself did not want to go because he knew that his sister needed him and he was needed to farm the family's land.
[43] The German soldiers "went away and then later on they came again with some trucks or whatever because they went to the neighbours' villages. They did all the same thing all over. And they came back and they said well, we have the order from Germany from Deutzland (sic), you have to go and then they gave us a few days to get ready."[6] The boys were told to pack warm clothes and to bring the birth certificates of their parents and grandparents. They were also told to have their priest fill out some forms. The form filled out by Mr. Baumgartner's priest was a composite birth certificate going back to his grandparents, documenting the birth of Mr. Baumgartner and the births and marriages of his parents and grandparents. Mr. Baumgartner identified his own signature and the document. Such documents were required by the S.S. in order to confirm the 'ethnic purity' of potential S.S. recruits.
[44] Mr. Baumgartner testified that did not want to go with the Germans when they returned, but he had to go. He stated he was required to go because of the Hungarian agreement with Germany which provided that in exchange for having their land returned, the Hungarian government would allow Germany to take their young boys into the army. He stated there was nowhere to escape from the German recruiters, as they had stationed themselves all over the countryside. He also felt that he had to go because the village elders did in fact say they agreed to the recruitment of their boys into the German army. Mr. Baumgartner recalled discussing this with his guardian and specifically stating that he did not want to go and leave his sister and grandmother who needed him to work on the farm. However, he recalled that the elders said that there was nothing they could do about the situation and the boys would have to join the German army.
[45] Mr. Baumgartner recalled that approximately four German officers returned to Secunda with a few other soldiers, possibly drivers. The soldiers wore grey uniforms with the S.S. symbol on their collars, as well as caps. He did not recall them carrying guns, speculating that they might have been on the truck. He recalled undergoing a registration procedure in which the German officers took his name, the names of his parents, his birth place and birth date, and compared this data to that on his birth certificate. He recalled that when he left, his family was crying. He stated that he never saw his family again after that. He was taken by truck to Ardud (Ardut), where a train station was located, and from there he was taken first to Sathmar, and then to Vienna. There were about eight or nine boys altogether who travelled from Secunda to Ardud, but once in Ardud, they were joined by more boys. In Ardud, they were put into cattle cars and then travelled for about half a day to their final destination of Vienna, where they were taken to the army barracks. He recalled that on the train trip to Vienna, he and some of the other boys had wanted to jump from the train, but they were warned not to do so since there were soldiers on top the train who might shoot them. In Vienna, Mr. Baumgartner arrived at the east barrack and selected a bed from among the bunk beds. He recalled that the barracks were run by the S.S. According to Mr. Baumgartner, the Wehrmacht was the "real German army"[7]. He testified that only German citizens could join the Wehrmacht, therefore he could only join the S.S. Mr. Baumgartner himself never dealt with the Wehrmacht administration, which was separate from the S.S.
[46] This testimony of Mr. Baumgartner is not in accordance with the documentary evidence as reviewed by Dr. Tuchel. The documentary evidence shows that compulsory conscription did not occur during the 1942 Waffen S.S. recruitment exercise in Hungary/Romania. Contrary to Mr. Baumgartner's assertions, recruitment was completely voluntary and there was evidence that in the area near the village of Secunda youth were in fact being pressured and coerced not to join the S.S.
[47] By December 1941, the German invasion of Russia had stalled. The German armed forces needed more soldiers. The Waffen S.S. began recruiting Volksdeutsche and persons from Germanic countries such as the Netherlands and the Flemish part of Belgium. As a result of the Vienna Award, portions of Romania with significant populations of Volksdeutsche were transferred to Hungary. This included the region around Satu Mare (Sathmar) which included Secunda (Sokund). As early as 1942, the Hungarian Prime Minister had agreed to the recruitment of Volksdeutsche volunteers in Hungary for the Waffen S.S. After the exchange of a series of diplomatic notes between Hungary and Germany, it was agreed that Germany could recruit 20,000 Hungarian Volksdeutsche volunteers for the Waffen S.S. with the following restrictions, inter alia:
a) volunteers would have to be between the ages of 18 and 30 years;
b) a written declaration of consent would be required from the parents/guardians of minors;
c) the volunteers would have to appear before a recruitment board which was to consist of one liaison officer of the Royal Hungarian Honved (army), one representative of the Royal Hungarian Administrative authority, and one Waffen S.S. officer;
d) the volunteers' names would have to be submitted to the Honved ministry in order to determine if the recruit could be dispensed with as a skilled worker in a vital war related industry or as a trained soldier;
e) the volunteers would have to be physically fit for service; and
f) the volunteers would become naturalised German citizens upon being accepted into the service of the German military, thereby losing Hungarian citizenship.
[48] Recruits were to be registered by the local head of the Ethnic Association of Germans in Hungary, or representatives of that organization, which then had the responsibility to report the number of volunteers enlisted to the Reichsfuerher S.S.- Obersturmbannfuerher Nageler.
[49] A total of 25,709 men presented themselves to the selection commissions and 17,860 were found to be suitable. Of the number found suitable, 7,566 were deemed suitable for the S.S. and 10,294 were deemed suitable for the army. The Waffen S.S. had a height requirement that its members should be taller than 1.70 metres but as Dr. Tuchel pointed out, this height requirement did not prevent candidates suitable from the army from serving in the Waffen S.S.
[50] The recruitment process took place in February and March of 1942 following the agreement in January. A selection of Volksdeutsche volunteers in Hungary ended on April 3, 1942. However, there was a delay in transporting these recruits into the German Reich.
[51] At trial, Dr. Tuchel referred to a report from the local group leader of the ethnic German group in Hungary, Maitingen, Sathmar. That report indicates that ethnic German volunteers reported to the town hall to register their departure from the community on April 24, 1942. Dr. Tuchel also looked at the document at Exhibit P-3, Tab 120, which shows that a transport left Gross-Karol on April 25, 1942 with 1,758 recruits. These documents indicate that the only train transporting volunteers out of the Sathmar region to Germany left Gross Karol, Hungary on April 25, 1942. The Defendant stated that he was forcibly conscripted on March 30, 1942, was immediately taken to a train station at Ardud, Hungary and was then taken by train to Vienna that same day.
[52] There are also inconsistencies in Mr. Baumgartner's evidence with respect to the recruitment exercise, as well as explanations which were not credible. At discovery, he claimed that he was impressed with the appearance of the S.S. soldiers. At trial he initially denied being impressed with the S.S. upon their visit to Secunda, and then confirmed that he was impressed with the soldiers appearance but that it meant nothing to him in respect of his desire or lack thereof to join the S.S. At one point in his testimony he denied knowing that the soldiers who visited Secunda were S.S., but later agreed that they were wearing S.S. uniforms. There were other inconsistencies with respect to certain matters which can perhaps be explained by the sixty-year gap between the event and Mr. Baumgartner's testimony. For instance, he stated at one point that there were about four German soldiers and at another point, that there were about ten. At discovery, he stated some of the young men in the village did not want to go and said they would not go, and then at the hearing he testified that all the young men said they would not go, but were compelled to do so. At trial, he testified that the Germans came on March 30, 1942 and rounded up the boys in one day, but at discovery he testified that the Germans spent two or three days. Although the Statement of Defence stated that the local leaders of the ethnic German Association in Secunda coerced the young men into joining the German army, Mr. Baumgartner denied this before the Court. He denied there was any ethnic German Association in Secunda, stating that there were simply community leaders and that it was the Hungarian government and the German soldiers, not the local elders, who forced the young men into the army. Mr. Baumgartner denied knowing anything about the German recruitment campaign until the Germans came to Secunda at the end of 1941. However, there is documentary evidence indicating there were recruitment posters in the nearby town of Bildegg, only ten or fifteen kilometres away from Secunda. He stated that the recruiting campaign was kept a secret.
[53] Dr. Tuchel reviewed various documents relating to the hostile reaction of ethnic Hungarians towards the Volksdeutsche who had volunteered for the Waffen S.S. The review included documents related specifically to the Sathmar region. The Volksdeutsche volunteers were spat upon as they voluntarily enlisted; were threatened with incarceration; were beaten by Hungarian soldiers; and were harangued by Hungarians as to why they did not instead volunteer for the Hungarian army. When Mr. Baumgartner was questioned about these documents he replied that it was possible that the Hungarian government had done one thing, that is, reach an agreement with Germany, while the Hungarian soldiers did another, that is, harass and beat up Volksdeutsche recruits into the Waffen S.S.
[54] The Minister's counsel cited a report from Maitingen in the Sathmar region detailing the experience of an individual who, in order to join the Waffen S.S., had to sign a renunciation of his Hungarian