HIDDEN HISTORIES: Ivan Polyukhvoich's case to answer

In the first instalment of our new series, Hidden Histories, intern Reem Ernst, recent Law graduate, takes a look at the shocking trial of Ivan Polyukhovich in Adelaide in 1990.

Written by journalist David Bevan, and based on his observations as a court reporter, court transcripts and witness statements,.A Case to Answer serves as a record of an astounding case in legal history both in Australia and the world.

Post written by Reem Ernst

As part of our new series, Hidden Histories, I will be touching on a piece of history that spans both time and place. A Case to Answer by David Bevan details the endeavour of Australian investigators, prosecutors and defence lawyers, magistrates.and judges to bring a war criminal, living peacefully in his old age in the western suburbs of Adelaide, to justice. Nothing like this had ever been undertaken in Australia before, and, as Daniel Keane .wrote for ABC News in 2018, the case was ‘both staggering in its scale and harrowing in its detail.’
The forewords of Michael David QC, Senior Counsel for the Defence, and Greg James QC, Senior Counsel for the Director of Public Prosecutions,.highlight how significant Bevan’s writing and journalistic eye have been in capturing the narrative beginning in the small town of.Serniki, Poland, and ending in the Adelaide Supreme Court.

What were those charges?

In its first chapter, A Case to Answer approaches Polyukhovich’s alleged war crimes through the victims. Serniki post-World War I was under Polish control, a small village of around five thousand mainly inhabited by Ukrainian farming families. There were large Polish and Jewish communities settled in towns within the area. Though stricken with poverty, Serniki was otherwise close-knit and peaceful until Poland fell under Soviet control in 1939, causing the Jewish population of some eight hundred years to become refugees.

'When the Germans finally did arrive in Serniki, Jack Kriniuk recognised them immediately. The thirteen-year-old had never seen German soldiers but there was no mistaking them… Jack’s father, Moyshe Kriniuk was a shrewd but generous man who ran a wholesale grocery store… Moyshe […] was respected by both Jews and Gentiles throughout the region. His popularity had allowed him to survive Soviet assault on capitalism… Moyshe knew that he and Jack had to escape. He grabbed his brother, a neighbour, and Jack, and headed for the forest a few kilometres away. He knew the words. They’d have a better chance there.'

Moyshe and his son Jack were soon captured and beaten. They were later released, secretly, by the Ukrainian chief of police who had been touched by Moyshe’s kindness one Easter.
Over the next few months, it was as though everything began to build up to something. A ghetto was to be formed in Serniki. Jewish residents were ordered to return to the town and line up for some sort of registration. Amongst those residents were the Kaz family: Tsalykha, her three daughters, Luba, Pepe and Sonja (pictured left), and her infant grand-daughter.

'Jack’s eldest sister was doing accounts when some Ukrainians, who had worked for the Kriniuks. came into the store, saying that fresh graves had been dug outside the village. The Germans, they said, intended to kill every Jew. All Jews must escape now. The Kriniuks found this suggestion fantastic, in spite of all they had endured. They didn’t believe it could happen. So they stayed.'

Moyshe and Jack would encounter the Kaz family upon their escape from the massacre that threatened to rear its head at any moment. It was a difficult and dark journey to the woods but Moyshe was a good leader, calm even as their vulnerable party grew.
Tsalykha, Luba and the baby began to fall behind. Pepe, the second-oldest, circled back to them only to find them exhausted and hopeless.

'Half a century later, Pepe could still remember the sound of the baby crying as she turned and left, a whimpering that became fainter and fainter. Moyshe was also eventually forced to stop; his wife was sick with exhaustion. As the group waited for her to catch her breath, Pepe looked back into the darkness hoping her mother and sister would appear. They didn’t.'

Forty-eight years later, Ivan Polyukhovich was charged with the murders of Tsalykha, Luba and the baby, near Alexandrovo between 1 June and 30 September 1942.
In total, there were eight counts of murder – twenty-four individual murders – and one count of Polyukhovich’s knowing involvement in the massacre of around 850 people near Serniki.

The investigation

On Boxing Day in 1986, the telex machine on the editorial floor of the Advertiser delivered a document which read:

'Polyukhovich, 70, resident of Seaton, a township in the country’s south, was forest warden before the Second World War. Serving in the Gebietspolizei under Nazi occupation. He killed several dozen civilians, mostly Jews, in 1942 and 1943, and took part in the shooting of 725 civilians in Serniki village. The many eyewitnesses who now testify to the Nazi collaborator’s crimes, refer to him by the diminutive "Ivanechko", as he was known in Alexandrovo and Serniki villages.'

You can imagine the shock that ensued. It was followed by a bill allowing for the prosecution of war crimes being passed through Parliament, as well as heated legal debate which I, as a recent law graduate, very much enjoyed reading. The War Crimes Amendment Bill was followed by an ambitious, and extremely cold, investigation in Ukraine which led to the arrest of Ivan Polyukhovich in 1990. This investigation was followed by the three years of legal proceedings.
Bevan discusses in depth the logistical struggles of taking Polyukhovich to trial. The prosecutors had gathered dozens of witnesses in the Serniki area, but what then? Would they have to fly them all out to Adelaide to testify in court? Most were frail and old and no one wanted those who had already suffered so much to be forced to travel halfway across the world to relive distressing memories. It was decided instead that the court would travel to Ukraine, Israel, and North America.

The exhumation

A gruesome, yet fascinating, stage in the proceedings was the digging up of the mass grave (pictured right). During exhumation, a careful method of fact-finding was of the utmost importance. Evidence could be ‘tainted by innuendo, hearsay, the passage of time or Soviet influence.’
The forensic team involved in the excavation included Australian experts, the Special Investigations Unit, Soviet forensic scientists and representatives from the Rovno procurator’s office. (As an aside, Mrs Koleznekova at the procurator’s office is quite an amusing character.)
While lawyers were arguing about the constitutional legality of the War Crimes Amendment Bill and how to go about examining witnesses back in Adelaide, the forensic team began to uncover the grave, forty metres wide and shallower than expected.

'The outlines of the grave had been remarkably well preserved. It looked to be a deliberately designed rectangle, not a casually dug hole… The Society team had worked on the northern end, where they’d uncovered naked bodies lying face down in row upon orderly row. The Australians, working in the southern section, had also found unclothed bodies, but these were twisted and intertwined with each other in disorganised agony… In most cases, all that remained was a skeleton; some had ligaments and other soft tissue attached. Other skeletons still had hair quite clearly plaited and held in place with combs. Someone found an artificial leg. Many of the Jewish witnesses had remembered Yankel Kaz, a one-legged man who’d lived on the fringes of Serniki. The investigators took note.'

It was plainly clear that a massacre had taken place during World War II, the same massacre Moyshe, Jack and the Kaz family had been running from. Bullet wounds matched the 9mm German ammunition scattered throughout the pit. 553 bodies were examined. 407 were female. 80 were male. 48 were unknown. 63 bodies belonged to females aged birth to nine. 134 bodies were categorised between age ten to nineteen. 410 suffered bullet wounds to the head.
Was Ivan Polyukhovich party to such an atrocity?

The trial

Polyukhovich’s trial before the Supreme Court jury began on 18 March 1993. Witnesses had been flown in from Ukraine: Ivan Mikhailovich, who gave evidence as to the ghetto round-up, Fyodor Polyukovich, who described the murder of a miller’s daughter and two children for which Ivan Polyukhovich had been charged, and his first wife, Maria Stepanova, who was brought in to challenge another witness’s evidence.
On the eve of his trial, Polyukhovich had been found with a bullet wound in his chest by a teenager on roller skates. 'I’ve been shot!', he’d cried out. This incident caused much confusion – had someone been trying to assassinate the defendant? Should he have been in protective custody?

'To Stokes (Polyukhovich’s solicitor), Polyukhovich appeared to have shrunk. Not physically, but emotionally, psychologically. His client, lying on his hospital bed, looked more than just old and frail. His immediate family had rallied around him, but Polyukhovich – who had always been quiet – appeared more and more isolated from the rest of the community. Stokes knew that the case was placing enormous strains on the family and now his client was recovering from a gunshot wound.'

It was quickly determined, but never officially announced, that Polyukhovich had shot himself.
On 18 May 1993, the jury acquitted Polyukhovich of all charges. There simply was not enough evidence to continue to prosecute the case.
Though Australia’s first war crimes prosecution had failed in its ultimate goal, the investigation undoubtedly set an important precedent for these kinds of cases. It could be said, in a way, that even getting Polyukovich to stand trial and uncovering, identifying and seeking justice for the victims that had died in Serniki, was an achievement in itself.
A Case to Answer raises as many questions as it answers. Some may doubt whether there is any point in prosecuting elderly people for crimes committed years ago, in a country on the other side of the world,.past actions that, according to family and neighbours, say nothing about the person they are now. The prosecution hit back against this line of thinking:

'If someone had today found the killer of Adelaide’s Beaumont children, no one would suggest letting the matter rest.'

As for the former argument, Greg James QC writes in his foreword:
'Because of his age, education and poor health it seems unlikely that Ivan Polyukhovich actually understood much of went on around him during his prosecution. His days in court were spent sitting silently, sometimes leaning on his walking stick, occasionally sharing a word with his translator. At times it was easy to believe he had become superfluous to the proceedings and theatre into which he had been thrust.'
This book certainly leaves you with both a need for existential contemplation of law and justice and an admiration of the Australians involved in investigating and making history.

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