7 April 201615:45

Remarks by Konstantin Dolgov, the Russian Foreign Ministry’s Special Representative for Human Rights, Democracy and the Rule of Law, at the Public Chamber consultations of April 7, 2016 on the legal aspects of the January 13, 1991 events in Vilnius and their consequences

662-07-04-2016

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The Russian citizens whose trial began in Lithuania on January 27 of this year have been accused of an attempt to “illegally change the constitutional system of the Lithuanian state” and of “infringing on its independence and territorial integrity,” as well as of “crimes against humanity and war crimes” committed during the tragic events in Vilnius on January 13, 1991.

The Russian view on these events is public knowledge. A tragedy happened on January 13, 1991 because of clashes at the television tower. A total of 14 people died on both sides, including Soviet Army Lieutenant Viktor Shatskikh. We mourn all of these victims and believe that the death of each one of them must be investigated without any political bias, especially if we want the tragedy to be heard at an objective trial in order to close a black page in our history. We believe that these consultations can bring to light additional facts and circumstances that will help us bring the real culprits of the January 13, 1991 tragedy to account.

Unfortunately, there are still no answers to many questions. For example, it is unclear who shot the above Soviet serviceman in the back in the evening of January 13 (the Russian Investigative Committee has decided to reopen investigation into the consequences of Lieutenant Shatskikh’s death), or who killed other persons from weapons that have never been in the service of Soviet special operations units. We should also remember a statement by Audrius Butkevičius, then Director of the Lithuanian Department of National Defence, who said they knew well in advance there would be victims. Lithuanian human rights activist Algirdas Paleckis also said that “our own people were shooting at our own people.”  

A closer look at the legal aspects of the charges brought against Russian citizens will reveal several obvious facts. The events in Vilnius, in which former Soviet servicemen have been accused of taking part, did take place in January 1991. However, at that time the Lithuanian Soviet Socialist Republic was not an independent state but rather was a constituent republic of the Soviet Union. This is a very important fact in legal terms.

The Soviet Union’s disintegration and the formation of independent states in the post-Soviet space was not a momentary act. It was a long-term process regulated by the union’s legislation, notably, the April 3, 1990 law on the procedures related to the secession of a republic from the USSR.

The dates of acquiring independence by former union republics cannot be automatically linked to their adoption of the relevant declarations, which should only be viewed as the points of departure in the process of gaining independence. For the Baltic states, the point of departure is September 6, 1991 (the date when the USSR State Council adopted resolutions Nos. 1-GS, 2-GS and 3-GS on the independence of Lithuania, Latvia and Estonia, respectively). Their collective recognition and admission in the United Nations took place after this date.

In addition, former Soviet servicemen are being charged with crimes under articles 100, 103, 111 and 112, to name a few, of the 2000 Criminal Code of Lithuania in its March 31, 2011 version, although these events took place on January 13, 1991.

However, in accordance with Article 7 of the 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms, “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”

The 1948 Universal Declaration of Human Rights and Article 15 of the 1966 International Covenant on Civil and Political Rights have similar provisions.

Part 1 of Article 3 of the Criminal Code of Lithuania has a provision according to which “the criminality of a deed and punishment for it are determined by the criminal law that was valid at the time when the crime was committed.” However, part 3 of the same article makes an exception for a number of crimes, including those with which the Russians are charged. Meanwhile, the Lithuanian side makes groundless references to the second paragraph of Article 7 of the 1950 European Convention: “This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

In its judgment on the case of Vasiliauskas v. Lithuania on October 20, 2015, the European Court of Human Rights rejected this interpretation of the convention’s Article 7, quoting “the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war… It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity.” Therefore, the Lithuanian authorities are violating the rule of non-retroactivity and doing this at legislative level.

Considering the above and the historical fact that Lithuania was not an independent and sovereign state but part of the USSR in January 1991, it is clear that as such it could not be a victim of Moscow’s aggression contrary to the assertions of the Lithuanian Prosecutor’s Office. We consider it important to study the historical and legal aspects of the events in Vilnius in 1991 in an unbiased manner. The Russians are accused of war crimes and crimes against humanity, but these accusations evoke serious concern because they run counter or fail to conform to provisions of international humanitarian law, for instance, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949 or part III of the Rome Statute of the International Criminal Court of July 17, 1998, as well as the Lithuanian legislation on the protection of human rights and freedoms. Taking into account these facts and despite the European Court’s ambiguous judgments on complaints against the Baltic states (for instance, the Kononov v. Latvia case), it is important to consider that carefully prepared lawsuits may be filed with the European Court of Human Rights.

Given the complexity of the case, we are also urging the Lithuanian side to display a humane attitude and release Yury Mel from arrest, choosing a milder preventive measure. He has a serious disease (diabetes).

We are convinced that unbiased, calm and detailed analysis of all major aspects of the events of January 13, 1991 by the judicial authorities of Lithuania will meet the long-term interests of Russian-Lithuanian relations.

The Soviet Union’s disintegration and the formation of independent states in the post-Soviet space was not a momentary act. It was a long-term process regulated by the union’s legislation, notably, the April 3, 1990 law on the procedures related to the secession of a republic from the USSR.

The dates of acquiring independence by former union republics cannot be automatically linked to their adoption of the relevant declarations, which should only be viewed as the points of departure in the process of gaining independence. For the Baltic states, the point of departure is September 6, 1991 (the date when the USSR State Council adopted resolutions Nos. 1-GS, 2-GS and 3-GS on the independence of Lithuania, Latvia and Estonia, respectively). Their collective recognition and admission in the United Nations took place after this date.

In addition, former Soviet servicemen are being charged with crimes under articles 100, 103, 111 and 112, to name a few, of the 2000 Criminal Code of Lithuania in its March 31, 2011 version, although these events took place on January 13, 1991.

However, in accordance with Article 7 of the 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms, “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”

The 1948 Universal Declaration of Human Rights and Article 15 of the 1966 International Covenant on Civil and Political Rights have similar provisions.

Part 1 of Article 3 of the Criminal Code of Lithuania has a provision according to which “the criminality of a deed and punishment for it are determined by the criminal law that was valid at the time when the crime was committed.” However, part 3 of the same article makes an exception for a number of crimes, including those with which the Russians are charged. Meanwhile, the Lithuanian side makes groundless references to the second paragraph of Article 7 of the 1950 European Convention: “This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

In its judgment on the case of Vasiliauskas v. Lithuania on October 20, 2015, the European Court of Human Rights rejected this interpretation of the convention’s Article 7, quoting “the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war… It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity.” Therefore, the Lithuanian authorities are violating the rule of non-retroactivity and doing this at legislative level.

Considering the above and the historical fact that Lithuania was not an independent and sovereign state but part of the USSR in January 1991, it is clear that as such it could not be a victim of Moscow’s aggression contrary to the assertions of the Lithuanian Prosecutor’s Office. We consider it important to study the historical and legal aspects of the events in Vilnius in 1991 in an unbiased manner. The Russians are accused of war crimes and crimes against humanity, but these accusations evoke serious concern because they run counter or fail to conform to provisions of international humanitarian law, for instance, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949 or part III of the Rome Statute of the International Criminal Court of July 17, 1998, as well as the Lithuanian legislation on the protection of human rights and freedoms. Taking into account these facts and despite the European Court’s ambiguous judgments on complaints against the Baltic states (for instance, the Kononov v. Latvia case), it is important to consider that carefully prepared lawsuits may be filed with the European Court of Human Rights.

Given the complexity of the case, we are also urging the Lithuanian side to display a humane attitude and release Yury Mel from arrest, choosing a milder preventive measure. He has a serious disease (diabetes).

We are convinced that unbiased, calm and detailed analysis of all major aspects of the events of January 13, 1991 by the judicial authorities of Lithuania will meet the long-term interests of Russian-Lithuanian relations.

 

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