CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 février 2008

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font-size:10pt } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     SECOND SECTION     CASE OF KUOLELIS, BARTOŠEVIČIUS AND BUROKEVIČIUS v. LITHUANIA     (Applications nos. 74357/01, 26764/02 and 27434/02)     JUDGMENT       STRASBOURG     19 February 2008       FINAL     07/07/2008     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Kuolelis, Bartoševičius and Burokevičius v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President, András Baka, judges, Jean-Paul Costa, appointed to sit in respect of Lithuania, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Dragoljub Popović, judges, and Sally Dollé, Section Registrar , Having deliberated in private on 29 January 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 74357/01, 26764/02 and 27434/02) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Juozas Kuolelis (“the first applicant”), Mr Leonas Bartoševičius (“the second applicant”) and Mr Mykolas Burokevičius (“the third applicant”) on 16 July 2001 and 23 June 2002. 2.     The applicants were represented before the Court, respectively, by Ms E. Šajaukaitė, Mr A. Zamalaitis and Ms V.-R. Lekavičienė, lawyers practising in Vilnius. They had the benefit of legal aid under the Council of Europe scheme. The Lithuanian Government (“the Government”) were represented by their Agent, Ms Elvyra Baltutytė. 3.     The applicants alleged, in particular, that they had been prosecuted and convicted for offences the existence of which could not have been foreseen at the material time, and that the criminal proceedings had been unduly long. 4.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). Ms D. Jočienė, the judge elected in respect of Lithuania, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr J.-P. Costa, the judge elected in respect of France, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1). Subsequently, by a decision of 5 January 2006, the Chamber joined the applications (Rule 42 § 1) and declared them partially admissible. 5.     The applicants and the Government filed further written observations (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants are Lithuanian nationals born in 1930, 1928 and 1927, respectively. At the time of lodging their applications, the first and third applicants were detained at the Rasų prison in Vilnius and the second applicant was living in that city. A.     Historical and political background 7.     The historical and political background to the present case was set out in the judgments of the domestic courts referred to below and may be summarised as follows. 8.     On 23 August 1939 Stalin’s Soviet Union (hereafter sometimes also referred to as the “USSR”) signed a non-aggression treaty with Hitler’s Germany (the “Molotov-Ribbentrop Pact”). According to a secret additional protocol approved by the parties on 23 August and amended on 28 September 1939, the Baltic States had been attributed to the sphere of interest of the USSR in the event of a future territorial and political rearrangement of the territories of these then independent countries. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (hereafter “the CPSU”), the USSR’s only party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being called the “Soviet Socialist Republic of Lithuania” (the “LSSR”). The Government of the LSSR was appointed and controlled by the Communist Party of Lithuania (“the CPL”), a regional branch of the CPSU. 9.     In the late 1980s there was considerable social pressure in Lithuania, as in other east European countries, for the democratisation of political life. As a result of the newly introduced freedom of expression in the Soviet Union, massive political movements were formed in Lithuania, condemning the annexation of the country, asserting the need to construct a new society based inter alia on Lithuanian identity and values, and emphasising the need to restore the State’s independence. 10.     On 24 December 1989 the Congress of People’s Deputies of the USSR passed a Resolution on the Political and Juridical Appraisal of the Soviet-German Non-aggression Treaty of 1939. It denounced that treaty as illegal and invalid ever since its signature. It noted that the territorial divisions into Soviet and German spheres of influence had been contrary to the sovereignty and independence of several other countries, such as the Baltic States. This was followed by a Decision of the Supreme Council of the LSSR on 7 February 1990 denouncing the unlawful incorporation of Lithuania into the USSR in 1940. 11.     By the end of 1989, the CPL had decided to split from the CPSU. The new CPL immediately declared its support for Lithuanian independence and a multi-party political system. In the meantime, a minority of former CPL members created a new party, the CPL/CPSU ( LKP/TSKP ). According to its political programme, one of its goals was to maintain Lithuania as part of the USSR. 12.     The first independent parliamentary elections under Soviet rule took place in Lithuania on 24 February 1990. No member of the CPL/CPSU was elected to the Supreme Council (Parliament). 13.     On 11 March 1990 the newly elected Supreme Council adopted the Act on the Re-establishment of the State of Lithuania, which declared the Republic of Lithuania to be an independent, sovereign State again and asserted that Lithuania’s incorporation into the USSR had been null and void. The Supreme Council also reinstated certain provisions of the Lithuanian Constitution of 1938, and adopted the Provisional Basic Law, setting out the constitutional principles of the Lithuanian State (paragraphs 63-71 below). On the same date, the Supreme Council approved the Government of the Republic of Lithuania and proclaimed the validity of all previous legislation and legal acts which were compatible with the Provisional Basic Law. 14.     The Soviet Union repeatedly pressured Lithuania to renounce its independence and, on 14 April 1990, demanded the cancellation of the March laws and then immediately imposed an economic blockade for the failure to comply. As a compromise, on 18 April 1990 the Supreme Council adopted the Resolution on the Expansion of Relations between the Republic of Lithuania and the Union of Soviet Socialist Republics, announcing that, until 1 May 1990, it would not adopt new political legislative acts during preliminary parliamentary consultations between the two countries, once they began. The USSR did not respond; so, according to the respondent Government, the Resolution did not come into effect. 15.     On 23 May 1990 the Supreme Council of the Republic of Lithuania announced the temporary suspension of the actions and decisions flowing from the legislation of 11 March 1990, subject to the start of negotiations with the Soviet Union. It thereby sought to resolve the issues arising out of the re-establishment of the independent State of Lithuania (see paragraph 67 below). However, again, according to the Government, the suspension never took effect as the Soviet Union did not formally respond to the Lithuanian authorities. 16.     On 27 June 1990 a meeting with the leaders of the two States was held at the Kremlin in Moscow. The then President of the Soviet Union, Mr Mikhaïl Gorbachev, refused to lift the economic blockade because he did not accept that a “moratorium” was possible in respect of the Act on the Re-establishment of the State of Lithuania. On 12 July 1990 the Lithuanian Supreme Council appealed to the Supreme Soviet of the USSR, requesting that the illegal annexation of 3 August 1940 be denounced, and that Lithuania’s name be deleted from the Soviet Constitution. 17.     On 29 June 1990 the Supreme Council adopted a statement suspending the legal actions stemming from the Act on the Re-establishment of the State of Lithuania, subject to formal negotiations with the Soviet Union (paragraph 68 below). However, such negotiations never materialised and the conditional moratorium was denounced by the Supreme Council on 28 December 1990 (paragraph 70 below). The moratorium, which any way, according to the Government, had been inoperative, did not affect the lawfulness of the Act itself. 18.     On 10 November 1990 Article 70 of the Criminal Code was amended to prohibit activities, inter alia , undermining the constitutional order of the Republic of Lithuania, as distinguished from the previous prohibition on anti-Soviet activities (paragraph 78 below). 19.     On 10 January 1991 President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.” 20.     On 11 January 1991 the CPL/CPSU sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU announced that it would create the “Lithuanian National Rescue Committee” ( Lietuvos nacionalinio gelbėjimo komitetas ), “which would take care of matters concerning the future of the LSSR.” On 14 January 1991 the Supreme Council denounced the activities of this Committee as illegal, anti-constitutional, anti-state and criminal. It warned those involved that they would be held responsible in accordance with the laws of the Republic of Lithuania. 21.     Between 11 and 13 January 1991, the Soviet army conducted military operations against the Government of Lithuania. Soviet troops forcibly occupied the buildings of the Ministry of Defence, the Vilnius television tower, the Lithuanian public television and media headquarters and the Vilnius train station. Soviet troops also tried to take the seat of the Lithuanian Parliament and other authorities. Massive crowds from the local population came to the defence of the institutions of the Republic of Lithuania. Thirteen Lithuanian civilians were killed and over a thousand injured as a result of the conflict with the Soviet army during the night of 12 to 13 January 1991. 22.     On 9 February 1991 a nation-wide plebiscite was organised in Lithuania, whereby the public was requested to reply to the question whether they supported the following statement: “The Lithuanian State is an independent and democratic Republic.” More than three quarters of those who participated in the referendum answered in the affirmative. On 11 February 1991 the Supreme Council adopted a law which stated that the notion that “the Lithuanian State is an independent and democratic Republic” was a basic constitutional principle of the country. 23.     On 19 August 1991 there was an attempted coup in Moscow. The self-proclaimed “National State of Emergency Committee” declared that President Gorbachev was suspended from his duties, nominated itself as the sole ruling authority and imposed a state of emergency in certain regions of the USSR. This coup ended in failure within two days. 24.     In the immediate aftermath of the Moscow coup, in the course of August and September 1991, the new Lithuanian Government gained diplomatic recognition, inter alia from the USSR, the European Communities and the United States of America. The USSR was the 60th State to recognise the Republic of Lithuania as a subject of international law and a sovereign State, as defined in its “fundamental acts of 11 March 1990”. It renounced the 1940 Law which had incorporated Lithuania into the USSR. 25.     As regards the activities of the Lithuanian Communist Party, on 2 July 1990 the Ministry of Justice had dismissed an application for the registration of the “LSSR Citizens’ Committee”, as it had been deemed to have aims which were incompatible with the Provisional Basic Law. On 22 August 1991 the Supreme Council issued the Resolution on the activities of the CPL/CPSU in Lithuania. Thereby it confirmed the illegality of the CPL/CPSU and took steps to ensure its dissolution and the restoration of property which had been seized by that organisation and its subsidiaries whilst under the protection of the Soviet military. According to the Government, until the Soviet armed forces started to retreat after the failed putsch in Moscow, it had not been possible to take effective measures against that organisation. B.     The investigation and trial 26.     In November 1990, the first criminal case was instituted in relation to an intervention by the Soviet military against a protest meeting. Several offences were investigated. In the course of 1991, a total of eight other criminal cases were instituted against various members of or collaborators with the CPL/CPSU concerning their alleged attempts forcibly to overthrow the democratically elected authorities of Lithuania and their breach of the sovereignty of the State. Originally 49 defendants had been envisaged, but several had fled to Byelorussia and Russia, from where extradition was refused despite efforts made by Lithuanian officials during visits to those countries. This lack of interstate cooperation impeded the investigation. Only six people were tried ultimately, including the applicants, who had been executives of the CPL/CPSU and were suspected of subversive activities. The nine cases were subsequently joined in one set of criminal proceedings. These proceedings became known in Lithuania as the “January the 13 th case”, a reference to the tragic events during the night of 12-13 January 1991 (paragraph 21 above). 27.     The first applicant was questioned several times as a witness in the aftermath of the failed Moscow coup of August 1991. On 28 June 1994 he was arrested and interrogated in a detention centre as a suspect. He was released on bail on 1 July 1994, with a written undertaking not to leave the country. He was imprisoned after his conviction at first instance (paragraph 51 below). 28.     On 15 November 1994 it was decided to lay charges against the second applicant under Articles 67 and 70 of the Criminal Code. He was not remanded in custody, but had to provide a written undertaking not to leave the country. He was imprisoned after his conviction at first instance (paragraphs 52-53 below). 29.     The third applicant was indicted as a suspect in a criminal case which had been instituted on 22 August 1991. As he had fled, an arrest warrant was issued for him on 27 August 1991. He alleged that, on an unspecified date in 1994, he was kidnapped in Byelorussia by the Lithuanian authorities and unlawfully brought back to Lithuania. On 15 January 1994 he was detained on remand until his subsequent conviction (paragraphs 54-55 below). 30.     The pre-trial investigation was concluded on 5 December 1994. From 11 December 1994 until 15 April 1996, the first and second applicants had access to the case file. The third applicant had access to the case file from 10 December 1994 until 31 May 1996. 31.     In the course of the preliminary investigation, 3,344 witnesses and 1,349 purported victims were questioned. Moreover, 1,190 expert examinations of various kinds were carried out. 182 searches were conducted and 77 seizures executed. According to the Government, attempts were made to destroy certain relevant materials and parts were found burnt. Time was needed to determine their contents. A significant part of the materials were in the Russian language, which necessitated translations. Furthermore, interpretation was required in the interrogation of several defendants. 32.     On 19 June 1996 the bill of indictment was confirmed with regard to six co-defendants, including the applicants. The case consisting of 332 volumes of evidence was sent to the Vilnius Regional Court for trial. 33.     The trial started on 12 November 1996. The following day until 21 January 1997 the prosecutors read out the bill of indictment, which alone comprised 15 volumes. There were a few days of interruption due to the applicants’ ill-health. 34.     On 10 December 1996, 12 May, 23 June, 22 October and 4 and 18 December 1997, the trial was adjourned due to the state of health of certain other co-accused. 35.     From 29 May to 2 June 1997, the trial was adjourned due to the deterioration of the third applicant’s health. 36.     On 23 June 1997 the court granted 9 requests from purported victims for forensic medical examinations. 37.     From 30 June until 11 August 1997, the court was closed for the judicial holidays. 38.     On 22 October, 17-18 November, 5-15 December, 18-23 December 1997 and 23 December 1997 to 6 January 1998, the trial could not proceed due to the illness of one or other of the defendants, or because of the absence of certain witnesses. 39.     On 27 January, 2-10 February, 13-18 February, 19 February to 16 March, 26 March to 20 April and 12-15 May 1998, the trial was adjourned in view of the poor health of one or other of the defendants. 40.     From 1 to 8 June 1998, the trial was adjourned in view of the failure of one of the defence lawyers to appear. 41.     From 9 July until 3 September 1998, the case was adjourned pending the judicial holidays. 42.     From 15 September until 19 October 1998, the case was adjourned at the request of the third applicant and his counsel for the preparation of the defence. 43.     From 19 to 27 October 1998, the court further adjourned the trial at the request of the third applicant and his lawyers, in order to prepare the defence to a modified charge. 44.     From 9 November 1998 to 7 May 1999, the parties were given an opportunity to reply to each other’s questions. 45.     On 2 February, 26 March, 3 November and 14 and 29 December 1998, 5 and 25 January, 15 March and 19 to 26 April 1999, the trial was adjourned in view of the illness of one or other of the defendants or their legal representatives. 46.     From 7 May to 15 July 1999, the applicants made their final remarks before the trial court. 47.     During the trial, 3,093 witnesses and 1,461 purported victims had been questioned. 48.     According to information about the case submitted by the respondent Government, the proceedings involving Soviet military personnel, including several accused who had fled and whose extradition was refused by the USSR, were still pending on 1 March 2006. Moreover, some 77 people who had suffered damage as a result of the Soviet military intervention in January 1991 have applied for compensation. C.     The applicants’ conviction on 23 August 1999 49.     On 23 August 1999 the Vilnius Regional Court adopted a judgment in the case, consisting of 246 pages. The applicants and their official defence counsel were present at the hearing. 50.     In its judgment the Vilnius Regional Court mentioned the historical and political background to the case (see paragraphs 7-25 above), underlining that the CPSU and CPL/CPSU had been opposed to the democratisation of public life in Lithuania, and had only sought to maintain the status quo of Soviet rule. During the period in question, from the Act on the Re-establishment of the State of Lithuania of 11   March 1990 until the failed Moscow coup of August 1991, the CPSU had been a very powerful organisation in view of its control over Soviet security and the interior, as well as the military forces stationed on the territory of Lithuania and elsewhere. The CPSU had used the CPL/CPSU to support its policing and military capabilities in Lithuania, targeted at stripping the legitimate Government of Lithuania of its powers. The CPSU and CPL/CPSU, being aware that their ideas were supported by only a small minority of the Lithuanian population, had made attempts violently to overthrow the democratic regime. The applicants, the then senior executives of the CPL/CPSU, were found personally to have taken decisions or engaged in acts attesting to their involvement in the attempted coups. In particular, the following acts of the applicants were established by the trial court: (i)   The first applicant had occupied the position of Secretary of the Central Committee of the CPL/CPSU; the second applicant had been a member of the Central Committee of the CPL/CPSU and Director of the radio station “Soviet Lithuania”; the third applicant had been First Secretary of the Central Committee of the CPL/CPSU. (ii)   On 21 April 1990 the CPL/CPSU had founded the “LSSR Citizens’ Committee” ( LTSR piliečių komitetas ) [1] , with the aim of stripping the Lithuanian Government of its powers, disobeying legislation passed by the Supreme Council, and reinstating the force of the USSR Constitution and other Soviet laws. The first and the third applicants had been members of the presidium of this Committee. (iii)   On 12 May 1990, on the initiative of the third applicant, the “LSSR Party’s Interior Committee” ( LTSR VRM partinis komitetas ) had been founded for the purpose of creating independent police units under the authority of the CPL/CPSU. (iv)   In the summer of 1990, on the initiative of the third applicant and other members of the CPL/CPSU, the so-called “Association of Free Businessmen” ( Laisvųjų verslininkų asociacija ) had been created with the aim of co-ordinating the activities of the USSR economic structures based in Lithuania, as an alternative to the acting Government of Lithuania. (v)   In June 1990 the applicants had established the radio station “Soviet Lithuania” on the premises of Vilnius University, forcibly occupied by Soviet troops. (vi)   On 7 August 1990 the “LSSR Citizens’ Committee” had established “Workers’ Vigilance Committees” ( darbininkų draugovės ), their publicly proclaimed goal being “to disobey unlawful forcible acts [aimed at] liquidating the socialist regime and unlawfully separating Lithuania from the USSR”. (vii) On 16 December 1990 the CPL/CPSU had organised the “Congress of Democratic Forces of Lithuania” ( Lietuvos demokratinių jėgų kongresas ), the third applicant being its President. (viii) In early January 1991 the third applicant had presented to his CPSU superiors in Moscow a plan for “USSR Presidential Rule” in Lithuania. The third applicant had also been involved in organising various meetings and strikes in order to achieve the execution of that plan. Following which, on 10 January 1991 President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.” (ix)   On 11 January 1991 the CPL/CPSU had sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU had announced that it would create the “Lithuanian National Rescue Committee” ( Lietuvos nacionalinio gelbėjimo komitetas ), “which would take care of matters concerning the future of the LSSR.” (x)   In addition to the ultimatum of 11 January 1991, the CPL/CPSU had made five public declarations during the period from 11 to 19 January 1991, urging the forceful overthrow of the Government and the other authorities of independent Lithuania. The first and the third applicants had been responsible for preparing those declarations, whilst the second applicant had been responsible for disseminating them in the media. (xi)   During the Soviet Army’s invasion of the Lithuanian public media headquarters and other buildings in Vilnius from 11 to 13 January 1991 (see paragraph 21 above), the third applicant had actively collaborated with the CPSU and the USSR authorities, inciting them to use military force, with the help of vigilantes, against the unarmed civilian population which had assembled to defend Lithuanian independence around these buildings. The third applicant had therefore been an accomplice of the officers of the Soviet Army, who had murdered 13 Lithuanian civilians, severely injured 16 people, and caused medium or mild bodily harm to 724 persons. All the victims and the types of the injuries sustained during the confrontations during the night of 12-13 January 1991 were listed in detail in the judgment. The applicants were also convicted in respect of the unlawful occupation of Lithuanian State premises. (xii) One of the applicants’ co-defendants, J.J., had been considered to be the founder of and main participant in the Lithuanian National Rescue Committee, which had been particularly active during the attempted coup of 11-13 January 1991. The first and the second applicants had also been held to have participated in the activities of this Committee by disseminating various public declarations on its behalf through the radio station “Soviet Lithuania”. Those declarations had urged the forceful overthrow of the legitimate Government of Lithuania. (xiii) On 14 January 1991 the Supreme Council had adopted a decision on the so-called Lithuanian National Rescue Committee, declaring its creation and actions to be “anti-constitutional, subversive and thus illegal.” (xiv) Following the events of January 1991, the applicants had continued unlawfully to occupy several buildings with the assistance of the Soviet Army, including the Lithuanian public television and media headquarters in Vilnius. (xv) On 17 March 1991 the CPL/CPSU had unsuccessfully tried to organise a referendum on Lithuania’s stay within the USSR, the third applicant having been particularly active in the matter. (xvi) The applicants had continued their subversive activities within the CPL/CPSU up until the failed Moscow coup in August 1991. (xvii) The CPL/CPSU was thus recognised as an anti-state organisation within the meaning of Article 70 of the Criminal Code as then in force (see paragraph 78 below). Similarly, the LSSR Citizens’ Committee, the LSSR Party’s Interior Committee, the Association of Free Businessmen, the radio station “Soviet Lithuania”, the Workers’ Vigilance Committees, the Congress of Democratic Forces of Lithuania and the Lithuanian National Rescue Committee were also recognised as such organisations, the CPL/CPSU having set up or controlled all of them. (xviii) As regards the first applicant, the court concluded that, in his capacity as the Secretary of the Central Committee of the CPL/CPSU, he had publicly urged the forceful overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State, between the Act on the Re-establishment of the State of Lithuania of 11 March 1990 and the failed coup in Moscow in August 1991. It was also found that the first applicant had obstructed the functioning of the democratically created institutions of independent Lithuania, and had participated in the activities of the anti-state organisations mentioned above. 51.     The first applicant was convicted of offences under Article 68 of the then Criminal Code (publicly urging the forceful overthrow of the sovereignty of the State) and Article 70 of that Code (the creation of and participation in the activities of anti-state organisations). He was sentenced to six years’ imprisonment. 52.     As regards the second applicant, the court concluded that, in his capacity as a member of the Central Committee of the CPL/CPSU and Director of the radio station “Soviet Lithuania”, he had participated in the activities of anti-state organisations between 11 March 1990 and August 1991. He had been responsible for broadcasting various transmissions, urging inter alia the forceful overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State. 53.     The second applicant was convicted of an offence under the then Article 70 of the Criminal Code and sentenced to three years’ imprisonment. He was acquitted of sabotage (Article 67 of that Code). 54.     As regards the third applicant, the trial court concluded that, in his capacity as First Secretary of the Central Committee of the CPL/CPSU, he had participated in the activities of anti-state organisations, and had obstructed the functioning of the institutions of independent Lithuania between 11 March 1990 and August 1991. He had also publicly urged the forcible overthrow of the lawful Government of Lithuania and the abolition of the sovereignty of the Lithuanian State. It was further found that he had urged that Soviet troops be used against the unarmed civilian population during the events of 12-13 January 1991, thus being responsible for the death of and injuries to the victims of those events. 55.     The third applicant was convicted of offences under Articles 68 and 70 of the Criminal Code. He was also convicted of complicity in aggravated murder and causing various types of bodily harm during the events of 12-13 January 1991 (Articles 105, 111, 112 and 116, in conjunction with Article 18 of the Criminal Code as then in force). He was sentenced to 12 years’ imprisonment, but acquitted of sabotage. 56.     The other three co-defendants were also convicted. D.     Proceedings on appeal and cassation 57.     On 20 February 2001 the Court of Appeal amended the applicants’ conviction under Article 70 of the then Criminal Code insofar as it related to their activities in the CPL/CPSU and its subsidiary organisations between 11 March and 10 November 1990. The Court of Appeal found that, prior to the legislative amendment of 10 November 1990, Article 70 of the Criminal Code dealt with the activities of anti-Soviet organisations, and could not be applied by analogy to the activities of anti-Lithuanian organisations. However, in view of the legislative amendment, criminal responsibility was thereafter clearly established by Article 70 for actions directed against the sovereignty of the Lithuanian State (see paragraph 78 below). The court therefore held that the domestic criminal law did not provide for criminal responsibility on the ground of the applicants’ membership of the CPL/CPSU until 10 November 1990, and that they could only be convicted for their activities within that party and other anti-state organisations after that date. 58.     The appellate court also quashed the third applicant’s conviction insofar as it related to complicity in causing medium and mild bodily harm (Articles 112 and 116 of the then Criminal Code, in conjunction with Article 18) in view of the expiry of the statutory time-limit for bringing criminal proceedings in respect of those offences. His conviction remained insofar as it related to his being an accomplice to aggravated murder and causing serious bodily harm (Articles 105 and 111 of the then Criminal Code, in conjunction with Article 18). 59.     The first and the third applicants’ convictions under Article 68 § 3 of the Code and their sentences remained unchanged. The second applicant’s sentence was reduced to one year and six months’ imprisonment. 60.     The Court of Appeal otherwise confirmed a substantial part of the first instance court’s findings and held that, under international law, the new Government of Lithuania had had legitimate authority as of 11 March 1990 over the territory of Lithuania, and that the occupation and annexation by the Soviet Union for over 50 years had been annulled as of that date. The later recognition of this fact by foreign States merely acknowledged the existing reality. The fact that it took the new Government time to replace the previous Soviet structures of the State did not imply any continued dependence on the USSR. However, the applicants, being leading anti-state activists and communist party executives, had unlawfully sought to overturn the Lithuanian Government and re-instate Soviet power. 61.     On 28 December 2001 the Supreme Court dismissed the applicants’ cassation appeals. That decision was final. 62.     The first applicant’s attempts to obtain release on licence were to no avail. It seems he was eventually released on 23 August 2004. On an unspecified date the second applicant was also released from prison after having served his sentence. The third applicant was released on 13 January 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE 1. Constitutional provisions on the status of the Republic of Lithuania 63.     The Act on the Re-establishment of the State of Lithuania of 11 March 1990 was worded as follows:   “The Supreme Council of the Republic of Lithuania, expressing the will of the Nation, decrees and solemnly proclaims that the execution of the sovereign powers of the Lithuanian State, abolished by a foreign force in 1940, is re-established, and henceforth Lithuania is again an independent State. The Act of Independence of 16 February 1918 of the Council of Lithuania and the Decree of the Constituent Assembly [Parliament] of 15 May 1920 on the re-established democratic State of Lithuania have never lost their legal effect, and constitute the constitutional foundation of the State of Lithuania. The territory of the State of Lithuania is whole and indivisible, no constitution of another State being effective on it. The State of Lithuania stresses its adherence to the universally recognised principles of international law, recognises the principle of the inviolability of borders, as formulated in the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1975, and guarantees human, civic and ethnic community rights. The Supreme Council of the Republic of Lithuania, expressing sovereign power, by this Act begins to realise full State sovereignty.” 64.     On 11 March 1990, by the Law on the Re-instatement of the Lithuanian Constitution of 12 May 1938, the Supreme Council restored certain essential provisions of the original Lithuanian Constitution, thereby discontinuing the effect of the USSR Constitution of 1977 and the LSSR Constitution of 1978. 65.     On the same date the Supreme Council adopted the Provisional Basic Law of the Republic of Lithuania ( Laikinasis pagrindinis įstatymas ), setting out the constitutional principles of the newly restored State of Lithuania. In particular, this Law referred to Lithuania as a sovereign democratic republic, the power being vested in the people and exercised by Parliament, the Government and the judiciary. Moreover, it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with the new Provisional Basic Law. It remained valid until 2 November 1992. 66.     On 11 and 13 March 1990 the Supreme Council decided that all the authorities of the USSR and the LSSR and any public institution on the territory of Lithuania fell under the jurisdiction of the Republic of Lithuania. By these provisions, as well as by the Government Act of 22 March 1990, the Government of the Republic of Lithuania were empowered to exercise full control over all institutions on the territory of the country. 67.     On 23 May 1990 the Supreme Council adopted Resolution No. 1-226 suspending the implementation of acts and decisions originating in the laws passed on 11 March 1990, subject to and pending official negotiations with the USSR. The Resolution was to come into effect at the start of negotiations. However, by Resolution No. 1-340 dated 29 June 1990, it was declared null and void with immediate effect. 68.     It was replaced by a Statement of 29 June 1990, announcing a 100-day extendable moratorium on the Act on the Re-establishment of the Independent State of Lithuania, and the legal acts stemming from that legislation, to start when negotiations with the USSR would be underway: “The Supreme Council of the Republic of Lithuania, Expressing and continuing to express the sovereign powers of the Nation and State, re-establishing the independent State of Lithuania, and seeking interstate negotiations between the Republic of Lithuania and the Union of Soviet Socialist Republics for the purpose of the execution of all those powers, Declares, from the start of such negotiations, a moratorium of 100 days on the Act on the Re-establishment of an Independent State of Lithuania; that is, it suspends the legal actions stemming from that Act. The start of negotiations between the Republic of Lithuania and the USSR, their aims and conditions, shall be determined by a special protocol of the parties’ authorised delegations. The Supreme Council of the Republic of Lithuania can extend the moratorium or revoke it. The moratorium automatically loses force with the breakdown of negotiations. If, as a result of any other events or circumstances, ... the Supreme Council of the Republic of Lithuania will not be able to execute normally the functions of State government, the moratorium will lose force at the same time.” 69.     On 25 September 1990 the Supreme Council adopted the Law on Political Parties, which confirmed that the political parties of other States and parties operating outside the framework of the Provisional Basic Law would be considered illegal. Article 4 of that Law provided that such parties could not obtain the necessary registration. Political parties would be accepted for registration only in “the interests of the consolidation of the independent and democratic State of Lithuania”. 70.     On 28 December 1990 the Statement (moratorium) of 29 June 1990 was denounced by the Supreme Council, and was not referred to again in official documents. Taking into account the fact that the USSR delegation did not agree to sign a protocol for the start of interstate negotiations, the Supreme Council renounced the principles laid down for that procedure, including the conditional moratorium. It envisaged the possibility that negotiations could nevertheless start without signing a protocol, but only if the sovereignty of the State of Lithuania were not violated. 71.     In view of the response given by the majority of the Lithuanian population in a nation wide referendum, on 11 February 1991 the Supreme Council adopted a law stating that the notion that the “Lithuanian State is an independent and democratic republic” was a basic constitutional principle. 2. Legislative provisions concerning the CPL/CPSU and its subsidiary organisations 72.     On 14 January 1991 the Supreme Council adopted a decision “on the so-called Lithuanian National Rescue Committee”, in which it declared its creation and actions to be “anti-constitutional, subversive and thus illegal.” 73.     On 22 August 1991 the Supreme Council adopted a decision confirming the illegality of the CPL/CPSU. 3. Substantive criminal law 74.     The applicants were convicted under the Criminal Code which had been adopted by the Supreme Council of the LSSR on 26 June 1961, and which continued to apply to the territory of Lithuania, with numerous amendments, until the entry into force of a new Criminal Code on 1 May 2003. 75.     On the basis of the Provisional Basic Law of 11 March 1990, the provisions of the Criminal Code 1961 (hereafter the “CC”) were deemed to apply following the re-establishment of Lithuania’s independence as long as those provisions were compatible with that legislation (see paragraph 65 above). 76.     Article 18 of the CC dealt with issues of complicity. 77.     Article 68 of the CC punished anti-Soviet agitation and propaganda. It penalised, inter alia , especially serious crimes against the Soviet State and the propagation of anti-Soviet, defamatory fiction. By a legislative amendment of 4 October 1990, which came into force on 10 November 1990, Article 68 of the CC was rephrased, specifying the criminalisation of acts directed against the sovereignty of the Republic of Lithuania. Paragraph 3 of that Article punished such acts, if committed at the request of a foreign State or organisation, with up to 10 years’ imprisonment. 78.     Article 70 of the CC prohibited the creation of and active participation in anti-Soviet organisations with a view to preparing or committing especially serious crimes against the State. Following the legislative amendment of 10 November 1990, Article 70 of the CC was rephrased to prohibit participation in acts aimed at disturbing the public or social order established by the Provisional Basic Law (the Constitution), to limit the sovereign powers of the Lithuanian State or to separate any part of its territory by force. 79.     Prior to these amendments to the Criminal Code, on 2 May 1990 the Law on the Rehabilitation of Persons Repressed for Resistance to the Former Occupying Regimes was adopted by the Supreme Council. Thereby those persons who had been convicted under the previous anti-Soviet version of Articles 68 and 70 of the CC were declared innocent in the eyes of the Republic of Lithuania and their civil rights restored to them. 80.     Article 105 of the CC punished acts of aggravated murder. 81.     Article 111 of the CC punished acts causing serious bodily harm. III.     REPORT OF THE PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE 82.     The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly monitored the Human Rights situation in Lithuania, which process included a visit by a delegation to that country and a meeting with the third applicant in Lukiškės Prison. The Rapporteur commented afterwards in his report of 7 January 2000 (AS/JUR(2000)02) that: “40. The main conclusion to be drawn is that justice cannot be used as a means of mastering recent history, concerning which very little research exists. There is a great danger of inspiring and feeding a desire for revenge in the national conscious and unconscious, thus bringing about new injustices. 41. For example, it is impossible to determine the degree of independence, and hence the responsibility, of a provincial Communist party leader before historical research has been done to assess the decision-making autonomy and the real powers of such an official under the Communist party system that prevailed in the former Soviet Union.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 83.     The applicants complained that the crimina