CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2014

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He died in 2005 after lodging his application. On 11   January 2006 his son, Mr Sergejs Larionovs, informed the Court that he wished to pursue the application on behalf of his father. 2.     The applicant in the second application, Mr Nikolay Tess (“second applicant”), was a Russian national. He was born in 1921 and died in 2006. His widow, Mrs Tamara Karlovna Ziyberg, informed the Court that she wished to pursue the application. Following her death in 2011, the second applicant’s brother informed the Court of his wish to pursue the application on behalf of Mr Tess. 3.     The applicants were represented before the Court by Mr M. Ioffe, a lawyer practising in Riga. 4.     The Latvian Government (“the respondent Government”) were represented by their Agents, Mrs I. Reine and, subsequently, Mrs K. Līce. 5.     On 4 January 2008 the applications were declared partly inadmissible and the complaints concerning Article 7 and the length of the criminal proceedings were communicated to the respondent Government. 6.     The Government of the Russian Federation exercised its right of third-party intervention in relation to the application lodged by Mr Tess in accordance with Article 36 § 1 of the Convention, to which the respondent Government objected. The Russian Government were represented by the representative of the Russian Federation at the Court, Mr G. Matyushkin. 7.     The second applicant requested an oral hearing. The Chamber decided that no hearing was required (Rule 59 § 3 in fine ). A.     The circumstances of the case 1.     The Soviet occupation of Latvia and deportations 8.     On 23 August 1939 the foreign ministers of Germany and the Union of the Soviet Socialist Republics (USSR) signed a non-aggression treaty (the Molotov-Ribbentrop Pact). The treaty included a secret additional Protocol whereby Germany and the USSR agreed to settle the map of their “spheres of influence” in the event of a future “territorial and political rearrangement” of the territories in Europe including the Baltic States of Estonia, Latvia and Lithuania. 9.     Following Germany’s invasion of Poland on 1 September 1939 and later the start of the Second World War, the USSR began exerting pressure on the governments of the Baltic States with a view to taking control of those States pursuant to the above-mentioned Pact and Protocol. 10.     Following an ultimatum by the Soviet Union to the Baltic States to allow an unlimited number of Soviet troops to be stationed in those States, on 16-17 June 1940 the Soviet army invaded the three Baltic States. The Government of Latvia were removed. The Republic of Latvia was renamed as “Soviet Socialist Republic of Latvia” (“Latvian SSR”). 11.     The first progress report of the Commission of the Historians of Latvia (established in 1998) recorded that the annexation by the USSR led to “mass deportations” ( masveida deportācijas ) from the Baltic States of their elites in 1941 and of Kulaks and members of the national resistance in 1949. For the purposes of the current judgment, the Court uses the word “deportation” to describe an involuntary extra-judicial transfer of an individual from one State to another. 12.     As to the deportations of 1941, the respondent Government submitted, and the applicants did not contest, that on 14 June 1941 over 15,000 persons comprising the State’s economic, cultural and intellectual elites were deported from Latvia by the USSR to remote areas of Siberia. Similar deportations were carried out by the USSR in Western Ukraine in May 1941 as well as in Lithuania, Estonia, Moldova and in Western Belorussia in June 1941 [1] . 13.     On 22 June 1941 Germany attacked the USSR. The rapid advance of the German forces obliged the USSR forces to leave the Baltic States and withdraw towards Russia.   On 10 July 1941 the territory of Latvia was fully occupied by the German forces. 14.     In July 1944 the Red Army re-entered Latvia and on 8 May 1945 Latvian territory passed into the control of the USSR forces. 15.     On 29 January 1949 the Council of Ministers of the USSR issued Decree no. 390-138ss (“ss” meaning top secret). It was entitled “On the deportation out of the territory of Lithuania, Latvia and Estonia of Kulaks and their families, the families of bandits and nationalists who are illegal, who were killed in the course of armed activities or who have been convicted, legalised bandits ( легализованные бандиты ) who continue hostile activities and their families, as well as the families of supporters of repressed bandits” (see paragraph 114 below). The operation was to be known as Operation Priboi . The lists of deportees were to be approved by the Council of Ministers of the Lithuanian, Latvian and Estonian SSRs. These groups of people were to be sent into “perpetual exile” ( выселение произвести навечно ) to named (remote) regions of the USSR. The Ministry of Internal Affairs of the USSR had to ensure transportation, security during transportation and settlement in order to prevent escape as well as to ensure the registration of settlers and the assignment of work details on arrival. The Decree foresaw the deportation of a total of 29,000   families (87,000 people), which included 13,000 families (39,000 people) from Latvia. According to the Decree, families would have to be allowed to bring possessions as well as a reserve of food (up to 1,500 kg). Other possessions were to be confiscated. Funds were to be made available for meals and medical services (a doctor and two nurses per train) during transport. Escape would be a serious criminal offence: reference was made to a decree of the Presidium of the Supreme Soviet Council dated 26   November 1948 and entitled “Bringing to criminal account the persons who have been deported to remote areas of the Soviet Union during the Great Patriotic War, but who have escaped from the sites of compulsory exile”. 16.     Decree no. 390-138ss was implemented in Latvia by Decree no.   282ss, adopted by the Council of Ministers of the Latvian SSR on 17   March 1949. It provided for the deportation of 10,000 Kulak families from the Latvian SSR to remote places of the USSR for the special settlement ( выселить в отдаленные места Советского Союза на спецпоселение ). The Kulak list, which had been prepared in accordance with an agricultural census of 1939 by the Executive Committees of the Councils of the Deputies of the Working People, was approved. The Ministry of State Security of the Latvian SSR (“MGB”) was charged with implementing the deportation. 17.     The majority of the 1949 deportations from the Baltic States were carried out in March 1949, with those of 25 March 1949 being the most significant.   Families were taken away from their homes involuntarily and loaded in the cargo and cattle trains and sent to remote areas of the USSR. 18.     Both the applicants and the respondent Government submitted a Chapter from a book entitled “ The deported: 25 March 1949 ” (“ Aizvestie: 1949.   gada 25.   marts ) (Latvian State Archive, Nordik, Riga, 2007). The Chapter was headed “ Structural analysis of the deportation of 25 March 1949 ” from Latvia and was based on data from the Latvian State Archive. The Russian Government (a third party to the application of the second applicant) also relied on statistics drawn from this document. 19.     This document analysed data concerning 42,125 persons deported from Latvia from 25 to 30 March 1949 (the vast majority on 25 March 1949). The March deportations comprised two large groups of the Latvian population: the “ Kulaks ” (as defined by Decree no. 761 of the Latvian SSR of 1947, paragraph 113 below) and “nationalists” (families of those convicted for collaboration with the German occupying powers, for membership of a national resistance group or for its support in the post-war period). Of the total number of deportees, 29,030 were deported as Kulaks (68.9%) and 13,095 persons were deported as nationalists (31.1%). It also recorded that 2.2% of the Latvian population was deported in March 1949, the deportation of Kulaks amounting to 1.5% of the population; 211 babies were born during transportation and on arrival in year 1949; 229 persons died during transportation (fifty-two of the dead were over eighty years of age and thirty-three were under five years of age). Men and women constituted 40% and 60%, respectively, of the 1949 deportations. Over 26% of those deported in March 1949 were under sixteen years of age; 18.5 % of those deported were over sixty years of age. Almost 750 deportees were over eighty years of age. Over 95% of the deportees in March 1949 either originated from Latvia or were ethnic Latvians. 20.     The respondent Government also submitted a detailed report, dated 18 May 1949 from General-Major Spasenko to the Deputy Minister of the Interior of the USSR, setting out the results of the deportations, which had exceeded forecasts: from 25 to 30 March 1949 the deportations from the three Baltic States amounted to approximately 30,000 families (90,000 persons), which included 14,000 families from Latvia (approximately 40,000 persons including 11,000 men, 19,000 women and 10,000 children). The respondent Government also submitted a copy of Decree no. 14 (of 29   March 1949) of the Central Committee of the Communist Party of Latvia, which confirmed the successful completion of the deportation process. 21.     This Court’s decisions record certain relevant statistics. In Penart v.   Estonia ((dec.), 14685/04, 24 January 2006) and Kolk and Kislyiy v.   Estonia ((dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I), the Court recorded that the USSR conducted large-scale and systematic actions against the Estonian population, including the deportation of about 10,000 persons on 14 June 1941 and of more than 20,000 on 25 March 1949. 2.     Independence 22.     On 4 May 1990 the Supreme Council of the Latvian SSR, the legislative assembly elected on 18 March in the same year, adopted the “Declaration on the Renewal of Independence of the Republic of Latvia”, which declared Latvia’s incorporation into the USSR in 1940 unlawful, null and void and restored force of law to the fundamental provisions of the 1922 Constitution. On the same day, the Supreme Council adopted the “Declaration on the Accession of the Republic of Latvia to Human Rights Instruments”. By “accession” was meant a solemn, unilateral acceptance of the values embodied in the instruments concerned. Most of the international law instruments referred to in the declaration were subsequently signed and ratified by Latvia in accordance with the domestic and international law. 23.     After two unsuccessful coups d’état in the USSR, on 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia proclaiming full independence with immediate effect. 24.     On 22 August 1996 the Latvian Parliament adopted the “Declaration on the Occupation of Latvia”. It described the annexation of Latvian territory by the USSR in 1940 as a “military occupation” and an “illegal incorporation”. Soviet repossession at the end of the Second World War was referred to as the “re-establishment of an occupying regime”. 25.     Prior to that, on 2 November 1988 the Council of Ministers of the Latvian SSR issued Decree no. 350 (“ Par pilsoņu nepamatotu administratīvu izsūtīšanu no Latvijas PSR 1949.gadā ”) and repealed Decree no. 282ss of 17   March 1949: the deportations carried out thereunder were acknowledged to be without foundation and all deportees were rehabilitated. 3.     The first applicant 26.     The first applicant, Mr Nikolajs Larionovs, was born in Latvia. Following the occupation of Latvia by the USSR in the summer of 1940, he was admitted to the Academy of the Infantry of the Soviet Army in Riga. When the German forces attacked in June 1941, the first applicant was living in a border area and followed the Red Army in its retreat.   Once in Russia, he was mobilised into the Red Army. He was assigned to the 201st Latvian Division. Having been decorated several times and seriously injured, he was promoted to the rank of lieutenant. In August 1944 he was demobilised and assigned to the State security services which was, at the time, subordinated to the People’s Commissariat for Internal Affairs (“NKVD”) of the Latvian SSR. 27.     In 1944 the first applicant was sent to Latvia to serve in the local branch of the NKVD – renamed shortly thereafter the MGB (of the Latvian SSR) – which was responsible for counter-intelligence and espionage.   The first applicant worked in the Latvian SSR until the end of his career and retired in 1976 having reached the grade of lieutenant-colonel. (a)     Charges and pre-trial matters 28.     On 9 November 1998 the Office of the Prosecutor General opened a preliminary investigation into the first applicant’s activities from February to March 1949. It was considered that the first applicant, as an official of the MGB, had issued and signed several orders for the arrest and deportation of many Kulaks and their families and reference was made to Article 68 1 of the 1961 Criminal Code, in force when the preliminary investigation had opened. The first applicant submitted that he had been advised of that step at the time. 29.     By order of 6 October 1999 a court dismissed the prosecution’s request that the first applicant be placed in custody but he was placed under police supervision, a measure which was never lifted. 30.     On 8 October 1999 the first applicant was charged with crimes against humanity and genocide. According to the decision to charge: “[The prosecutor], having examined criminal case no. 81210298 concerning crimes against humanity and genocide against the inhabitants of Latvia and considering that there is sufficient evidence, [decides to] charge the [first applicant] with deliberate, active participation in [committing] crimes against humanity and genocide against groups of inhabitants of Latvia whose members the totalitarian communist regime (the communist party of the USSR and the Latvian SSR and the repressive State authorities) considered as nationalists and Kulaks who were socially dangerous and inimical to the regime. His deliberate action was aimed at destroying, in whole or in part, members of groups, by bringing about their deaths, by causing serious injury to their physical integrity or by causing them psychological illness, by intentionally submitting them to living conditions intended to cause their total or partial physical destruction, and also by depriving them of their economic, political and/or social rights or by restricting the exercise of those rights.” 31.     The decision to charge also noted that: “In August 1944 N. Larionovs demobilised from the Red Army and willingly started working in the Ministry of the State Security of the Latvian SSR (“MGB”). As a representative of the repressive Soviet authorities, working as a senior specially mandated investigator of division no. 2 of the MGB, acting along with other MGB agents, deliberately intending to execute Decree no. 390-138ss ... and Decree no.   282ss ..., and [deliberately intending to] deport the group of inhabitants of Latvia whom the totalitarian communist regime considered as Kulaks , in 1949 issued and signed deportation orders, being aware that persons mentioned in those orders, including children and elderly, would forever be deported from Latvia to remote northern areas of the USSR, calculating that this group would be physically destroyed, in whole or in part, due to cold, starvation, illnesses and heavy physical work.” 32.     There followed a detailed list of the deportation orders issued and signed by the first applicant in respect of 150 families. The list included their names, year of birth, deportation dates and destinations as well as dates of death and/or the date when their deportation ended. The decision to charge concluded that, as a result of the first applicant’s conduct, no less than 504 persons had been deported to northern areas of the USSR, of whom at least sixty had died as a result of the severe living conditions in transit and in exile. Most deportees also suffered mental and physical trauma, damage to their health and immeasurable pecuniary damage.   The first applicant was charged with a crime contrary to Article 68 1 of the 1961 Criminal Code. 33.     On 20 October 1999 the first applicant was hospitalised. On 29   October 1999 the prosecution requested an expert opinion on his age and health. 34.     On 16 November 1999 the prosecution reported that the pre-trial investigation had been completed and invited the 132 victims to acquaint themselves with the case file. 35.     On 22 November 1999 a committee of experts convened by the prosecution opined that the first applicant’s age and health did not allow his involvement in investigative measures that would last longer than one hour per day with several breaks. 36.     On 1 December 1999 the prosecution announced the end of the pre-trial investigation and invited the first applicant to acquaint himself with the case file. 37.     The first applicant reviewed the case file, mainly by himself from 1   to 15   December 1999 and his legal representative then reviewed it from 13   to 28   December 1999. On 29 December 1999 the prosecution decided to re-commence the criminal proceedings and on 30 December 1999 the prosecution served the final bill of indictment on the first applicant. It was recorded that the applicant was charged with a crime under Article 68 1 of the 1961 Criminal Code. The bill read as follows: “Criminal case no. 81210298 was instituted on 9 November 1998 on the basis of the reviewed material concerning genocide against native inhabitants of Latvia .... During the preliminary investigation it has been established that the [first applicant] actively participated in [committing] crimes against humanity and genocide against groups of inhabitants of Latvia whose members the totalitarian communist regime (the communist party of the USSR and the Latvian SSR and the repressive State authorities) considered as nationalists and Kulaks who were socially dangerous and inimical to the regime. His deliberate action was aimed at destroying, in whole or in part, members of groups, by bringing about their deaths, by causing serious injury to their physical integrity or by causing them psychological illness, by intentionally submitting them to living conditions intended to cause their total or partial physical destruction, and also by depriving them of their economic, political and/or social rights or by restricting the exercise of those rights.” The bill also referred to the first applicant’s questioning of 6 and 8   October 1999. It cited the evidence as including a handwriting examination report, other documents and archive materials, including all 150 deportation orders signed by the first applicant and more than 130 statements by victims. It concluded that the first applicant had taken an active part in crimes perpetrated by the totalitarian communist regime – crimes against humanity and genocide. Lastly, reference was made to Latvia’s accession to the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (“the 1948 Convention”) and to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968 (“the 1968 Convention”). 38.   On 5   January 2000 the case file was sent to the Riga Regional Court.   By order of 7   February 2000 that court transmitted the case file to the Kurzeme Regional Court: the majority (ninety-two) of the 132 victims lived within the latter court’s jurisdiction. On 14 March 2000 the Criminal Cases Chamber of the Supreme Court ordered that the case file be sent back to the Riga Regional Court: the first applicant lived in Riga and was too old and infirm to take part in hearings in another city and, in fact, only fifty-four victims lived within the jurisdiction of the Kurzeme Regional Court. 39.     On 10 April 2000 the Riga Regional Court committed the first applicant to trial, but did not schedule a trial date. On 30 June 2000 that court agreed to the first applicant spending his summer (July-October) in his son’s summer house near Riga: the police supervision measure would continue. In December 2000 and April 2001 the Riga Regional Court informed the first applicant that it could not hear his requests to alter the police supervision measure as it was busy hearing another criminal case.   On 4 May 2001 the first applicant’s request to move to his son’s house (May ‑ October 2001), with the same police supervision, was accepted. 40.     On 9 November 2001 the Riga Regional Court requested that the case be transferred, citing a caseload which would exclude a hearing in the first applicant’s case before 2003. On 15 November 2001 the Supreme Court assigned the case to the Zemgale Regional Court (“the trial court”). 41.     On 15 April 2002 the trial court fixed a trial date for 3 June 2002. 42.     On 3 June 2002, and further to the first applicant’s request, the trial court adjourned the hearing to 10 September 2002. 43.     On 13 June 2002 he was again given leave to spend the summer (June to September) in his son’s house near Riga. 44.     During August and September a number of alleged victims indicated that they could not participate in the scheduled September hearing. 45.     On 10 September 2002 the trial court held a preparatory hearing during which it refused certain procedural requests made by the first applicant. In particular, he had asked the trial court to suspend examination of his case and submit a preliminary question to the Constitutional Court for consideration. His question was whether certain legal provisions of the decision of the Supreme Council of the Republic of Latvia of 25   March 1992 on implementation in Latvia of the normative legal provisions in relation to crimes against humanity and Article 68 1 of the 1961 Criminal Code were compatible with Articles 89 and 91 of the Constitution and with the 1948 and 1968 Conventions. He argued that the criminal offence he had been charged with under Article 68 1 of the 1961 Criminal Code and the term “genocide” had been widely construed to his detriment. The trial court held that during the preparatory stage of the proceedings issues pertaining to the applicable legal provision did not need to be examined. 46.     The first applicant then attempted to challenge that decision by means of an appeal. However, a judge of the trial court explained that no appeal lay against that type of decision. (b)     Trial and conviction 47.     The first applicant’s trial took place from September 2002 to September 2003. There were more than fifty hearings, during which the criminal case file (including documents concerning the deportations of 150   families) was examined. The first applicant and 132 victims gave evidence. There were six adjournments because victims were unable to attend and ten adjournments owing to the first applicant’s illness. 48.     In May 2003 he was again allowed by the trial court, given his ill ‑ health and on his request, to live in his son’s house during the summer. 49.     The first applicant pleaded not guilty. He argued that in 1949 he had been working in the MGB as a senior specially mandated investigator of division no. 2, the main task of which had been counter-intelligence. In February 1949 a colonel, to whom he was subordinate, ordered all agents in his division to “look after the Kulak cases”. The files in respect of each Kulak family to be deported contained a list of its members and a note on their financial situation. He filled in the necessary information in the deportation order form and verified whether there was a reason for excluding them from deportation (USSR orders or medals, service in the Soviet army/partisan units or other special merit) and signed the order. Many orders had already been prepared (typed) in advance, he verified the information with that in the file and signed them. He gave the signed orders to his head of division: he was not aware how many of these orders were executed. He and his wife themselves had been descendants of well-off farmers. He did not intend to destroy, in full or in part, persons who were mentioned in the orders and he was not aware of where or how these persons would live and work, the orders indicating only that they would be sent to remote areas of the USSR. 50.     By judgment delivered on 25 September 2003, the trial court found the first applicant guilty of a crime contrary to Article 68 1 of the 1961 Criminal Code. The judgment began by stating that the first applicant had “committed genocide, that is, a deliberate action aimed at destroying, as such in whole or in part, a social group, by intentionally submitting [members of that group] to living conditions capable of bringing about their total or partial physical destruction”. 51.     The judgment went on to quote from Decree no. 390-138ss, from the prior decree of November 1948 about criminal liability for escape and from Decree no.   282ss. 52.     The trial court made certain findings of fact: “In 1949 [the first applicant] was working as a senior specially mandated investigator of division no. 2 of the Ministry of the State Security of the Latvian SSR. From 28 February to 12 March 1949 [the first applicant] issued and signed or signed administrative deportation orders ( slēdziens par izsūtīšanu ) in respect of the following persons whom the Soviet authorities considered as families of Kulaks to be sent to special camps in remote areas of the Soviet Union: ...” 53.     The orders were then confirmed by the Head of the relevant MGB Division and the Minister. The trial court examined the evidence in respect of each of the relevant 150 cases of deportation finding that each of the 150   orders to deport a family had been signed by the first applicant, the authenticity of the signatures having been confirmed by a handwriting expert. The trial court found such conduct to amount to a crime proscribed by Article 68 1 of the 1961 Criminal Code. 54.     As to the elements of the crime of which the first applicant was accused, the judgment pointed out: “...The [1948 Convention] entered into force on 12   January 1951. In Latvia, criminal responsibility for crimes against humanity, genocide (Article 68 1 of the [1961] Criminal Code) has been established by the Law of 6 April 1993. The State’s legal system also includes the principles and rules of international law accepted on 4 May 1990 by the adoption of the Declaration on the Accession of the Republic of Latvia to Human Rights Instruments. The court refers to Article 7 § 2 of the [Convention], the Charter of the United Nations, the Universal Declaration of Human Rights reaffirming faith in fundamental human rights, in the dignity and worth of the human being. Further development of the principles of international law on humanity and laws of war was recorded in the Charter of the Nuremberg International Military Tribunal, of 8 August 1945. The court refers to Article 1 of the [1968 Convention] and to domestic law provisions – Article 45 1 of the [1961] Criminal Code and section 57 of the [1999] Criminal Law.   Accordingly, the prevention and punishment of the crime of genocide do not depend either on the date of the entry into force of the [1948 Convention] or on the existence of the corresponding provision in domestic law. Consequently, in this criminal case, one cannot speak of a violation of the principle nullum crimen sine lege . ... Article II of the [1948 Convention] provides that ... genocide means acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. As to Article 68 1 of the [1961] Criminal Code and section 71 of the [1999] Criminal Law, genocide is defined therein as a deliberate act committed with intent to destroy, in whole or in part, a national, ethnic, racial or social group, or a group with specific convictions or beliefs, as such. The definition of genocide contained in the [1948 Convention] is based on the historical experience which preceded it. However, after the drafting and adoption of the [said] Convention, new experiences arose. The most important characteristic of a crime against humanity, genocide is the fact that it is perpetrated against a specific group of persons on the basis of certain criteria. ... Decree [no. 761] ... on the characteristics of Kulaks’ farms and the manner of taxing them] defined a social group – ... the Kulaks and members of their families, on the basis of their property status and the employment of remunerated workers on their farms. Article 2 of the Universal Declaration of Human Rights of 10 December 1948 provides: ‘ Everyone is entitled to all the rights and freedoms set forth in this Declaration’ ... In addition, the [Preamble to the 1968 Convention] states that violation of the economic and political rights of the indigenous population is expressly condemned as a crime against humanity. In consequence, the court sees no legal problem in the fact that, unlike the [1948 Convention] ..., the [1961] Criminal Code also specifies social groups as potential victims of genocide. Since the crime of genocide referred to by the [1948 Convention] does not differ in substance from the crime defined by the [1961] Criminal Code, imprescriptibility may be applied, as is mentioned in Article 45 1 of the [1961] Criminal Code and section   57 of the [1999] Criminal Law. ... Having compared the penalties laid down in Article 68 1 of the [1961] Criminal Code and section 71 of the [1999] Criminal Law, [the court] finds that the [1961] Criminal Code is more lenient and, in accordance with section 5 of the Criminal Law, it should be applied in the present case. The charges brought against the accused N. Larionovs during the preliminary investigation include all types of acts proscribed under Article 68 1 of the [1961] Criminal Code, thereby leaving to the court a wide margin of appreciation for specifying the charges. The following types of acts [constitutive of the actus reus of the crime] may be distinguished under Article 68 1 of the [1961] Criminal Code: deliberate action aimed at destroying, in whole or in part, a group of people: 1) bringing about the deaths of its members, 2) causing serious harm to their physical integrity, 3) causing them psychological illness, 4) intentionally submitting them to living conditions intended to cause their total or partial physical destruction, 5) depriving native inhabitants of their economic, political and/or social rights or by restricting the exercise of those rights with the same intent, that is, to cause their total or partial destruction. At the hearing, the [prosecution] upheld the charges in full, as formulated during the preliminary investigation. After having analysed the evidence and the charges ..., the court considers that the accused, N. Larionovs, can be accused of a deliberate action aimed at destroying, as such and in whole or in part, a social group, by intentionally submitting members of that group to living conditions capable of bringing about their total or partial physical destruction. Other types of acts have not been substantiated in the charges and there is no evidence in this regard. As regards the [above] mentioned fifth type, [the court notes] that the term ‘native inhabitants’ has been omitted in the charges, accordingly the court does not have the rights to broaden the charges and to examine whether the conduct of the accused N. Larionovs was constitutive of such acts. In the court’s opinion, the forced and violent transfer of persons from their habitual residence to a completely alien location, remote and unknown to them, amounts, as such, to the creation of living conditions giving rise to the partial or total physical destruction of those persons ... ... [A]rticle 68 1 of the [1961] Criminal Code does not require that the consequences – namely partial or total physical destruction – actually occur. At the hearing, the victims ... provided evidence about the inhuman conditions of the deportation ... about the possibilities for living, and surviving, which did not correspond to the universally recognised and accepted minimum, about hunger, the lack of medical care ... The charges brought against N. Larionovs during the preliminary investigation concurrently include the terms ‘sending into exile’ ( izsūtīšana ) and ‘deportation’ ( deportācija ), which have different legal meanings. Taking into account that the charges do not contain any references to international laws of war, N. Larionovs can be incriminated only with sending into exile and not deportation. Also, sending into exile is the term used in the orders issued and signed by the applicant.” 55.     As to the first applicant’s mens rea , the trial court found as follows: “N. Larionovs was born on 6 May 1921; it follows that by 1949 he had already seen something of life. He had lived in Latvia. The documents drawn up about him before 1949 ... show that N. Larionovs’ career was constantly advancing, that he was ideologically stable, politically sophisticated and loyal to the party of Lenin and Stalin; that he was an agitator in a party group, [and] that he himself had even undertaken to carry out any task assigned to him. This proves that the defendant ... was aware of the historical, political and social processes that were taking place. He was also aware of the repression and deportations that had taken place in 1940 and 1941. It is clear from the [deportation] orders which were drawn up and signed by N.   Larionovs that the persons concerned were going to be deported from Latvian territory to remote regions of the Soviet Union ... The defendant ... was therefore aware of the dangerous nature of his acts, foresaw their consequences and wished them to occur; in other words, his conduct indicated a direct intent to destroy, in whole or in part, the group of people that the authorities then in power considered to be Kulaks . At the time that the crime of which he is accused was committed, N. Larionovs was twenty-seven years old. [He] was a specially mandated investigator of the [MGB], and thus a representative of the authorities. In consequence, the court finds that N.   Larionovs comes within the personal scope of Article 68 1 of the [1961] Criminal Code. ... Article 68 1 of the [1961] Criminal Code is included in the Chapter ‘Crimes against humanity, genocide, war crimes’. This chapter ... includes also Article 68 2 ‘Crimes against peace’ and Article 68 3 ‘War crimes’. It follows from the structure of this Chapter and also from [the wording of Article 68 1 ] ‘crimes against humanity, including genocide’ that the legislator has enlisted the crime of genocide as a special category of the crimes against humanity. The [1968 Convention] has included crimes against humanity and genocide in the same provision ... The court considers that the direct object of the crime of genocide is the right for groups to exist as a whole and that the actions of the accused, N. Larionovs, were directed against these rights.” 56.     The trial court found the first applicant guilty of a crime punishable by Article 68 1 of the 1961 Criminal Code and sentenced him to five years’ imprisonment, suspended until the conviction became final. (c)     Appeal and application to the Constitutional Court 57.     On 4 October 2003 the first applicant appealed to the Criminal Cases Chamber of the Supreme Court, repeating his arguments made at first instance. He also alleged that the trial court had failed to distinguish between, on the one hand, the imprescriptibility of an offence and, on the other, the retrospective nature of a criminal provision. There was, he argued, nothing to justify a retrospective application of Article 68 1 of the 1961 Criminal Code in his case. He contested the trial court’s reference to “extermination” or “total or partial destruction” of the victims when there was no evidence about the death of any deportee. 58.     On 15 November 2003 the first applicant also lodged a complaint with the Constitutional Court claiming, inter alia , that certain legal provisions of the decision of the Supreme Council of the Republic of Latvia of 25 March 1992 on the implementation in Latvia of the normative legal provisions in relation to crimes against humanity and Article 68 1 of the 1961 Criminal Code were incompatible with Articles 89, 91 and 94 of the Constitution and with the 1948 and 1968 Conventions. He argued that he was not guilty because “in accordance with the applicable national and international law at the time [his acts] did not constitute a criminal offence, also because nowadays they are not considered criminal according to the general principles of law recognised by civilised nations”. He further argued that the scope of the definition of genocide was wider under Article 68 1 of the 1961 Criminal Code than the one in the 1948 Convention and that the charges against him were contrary to international law. Lastly, he argued that the provision a retrospective application clause (Article 6 1 of the 1961 Criminal Code) to a criminal-law provision which was wider in its scope than the internationally recognised notion was in breach of Article 7 of the Convention. He acknowledged that his application did not satisfy the criteria of section 19 2 (2) of the Law on the Constitutional Court (requiring that ordinary remedies be exhausted before applying to that court). However, since ordinary remedies were not capable of remedying his complaint, he asked the Constitutional Court to accept a derogation pursuant to paragraph 3 of the same section. 59.     By decision of 16 December 2003 the Constitutional Court declared his application inadmissible for failure to exhaust ordinary remedies (the trial court judgment was still under appeal). 60.     On 10 February 2004 the appeal court set the hearing date (8-11 June 2004). Given the deterioration in the first applicant’s health and his request of 12 May 2004 for an expert medical report, on 8 June 2004 the appeal court suspended the case pending a medical report on his capacity (physical and psychological) to take part in the appeal and, as relevant, to serve any prison sentence. The medical examinations took place in August 2004. The expert report confirmed that the first applicant’s health had deteriorated since the last expert report of 1999, that he could participate in the hearing for not more than thirty minutes per day with breaks and that he could serve a prison sentence with the appropriate medication and medical care. 61.     On 18 February 2005 the appeal court scheduled a hearing for 13   April 2005. The hearing was adjourned owing to the illness of one of the prosecutors. In May 2005 the appeal court allowed the first applicant to spend the summer in his son’s residence. In 14 June 2005 the appeal court asked the prison authorities whether they could provide the first applicant with the necessary medical care for his conditions. On 22 June 2005 the prison authorities confirmed that they could not. 62.     On 21 July 2005 the hearing was scheduled for 12 December 2005. 63.     On 9 November 2005 the first applicant died. His son maintained his appeal. The appeal was heard on 12 December 2005. Judgment was delivered on 13 December 2005. The appeal court dismissed the appeal and endorsed the reasoning of the trial court. It clarified that the continued examination of the first applicant’s appeal after his death was in accordance with the new criminal procedure law. The appeal court found: “... [I]nternational criminal law cannot be envisaged solely from a positivist perspective. The first-instance court analysed the prohibition of genocide arising from the principles of international law and the scope of that prohibition. The Criminal Cases Chamber indicates its agreement with the reasons given by the first-instance court; it emphasises that the treaty provisions are not intended to limit the scope of the legal principles, but to explain the general principles existing in the international community. Customary and treaty norms may co-exist – whether their content is identical or different – as the International Court of Justice affirmed in the Nicaragua case ( Nicaragua v. United States of America (merits) , judgment of 27 June 1986 [ICJ Reports 1986, § 188]). Moreover, it is necessary to take account of the fact that the development of convention norms is also affected by political factors, the influence of which led to the international [crime] in question being codified in narrower terms. When [the 1948 Convention] was being adopted, in the course of the discussions on the definition of genocide ... the 6th committee of the UN General Assembly received a proposal to include in it ‘a social and economic group’; however, this was rejected under pressure from the USSR. In the following years, there were several attempts to widen the definition of genocide to include political, economic and social groups; however, those attempts were unsuccessful. ... Consequently, the Criminal Cases Chamber concludes that, in the international community, the concept of genocide is not limited to an act directed against a national, ethnic, racial or religious group, and that [the list of] criteria mentioned in [the 1948 Convention] cannot be described as exhaustive. Even if it does not take a tangible form as set out in Article II of [the 1948 Convention], genocide is considered as an international crime. The Criminal Cases Chamber considers that, in domestic legislation, the crime of genocide may be defined in a different manner from that in [the 1948 Convention], if, in substance, it corresponds to all of the characteristics of a crime against humanity. Having regard to the foregoing, there is no reason to find that Article 68 1 of the [1961] Criminal Code is contrary to [the 1948 Convention] ...” 64.     The appeal court noted that Article 6 of the Charter of the International Military Tribunal (“the IMT”), Nuremberg, applied to leaders as well as to organisers and accomplices. Article 8 of the Charter provided that acting pursuant to orders of a Government or superior did not free an accused from responsibility, although it could mitigate punishment. The appeal court endorsed the findings of the trial court as to the first applicant’s psychological attitude to his acts. 65.     The first applicant’s son authorised the lodging of a cassation appeal. He reiterated that the actions of the first applicant were not constitutive of the alleged crime, since Article 68 1 had not been applicable at the time of the events and since the impugned actions were not, in any event, constitutive of the crime of genocide. Nor were those acts proscribed by the 1948 Convention. By decision of 16 February 2006 the Senate of the Supreme Court dismissed the appeal, upholding the decision of the appeal court. The Senate considered that Article 7 of the Convention had not been breached: “The [Senate] finds that the notion of genocide contained in Article 68 1 of the [former] Criminal Code is wider than that in [the 1948 Convention]. However, this does not exclude the application of the above-mentioned provision and the qualification of the conduct of N. Larionovs. The crime of genocide may be defined in a different manner in national law than [the definition contained] in [the 1948 Convention], because, in substance, [it] corresponds to all of the characteristics of a crime against humanity; the crime of genocide is only one category of crime against humanity, to which no statutory limitations apply in accordance with international law. Therefore, the application of Article 6 1 of the [former] Criminal Code is lawful and justified. Article 7 § 2 of the Convention provides ... At the time when N.   Larionovs committed the incriminated offences [the general principles of law recognised by civilised nations] did exist and had been formulated in Article   6   (c) of the Charter of the Nuremberg International Military Tribunal of 8 August 1945 and in [the UN GA Resolutions A/RES/95(I) and A/RES/96(I)] (see more detailed reasoning of the application of Articles 68 1 and 6 1 of the [former] Criminal Code in case SKK   162/05, charges against N. Tess). The [Senate] considers that the prosecution and punishment of individuals under Article 68 1 of the [former] Criminal Code i