CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 avril 2019

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He is represented before the Court by Ms J. Kvjatkovska, a lawyer practising in Riga, Latvia. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, at the time bearing the surname Nikulins, was born in Leningrad (currently, St Petersburg), the Soviet Union. Before his extradition to Lithuania in 2008, he resided in Latvia. In 2003 the applicant had been granted witness protection in Latvia and given a new identity – that of a Latvian citizen Konstantins Mihailovs, born in Razekne, Latvia. During the period relevant to this case – 1991 – the applicant served in the USSR Ministry of Internal Affairs’ special-purpose militia unit ( отряд милиции особого назначения ; hereinafter – “the OMON”). He was an officer stationed in Riga. 1.     The applicant’s conviction in Latvia By a judgment of 4 October 2004 the Riga Regional Court convicted the applicant as being guilty of an attempted coup d’état for having participated in four armed attacks in the territory of Latvia, including at the customs border point. In particular, the applicant, acting together with other Riga OMON servicemen, in January, May and August 1991 had committed crimes, being armed, and attacked civil premises (such as customs offices), in order to overthrow the lawful government of the restored State of Latvia. As a result of those attacks, Latvian residents, including police officers and civilians, had been killed or sustained serious injuries. The applicant did not appeal against that conviction. 2.     The criminal proceedings regarding the Medininkai events in Lithuania on 31 July 1991 (a)     The background of the attacks Several Soviet OMON assaults on Lithuanian customs and border posts occurred in 1991, after Lithuania declared its independence from the Soviet Union on 11 March 1990. As a Soviet republic, the Lithuanian SSR did not have a State border with customs or checkpoints. The newly declared Republic of Lithuania began establishing the State Border Guard Service, before it was internationally recognized. The customs and border checkpoints also became a symbol of its struggle for independence. The Soviet Government viewed the customs posts as illegal and sent the armed OMON troops against the posts, especially those along the eastern border with Belarus. Following the failed August 1991 Soviet coup d’état , Lithuania received widespread international recognition. On 6   September 1991, Lithuania’s independence was recognised by the USSR. (b)     The Medininkai killing of 31 July 1991 In that context, the most serious attack occurred when OMON troops from Riga attacked the Lithuanian customs post in Medininkai, on the Vilnius-Minsk highway, on 31   July 1991. It is thought that the attack took place around 04:00 because a watch belonging to one of the victims stopped at this hour. Seven officers were shot and killed: M.B. and A.J. (officers of special force police ARAS), J.J. and A.K. (officers of the highway police), and four customs officers – A.M., S.O. and R.R. The only survivor, customs officer T.Š., suffered severe brain damage and became disabled (also see below). The ARAS officers were supposed to provide protection to the customs post and were armed. However, their weapons were missing from the scene and there were no signs of returned fire. The officers that were killed received State funeral and, posthumously, State decorations. (c)     Criminal proceedings in Lithuania After the Medininkai event, the Lithuanian authorities searched for the perpetrators of the crime. However, even if identified, they could not be either found or arrested, also because some of them had fled to the Russian Federation, which refused to extradite them. It transpires that in 2007 the Lithuanian authorities received information that the applicant resided in Latvia. On 30   October 2007 the Lithuanian Deputy Prosecutor General sent to his Latvian counterpart a European Arrest Warrant (hereinafter – “the EAW”) in respect of the applicant. The Lithuanian prosecutor indicated that the applicant was suspected of having taken part in the killing of 31   July 1991 in Medininkai. He qualified the applicant’s actions under Article   129 §   2   (5 and 10) of Lithuanian Criminal Code, that is, murder of two or more persons, fulfilling their citizen’s or official duties. The EAW also stated that the statute of limitations to prosecute that crime was twenty years. On 28   November 2007 the applicant was arrested in Latvia for the purposes of his extradition to Lithuania. The following day, and in the presence of his lawyer, the applicant was presented with the EAW. The Latvian courts then sanctioned the applicant’s detention, for the purpose of his extradition. On 28 January 2008 the applicant was transferred to Lithuania. The same day he was presented with notice of suspicion, where he was accused of participating in multiple murders at the Medininkai customs post on 31   July 1991. His crime was aggravated murder, under Article 129 § 2 (5 and 10) of Lithuanian Criminal Code. Since then he had been detained in Lithuania. On 15 April 2009 the criminal case against the applicant was transferred to court. He remained accused of aggravated murder. (i)     The proceedings at the Vilnius District Court By a judgment of 11   May 2011 the Vilnius District Court found the applicant guilty, of having murdered the Lithuanian border guards in Medininkai, under Article 129 § 2 (5 and 10) of Lithuanian Criminal Code, as charged by the prosecutors. He was sentenced to life imprisonment. (ii)     The proceedings at the Court of Appeal The prosecutors then appealed against that judgment, arguing that the Vilnius District Court had wrongly convicted the applicant of aggravated murder. Instead, he should have been convicted for a crime against humanity, specifically, for the treatment of persons prohibited under international law (Article   100 of the Criminal Code). The applicant also appealed against his conviction. On 23 January 2012 the prosecutor presented the Court of Appeal with a request to change the criminal charges against the applicant, also amending the facts and qualification of the crime. The new facts, as described in the prosecutor’s request, concerned the alleged implementation and support of the policies of the USSR and its organisations (the USSR Communist Party and the USSR Ministry of Internal Affairs), in order to: (1) overthrow the legitimate governments of the States of Lithuania and Latvia by force; (2)   implement their forced annexation to the USSR with the help of special units and task forces; (3) launch large scale and systematic attacks against government officials of Lithuania and Latvia at the time of the discharge of their official duties and against any other civilians loyal to the State of Lithuania and Latvia, and for having murdered them. Seeking to amend the factual circumstances and legal qualification of the crimes for which the applicant was being charged, and this time requesting his extradition for trial under Article   100 of the Criminal Code, instead of its Article   129, on 21   February 2012, the Lithuanian Prosecutor General submitted a new EAW to the Latvian authorities. It transpires that at that time the applicant did not agree to be tried for crimes against humanity, and that therefore the Latvian authorities’ agreement to extradite him on such charges was necessary. In their response of 13 March 2012, the Latvian prosecutors pointed out that, by the judgment of 4   October 2004 of Riga Regional Court (see above) the applicant had already been convicted for criminal acts against the Republic of Latvia, such as attempts to overthrow the Latvian Government by large scale and systematic attacks implementing the USSR policy, when he was a member of the Riga OMON unit. He was sentenced to two years and six months of deprivation of liberty. Accordingly, his extradition, as regards the crimes against Latvia, was not allowed. However, the Latvian authorities granted the extradition request in respect of crimes possibly committed in Lithuania. On 6 June 2016 the Court of Appeal found the applicant guilty under Article   100 of the Criminal Code and convicted him to life imprisonment, also explicitly referring to the events in Latvia. As regards his guilt for the crime against humanity, the Court of Appeal stated: “Working as the USSR Ministry of Internal Affairs’ Internal Troops’ militia officer [the applicant] intentionally, after the Decree “On restoration of Independent Lithuanian State” was passed by the Supreme Council of the Lithuanian Republic on 11   March 1990, the Declaration “On restoration of independence of the Republic of Latvia” was passed by the Supreme Council of the Republic of Latvia on 4 May 1990, and after the restoration of State independence of Lithuania and Latvia, executing and supporting the State policy of the USSR and its organizations – Communist party of the Soviet Union and its divisions in Lithuania – Lithuanian Communist party and in Latvia – Central Committee of Latvian Communist party, of Riga special unit of USSR Ministry of Internal Affairs’ Internal Troops, involving the departments of KGB USSR, USSR Defence Ministry, USSR Ministry of Internal Affairs, armed forces, which [politics] was targeted at overthrowing the legitimate State authority in Lithuania and Latvia, returning Lithuania and Latvia into the USSR, and at a large scale and systematic attacks of the representatives of the authorities of Lithuania and Latvia, fulfilling their official duties, as well as of other civilians, loyal to the Lithuanian and Latvian States, killed them.” The Court of Appeal also had regard to the applicant’s conviction of 4   October 2004 in Latvia (see above). The Court of Appeal considered that crimes against humanity, which the applicant had been convicted of, namely, the attack on the Medininkai customs post and the killing and injuring of police officers, had been an inherent part of the big scale and systematic attack on civilians when executing the policies of the USSR and its Communist Party. (iii)   The Supreme Court The applicant then submitted an appeal on points of law, arguing, among other things, the lack of necessary elements for his actions to be qualified as a “crime against humanity”; breach of the nulla poena sine lege principle; breach of the ne bis in idem principle, since actions of the applicant against the interests of Latvian Republic – systematic nature of the attacks – formed part of corpus delicti of crime against humanity; breach of statutes of limitation and the principle of validity of law in time; breach of the applicant’s right to have his sentence reviewed on appeal, given the substantial change at the Court of Appeal stage of the charges, including essential factual circumstances, to the accused’s detriment; clear bias of the courts and judges; and numerous procedural breaches, including considerable reliance on the testimony of anonymous witnesses and denial of all substantial requests by the defence. On 28 February 2017 the Supreme Court, sitting in an enlarged chamber of seven judges, dismissed the appeal on points of law. The Supreme Court went into a detailed analysis of the interpretation of the crimes against humanity in international law, largely referring to international law instruments. It also noted that at that period of time the policy in Lithuania was that when OMON officers attempted to provoke armed conflict or resistance, the Lithuanian officers sought to avoid these or even bigger conflicts by not resisting the OMON officers and attempting to resolve situations peacefully. It also considered that Lithuanian officers killed in Medininkai were civilians, notwithstanding the fact that four of them had been armed. The court considered that the customs post that was attacked represented civil premises and that the aim was to kill the civilians who had been inside. It was not the first time that that particular customs post in Medininkai had been attacked by OMON officers, who therefore knew very well how that post operated and how it was protected. The attack had been sudden and was not provoked by any prior incident. The fact that during the attack all seven officers wore service uniforms, except for R.R. who had been in plain clothes, was not important when qualifying the attack as having been committed against civilians. The Supreme Court also held that although police officers were armed and on guard at the Medininkai customs post, they were not preparing to be attacked and had not resisted, even though they had such a possibility. In fact, before being killed, the eight officers were disarmed, laid down on the floor in the customs office building and shot in the head, in execution style. Seven of them died; one survived but sustained heavy injuries. The manner in which the crime was committed – shooting into the head of disarmed persons – showed that the OMON officers acted in a professional manner, so that no live witnesses would remain. The weapons – two automatic rifles with silencers – had been brought in by the OMON from Riga. The OMON officers, among whom was the applicant, had not known the persons whom they killed. Also, the customs post was not a military object but merely a building for the purpose of providing customs’ functions. For the Supreme Court, it followed that by attacking the customs post the OMON officers knew that they were attacking a civil building and killing civilians. Also, in the light of the Latvian court’s findings about the applicant’s similar actions in Latvia the same year (see above), the Supreme Court considered that the applicant had been reasonably convicted for a crime against humanity – his actions were part of large scale and systemic attacks against the civilians of Latvia and Lithuania, when implementing the politics of the USSR and its Communist Party. The Supreme Court did not address the issue of the statute of limitations as regards the re-qualification of the applicant’s actions to Article 100 of the Criminal Code, instead of its Article 129. B.     Relevant domestic law The Criminal Code reads (Article   100 came into force on 31   March 2011): Article 3. Term of Validity of a Criminal Law “1. The criminality of an act and punishability of a person shall be determined by a criminal law in force at the time of the commission of that act. The time of the commission of a criminal act shall be the time of an act (or omission) or the time of occurrence of the consequences provided for by the criminal law, where the occurrence of those consequences was desired at a different time. 2. A criminal law nullifying the criminality of an act, commuting a penalty or in otherwise mitigating legal circumstances for the person who committed the criminal act shall have a retroactive effect, i.e., it shall apply to the persons who committed the criminal act prior to the coming into force of such a law, also to the persons serving a sentence and those with previous convictions. 3. A criminal law establishing the criminality of an act, imposing a more severe penalty upon or otherwise aggravating legal circumstances of the person who has committed the criminal act shall have no retroactive effect. The provisions of this Code establishing liability for ... treatment of persons prohibited under international law (Article 100) ... shall constitute an exception. 4. Only the penal or reformative sanctions as well as medical treatment measures provided for by a criminal law in force at the time of passing of a court judgment shall be imposed.” Article 95. Statute of Limitations of a Judgment of Conviction “1. A person who has committed a criminal act may not be subject to a judgment of conviction where: 1) the following period has lapsed: ... f) twenty years, in the event of commission of a crime relating to a premeditated homicide; 2) during the period laid down in subparagraph 1 of paragraph 1 of this Article, the person did not hide from pre-trial investigation or a trial and did not commit a new criminal act. 2. The statute of limitations shall be calculated from the commission of a criminal act until the passing of a judgment. 3. Where the person who has committed a criminal act hid from pre-trial investigation or a trial, the calculation of the statute of limitations shall cease. The calculation of the statute of limitations shall resume from the day when the person is arrested or when he arrives to serve the sentence and confesses to commission of a crime. However, a judgment of conviction may not be passed where fifteen years have lapsed since the commission of the crime by the person and twenty years have lapsed since the commission of a crime relating to a premeditated homicide, and calculation of the statute of limitations has not ceased due to commission of a new crime. 4. Where a person commits a new criminal act before the expiry of the terms indicated in this Article, the calculation of the statute of limitations shall cease. In such a case, the calculation of the statute of limitations in respect of the first criminal act shall commence from the day when a new crime or misdemeanour was committed. 5. The following crimes provided for in this Code shall have no statute of limitations: ... 2) treatment of persons prohibited under international law (Article 100); ...” Article 100. Treatment of Persons Prohibited under International Law “A person who intentionally, by carrying out or supporting the policy of the State or an organisation, attacks civilians on a large scale or in a systematic way and commits their killing or causes serious impairment to their health ... shall be punished by imprisonment for a term of five up to twenty years or by life imprisonment.” Article 129. Murder “... 2. A person who murders ... 5) to two or more persons; ... 10) by reason of performance of official or citizen’s duties by the victim; ... shall be punished by imprisonment for a period of eight up to twenty years or by life imprisonment.” COMPLAINTS The applicant complains under Article 3 of the Convention that he was sentenced to life imprisonment and that his sentence is not reducible. Under various paragraphs of Article 6 of the Convention the applicant also complains that the criminal proceedings against him were not fair. He submits that the case was politicised, the courts were partial because they dismissed more than 400 motions by the defence whilst granting those of the prosecution, that a number of high-ranking public officials and politicians had made public statements encouraging the belief that he was guilty, which was also reflected in a virulent press campaign against him, and that his conviction had been based on the testimonies of anonymous witnesses, whom the defence had not had a possibility to effectively question during the trial. The applicant also complains that his conviction was in breach of Article   7 of the Convention, given that, at the time of the Medininkai events, the domestic law did not provide for criminal liability for crimes against humanity. He also claims the absence of “State action or policy” or “widespread and systematic attacks on the civilian population”, so that he, as a low-ranking officer in the OMON, could have been prosecuted for crimes against humanity, all the more so since none of the political or State leaders of that time had been held responsible for such crimes. On the contrary, the criminal case-file contained direct orders from the USSR Ministry of Interior prohibiting the OMON from getting involved in any violent acts. The applicant also states that, in order to prove the presence of necessary elements of crimes against humanity, i.e. that the applicant’s actions formed a part of systematic attacks, the Lithuanian courts, despite clear prohibition of Latvian authorities, had recourse to his conviction in Latvia. The applicant further submits that in his case there had been a breach of Article 7 of the Convention, taken in conjunction with its Article 6, since the change in the qualification of incriminated offence was motivated solely to avoid the application of the statute of limitations, which would have had expired in 2011. The applicant relies on the Court’s judgment in Coëme and   Others v. Belgium (nos.   32492/96 and 4 others, §§   145 and 146, ECHR   2000 ‑ VII). He also notes that numerous Lithuanian politicians had made public statements that the Medininkai case had to be sent to court at any price and that therefore there was a need to qualify his actions as crimes against humanity despite the prosecutors’ initial choice to charge him with murder, and resulting requalification of his criminal charges. The applicant also alleges a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 2 of Protocol No. 7 to the Convention. He notes that the criminal charges to his detriment were amended at the Court of Appeal stage, denying him the possibility to have the merits of his case reviewed at the courts of two instances. He underscores that at the Court of Appeal stage the charges were amended not only regarding the legal qualification of the offence, but also factually – the historical background of the events of 1991 became a subject matter of the criminal case. The applicant thus was denied a possibility to have the interpretation of evidence revised by the higher instance court. Even admitting that an appeal on points of law also complies with Article   2 of Protocol No.   7 to the Convention, in this particular case the applicant considers that the Supreme Court review could not have been complete. The applicant also complains that substantial amendment of the criminal charges against him at such a late stage of the trial, and only because of the impossibility to continue with the prosecution due to the expiry of the limitation term, breached his right to be informed promptly of the nature of the accusation against him, and to have adequate time and facilities for the preparation of his defence. According to him, this amounted to a breach of Article   6 §§   3 (a) and (b) of the Convention. QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 3 of the Convention on account of the fact that the applicant’s life sentence is not reducible (see Matiošaitis and Others v. Lithuania , nos.   22662/13 and 7   others, §§   180-183, 23   May 2017)?   2.     Has the applicant had a fair trial, as required by Article   6 of the Convention? The Court points out, inter alia , but not exclusively, to the applicant’s complaints that: (a)     the criminal charges against him had been amended at the Court of Appeal stage, not allowing him to be promptly informed about the nature and cause of the accusation against him; (b)     most of the applicant’s requests to the domestic courts were denied; (c)     the State officials and politicians made public statements about his guilt and the need to convict him; (d)       his conviction mainly rested on the testimony of anonymous witnesses.   3.     Has there been a violation of Article 7 of the Convention on account of the fact that the applicant was convicted for crimes against humanity (see Korbely v. Hungary [GC], no.   9174/02, §§   69-73, ECHR 2008; for the historical background, see Kuolelis and Others v. Lithuania , nos. 74357/01 and 2 others, §§   115-117, 19   February 2008; also see, mutatis mutandis , Ždanoka v. Latvia [GC], no.   58278/00, §§   95 and 96, ECHR 2006 ‑ IV)?   4.     Has there been a violation of Article   2 of Protocol No   7 to the Convention, in particular, on account of the fact that at the Court of Appeal stage the charges against the applicant were amended from murder to crimes against humanity (see Krombach v.   France , no.   29731/96, §   96, ECHR   2001 ‑ II, and Ruslan Yakovenko v.   Ukraine , no.   5425/11, §§   77 and   79, ECHR 2015, with further references)?   5.     The applicant is requested to provide copies of all procedural documents (his appeals, complaints, as well as the domestic courts’ judgments and decisions) of his criminal proceedings in Lithuania, in Lithuanian.