JOINT C ONCURRING OPINION OF JUDGE S ROZAKIS, TULKENS, SPIELMANN AND JEBENS

1. While we fully agree with the majority in this case that the applicant ’ s complaints cannot lead to a finding of a violation of Article 7 of the Convention, we depart from their reasoning on a specific point, concerning their conclusions on the Government of the Russian Federation ’ s claim that the prosecution of the applicant amounted to a retrospective application of the criminal law.

2. Indeed, the Government of the Russian Federation, intervening in the present case, maintained that any prosecution of the applicant was statute-barred at the latest in 1954, having regard to the maximum limitation period for which section 14 of the 1926 Criminal Code provided. According to the Government of the Russian Federation, the applicant was convicted under section 68-3 of the 1961 Criminal Code, and section 6-1 of that Code stated that there was no limitation period for, inter alia , war crimes. Under these circumstances, the Government of the Russian Federation – and the applicant – contended that the latter ’ s prosecution amounted to an ex post facto extension of a national limitation period which would have applied in 1944, and, consequently, amounted to a retrospective application of the criminal law (see paragraphs 228 and 229 of the judgment).

3. The answer of the Court is given in paragraphs 230 and 233, which essentially deny that the basis of the applicant ’ s responsibility in 1944 – had the applicant been prosecuted for war crimes in Latvia in 1944 – was the 1926 Criminal Code (with its prescriptibility provision). The Court considered that, having regard to the way in which that Criminal Code was worded, “a domestic prosecution for war crimes in 1944 would have required reference to international law, not only as regards the definition of such crimes, but also as regards the determination of any applicable limitation period”. However, the Court continued :

“ ... international law in 1944 was silent on the subject. Previous international declarations on the responsibility for, and obligation to prosecute and punish, war crimes did not refer to any applicable limitation periods ... [N]either the Charters of the IMT Nuremberg/Tokyo, nor the 1948 Convention on the Prevention and Punishment of the Crime of Genocide , the Geneva Conventions of 1949 n or the Nuremberg Principles contained any provisions concerning the prescriptibility of war crimes (as confirmed by the Preamble to the 1968 Convention).”

The absence of any reference in the post-war instruments to the question of prescriptibility led the Court to the conclusion that international law, by being silent on the matter, recognised that the applicant ’ s crimes were imprescriptible; that in 1944 no limitation period had been fixed by international law as regards the prosecution of war crimes; and that subsequent developments did not indicate that international law since 1944 had imposed any limitation period on the war crimes of which the applicant had been convicted.

4. We believe that the answer given by the Court to this particular claim is not the correct one. The mere silence of international law does not suffice to prove that the consent and the intentions of the international community in 1944 were clear as far as the imprescriptibility of war crimes was concerned, particularly if one takes into account that before Nuremberg and Tokyo, the state of international criminal law concerning individual responsibility for war crimes had not yet attained a degree of sophistication and completeness permitting the conclusion that the technical and procedural issues as to the application of that law had been unequivocally determined. Basically, one could say that up to 1944 general international law – as a combination of existing general international agreements and State practice – had resolved the issue of individual responsibility (and not only State responsibility), and that only the post-war period fine-tuned procedural issues, such as the question of the statute of limitations for war crimes.

5. Yet, it seems to us that the Court incorrectly dealt with the issue of the imprescriptibility of the applicant ’ s war crimes in 1944 as a separate aspect of the requirements of Article 7. The Court, in its effort to address an argument raised by the parties, has left the impression that the link made by the latter between the (im)prescriptibility of war crimes and the retrospective nature of the law governing such crimes was correct, and has simply focused its efforts on showing that in the circumstances of the case the crimes in question were already imprescriptible.

6. This is not the right approach. The right approach, to our mind, is that Article 7 of the Convention and the principles it enshrines require that in a rule-of-law system anyone considering carrying out a particular act should be able, by reference to the legal rules defining crimes and the corresponding penalties, to determine whether or not the act in question constitutes a crime and what penalty he or she faces if it is carried out. Hence no one can speak of retrospective application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act. Considering, as the Court leaves one to believe, that the procedural issue of the statute of limitations is a constituent element of the applicability of Article 7, linked to the question of retrospective application and sitting alongside, with equal force, the conditions of the existence of a crime and a penalty, can lead to unwanted results which could undermine the very spirit of Article 7.

7. There should, of course, be an answer to the parties ’ arguments concerning the statute of limitations, seen as a purely technical issue more appropriately intertwined with the fairness of proceedings, and with Article 6 of the Convention. And this is, to our mind, that while, admittedly, the question of prescriptibility was not necessarily resolved in 1944 – although this did not afford the applicant the possibility of taking advantage of such a lacuna – the ensuing developments, after the Second World War, have nevertheless clearly demonstrated that the international community not only consolidated its position in strongly condemning heinous war crimes, but also gradually formulated detailed rules – including procedural ones – dealing with the way in which such crimes should be dealt with by international law. These developments constitute an uninterrupted chain of legal productivity, which leaves little room to consider that the international system was not prepared to pursue the condemnation of crimes committed during the war; at that stage, of course, the silence on the issue of prescriptibility was deafening. This can also be established from the adoption of the 1968 Convention, which “affirmed” the imprescriptibility of these crimes. It is exactly this chain of events which has allowed the Latvian g overnment to prosecute and punish the applicant for the crimes he committed.