Published on 25 September 2023

SECOND SECTION

Application no. 50059/22 Jury Nikolaevich MEL against Lithuania and 2 other applications (see list appended) communicated on 6 September 2023

SUBJECT MATTER OF THE CASE

The applications concern an alleged retroactive application of criminal law.

In 1991 the Lithuanian authorities opened a pre-trial investigation concerning the events of 11-13 January 1991. On that date the Soviet army conducted military operations against the Government of Lithuania and 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, and tried to take the seat of the Lithuanian Parliament and other authorities; 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 (the relevant historical and political background has been summarised in Kuolelis and Others v. Lithuania , nos. 74357/01 and 2 others, §§ 7-25, 19 February 2008).

The investigation was conducted against two groups of defendants separately. Six defendants were indicted in 1996 and convicted in 1999 of aggravated murder, bodily harm and various crimes against the sovereignty of the Lithuanian State (ibid., §§ 32-56). Sixty-seven other defendants, including the three applicants, were officially recognised as suspects in 2013 and indicted in 2015.

The applicants were charged with the following crimes: treatment of people in ways prohibited by international law; killing of persons protected under international humanitarian law; grave injury, torture or other inhuman treatment of persons protected under international humanitarian law; prohibited military attack; and employing prohibited methods of warfare, under Articles 100, 101, 103 § 1, 111 § 1 and 112 of the Criminal Code, respectively (under the version of those Articles adopted following an amendment of the Criminal Code in 2011).

All three applicants were convicted of the charges against them by the Vilnius Regional Court on 27 March 2019. That judgment was upheld by the Court of Appeal on 31 March 2021 and by the Supreme Court on 30 June 2022. In particular, the courts found that the applicants’ role in the events of 11-13 January 1991 had been as follows:

- Mr Mel and Mr Galinaitis had participated in the forcible occupation of the Vilnius television tower. Mr Mel had had the rank of a lieutenant and had been in command of a platoon ( būrio vadas ). Mr Galinaitis had had the rank of a senior lieutenant and had been in command of a company ( kuopos vadas ). The tanks which they commanded, along with many others, had broken through the fence surrounding the tower, entered its perimeter and manoeuvred in a dangerous manner among the crowd of civilians, firing empty shots and laying down smokescreens.

- Mr Ivanov had been a lieutenant-colonel in command of four tanks and had participated in the forcible occupation of the Lithuanian media headquarters; his tanks had fired at least one empty shot into the crowd of civilians.

The courts held that the actions of all the defendants had formed part of a planned and coordinated military operation. They had all acted in pursuit of the same objectives and the actions of each defendant, irrespective of his specific function, had been essential for the execution of the criminal enterprise. In particular, tanks had been used to threaten civilians who had gathered around the various buildings and their aim had been to force the civilians to withdraw, in order to make it possible for the Soviet forces to occupy those buildings.

In their appeals, all three applicants submitted, inter alia , that their conviction had no basis in the law because the Criminal Code of Lithuania had entered into force only in 2003 and they had been convicted under Articles 100, 101, 103 § 1, 111 § 1 and 112 as amended in 2011, long after the impugned crimes had been committed. However, the domestic courts held that each of the crimes of which the applicants had been convicted had been prohibited by international law at the time of its commission and that, according to the recognised principles of international law, domestic law which provided for criminal liability for such acts could be applied retroactively.

The applicants also contended that charging them with crimes against humanity and war crimes had been arbitrary. They argued that they should have been charged with the same crimes as the six defendants who had been tried separately for participation in the same events (see above) and that the statute of limitations in respect of the latter crimes had already expired. That argument was dismissed as well, the courts finding that the actions of each defendant had to be assessed individually and that the applicants’ actions had corresponded to the elements of the crimes of which they had been convicted.

Mr Mel was sentenced to nine years’ imprisonment, Mr Ivanov to five years’ imprisonment, and Mr Galinaitis to ten years’ imprisonment.

Relying on Article 6 § 1 and Article 7 of the Convention, the applicants submit that their conviction was based on legal provisions which had not been in force at the time when the impugned crimes had been committed. They also contend that the relevant provisions of the Criminal Code were amended in 2011 specifically in order to adapt them to the case against them and to make their conviction possible. Furthermore, they submit that on 11-13 January 1991 they did not kill anyone, nor gave any such orders, and that they could not have foreseen that their specific actions (see above) might be classified as crimes against humanity or war crimes under international law. According to the applicants, they were ordinary soldiers and they could not have been aware of the existence of any policy to carry out a widespread or systematic attack against the civilian population, which was an essential element of crimes against humanity. Lastly, they submit that they were charged with crimes against humanity and war crimes, in contrast to the six individuals convicted in 1999, solely in order to avoid the application of the statute of limitations.

The applicant in application no. 50059/22 (Mr Mel) also complains, for the aforementioned reasons, that the deprivation of his liberty following the conviction has been contrary to Article 5 § 1 (a) of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicants’ conviction in compliance with Article 7 of the Convention? In particular, did the applicants’ acts, at the time when they were committed, constitute offences defined with sufficient accessibility and foreseeability by Lithuanian law or international law (see Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 153-62, ECHR 2015; Kononov v. Latvia [GC], no. 36376/04, §§ 185-87 and 234-44, ECHR 2010; Korbely v. Hungary [GC], no. 9174/02, §§ 78-85, ECHR 2008; and K.- H.W. v. Germany [GC], no. 37201/97, §§ 68-76, ECHR 2001-II (extracts))?

2. With regard to the application no. 50059/22, was the deprivation of the applicant’s liberty following his conviction “lawful” within the meaning of Article 5 § 1 (a) of the Convention (see, mutatis mutandis , Del Río Prada v. Spain [GC], no. 42750/09, §§ 123-32, ECHR 2013)?

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

50059/22

Mel v. Lithuania

12/10/2022

Jury Nikolaevich MEL 1968 MarijampolÄ— Russian

Ryšardas BURDA

2.

50928/22

Ivanov v. Lithuania

22/10/2022

Genadij IVANOV 1951 Pravieniškės Russian

Julija ASOVSKAJA

3.

52299/22

Galinaitis v. Lithuania

25/10/2022

Albertas GALINAITIS 1965 Kaliningrad Russian

Nikolaj VOINOV