Information Note on the Court’s case-law No. 82
January 2006
Kolk and Kislyiy v. Estonia (dec.) - 23052/04
Decision 17.1.2006 [Section IV]
Article 7
Article 7-2
General principles of law recognised by civilised nations
Inapplicability of prescription to crimes against humanity: inadmissible
Facts: A county court convicted the applicants of crimes against humanity under the Estonian Criminal Code and sentenced them to eight years’ suspended imprisonment with a probation period of three years. The court found that in 1949 the applicants had participated in the deportation of the civilian population from the occupied Republic of Estonia to remote areas of the Soviet Union. The applicants appealed, alleging that at the material time the Criminal Code of 1946 of the Russian Soviet Federative Socialist Republic (SFSR) had been applicable on the territory of Estonia. That Code had not provided for a punishment for crimes against humanity. The criminal responsibility for crimes against humanity had been established only in 1994 by the amendments made to the Estonian Criminal Code of 1992. With reference to Article 7 of the Convention, the defence argued that the county court had not established whether the deportation had been a crime against humanity under international and domestic law in 1949 and whether the applicants had had a possibility to foresee, at that time, that they were committing an offence. A court of appeal nevertheless upheld the lower court’s judgment, noting that crimes against humanity were punishable, irrespective of the time of the commission of the offence, both according to the Estonian Criminal Code and the Penal Code. Moreover, Article 7(2) of the Convention did not prevent punishment of a person for an act which, at the time of its commission, had been criminal according to the general principles of law recognised by civilised nations. Deportations committed by the applicants had been considered crimes against humanity by civilised nations in 1949. Such acts had been defined as criminal in the Charter of the International Military Tribunal (the Nuremberg Tribunal) and affirmed as principles of international law by the General Assembly of the United Nations in its Resolution No. 95 adopted in 1946. The applicants were refused leave to appeal to the Supreme Court.
Law: The Court noted that Estonia had lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics and the Soviet Army’s large-scale entry into the country in 1940. Except for being occupied by German forces from 1941 to 1944, Estonia had remained occupied by the Soviet Union until its restoration of independence in 1991. Accordingly, Estonia as a state had been temporarily prevented from fulfilling its international commitments. The Court noted, however, that deportation of the civilian population had been expressly recognised as a crime against humanity in the Charter of the Nuremberg Tribunal of 1945. Although the Nuremberg Tribunal had been established for trying the major war criminals of the European Axis countries for the offences they had committed before or during the Second World War, the universal validity of the principles concerning crimes against humanity had been subsequently confirmed by, inter alia, Resolution No. 95 of the General Assembly of the United Nations adopted in 1946. Article 7(2) of the Convention expressly provides that Article 7 shall not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. That is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal. Even if the acts committed by the applicants could have been regarded as lawful under the Soviet law at the material time, they were nevertheless found by the Estonian courts to constitute crimes against humanity under international law at the time of their commission. The Court saw no reason to come to a different conclusion. Furthermore, as the Soviet Union had been a party to the 1945 agreement whereby the Nuremberg Charter had been adopted as well as a member of the United Nations when its General Assembly had adopted its resolution No. 95, it could not be claimed that the principles in question had been unknown to the Soviet authorities. Furthermore, Estonia had acceded to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity on having regained its independence in 1991. In sum, the Court found no reason to call into question the Estonian courts’ interpretation and application of domestic law made in the light of the relevant international law: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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