Case of European Court of Human Rights, January 24, 2006 (case PENART v. ESTONIA)

Resolution Date:January 24, 2006

FOURTH SECTIONDECISIONAS TO THE ADMISSIBILITY OFApplication no. 14685/04by Vladimir PENARTagainst Estonia The European Court of Human Rights (Fourth Section), sitting on 24 January 2006 as a Chamber composed of: Sir Nicolas Bratza, President, Mr J. Casadevall, Mr M. Pellonpää, Mr R. Maruste, Mr S. Pavlovschi, Mr J. Borrego Borrego, Mr J. 'ikuta, judges,and Mr M. O'Boyle, Section Registrar, Having regard to the above application lodged on 29 March 2004, Having deliberated, decides as follows:THE FACTS The applicant, Mr Vladimir Penart, is a Russian national who was born in 1925 and lives in Tallinn. He was represented before the Court by Mr A. Kustov, a lawyer practising in Tallinn. A.  The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 9 April 2003 the applicant was convicted of crimes against humanity under Article 61-1 § 1 of the Criminal Code (Kriminaalkoodeks) by the Valga County Court (Valga Maakohus). According to the charges the applicant had in 1953-1954 served as the head of Elva Department of the Ministry of the Interior of the Estonian Soviet Socialist Republic (SSR). In the summer of 1953 he had planned and directed the killing of O.R.R., a person hiding in the woods from the repressions of the occupation authorities. For that purpose, he had hired R.T., who had also been hiding in the woods, as an agent and given him a pistol and ammunition. On 3 August 1953 R.T. had killed O.R.R. with a shot to the nape of his neck. Moreover, the applicant had instructed R.T. to find out the whereabouts of V.S., who had been hiding in the woods, and to ascertain the persons who had been supporting him. On 17 September 1953, on the basis of information received from R.T., state security agents had shot and killed V.S., who had not resisted. The applicant had been in charge of this operation. Finally, the applicant had instructed R.T. to find out the whereabouts of P.M., who also had been hiding in the woods. On 17 February 1954 the applicant had led and actively participated in an operation to kill P.M. The applicant had taken part in the shooting whereby P.M. had been killed. Charges were also brought against R.T. The County Court found that R.T. was guilty of killing O.R.R. and the applicant of organising the killing. The court established that the guilt of the accused in the remainder of the offences had not been proved. R.T. was convicted of murder for the purpose of personal gain under Article 136 (a) of the Criminal Code of the Russian Soviet Federative Socialist Republic (SFSR), applicable on the territory of Estonia in 1953, and sentenced to eight years' imprisonment. Due to statutory limitation R.T. was exempted from serving his sentence. In respect of the applicant, the County Court found that he was guilty of a crime against humanity. It referred to Article 6 (c) of the Charter of the International Military Tribunal (Nuremberg Tribunal), noting that the Soviet Union had taken part in drafting the Charter and signed it on 8 August 1945. Furthermore, it found that the extrajudicial killing of O.R.R., a civilian person for the purposes of the Fourth Geneva Convention of 1949, had been in violation of that Convention. It noted that, in substance, the Soviet Union had treated what had happened in Estonia after the Second World War as an armed conflict, as the task of elimination of the resistance had been given to institutions of state security and to military authorities. However, in 1953 O.R.R. had been of no threat to the security of the Soviet Union or to the local authorities. He had been in hiding on his own and had neither actively resisted the authorities nor committed crimes. Nevertheless, the applicant had considered it necessary to kill O.R.R. extrajudicially, as according to his information O.R.R. could have fought against Soviet rule. Accordingly, O.R.R. had been persecuted and killed because of his political convictions and resistance to Soviet rule. Making a reference to the Supreme Court's judgment of 21 March 2000 in the Case of Paulov, the County Court held that the applicant had committed a crime against humanity, since he had organised the killing of a person hiding from the authorities because of his political convictions. Although such a killing had been in violation of both domestic and international law, the applicant had presumed that he would not be punished, as he had been acting in his official capacity and considered his acts justified mainly on ideological grounds. His acts in organising the killing had not been driven by personal motives or objective circumstances. The killing of O.R.R. had not been unavoidable for the applicant; it had to be considered as a murder of the civilian population, i.e. a crime against humanity. The applicant was sentenced to eight years' suspended imprisonment with a probation period of three years. The applicant appealed against the County Court's judgment. According to the applicant, his conviction had lacked a factual basis. Moreover, he challenged the applicability of Article 61-1 § 1 of the Criminal Code. O.R.R. had been armed and dangerous to the local inhabitants. The purpose of the applicant's acts had...

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