European court equates Nazi and communist crimes

Estonian Central Couoncil
September 8, 2006

The European Court of Human Rights has recently refused to hear the appeal of August Kolk and Pjotr Kislõi who were convicted in Estonia of assisting in the deportations of people to Siberia in 1949.

Estonian lawyer Hannes Vallikivi said the decision set a precedent: “To my knowledge it’s the first time the European Court of Human Rights has used international law derived from cases of Nazi crime and applied it to crimes of communism.”

According to Vallikivi, until 1994 Estonia lacked legislation dealing with deportation as a crime against humanity. The Kolk and Kislõi appeal argued that they could not be convicted retroactively. Vallikivi added: “Their defence stressed that during the Nuremberg process crimes were limited to those perpetrated during the war. The European court however countered that those committed after the war are also crimes against humanity.”

Lauri Mälksoo, holding the chair of international law at Tartu University said that from 1940 to 1991 Estonia was illegally occupied. Therefore the appellants cannot argue that the Nuremberg precedents do not apply in their case because the war was over. Mälksoo: “The European Court of Human Rights clearly acknowledged that Estonia was, contrary to international law, illegally occupied from 1940 to 1991.”

A logical extension of Mälksoo’s viewpoint is that due to the occupation, which Moscow vehemently rejects, the war did not end for the Estonians until August of 1991. It’s also been argued that it only ended in August of 1994, when Russian forces left Estonian territory.

The European court’s decision leaves intact the Saaremaa court’s 2003 conviction of Kislõi and Kolk who were charged with the deportation of local people to Siberia. They were sentenced to 2 years suspended plus 8 years of court supervision.

The current European Court of Human Rights, instituted in 1998, often called the “Strasbourg Court” handles human rights complaints from Council of Europe member states. The Court was established to enforce the Convention for the Protection of Human Rights and Fundamental Freedoms.

The number of judges is 46, equal to the number of member states. There is no requirement that each state be represented on the court, nor are there limits to the number of judges from any one country. Rait Maruste, a former chief justice of the Estonian supreme court is a member.