The judicial scandal of the twentieth century ” systematic violation of a peremptory rule of international law by Lithuania
When taking into account that the “ius cogens” of general international law has absolute validity for all states and has to be complied with strictly and without any exceptions, it is more than only astonishing to note the existence of the following circumstances, which apparently have as yet not gained widespread publicity, which, however, have resulted and still result in basic and very serious consequences for the victims of the violations of peremptory rules of international law, as described in the following paragraphs:
Quite contrary to the situation in the other eastern European states it is ” with regard to international law ” a generally accepted fact (among others by the governments of the Federal Republic of Germany and the Federal German Constitutional Court) that an unlawful occupational regime had been exercising absolute power in the Baltic states from 1940/1944 up to at least 1990, according to a definition of international law even up to the end of 1994 (final withdrawal of both the occupational army and the Russian KGB).
The same is also valid for the unlawful occupational regime “Northern Cyprus”, as can be seen e.g. in the ECHR Grand Chamber decision in the case of Loizidou v. Turkey (18 December 1996, case file no. 40/1993/435/514), in which the ECHR did by no means dismiss the application of Mrs. Loizidou “ratione temporis” (although her dispossession by the occupational forces had taken place prior to the coming into force of the Convention for Turkey), but put Turkey under the obligation to return the dispossessed property to Mrs. Loizidou or else pay her a compensation according to the market value and, additionally, a separate compensation for not having had the opportunity to use her property accordingly, because the violation of Mrs. Loizidous human rights, having occurred prior to the coming into force of the Convention, has had continued existence up to the presence and had been effected by an unlawful occupational regime (US Department of State: “”The ruling reaffirmed the validity of property deeds issued prior to 1974” (http://en.wikipedia.org/wiki/Loizidou_vs_Turkey).
Later on there were other likewise positive decisions by the ECHR in the cases of Myra Xenides v. Turkey (23 May 2007) and Demades v. Turkey (22 April 2008) for the same reasons.
According to a “peremptory rule of general international law ” ius cogens”) the dispossessions, nationalizations, acknowledgments of third persons as “new owners” of the lawful property of lawful owners etc. having been carried through by an unlawful occupational regime are null and void from the beginning. From this it follows that after the collapse of such an unlawful occupational regime the lawful owners of the dispossessed real estate are entitled to a “restitutio in integrum”, only in extremely rare cases to be replaced by a claim to a compensation according to the market value.
Unlike Estonia and Latvia this peremptory rule of general international law (“ius cogens”) has not merely been disregarded, but two so-called “special laws” were adopted in Lithuania in 1990 and 1997, which had been planned in detail long in advance, obviously assuming to be able to avoid to comply with this peremptory rule (“ius cogens”). These so-called “special laws”, for umpteen times changed and brought into line with the ever-changing “special” desires of the communist nomenklatura, both stipulated that no “restitutio in integrum” at all had to be effected, and gave the changing communist-dominated governments the permission to fix (by way of simple government decrees) the “compensation” to be paid.
When “restoring” the property rights of the original owners or rather their heirs (nota bene: the peremptory rule of general international law strictly stipulates that the lawful owners are entitled to a “restitutio in integrum”), one should have expected the financial compensation will be calculated according to the real market price of the real estate not returned in natura according to the “ius cogens” of general international law, absolutely binding even for communist Lithuania. Quite the reverse. According to the “Methodology approved by the government” they are being “compensated” financially either by a small plot of land in far-away districts that corresponds to roughly 0,10% up to ca. 0.5% of the market value, or else they are awarded shares of ailing state-owned enterprises of even less value. Although some of these enterprises pay a dividend of about 2% p.a., this does not even make up for the current (2007/2008) inflation rate of 12%. Moreover, such “shares” are of the non-marketable type. It should be mentioned that, in earlier years, the original owners had the opportunity to obtain land by way of compensation.
One must, however, point out, that this land ” although the Lithuanian laws as well as the Lithuanian Constitution stipulated that original owners must be given land of the same value in the same location or else be paid a compensation according to the real value of the land not returned in natura, such “compensation land” did normally have only a fraction of the market value of the land not returned to the original owners. There are numerous cases that such land, given as a “compensation”, was situated in sandy and/or swampy districts, directly on former refuse dumps, in the neighbourhood of highways with strong road traffic, near factories polluting the environment etc. It is quite obvious that the communist officials of the boards for redistribution of land-holdings were taking the original owners for a ride, resting assured that the communist judges would be backing these illegal acts, violating the “ius cogens” of general international law. Although both Lithuanian Constitution and the corresponding paragraphs of the Lithuanian Civil Code, even the said “Special Law” for the return of preserved landed property stipulate a compensation according to the market value, the above-mentioned administrative officials are stubbornly sticking to their method of applying the “Methodology approved by the government”.
It is little use turning to the Lithuanian courts, as the judges are also leading the original owners up the garden path by repeating the selfsame formula in “prayer-wheel-style”. Which shows that the judges are neither independent nor are they deciding according to the Lithuanian Constitution and the Civil Code, to say nothing of Human rights. The government are thus “de facto” dispossessing the original owners for a second time, and if not according to the Constitution, then by hook or by crook.
Moreover, the communist officials in the “Boards for the re-distribution of land-holdings”, making use of these so-called “special laws”, have ever since arbitrarily sold, leased, given away the landed property of the lawful owners to third persons, acknowledging these people (trustworthy party-comrades) as the “new lawful owners”.
The lawful owners, thus being “de facto” expropriated for a second time, desperately trying to get back their lawful possessions by going to the domestic courts (both administrative and civil jurisdictions), have, ever since 1991, been faced with the regular dismissal of their actions by the same communist judges as in the Brezhnev area, stubbornly upholding the position of the communist governments and their respective “special laws”, having been adopted by seriously violating the “ius cogens” of general international law.
These “special laws” permit deserved communist party comrades, to “exchange” valueless sandy or swampy plots of land for extremely expensive building plots in the Lithuanian capital, Vilnius. It goes without saying that this kind of highest-value real estate, appropriated by making use of these “exchange” clauses, has, all the while, been the lawful property of lawful owners (according to the “ius cogens” of general international law). The lawful owners, also according to these “special laws” are awarded a so-called “compensation” amounting to rarely more than about 0,5% of the market value of their lawful real estate, stolen from them by systematically violating a peremptory rule of general international law.
Certainly you will be wondering, how such things can happen in a country belonging to the European community? Well, here comes the answer: As early as 1989 the future and inevitable transformation of the unlawful occupational regime into a so-called “independent” Lithuania was in sight for high-ranking communist party comrades (who, as a rule, were excellently well informed by party and KGB). These functionaries had, ever since then, taken special precautions, in order to preserve their own politico-economical power even under changed conditions.
Such “precautions” comprise the attainment of the ownership of landed property, especially of highest-value real estate in the towns and cities, which would both secure and perpetuate their economical and that way also political prevalence in Lithuania. This “special” way of procedure, systematically violating the above-mentioned peremptory rule of general international law (“ius cogens”) by adopting so-called “special laws” was methodically planned by a planning commission of ideologists of the unlawful occupational regime, al of them educated and formed at the Moscow Lomonossov university, the most prominent members were”
The last People’s commissary for justice (calling himself “minister of justice”) and as well member of the central committee of the communist party of the unlawful occupational regime in Lithuania (1977-1990), Pranas Kūris, also professor for comparative law and international law, further the chief ideologist for problems of international law of the so-called Lithuanian Communist party (of the unlawful occupational regime), later on professor for international law, of all persons, Vilenas Vadapalas (the last-named person did a doctor’s degree at the communist Moscow Lomonossov university by means of a thesis, having the telling title “Special circumstances releasing a state from its responsibility to comply with international law” in Lithuanian “Aplinkybės, pašalinančios valstybės atsakomybę tarptautinėje teisėje” .
(Both translations from the Russian).
These two persons had exercised decisive influence on the formation of the above-mentioned two “Special laws”, formed and adopted by systematically violating a “ius cogens” of general international law.
Previous high functionaries, adepts and disciples of communist ideologists of the unlawful occupational regime in Lithuania are holding high posts in all-European institutions
No comes the outrageous judicial scandal, which is unparallelled after the collapse of the unlawful occupational regime in Lithuania:
Pranas Kūris, in his position as People’s commissary for justice (from 1977 to 1990), a high-ranking communist functionary, certainly one of those responsible for the suppression of human rights by the unlawful occupational regime in Lithuania, was elected the Lithuanian judge at the European Court of Human Rights in 1998, following a suggestion made by the sub-committee for the election of judges at the ECHR of the parliamentary assembly of the Council of Europe.
The former People’s commissary for justice of the unlawful occupational regime held his office at the ECHR until November, 2004. Throughout this period he managed both to disguise the flagrant and systematic violation of the above-mentioned “ius cogens” of general international law in the face of the other members of the section competent for dealing with applications from Lithuania, and to throw out the applications of lawful Lithuanian land-owners (having also been appointed the “reporter”, of all persons) with reference to the above-mentioned “special laws” (violating a peremptory rule of general international law) and with reference to the principle “ratione temporis”. Pranas Kūris, after the elapse of his period of office, was appointed judge of the Court of the European community in Luxemburg.
In 2004 the selfsame sub-committee for the election of judges at the ECHR (also at the suggestion of the so-called Lithuanian social-democratic government, headed by the former high-ranking official of the unlawful occupational regime, Algirdas Brazauskas) elected Mrs. Danutė Jočienė his successor. She had been a student, graduate student studying for a doctorate and later on assistant of Vilenas Vadapalas, later on director of the Lithuanian government institute for European law, absolutely dependent on the instructions and orders of the communist-dominated Lithuanian government. Ever since his thesis submitted to the communist Lomonossov university in Moscow, he drew up and prepared numerous “expert opinions”, suggestions, evaluations etc., all of which based on his assertion that Lithuania, for “special” reasons, was not under an obligation to carry through a “restitutio in integrum” (as stipulated by the “ius cogens” of international law) of the landed property, illegally “nationalized” by the unlawful occupational regime.
It is absolutely clear for each specialist of international law (except probably communist hardliners), that the requirements of “ius cogens” can by no means be evaded by any state, for whatever “special” reasons. In spite of this, Vilenas Vadapalas has been going on acting as mentor, tutor, supervisor and instructor of future jurists, imparting them the completely wrong standpoint of previous bolshevist “specialists for international law”, among them also his later assistant, Mrs. Danutė Jočienė, although his point of view as well as that of his like-minded was systematically disregarding the “ius cogens” of general international law.
The same communist-dominated Lithuanian government managed to get him into the same position in Luxemburg as his like-minded, namely Pranas Kūris.
Consequently, it is no wonder that Mrs. Danutė Jočienė, all the while after the end of her studies, behaved and acted according to the communist doctrine of her mentor. The communist lawyers in the Lithuanian ministry of justice appointed her the permanent agent of communist-post-communist Lithuania at the European Court of Human Rights, as a person, both in education and formation as future part of the regime’s nomenklatura, faithful to the regime’s directives. When exercising this function in the years 2003 and 2004, she permanently proclaimed and represented the doctrine of the Lithuanian government (in which high-ranking functionaries and collaborators of the preceding unlawful occupational regime were still very active), namely that the applications of lawful Lithuanian land-owners, submitted to the ECHR against their “de facto” second dispossession violating a “ius cogens” of general international law, were manifestly ill-founded (either “ratione temporis” or “ratione materiae”).
Now something both extraordinary and ” from a moral standpoint-scandalous took place –
The members of the above-mentioned sub-committee of the parliamentary assembly of the Council of Europe, competent for the election of future judges at the European Court of Human Rights, made the suggestion to elect Mrs. Danutė Jočienė of all persons the new Lithuanian judge at the ECHR (from November 2004). It is an outrageous fact that a government representative, of all persons, (i.e. the advocate of the defendant) was elected judge of the ECHR. Besides, Mrs. Danutė Jočienė did not meet the requirements, to be elected judge of the ECHR ” neither was she ever a judge, to say nothing of her lacking competence to act as a judge at supreme courts, nor could she, government agent in Strasbourg, be called a renowned legal scholar.
And that’s not all, she was also appointed reporter of the second section of the ECHR ” in which function she (in cooperation with the Lithuanian legal secretary) is responsible for deciding, how to deal with applications against Lithuania, submitted to the European Court of Human Rights, i.e. she is in a position to “de facto” pre-decide such applications. [Source: “XXI amžius” Nr. 15 (84) of August 11th, 2004 ” Attachment on Lithuania and the world (in the original source: “priedas apie Lietuvą ir pasaulį 2004 m. rugpjūčio 11 d., Nr. 15 (84)” – according to the witness Pranas Kūris named in this article “There is no separate office for a judge in the ECHR – (cabinet)] ” each judge has only one private secretary, and the legal secretaries work in one common office, subdivided according to states. And whenever a Lithuanian application is being dealt with, the legal secretary appointed for Lithuanian cases, will get in touch with the judge, the judge-reporter etc. in order to closely co-operate with these persons” (Original: “Strasbūro teisme nėra kabineto – teisėjas turi tik vieną sekretorę, o teisininkai-referentai dirba bendrame sekretoriate susiskirstę pagal valstybes. Ir jeigu nagrinėjama Lietuvos byla, tai Lietuvai paskirtas referentas eina ir bendrauja su teisėju, su teisėju pranešėju ir t. t.”)].
Mrs. Danutė Jočienė is authorized to decide the following, on her own authority and practically uncontrollably:
A. Which “Statement of Facts” has to be drawn up, what the covering letter to the Lithuanian government, once a “communication” has to be sent to the defendant government, has to contain and what must not be mentioned, whether the final domestic decision containing the reason for submitting an application to the ECHR, has to be mentioned or whether it has to be suppressed, which “special procedure” will, from time to time, inevitably bring about a deception of the other judges of the chamber, as concerns the matter of the case and the well-founded facts of the application. Last not least, the way, in which the “Suggestion for a decision of the ECHR”, to be forwarded to the other chamber judges, has to look like, which is decisive for the case, for the other judges of the second section, as is well known, do not examine or even scrutinize this “Suggestion”, but, simply and blindly initial it, together with a huge number of similar-looking “Suggestions”, a procedure, which is allegedly a consequence of the gigantic number of applications”.
B. Mrs. Danutė Jočienė is authorized to decide, whether she will comply with judgements passed by the Grand Chamber of the ECHR or whether she, being the judge-reporter, will simply disregard such judgments (without any explanations, as she can trust in the incontestability of such “decisions” by the second section of the ECHR). Especially concerning the judgments of the in the cases Loizidou v. Turkey, Myra Xenides v. Turkey und Demantes v. Turkey (The Grand Chamber ruling reaffirmed the continuing validity of property deeds issued prior to 1974, i.e. prior to the coming into force of the Convention for Turkey, which state maintained an unlawful occupational regime in Cyprus (North Cyprus), a fact both violating a peremptory rule of general international law and being a violation of the first protocol of the Convention ” a fact, however, being disputed by Mrs. Danutė Jočienė in her function as the judge-reporter, as concerns Lithuania and its unlawful occupational regime (ever since 1940/1944) as well as the unlawful “special laws” of the communist nomenklatura after 1990, systematically violating a “ius cogens” of general international law.
She is further disputing the judgment of the Grand Chamber in the case Anheuser-Busch v. Portugal (11 January 2007, AZ. 73.049/01), in which the Court decided that already the application for a right made by a person entitled to submit this application, furnishing all necessary documents and proofs “gave rise to a set of proprietary interests”, and that no final court decision was needed to have one’s property right established, as it is the position of Mrs. Danutė Jočienė in Lithuanian cases, which position she is currently justifying and has, all the while, been justifying to the other judges of the second section of the ECHR.
Last, not least the Grand Chamber decision in the case of Vlasia Grigore Vasilescu v. Romania (June 8th 2006, case file nr. 60868/00) is also being disregarded. As concerns the application preceding the decision, the Romanian courts had refused to examine, whether the defendants in a rei-vindicatio proceedings (a municipal authority) had a legal right to a property, although the plaintiff (Mr. Vlasia Grigore Vasilescu) was entitled to a review of the property title of the defendant by means of rei-vindicatio proceedings. The Grand Chamber decided that this constituted a violation of Article 6 of the Convention. Mrs. Danutė Jočienė has all the while, since June 6th 2006, refused to apply this decision also to comparable Lithuanian cases (with Lithuanian courts denying a plaintiff a review of an alleged title of ownership, to which review he was entitled by law ” i.e. by article 61 of the Lithuanian Code of Civil Procedure of 1964) stating that the European Court of Human Rights was ” no supranational instance” ” although the ECHR has both the right as well as it is entitled to examine, whether a domestic court proceedings violated article 6 of the Convention.
C. Mrs. Danutė Jočienė is authorized to decide, whether applications submitted according to the “Rules of procedure of the Court” should be taken into consideration or be disregarded (e.g. applications for a recommendation of an interim measure ” which, independent of the individual chance of succeeding, have to be laid before the seven judges of the second section of the ECHR for decision).
Applicants have not the slightest chance, to accomplish a compliance with a “ius cogens” of general international law, to enforce an observance of the “Rules of procedure of the Court” or to have wrong, distorted or manipulated “statements of facts” corrected, as each correspondence (as is well known) will be forwarded to the Lithuanian legal secretary, who is free to chose, whether she will pass on this correspondence or suppress it altogether. ” This general authorization of the legal secretaries, empowering them to exercise quasi-judicial powers, gives rise to the suspicion that it goes back to a sweeping “Empowering and Enabling Instruction” [Rule 17 (4) of the Rules of Procedure of the Court] kept under lock and key, which is not even shown to high-ranking representatives of the mass media. As a result, the position of judge-reporter Mrs. Danutė Jočienė, as concerns the problems of a systematic and serious violation of a peremptory rule of general international law by Lithuania (regarding the denied “restitutio in integrum”), being an outflow of what was outlined above, can, at least de facto, not be corrected by anyone, except perhaps by the Council of Europe through its secretary-general, Mr. Terry Davis. He is entitled to waive the immunity of the Lithuanian legal secretary, which step would certainly make Mrs. Danutė Jočienė think it all over.
One should assume that the secretary-general will learn about corresponding petitions sent by registered letter with recorded-delivery slip with the remark “private and confidential”. But this is by far not the case. Such letters will be opened by employees of the common post-office of the Council of Europe and the European Court of Human Rights, then the letter plus documents attached will be assigned to the Lithuanian legal secretary in the second section of the ECHR from the case-file number, usually mentioned within such a petition. The Lithuanian legal secretary, being the person, whose immunity the general-secretary was asked to waive, will then send the usual letter containing computer-generated text blocks like “it seems you are calling into doubt the impartiality of … Your doubts are unfounded “¦” The addressee, namely the secretary-general of the Council of Europe, will know nothing at all about the petition, which is why he can neither comment on the matter or send an ” whatsoever- answer, to say nothing of taking steps to waive the immunity of the Lithuanian legal secretary.
One must now be firmly convinced that ” as a first step, to be effected immediately – the Lithuanian judge-reporter, Mrs. Danutė Jočienė, has to be released from her additional office of reporter of the second section. Secondly, that this has to be followed by a thorough examination concerning the question “Denial by judge-reporter Mrs. Danutė Jočienė of the fact of a systematic and serious violation of a peremptory rule of general international law (ius cogens) in accordance with the policy of the Lithuanian communist nomenklatura”, having the final consequence that the president of the ECHR will convene an assembly of all judges in order to remove her from office by a majority of at least two thirds of the participating judges.
Nota bene: The collaborators of the unlawful occupational regime in Lithuania (1940/44-1990) have taken over the complete judicial system (courts, judges, public prosecutors) into the so-called “newly independent Lithuania”, as well as the KGB with all killers, officers, employees, spies, and reserve officers, the soviet militia and its leaders, the civil servants of the unlawful occupational regime, all petty and more important co-collaborators. For some years the former communist nomenklatura of Lithuania has been “privatizing” (i.e. practically donating) not only strategic and key state enterprise (e.g. telecommunication and petro-chemistry) , but also the complete energy sector of the country to allegedly “private investors”, actually to deserved party comrades or their offspring, behind which, in fact, stand notorious Russian oligarchs (e.g. Gasport). They have been effecting this in order to prepare a gradual re-transition into the Russian sphere of influence. According to reports from US secret service agencies there was the imminent danger of a takeover of political power in a certain central-east-European state by the organized crime ” it is still a debatable question, whether Lithuania (prior to the parliamentary elections 2008) is the state meant in such reports.
It is especially important to know that a study of law, ending with a law degree, was only possible up to 1990, if the candidate had been scrutinized by the KGB and then admitted to the studies, which “procedure” is really telling. The facts shown above, prove that the collaborators of the former unlawful occupational regime in Lithuania have finally not only succeeded, to keep and also to consolidate their previous power within, but, what is still more decisive, to position their representatives, disciples of their representatives as well as ideologists of the former unlawful occupational regime in European institutions (Council of Europe, European Court of Human Rights, Court of the European Communities etc. to say nothing of certain UN institutions) in deciding positions, and, what is more, to secure a number of high-ranking influence agents in European and even international politics and mass media.
The result of the preceding essay: The higher-ranking collaborators and senior officials of the former NS-regime in the occupied states of Europe were either executed after the war or sentenced to long prison terms, whereas nothing at all happened to the collaborators and senior officials of the russo-soviet unlawful occupational regime, especially in the Baltic states. Quite on the contrary, they were promoted into high and highest positions with the (tacit) connivance of institutions and official of western European institutions. However, already since the Sermon on the mount there does exist the well-known and well-founded truth “You will know them by their deeds”. As this truism has been and is still constantly being disregarded, one cannot but reproach those responsible for this outrageous scandal, for operating a double standard, which is the least to reproach them for.
Christian Nekvedavicius
2009-03-26
