Dominykas Karpovič, Stanislovas Tomas: Austria and Lithuania, Politics vs. Law?

By Test Test | 16 September 2011

To quote this document: Test Test, “Dominykas Karpovič, Stanislovas Tomas: Austria and Lithuania, Politics vs. Law?”, Nouvelle Europe [en ligne], Friday 16 September 2011, http://www.nouvelle-europe.eu/node/1247, displayed on 29 September 2020

Europe has recently been rocked by an international scandal that entangled an ex-KGB man wanted for ordering mass killings in Lithuania, named Michail Golovatov, Austrian law, Lithuanian institutions and the unity as well as the standing of the European Union. At the core of this event was the fact that Austrian officials set free the soviet officer just a few hours after his arrest in Vienna. We have decided to find out how two scholars of different subjects who originate from the post-Soviet countries and who gained their education at western universities would evaluate this situation.

The first of our contributors is a Lithuania-born magistrate from the European Peace University doing a course in Peace and Conflict Studies, Dominykas Karpovič, who specializes in negotiation, mediation and solutions for conflict situations. Also, we spoke to a Law science doctor of Kazakh origin, Stanislovas Tomas, from Université Paris I who belongs to the school of thought of critical law and who also is a consultant in international cases. Dr. S. Tomas has been a graduate student in New York, Berlin, Madrid, London, Venice, Oslo and San Marino.

Nouvelle Europe: What were the causes of this incident ? If we accept that from the juridical point of view everything was done correctly, mistakes have nevertherless been made on a political and diplomatic level. What were they and why have these been made ?

Dominykas Karpovič: On the very surface it could be claimed that Austria merely exercised juridical procedure which has erupted in public as an important, painful and humiliating event. Going deeper, Austria had made a successful first step by arresting M. Golovatov. However, the second step had been clearly made with the consideration of priorities, interests and threats. In other words, what could Austria have lost or how the situation could have been worsened by Russia or Lithuania, if actions had been done to the disadvantage of one of them.

It is clear that Lithuania in this case represents the striving for justice (but not justice per se), while Russia represents the interests, by which powerful states usually manipulate others. I would say that the decision made by Austria was logical, however wrong.

Since I am not a legist or an expert on this subject, I do not dare commenting on the juridical procedure. However, if the European commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding has emphasized that everything had been done without breaking the law, most likely this has been a well-grounded argument. Foreign Minister A. Ažubalis also recently confirmed this position.

Without a doubt, aspects of diplomacy/politics are also involved in the conflicts. In my opinion, they are paramount in such situations and determine the perception of the event and the application of law, that is, interpretation. The best example would be to compare the circumstances of the release of M. Golovatov and the arrest of Bosnian general Jovan Divjak in early March. Those cases are almost the same, however the processes and the results have been completely different. It is simple – in the case of the incident concerning Lithuania the political/diplomatic dimension was predicated (as has already been mentioned) on logical calculations - where justice, in its highest meaning, has the same value as money or influence. Is that normal? Situation and history show us that it is a rule, and not a deviation from it. Is that a positive sign when moving towards peace? No.

Stanislovas Tomas: I belong to the School of Critical Law which denies the existence of law itself – it is possible to explain anything in juridical terms and in any way. In my doctoral dissertation, 100 methods of explaining law are described, and these are divided into 430 variations. In such types of cases the law never determines anything. I would not use the term “justice” as others commentators do. This is not a conflict of Lithuania against Austria and Russia, but of Lithuania against the EU and Russia. Let's look directly to the matter – the European Union had the opportunity to proclaim that the law itself demanded from the Austrian a more honest collaborationwith the Lithuanians. However the European Commission decided not to do so and de facto supported Austria.

An important question is over what is “Austria” - in this certain case it is not the government of Austria, not the Parliament, but a single person – a certain prosecutor who made the decision to allow Golovatov to fly. The Austrian government must support its decision no matter what it is – it is the principle of the freedom for the prosecutor to act – nobody can prescribe the prosecutor what to do (except the court).

NE:  And were there any mistakes from the side of Lithuania?

S.T.: The stupidity of Lithuanian officials is what I would like to congratulate Golovatov with. Grybauskaitė, Kubilius, Lithuania’s Minister of Foreign Affairs had already declared Golovatov guilty and in this way they broke the presumption of innocence of the European Convention on Human Rights, they put pressure on the prosecutor and the courts. Golovatov would win the case against Lithuania in Strasbourg. The court of Strasbourg would not believe that Golovatov could expect a fair trial in Lithuania.

Another aspect on which Golovatov would win in Strasbourg – is that the limit of his case had already finished, however the Parliament changed Lithuanian laws and extended the limit. And this parliament expects that this is not a breach of the European Convention on Human Rights (the application of the penal law in retroaction)?

I would also like to congratulate Golovatov with the fact that the Lithuanians decided to only proceed with the order for his detention in 2010. Does that not sound hilarious? The first attempts to process a case 15 years after the events. Well, I am sorry. As for the evidence submitted to the Austrians – as the later claim, the Lithuanians only put forward descriptions of historical events and did not include anything on how precisely Golovatov himself had contributed to the massacre. If that is true, then it means that Golovatov is being persecuted for political-historical events. I have not seen those documents myself. However, the Lithuanian prosecutor should have had foreseen such scenario and should have had prepared for it.

As the Austrians say: first the Lithuanians ask to arrest him, and only then do they begin to think over what to charge him with and how to prove that. Why had not the Lithuanians prepared all of the material in advance? Why didn't they have the German translation of that material? Especially as it is one of the most common languages in the EU.

Another interesting aspect – Austria only recognized the independence of Lithuania on the 28th of August, 1991. Up until that day, looking formally from the Austrian perspective, there had been no Lithuania – there existed the law and order of the Soviet Union in the territories of the Soviet Union concerning the citizens of the Soviet Union. This is an open question – I know how it would be answered by the current Lithuanian Court, but I am not sure what opinion an Austrian, European or a UN judge would have.

 

 

NE: What is going on in Europe – why do EU members more and more often take on individual initiatives that involve Russia without any regards concerning the trend of foreign politics of the Union (let's remember the case of French warships)  ?

D.K: First of all, I would like to emphasize that Russia is not an enemy of the European Union, on the contrary, it would be nice to see close cooperation. Such actions are the way forward.

However, most importantly, it has to be based on justice and only then on interests, and not just be focused on interests, while stepping over what is just. If the priorities are right and they are being held to, no cooperation should be radically criticized. I respect the European Union's striving for unity, however that does not mean that all of the others are enemies. Isolationism is faulty and unsound. In this way are discord and animosity instigated in the world. It is necessary to realize that situation determines the event. The interpretation of the situation depends on the priorities, on top of which should be justice. Unfortunately, interests have so far always been on top, therefore the decisions have been respective. Russia is not evil, however the way it usually behaves and the way we and other states react to it – is not right and, I would say, testifies a bad tone.

Also, the ever growing comeback of Russia on the international stage in recent years has been visible (the “overload“, the trip to Palestine, support to Libya and many other events).  As Russia is increasingly getting more visible and more active, it could be suspected that in those spheres certain strategic actions are being discussed and done.

At the same time, the USA get a lot of criticism for their interference into the matters of other states and is (perhaps) starting to be alarmed over that, and there are clear signs over the weakening of their economy.

Is Russia rising and the USA falling down? Does that mean that Europe is gradually, firstly in minor places, losing a strong rear? I would not argue for that safely, however there is space for such interpretation.

S.T.: As for Russian influence – the Russian ambassador in Vienna has acknowledged that their embassy hires a free lawyer for Russians who get into trouble. Such actions are legitimate. I wish that the Lithuanian embassy would provide citizens with such support. There is no other evidence of Russian influence. Actually, I do not buy the argument that the Russians would halt gas transportation to Europe for such an incident.

D.C.: What does this event mean to Russia, Austria, and to the countries that have experienced Soviet occupation? What could be the consequences for the European Union?

D.K.: Austria is in an unfavorable position. Even though it has strengthened its ties with Russia, as far as the European Union or the country itself is concerned, the government has damaged its reputation and provoked anger. All of this could, and most likely will have various consequences, from elementary economic ones to a symbolic alignment with Russia, i.e. an ally of an opponent. And that means an opponent.

Russia has achieved its goal, it has shown that it has a great power and it can manipulate even in the centre of Europe – which may appear to us as a safe and reliable space. It did not damage its reputation any more since Russia has been acting without overstepping her already known boundaries. Therefore, everything has sorted out for Russia, or has been sorted out very neatly. The countries that have experienced the Soviet occupation are now getting united (it is only difficult to tell whether for long), since a common opponent has appeared. As psychologists claim: the easiest way to start peace in the world would be in the case of an attack by extra-terrestrials – then we would get united. If these countries do get united, they might become a powerful unified force within the European Union. Also, it could be a case that the relationship with sister Poland will improve. All of this is beneficial to Lithuania.

However, whether it will develop into a serious and a strong step depends on many factors, starting with the position of Lithuania itself. The European Union is now being shaken by various unpleasant issues. This is not an exception. The very foundation of it is beginning to tremble – starting with the economy and ending with elementary reliance. However, I would like to believe that this is only a temporary phenomenon that will be solved by professional experts.

 

PS: The author would like to send special thanks to Vytautas Liutkus for the helping with translating.

Add new comment