Information Note on the Court’s case-law 189

October 2015

Vasiliauskas v. Lithuania [GC] - 35343/05

Judgment 20.10.2015 [GC]

Article 7

Article 7-1

Nullum crimen sine lege

Conviction in 2004 for alleged genocide of Lithuanian partisans in 1953: violation

Facts – In 2004 the applicant was convicted under Article 99 of the new Lithuanian Criminal Code of the genocide of a political group in 1953 and sentenced to six years’ imprisonment. That provision entered into force on 1 May 2003 and, unlike the Convention on the Prevention and Punishment of the Crime of Genocide 1948 ("the Genocide Convention"),* included political groups among the range of protected groups.

The conviction arose out of the applicant’s alleged participation in the killing of two Lithuanian partisans in January 1953. At the time, Lithuania was under Soviet rule and the applicant was a member of the Ministry of State Security (MSB) of the Lithuanian Soviet Socialist Republic. His conviction was upheld on appeal, but the court of appeal noted that, in addition to being members of a political group, the partisans were also “representatives of the Lithuanian nation” and “could therefore be attributed no t only to political, but also to national and ethnic groups” in other words, to groups listed in the Genocide Convention.

In his application to the European Court, the applicant complained of a violation of Article 7 of the Convention in that his convictio n for genocide had no basis in public international law as it stood in 1953. The Chamber of the Court to which the case was initially allocated relinquished jurisdiction to the Grand Chamber.

Law – Article 7: The Court’s function was to assess whether ther e had been a sufficiently clear legal basis, having regard to the applicable law in 1953, for the applicant’s conviction of genocide and, in particular, whether the conviction was consistent with the essence of that offence and could reasonably have been f oreseen by the applicant at the time of his participation in the operation in which the two partisans were killed.

The conviction was based upon domestic legal provisions (Article 99 of the new Lithuanian Criminal Code) that were not in force in 1953 and h ad been applied retroactively. There had thus been a violation of Article 7 of the Convention unless it could be established that the conviction was based upon international law as it stood at the relevant time.

Genocide was clearly recognised as a crime under international law in 1953: it had been codified in the 1948 Genocide Convention after being acknowledged and condemned by the UN General Assembly Resolution 96(I) of 11 December 1946. The instruments of inte rnational law prohibiting genocide had thus been sufficiently accessible to the applicant.

However, in the Court’s view the applicant’s conviction for the crime of genocide could not be regarded as consistent with the essence of that offence as defined in international law at the material time and had therefore not been reasonably foreseeable by him.

Firstly, it was clear that international law in 1953 did not include “political groups” within the definition of genocide. Article II of the Genocide Conventio n listed four protected groups – national, ethnical, racial or religious – but did not refer to social or political groups. Indeed, the travaux préparatoires to the Genocide Convention disclosed an intention by the drafters not to include political groups in the list of protected persons. All references to the crime of genocide in subsequent international law instruments described that crime in similar terms. The fact that certain States had later decided to criminalise genocide of a political group in thei r domestic laws did not alter the reality that the text of the 1948 Convention did not. Nor was there a sufficiently strong basis for finding that customary international law as it stood in 1953 included “political groups” among those falling within the de finition of genocide.

Secondly, as regards the Lithuanian Government’s submission that because of their prominence the partisans were “part” of the national group and thus protected by Article II of the Genocide Convention, the Court noted that in 1953 the re was no case-law by any international tribunal to provide judicial interpretation of the definition of genocide and the travaux préparatoires provided little guidance on what the drafters meant by the term “intent to destroy, in whole or in part”. While it was reasonable to find that in 1953 it would have been foreseeable that the term “in part” contained a requirement as to substantiality, it was not until a half a century later that judicial guidance had emerged from cases before the International Criminal Tribunal for the former Yugoslavia , the International Criminal Tribunal for Rwanda and the International Court of Justice to indicate that, in addition to its numerical size, the “prominence” of the targeted part within the protected group could also be a useful consideration.** That development was not something the applicant could have foreseen in 1953.

Thirdly, although t he court of appeal had rephrased the trial court’s finding that Lithuanian partisans were members of a separate political group by stating that they were also “representatives of the Lithuanian nation, that is, the national group”, it had not explained wha t the notion “representatives” entailed or provided much historical or factual account as to how the Lithuanian partisans represented the Lithuanian nation. Nor did the partisans’ specific mantle with regard to the “national” group appear to have been inte rpreted by the Supreme Court. Thus, even if the international courts’ subsequent interpretation of the term “in part” had been available in 1953, there was no firm finding in the establishment of the facts by the domestic criminal courts to enable the Cour t to assess on which basis they had concluded that the Lithuanian partisans had constituted a significant part of the national group. Nor was it immediately obvious that the ordinary meaning of the terms “national” or “ethnic” in the Genocide Convention co uld be extended to cover partisans. The domestic courts’ conclusion that the victims came within the definition of genocide as part of a protected group was therefore an interpretation by analogy, to the applicant’s detriment, which had rendered his convic tion unforeseeable.

The Court also examined, and rejected, the Lithuanian Government’s argument that the applicant’s acts were criminal according to the general principles of law recognised by civilised nations and thus came within the provisions of the se cond paragraph of Article 7 of the Convention. It confirmed that that provision did not allow for any general exception to the rule of non-retroactivity, but was intended to ensure there was no doubt about the validity of prosecutions after the Second Worl d War of the crimes committed during that war. The two paragraphs of Article 7 were interlinked and to be interpreted in a concordant manner. Accordingly, since the applicant’s conviction could not be justified under Article 7 § 1, it could not be justifie d under Article 7 § 2 either.

Conclusion : violation (nine votes to eight).

Article 41: In the light of the very particular circumstances of the case, the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage .

(See also Korbely v. Hungary [GC], 9174/02, 19 September 2008, Information Note 111 ; and Kononov v. Latvia [GC], 36376/04, 17 May 2010, Info rmation Note 130 )

* Article II of the Genocide Convention defines genocide as certain acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

** See, for example, the ICJ judgment of 3 February 2015 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Croatia v. Serbia ), § 142.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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