17 June 2009

SECOND SECTION

Application no. 35343/05 by Vytautas VASILIAUSKAS against Lithuania lodged on 30 July 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vytautas Vasiliauskas , is a Lithuanian national who was born in 1930 and lives in Tau ragÄ— .

A. The historical background

On 15 June 1940 independent Lithuania was invaded by the Soviets. On 21 July 1940 the Lithuanian Soviet Socialist Republic (Lithuanian SSR) was proclaimed by the occupation forces and on 3 August 1940 the Lithuanian SSR was annexed to the USSR . In 1941 the territory was occupied by Nazi German forces. In July 1944 the Soviet rule was re-established in Lithuanian territory. During that whole period a number of armed partisans were active in various parts of the country. On 9 February 1945 the Soviet authorities proclaimed an amnesty for those partisans who would report immediately to the authorities and put down their arms. However, a number of armed groups continued to act throughout the country. These persons were punishable under Lithuanian SSR criminal law; they were arrested and prosecuted, or sometimes killed during the arrest. Eventually the armed resistance was suppressed. Lithuania regained independence on 11 March 1990; this fact was officially recognized by the USSR on 6 September 1991.

B. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1952 the applicant was employed as a head officer of the Siauliai Region 2-N office of the State Security Ministry (SSM) of the Lithuanian SSR. On 2 January 1953 the applicant, fulfilling his duties as officer of the SSM, participated in an operation against two partisans hiding in the Siauliai area. According to the applicant, a woman (MZ, the co-accused in the criminal case against the applicant) had provided information to his senior about two partisans and the operation for their arrest had been planned. Several soldiers had been involved and the applicant had also been invited to join the operation. The applicant submits that during this operation he had been standing further away, together with MZ , when he had heard the soldiers shooting and a grenade exploding about two minutes later. During the operation both partisans had died.

On 24 April 2001 the public prosecutor ’ s office started an investigation into the death of the two partisans. On an unspecified date charges were brought against the applicant. On 18 September 2001 the public prosecutor issued the bill of indictment against the applicant and MZ, who had provided the information about these partisans to the Lithuanian SSR authorities. Under Article 71(2) of the Criminal Code (CC) then in force, the applicant was charged with genocide, it being alleged that the applicant had joined the SSM in the knowledge that its main purpose was to eradicate physically the part of the Lithuanian population that belonged to a particular political group, namely the partisans who resisted the Soviet occupation, and had taken an active part in fulfilling this aim, killing some of them himself.

On 1 May 2003 a new CC came into force. Criminal liability for genocide was provided for by Article 99 of the new code.

On 4 February 2004 the Kaunas Regional Court concluded that the applicant had personally participated in the killing of two partisans and sentenced the applicant under Article 99 of the new CC, for the genocide of a political group, to six years ’ imprisonment. The applicant was granted a reprieve from his sentence for health reasons. The court stated in the judgment that it had sufficient evidence at hand to find the applicant guilty. The Research Centre for Genocide and Resistance of Lithuanian inhabitants provided a document – the report by the applicant ’ s superior – in which the applicant had been indicated as an active participant in the operation. The document even stated that the applicant had “liquidated one of the bandits”, but the court did not come to the conclusion that this was sufficient to find the applicant guilty of shooting the partisan. A witness in the case submitted that it had come to her knowledge that the applicant had taken an active part in the operations against partisans. Another witness submitted that he had found documents in the archives indicating the applicant as an active participant in the operation, but it is unclear whether he was referring to the same documents as those provided by the research centre; it is unclear in general, from the court ’ s decision, whether the decision was based on any other document besides the report by the applicant ’ s former superior. Without elaborating further, the court took the view that the applicant knew the purpose of the SSM when taking up his position, namely the eradication of the part of the Lithuanian population that belonged to a particular political group, and that he was therefore liable for the genocide of a political group.

As the injured party, MB, had claimed damages in the course of the proceedings, the Regional Court acknowledged MB ’ s right to satisfaction of the civil claim, but had reserved the question of the amount of the damages for the civil proceedings. The civil proceedings for damages, against the applicant and MZ, are still ongoing.

On 21 September 2004 the Court of Appeal upheld the conviction. The appellate court noted that the court of first instance had not concluded that the applicant had shot one of the partisans and that he had been sentenced only for participating in the operation for eradication of the partisans. The court further stated that the submissions by the applicant himself supported this conclusion and that it was proven that the applicant had actively participated in the operation, had been responsible for MZ who had indicated the hiding place, had stayed with her until the end of the operation and had been one of the officers who surrounded the bunker. The court concluded that the applicant had acted with intent ( tiesiogine tyčia ) .

The appellate court also dismissed the argument by the applicant that the Lithuanian provision on genocide was wider than that enshrined in the Genocide Convention. The court noted that the issue had not been discussed in the decision of the first-instance court, but, in any event, the argument was unfounded. While the court agreed that the concept of genocide in the CC was wider than that established by the Genocide Convention, the court found that the inclusion of the political group was “founded and in line with reality”, as the Convention did not explicitly prohibit the wider interpretation of the genocide concept. The court explained that political groups were people connected by the same political views and beliefs and that the goal of physically eradicating such a group also fell under the concept of genocide, like any eradicat ion of a group of people. The court noted that the partisans were also a part of the Lithuanian nation and that Soviet genocide had thus been directed against Lithuanians as such, on account of nationality.

On 22 February 2005 the Supreme Court upheld the conviction in a final decision. The cassation court stated that under the Genocide Convention , Lithuania had undertaken to punish perpetrators for activities aimed at the eradication of national, ethnic, racial or religious groups; however, acceding to the Convention did not preclude the State from determining what activities were punishable under its criminal law. The court made reference to Article 2 of the Law on Responsibility for Genocide of Lithuanian Inhabitants, adopted on 9 April 1992, declaring that the killings of Lithuanian inhabitants during the occupation and annexation by the Soviets was classified as a crime of genocide, and stated that Article 99 of the CC and Article 71 of the former CC had merely implemented Article 2 of that Law.

The cassation court further pointed out that under the Law on the Status of Participants in Resistance against the Occupations of 1940-1990, enacted on 28 November 1996, the partisans fighting the occupation were declared to be soldier-volunteers. The partisans killed during the operation were soldiers, who had participated in an act of resistance against the occupation. The cassation court upheld the finding of the lower courts that the applicant had participated in the killing of the resistance fighters and that he had known the main goal of the Soviet government – to eradicate all resistance fighters (partisans) – and had realised that the fighters would either be killed or arrested and sentenced.

C. Relevant international and domestic law

The relevant provisions of the Convention on the Prevention and Punishment of the Crime of Genocide read as follows:

Article 2

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.”

Article 3

“The following acts shall be punishable:

Genocide;

Conspiracy to commit genocide;

Direct and public incitement to commit genocide;

Attempt to commit genocide;

Complicity in genocide.”

Article 1 of the Law of the Lithuanian Republic on Responsibility for the Genocide of Lithuanian Inhabitants (enacted on 9 April 1992) reads as follows:

“Actions that aim at physical extermination of all or part of the inhabitants who belong to a national, ethnical, racial or religious group, consisting of killing members of the group, torture, serious bodily harm, mental harm; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; forcibly transferring children of the group to another group; and imposing measures intended to prevent births within the group (genocide) - shall be punished by imprisonment for 5 to 15 years and the confiscation of property or by the death penalty with confiscation of property.”

On 1 April 1998 the L aw was amended and this Article of the Law was annulled.

Article 2 of the Law of the Lithuanian Republic on Responsibility for the Genocide of Lithuanian Inhabitants (enacted on 9 April 1992) reads as follows:

“The killing and torturing and deportation of Lithuanian inhabitants committed during the occupation and annexation of Lithuania by Nazi Germany or the USSR shall be classified as crimes of genocide as contemplated by international law.”

Article 71 of the Criminal Code (as amended on 12 September 2000) reads:

“1. Actions that aim at physical extermination of all or part of the inhabitants who belong to a national, ethnical, racial or religious group, consisting of killing members of the group, torture, serious bodily harm, mental harm; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; forcibly transferring children of the group to another group; and imposing measures intended to prevent births within the group (genocide), shall be punishable by imprisonment for 5 to 20 years.

2. Actions listed in paragraph 1 of this provision, committed by killing of the people, as well by organising and directing actions listed in paragraphs 1 and 2 of this provision shall be punishable by imprisonment for 10 to 20 years or for life.”

Article 99 of the Criminal Code (entered into force on 1 May 2003) reads :

“Persons, who, with intent to destroy, in whole or in part, a national, ethnical, racial, religious or political group, organised, directed or participated in killing, tortur e , physical or mental harm, or deport ation , or otherwise creat ed such living conditions as to cause the death of the group, in whole or in part, imposed measures that prevented birth within the groups, or forcibly transferred children of the group to another group, shall be sentenced to imprisonment for 5 to 20 years or for life.”

COMPLAINTS

The applicant complains under Article 7 of the Convention about his conviction for participation in the killing of two partisans in 1953. The applicant claims that Lithuanian law defines the notion of genocide in wider terms than the Convention on the Prevention and Punishment of the Crime of Genocide, as it includes political groups among the groups that could be subjected to genocide; furthermore, the laws on criminal responsibility for genocide have retroactive effect and in consequence, according to the applicant, such broader interpretation of “genocide” violates Article 7 of the Convention.

The applicant further alleges that under the Law on Responsibility for Genocide of Lithuanian Inhabitants as enacted on 9 April 1992 there was no criminal responsibility for the “genocide of a political group”, and only on 21 April 1998 did the amendments to the criminal legislation include “political groups”. It appears that, in the applicant ’ s submission, such inconsistency in the legal provisions runs contrary to the principle of legal certainty.

According to the applicant, his service in the governing institutions of the Lithuanian SSR cannot in itself be classified as an act of genocide. The applicant submits that, in essence, his service was as a police officer and he refers to the prohibition , in the Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) , of punishment, during the occupation of a territory or after it, of a police officer who had been follow ing the orders of the competent occupying force, when the execution of the orders was within the competence of such officers, and that this provision is applicable to any persons and organisations, secret services, military police, armed forces and police who have competence to guarantee that laws are observed and to question the suspects and accused.

The applicant submits that such freedom of the State to amend the concept of genocide and include a new characterisation in the relevant provision, such that it differs from the international definition, is contrary to the guarantees of Article 7 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the act of which the applicant was convicted constitute a criminal offence under national or international law at the time when it was committed, as envisaged by Article 7 of the Convention?

2. Does the act for which the applicant was convicted fall within the exemption envisaged by Article 7 § 2 of the Convention?

3. Was the national court ’ s interpretation of the crime of genocide such as to cover the applicant ’ s acts in breach of Article 7 of the Convention? In particular, having regard to the definition of the notion of “genocide“ in international law, has the Lithuanian courts ’ interpretation complied with the principle of nullum crimen sine lege , as guaranteed by Article 7?