JOINT DISSENTING OPINION OF JUDGES SAJÓ, VUČINIĆ AND TURKOVIĆ

In view of the Constitutional Court ’ s ruling of 18 March 2014 (see paragraphs 56-63 of the present judgment), we consider that a remedy was made available. Should the applicant consider that the Constitutional Court judgment has not been enforced, and that he has no means of having it enforced, then he is free to seek a remedy by submitting a domestic complaint under the Convention for that non-enforcement.

The application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

DISSENTING OPINION OF JUDGE POWER-FORDE

I have already shared my analysis of this case in a joint dissenting opinion. To that I would add the following.

There are few who deny that Stalin ’ s policy was as genocidal in ideology, intent and execution as was the policy pursued by Hitler and his Nazi collaborators. Both totalitarian regimes pushed political violence beyond all previous limits, yet in terms of human life, the destructiveness of Stalin ’ s “programme” “ outdid any other disaster in European history, even the Second World War ” [18] . It has been established by the domestic courts in this case that the applicant actively and knowingly executed Stalinist policy as operated in Lithuania. The four constitutive requirements of the offence of genocide under international law were met – (i) an intention (ii) to destroy (iii) part of (iv) a protected group . That he could find himself charged with and convicted of genocide must be regarded as having been foreseeable by the applicant (in the event of a regime change, of course!), given that genocide was recognised, clearly, as a crime, under international law at the time of his participation in the deaths of the partisans.

The Court was presented with an opportunity to refer to what happened in the Soviet era and in which the applicant was a wilful participant by its proper name. Through this case-law, it has shied away from so doing, preferring instead to conclude that the applicant was wronged for having been convicted of genocide by the Lithuanian courts. The only avenue to this conclusion was the Court ’ s excessively formalistic and rather blinkered approach of viewing the partisans solely through the lens of a “political group” and of ending its analysis there. Its failure to engage in any meaningful way with the reasoning of the national courts on the role of the partisans in the defence of the Lithuanian nation is lamentable.