DISSENTING OPINION OF JUDGE KŪRIS

1. My views on the merits of the present case are expressed in the joint dissenting opinion of Judges Villiger, Power-Forde, Pinto de Albuquerque and myself. Here, I expand on one additional aspect of the case.

2. One argument of the majority, on which the entire finding of a violation of Article 7 of the Convention is based, must be singled out in particular. In fact, it is the argument. Without it the reasoning would have led to the opposite conclusion.

That argument is set out in paragraph 179 of the present judgment, wherein it is stated (emphasis added) as follows.

“The Court next turns to the Lithuanian courts ’ interpretation of the crime of genocide in the applicant ’ s case. It notes that the trial court found the applicant guilty as charged by the prosecutor, that is, guilty of the genocide of Lithuanian partisans as members of a separate political group (see paragraphs 29 and 31 above). The Court of Appeal, for its part, rephrased the applicant ’ s conviction, holding that the attribution of the Lithuanian partisans, as participants in armed resistance to occupational power, to a particular ‘ political ’ group, was ‘ only relative/conditional and not very precise ’ . For the Court of Appeal, the Lithuanian partisans had also been ‘ representatives of the Lithuanian nation, that is, the national group ’ (see paragraphs 35 and 36 in fine above). Even so, the Court of Appeal did not explain what the notion ‘ representatives ’ entailed. Nor did it provide much historical or factual material as to how the Lithuanian partisans were representing the Lithuanian nation. Nor does the partisans ’ specific mantle with regard to the ‘ national ’ group appear to have been interpreted by the Supreme Court . The Supreme Court, which acknowledged that the applicant was ‘ convicted of involvement in the physical extermination of a part of the Lithuanian inhabitants who belonged to a separate political group ’ , merely observed that between 1944 and 1953 the nation ’ s armed resistance against the Soviet occupying regime – the partisan war – took place in Lithuania (see paragraphs 39-40 above).”

3. To begin with, this description of the findings by the national courts emphasises one single statement by the Supreme Court, as if the latter had made no other observations (compare paragraphs 38-40 of the present judgment). This representation of the Supreme Court ’ s position is selective and, therefore, a misrepresentation. Also, one must be mindful that the Supreme Court is merely a cassation court. As such, it could either approve or disapprove of the finding by the Court of Appeal. In the present case, the latter ’ s finding was approved. Through the above misrepresentation, however, the Court of Appeal ’ s reasoned findings have been made to appear irrelevant. It is in the judgment of the Court of Appeal, and not that of the Supreme Court, that one should search for an answer as to the legal qualification of the applicant ’ s acts.

4. The reasoning in paragraph 179 of the present judgment indicates that, in order to satisfy the Court ’ s test, the national courts ought to have expanded in explicit wording on the role (“specific mantle”) of the Lithuanian partisans as “representatives” of the Lithuanian nation. In the words of the majority, in order to satisfy that test, “much historical and factual material” ought to have been provided. In other words, in order to find no violation of the Convention, the majority would have been satisfied had the Lithuanian courts explicitly explained “what the notion ‘ representatives ’ entailed”.

As if this were not clear in itself. When (as is noted in, inter alia , paragraph 62 of the present judgment) a partisan movement (with their supporters) encompassed tens of thousands of young men, of whom 20,000 were killed, and when the total of those deported, imprisoned, shot or tortured to death is expressed in six-digit numbers (which, as new evidence comes to light, is only increasing), and all this in a nation of three million, what explanation would have sufficed to satisfy the majority that the partisans were “representatives of the nation”? The majority left this question open. I wonder if it itself could provide an answer.

Courts must be precise and explicit when describing and assessing a defendant ’ s actions. Must they be equally explicit when describing a nation ’ s history? I do not believe so. This Court is itself at times very laconic when it comes to descriptions of historical facts, for better or for worse. After all, a trial is not a university seminar in history, and a judgment is not an encyclopaedia.

In the present case, the Court has dealt with facts which are self-evident. It is obvious that the occupied Lithuanian nation did not joyfully embrace the occupation with open arms. It is obvious that the repressions of Lithuanians by the occupying regime were on a massive scale. It is obvious that the resistance against occupation was nationwide. It is obvious that the partisans were the spearhead of this resistance. It is obvious that they enjoyed, at least until the resistance was suppressed, wide support from the population. It is obvious that their main goal – an independent Lithuania – was also the main goal of the Lithuanian nation. And it is obvious that by performing the function of defenders of independence, however unrealistic their prospects of success at that time, the partisan movement represented the body and the spirit of the Lithuanian nation. As such, the partisans were a substantive and emblematic part of that nation.

Had the national courts to spell this out? Would it have made any sense in the society in which the criminal case against the applicant was decided?

I believe that any such explanation would have been redundant. These facts are known to every schoolchild in that society. True, they are not necessarily known in Strasbourg, but in that event that is Strasbourg ’ s problem.

Since when does this Court require that a national court , which delivers its judgment in a specific society for the members of that society, explicitly provide “much historical and factual material” as to facts which are obvious to that society? The question is even more legitimate in respect of historical facts which have become the cause of a nation ’ s long-lasting trauma. So far, the maxim that it is not required to prove the obvious has not been called into question by this Court. How is it that sed quid in infernos dicit has now become the methodology of interpretation of the Convention and, thus, part of the Court ’ s case-law?

5. Even so, the facts are there. Exhaustive statistical data were provided by the Government, and are also reflected in the ruling of the Constitutional Court, as cited by this Court. The assessment of the essence of the partisans ’ role is present there, too. Even the majority who did not find it established that the partisans genuinely “represented” the Lithuanian nation did not question the statement of the Supreme Court that “the nation ’ s armed resistance against the Soviet occupying regime – the partisan war – took place in Lithuania” (see paragraph 179 of the present judgment). If there was a “partisan war ”, then what has not been established?

If one wishes to turn to a more detailed description and analysis of what was going on in Lithuania (as well as in the other Baltic States) in the 1940s and 1950s and what, indeed, was the character of the partisans ’ “representation” of the Lithuanian nation, then it is not in national (or international) courts ’ judgments that the relevant studies must be pursued.

6. It is on this shaky and artificial premise, namely that the national courts, by being rather succinct as to “how” the partisans “represented” the Lithuanian nation, were unable to prove that the partisans “represented” the Lithuanian nation, that the whole line of reasoning leading to a violation of the Convention is based.

This is simply not convincing.

7. No less important is that the methodology employed in the present case carries with it the risk that it may be employed in future cases too. This is a warning notice to the national courts and respondent Governments, as this is a Grand Chamber case, and therefore a precedential one.

8. Courts in their ivory towers deal with law. But not only that. More importantly, they deal with human justice. No doubt, it must be justice under the law . But when searching for justice under the law one has to look into the heart of the matter, and not carp at trifles so that they become decisive, even if they clearly are not. This is precisely what has happened in paragraph 179 of the present judgment – and thus in the whole case.

9. About the same time as the applicant was busy with operations against the partisans, someone looked into the heart of the matter. Archibald MacLeish, a great poet and former Librarian of Congress, wrote in his “The Young Dead Soldiers Do Not Speak”:

“The young dead soldiers do not speak.

Nevertheless, they are heard in the still houses: who has not heard them?

They have a silence that speaks for them at night and when the clock counts.

They say, We were young. We have died. Remember us.

They say, We have done what we could but until it is finished it is not done.

They say, We have given our lives but until it is finished no one can know what our lives gave.

They say, Our deaths are not ours: they are yours, they will mean what you make them.

They say, Whether our lives and our deaths were for peace and a new hope or for nothing we cannot say, it is you who must say this.

They say, We leave you our deaths, give them their meaning. ...

We were young, they say. We have died. Remember us.”

10. This sounds like a commandment. To courts, too. To this Court especially, given its prominence as “the conscience of Europe”.

Because it is this Court which has now been charged with giving meaning – at last – to their deaths.

And yet – what meaning have we given to their deaths by this miserable judgment?

“The rest is silence.”

[1] . The applicant’s file indicates the date as 15 September 1952.

[2] . During the hearing of 4 June 2014, the Acting Agent of the Government confirmed that one of the requests concerned V. Vasiliauskas’ conviction for genocide in another criminal case.

On 13 June 2014 the Court of Appeal upheld the applicant’s conviction for genocide (the latter information is taken from the news portal http://kauno.diena.lt/naujienos/kriminalai/nusikaltimai/apeliacinis-teismas-buves-sovietu-saugumietis-genocido-byloje-nuteistas-pagristai-634498 ).

[3] . Information obtained from the following UN site: https://treaties.un.org . In their observations, the Russian Government state that the Genocide Convention was ratified by the USSR on 18 March 1953 and came into force on the territory of the USSR on 1 August 1954.

[4] . International Law Reports (ILR) , vol. 36 (1968), pp. 5-344.

[5] . P. Drost, The Crime of State, Book II, Genocide , Sythoff, Leyden, 1959, p. 85 .

[6] . 2 Executive Sessions of the Senate Foreign Relations Commitee, Historical Series 370 (1976), in W.A. Schabas, Genocide in International Law : T he Crime of Crimes , Cambridge University Press , 2000 , p. 238, as in ICTY Appeals Chamber judgment in Prosecutor v. Radislav Krsti ć (ICTY-98-33-A, 19 April 2004, § 10).

[7] . Draft Code of Crimes a gainst the Peace and Security of Mankind , Article 17 (commentary), “ Report of the I nternational L aw C ommission on the work of its forty-eighth session ” , 6 May-26 July 1996, UN Doc. A/51/10 (1996).

[8] . www.komisija.lt . The Commission was established by presidential decree of 7 September 1998. It is now comprised of a number of well-known historian s , lawyers and public figures from France , Germany, Hungary, Israel, Lithuania, Russia, the United Kingdom and the United States of America . It was considered that, due to the repressive legacy of Soviet rule, painful problems of the past, such as the Holocaust and other issues, had never been subjected to uncensored public discussion. It was also recognised that for the sake of future generations such historical issues must be addressed, researched and evaluated in compliance with accepted international standards.

[9] . For example, United States of America v. Josef Alst ö tter et al . (“ The Justice Trial ”) , Law Reports of Trials of War Criminals (“LRTWC”), United Nations War Crimes Commission (“UNWCC”) , 1948 ; United States of America v. Otto Ohlendorf et al . (“The Einsatzgruppen Trial”) , LRTWC, UNWCC , 1948; United States of America v. Ulrich Greifelt et al . , LRTWC, UNWCC , 1948 .

[10] . Poland v. Hoess , LRTWC , UNWCC, 1948 ; Poland v. Greiser , LRTWC , UNWCC, 1948.

[11] . R. Lemkin, Axis Rule in Occupied Europe, Analysis of Government , Proposals for Redress , Washington, 1944, p. 91.

[12] . For example, B. Van Schaack, “ The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot ”, Yale Law Journal , vol. 106 ( 1997 ) , p. 226 2.

[13] . For example, W.A. Schabas, Genocide in International Law: The Crime of Crimes , Cambridge University Press, 2000, p. 134.

[14] . F or example, B. Van Schaack , op. cit. , p. 2268 .

[15] . G.A. Finch, “ Editorial Comment: The Genocide Convention ”, American Journal of International Law , vol. 43 ( 1949 ) , p. 734; “ Report of the Committee on International Law of the Bar of the City of New York ” , pp. 5-6 (“ [ t ] he excluded groups are the only ones that are presently in [the] process or common danger of extermination . …”) in J.L. Kunz, “ The United Nations Convention on Genocide ”, American Journal of International Law , vol. 43 ( 1949 ), p. 743; and P. Drost, The Crime of State, Book II, Genocide , Sythoff, Leyden, 1959 , p. 123.

[16] . B. Van Schaack , op. cit., p. 2268; J. Cooper, Raphael Lemkin and the Struggle for the Genocide Convention , Houndmills, Basingstoke , New York: Pa lgrave MacMillan, 2008, p. 154.

[17] . Apparently the Court use d a descriptive non-legal term , since Latvia is not a successor State to the USSR, given that its international legal personality remained intact in view of the illegal use of force .

[18] . N. Davies, Europe: A History , London, Pimlico, 1997, p. 960.