TrustHLT/LaCour huggingface dataset:
GR1 (Government): Resolution 96 mandated the United Nations to prepare a convention on genocide, and the 1948 convention is the result.
GR1 (Government): The applicant, in this case, has not contested the fact that genocide was an international crime in January 1953, when the acts that he perpetrated took place.
GR1 (Government): He has not argued that Article 7 of the European Convention precluded public prosecution or precludes prosecution of genocide committed in January 1953, even if this may not have been provided for in the domestic law at the time.
GR1 (Government): And he has not contended that the act of intentional physical destruction of a political group did not constitute an international crime in 1953.
GR1 (Government): His only argument is that genocide of political groups or on political grounds, these are terms taken from the General Assembly Resolution 96, that they are not comprised within the 1948 convention.
GR1 (Government): As the Grand Chamber can see, genocide based upon political grounds or of political groups was certainly contemplated by the General Assembly Resolution of 1946.
GR1 (Government): Furthermore, persecutions on political grounds were also considered as crimes against humanity since 1945, when they were so declared in the Charter of the International Military Tribunal.
GR1 (Government): As early as December 1946, it could not be disputed that persecutions on political grounds and destruction or extermination of political groups were crimes under international law.
GR1 (Government): Nobody can claim from that point on that this prohibition under international law was not accessible and that punishment was not foreseeable.
GR1 (Government): Mr. President, members of the Grand Chamber,
GR1 (Government): it is a mistake to view the definition in the 1948 convention as an attempt to repeal or amend the definition in the 1946 resolution.
GR1 (Government): The two instruments had different purposes.
GR1 (Government): The 1946 resolution was essentially declaratory.
GR1 (Government): It was to dispel any doubts or objections about the content of international law concerning the criminality of genocide.
GR1 (Government): The General Assembly was not legislating because it was not a legislative body.
GR1 (Government): It was confirming the existence of law, not creating it.
GR1 (Government): The purpose of the resolution, as its proposer explained to the General Assembly, was to answer those who questioned whether the prohibition it set out was accessible and foreseeable.
GR1 (Government): The 1948 convention, on the other hand, was adopted in order to impose major and unprecedented legal obligations upon states, intruding deeply into their sovereign space.
GR1 (Government): They were required to prevent and punish genocide, to cooperate in extradition, and they accepted the competence of the International Court of Justice to adjudicate disputes.
GR1 (Government): And this explains compromises during the negotiations of the convention, including the decision to exclude political groups from the definition applicable to the convention obligations.
GR1 (Government): Please note that no similar convention existed at the time for the other international atrocity crimes punished at Nuremberg, crimes against peace, crimes against humanity, and war crimes.
GR1 (Government): And yet the absence of such a convention for these other crimes does not mean they were not punishable under international law at the time.
GR1 (Government): The crimes existed nevertheless.
GR1 (Government): In 1950, the drafters of the European convention did not believe a codified conventional definition was required for a crime to be deemed a criminal offense under international law, or criminal according to the general principles of law recognized by civilized nations, to use the terms of Article VII of the convention.
GR1 (Government): The persecution and destruction of political groups was criminal under general principles of law before 1948, prior to adoption of the Genocide Convention.
GR1 (Government): That the Genocide Convention adopted a narrower definition does not in any way change the foreseeability and accessibility of the criminality of the underlying act.
GR1 (Government): Mr. President, the great international lawyer,
GR1 (Government): Jacques Tyraudin, in his oral submissions to the International Court of Justice in the Genocide Advisory Opinion in 1951, said that the decision to exclude political groups from the 1948 convention did not mean genocide of political groups was not a crime under international law.
GR1 (Government): He said, and I quote from page 338 of the published proceedings of the International Court of Justice, what it does mean is that they are not crimes for the purposes of the convention.
GR1 (Government): That is to say, the contractual bargains between the parties to the convention, which are intended to facilitate international cooperation in the prevention and punishment of the crime of genocide, do not go so far as to cover them.
GR1 (Government): During the drafting of the Genocide Convention, there was much support for the inclusion of political groups.
GR1 (Government): In other words, to continue what had been in the 1946 resolution.
GR1 (Government): In its initial decision on the issue, the Sixth Committee of the General Assembly decided by 29 votes to 13, with nine abstentions, to include political groups within the enumeration.
GR1 (Government): This decision was subsequently reversed.
GR1 (Government): And some delegations said that they had changed their position because of concerns that including political groups might hinder ratification.
GR1 (Government): The Soviet Union spoke to the point.
GR1 (Government): It said it favored excluding political groups from the convention.
GR1 (Government): But it also said, and I quote, it was in complete agreement with the view that physical destruction for political opinions was an inadmissible crime.
GR1 (Government): And it added, the Soviet Union said it had stated this in the General Assembly as well in 1946.
GR1 (Government): It was only saying that it didn't want political groups to be in the obligations comprised within the Genocide Convention.
GR1 (Government): When they incorporated the crime of genocide within their national legal systems, in compliance with their obligations under international law, many states have enlarged the list of protected groups, enumerated in Article II of the Convention, adding political groups either explicitly or by implication.
GR1 (Government): And the recent study by David Nersessian, published by Oxford University Press, lists 20 such states, including eight members of the Council of Europe.
GR1 (Government): Subsidiarity is not a notion reserved to the implementation of human rights treaties.
GR1 (Government): It also applies in a very similar manner to international criminal law.
GR1 (Government): When states introduce international crimes in domestic legislation, some variation in the definitions is quite common.
GR1 (Government): In the case of genocide, enlargement of the protected groups, so as to include political groups, is one feature of this, as Lithuania's implementing legislation confirms.
GR1 (Government): The applicant is in a position analogous to that in the Jorgic versus Germany case, decided by a unanimous chamber of this court in 2007.
GR1 (Government): The Jorgic case concerned prosecution for genocide based upon an understanding of the crime adopted by the courts of Germany.
GR1 (Government): The applicant in that case claimed that the majority position of international courts and academic commentators had confirmed a narrower scope for the crime of genocide than that adopted by the German courts.
GR1 (Government): And the European Court of Human Rights rejected his contention, although it acknowledged the debate about the scope of the crime of genocide, something that had been confirmed really only a few months before the chamber decision in the ruling of the International Court of Justice in the Bosnia versus Serbia case.
GR1 (Government): And the chamber of this court said that the conviction was compatible with, quote, the essence of the crime, close quote, and that the applicant, quote, if need be, would the assistance of a lawyer could reasonably have foreseen that he risked being charged with and convicted of genocide for the acts he had committed, close quote.
GR1 (Government): A familiar statement in the jurisprudence of this court.
GR1 (Government): The question then, Mr. President, members of the court,
GR1 (Government): is whether the applicant in this case in 1953, if necessary with proper legal advice, could reasonably have foreseen being charged and convicted for crimes under international law.
GR1 (Government): The authoritative 1946 resolution of the General Assembly provides a clear answer to this question.
GR1 (Government): The Soviet Union had itself confirmed the international criminality of the destruction of political groups in statements in the General Assembly in 1946 and again in 1948.
GR1 (Government): We also add to this the debates in the third committee during the, I'm sorry, the sixth committee during the drafting of the convention when a majority of member states initially favored the inclusion of political groups.
GR1 (Government): And finally, the punishment of Nazi defendants at Nuremberg for persecution and destruction of political groups under the rubric of crimes against humanity.
GR1 (Government): Do acts of persecution and even destruction of political groups fit more appropriately under the rubric of crimes against humanity rather than genocide?
GR1 (Government): Perhaps.
GR1 (Government): The two categories of international crime are cognates.
GR1 (Government): They overlap considerably, genocide being usually considered as an aggravated form of crime against humanity.
GR1 (Government): Lithuania submits that this question cannot be significant in a determination under Article VII of the European Convention.
GR1 (Government): The issue before the grand chamber is whether the acts of the applicant constituted a crime under international law or contrary to general principles of law, one that was foreseeable and accessible, and not whether these acts might have better been described as crimes against humanity.
GR1 (Government): This would be like quarreling about whether an act of sexual violence should be labeled as rape rather than sexual assault, or an act of homicide labeled as murder rather than intentional killing, or to move to the international sphere, whether a war crime should be called a grave breach of the Geneva Conventions or a violation of the laws and customs of war.
GR1 (Government): The court has specifically requested that the relevance of paragraph two of Article VII be addressed.
GR1 (Government): In the case law of the convention organs, paragraph two of Article VII has long been overshadowed by paragraph one.
GR1 (Government): It may nevertheless prove helpful here in applying Article VII as a whole.
GR1 (Government): The court's interpretation to date has been influenced by early case law of the European Convention that was itself based on a reading of the Travaux.
GR1 (Government): The Grand Chamber might take another look at the Travaux.
GR1 (Government): In our view, they indicate that paragraph two was not added as an exception aimed at sheltering the post-Second World War prosecutions from challenge under paragraph one.
GR1 (Government): Rather, it was a message that an excessively positivistic assessment of the scope of international law is to be avoided when offenses that strike at the heart of human dignity are concerned.
GR1 (Government): Such an interpretation of the Travaux is reinforced by the modern day emphasis on addressing impunity for serious human rights violations, something confirmed most recently by the Grand Chamber only a week ago in Margas versus Croatia.
GR1 (Government): In this sense, paragraph two of Article VII is helpful to Lithuania, but it is hardly essential because this case can be resolved entirely within the frame of paragraph one.
GR1 (Government): I reach my conclusions, Mr. President.
GR1 (Government): This is not about criminal liability for acts perpetrated during the war, as was the case in Kononov.
GR1 (Government): It's about behavior that took place many years after the Second World War.
GR1 (Government): After the Nuremberg judgment, after the General Assembly resolution on genocide, after the Soviet statements in the General Assembly acknowledging international criminality of the destruction of political groups, and after the adoption and entry into force of the Genocide Convention, the law was undoubtedly accessible.
GR1 (Government): The only thing that might not have been foreseeable to the applicant at the time he perpetrated the acts in question was that the impunity he enjoyed in the Soviet Union under Stalin and his successors would not last a lifetime.
GR1 (Government): Respectfully submitted.
Dean Spielmann (JudgeP): Thank you, Mr. Schabas. I call Mr. Vilčinskas, please.
Dean Spielmann (JudgeP): You have the floor.
AP1 (Applicant): Your Majesties, the judges of the European Court of Human Rights, I have a great honor to be here in this Guy Court and represent to Mr. Vytautas Vassiljauskas,
AP1 (Applicant): hereafter the applicant.
AP1 (Applicant): I do not know what decision the Guy Court will be done in this case.
AP1 (Applicant): However, I firmly believe that Vassiljauskas' application is reasonable and should be satisfied because the Republic of Lithuania, hereafter the government, Lithuanian courts, violated the Article No.
AP1 (Applicant): 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in full scope.
AP1 (Applicant): I also feel that the echo of death and broken destinies of millions of innocent people accompanies that case now, and it will accompany in the archives after hearings.
AP1 (Applicant): The government is right when it writes about the historical background and the world disorder during 1939, 1940, five years period and beyond.
AP1 (Applicant): If to be more precise, it is possible to remember the situation before the beginning of the Second World War.
AP1 (Applicant): Germany and the Soviet Union at that time had very close and friendly economic, military and other relations.
AP1 (Applicant): There are no secrets that overall victory parade was held in order to mark victory against Poland.
AP1 (Applicant): Both countries had declared as defenders of the working people.
AP1 (Applicant): It might be the people and the governments of the other countries, including Lithuania, could not understand the real goals, Nazi Germany and Soviet Union.
AP1 (Applicant): The relationship between those countries was so nice that they had divided secretly the territories of sovereign states, including Lithuania.
AP1 (Applicant): It would not be news if any experience for people first, or evidence exchanged.
AP1 (Applicant): Individual actions or remarks of some state about inhuman nature of authorities in Germany and the Soviet Union remained unnoticed.
AP1 (Applicant): For example, the Lithuanian military court had announced on 26th March, 1935, their judgment for 87 most active Nazis for various committed crimes, including murder in Klaipeda region, and fined various penalties.
AP1 (Applicant): Four to death, two to life imprisonment, and others various time in prison.
AP1 (Applicant): 35 persons were acquitted.
AP1 (Applicant): Unfortunately, this trial did not become a model for preventing the spread of Nazism.
AP1 (Applicant): This brief digression, supplementing of the government and partly of the third party of the Russian Federation, year after Russia, observations is significant that the brothers, Jonas Ostrowskas and Antonis Ostrowskas, year after the brothers, had, and the applicant, might be influenced to their choice at that time.
AP1 (Applicant): However, in no way there is not an indulgence of liability for the crime if it has been committed.
AP1 (Applicant): I refer such observations regarding the last government and third party Russia reviews.
AP1 (Applicant): The first, the Constitutional Court of Republic of Lithuania on 18th March of this year, in its ruling on the compliance of certain provisions of the Criminal Code of Republic of Lithuania that are related to criminal liability for genocide with the Constitution of Republic of Lithuania, yet constituted that provisions of the article number 99 of Criminal Code about social and political groups was and is in the conflict with the paragraph, the fourth of article 31st of the Constitution of Republic of Lithuania and the constitutional principle of state under the law, under the rule of law.
AP1 (Applicant): The law could not be retroactive.
AP1 (Applicant): So it is written in the part number one of the article number seven of the convention.
AP1 (Applicant): And then a crime and liability can't be.
AP1 (Applicant): The applicant was held guilty by Lithuanian courts unlawfully.
AP1 (Applicant): Moreover, the constitutional court confirmed what the applicant said and wrote from the beginning.
AP1 (Applicant): These actions at that time in 1953 was not a crime, were not a crime according to law and according to facts.
AP1 (Applicant): Legally, it means that any mind of the hearings, court judgments and motives about actions of the applicant have no legal significance.
AP1 (Applicant): The Lithuanian Constitution, article number 107, part one states that since the entry into force of the ruling of the constitutional court, the law declared in contrary to the Constitution cannot be applied.
AP1 (Applicant): I know that the constitutional court ruling removing the liability of the applicant is not a newly discovered circumstance.
AP1 (Applicant): It is a mistake.
AP1 (Applicant): I understand that the situation in which a public power with dozens of different types of professionals makes the mistake of being a nuisance.
AP1 (Applicant): And it is particularly unpleasant when it is possible related to ignorance of the law in some state institutions.
AP1 (Applicant): The applicant did not hide anything, neither the facts or neither reasoning about law.
AP1 (Applicant): He argued in all courts that the concept of genocide, of Lithuanian criminal law, is in contrary to the international law and to the Constitution of Lithuania.
AP1 (Applicant): The applicant is right.
AP1 (Applicant): No facts were known to have emerged.
AP1 (Applicant): The government, though acknowledging that the applicant cannot be held responsible for the crime of genocide, leaving the same facts, is trying now to take the opinion that the applicant has made perhaps another serious crimes against humanity, or maybe the war crimes, or argue that the brothers have been killed because they were as part as group of Lithuanian nation.
AP1 (Applicant): Yes, they might be Lithuanian nationality, and possibly Baltic tribe or white race could depend on.
AP1 (Applicant): Probably, still, they were Catholics.
AP1 (Applicant): The applicant of these brothers' roles and for these features has not been tested.
AP1 (Applicant): There is no evidence that the destruction of Lithuanian people was done according any program orders for their destruction for the fact that they are Lithuanians, white race, Catholics, and so on.
AP1 (Applicant): Objections are due to the fact that the applicant himself is Lithuanian, possibly Baltic tribe and white race.
AP1 (Applicant): Also, more of Soviet activists were born as Lithuanian members of Baltic tribe and white race.
AP1 (Applicant): Therefore, according to the law, any consistent pattern of the other groups of genocide after the Constitutional Court's decision to the applicant cannot be applied to that.
AP1 (Applicant): The government should not speculate what other crime find for the applicant during hearings in this High Court.
AP1 (Applicant): The rule, if it is not a crime of genocide, then it might be other one does not exist.
AP1 (Applicant): The convention has a term that everyone charged with criminal offense has the right to be informed promptly of the nature and course of the accusation against him to have adequate time and facilities for the preparation of his defense and so on.
AP1 (Applicant): Article number five, sixth of the convention.
AP1 (Applicant): I consider that using the principle of the puzzle, if this it is unacceptable and it cannot be applied, then it is other crime.
AP1 (Applicant): The international and national law do not know such rules.
AP1 (Applicant): If the government is already talking about crime against humanity or anyone else according to the general principles of law recognized by civilized nations, then the government should at least describe about what principles and their attributes discussion may be.
AP1 (Applicant): Then the government has to inform the applicant as international and national law provides.
AP1 (Applicant): It cannot be even a hint of any applicant's action in relation to crimes against humanity, as it unquestionably is denied by the fact that their brothers were armed more than 10 years without any break and vacation.
AP1 (Applicant): This fact means that they were not as part of the civilian population.
AP1 (Applicant): At the same time, being armed, they get a chance to stay alive.
AP1 (Applicant): They chose a gun themselves without physical or mental pressure from outside.
AP1 (Applicant): And their solution was free.
AP1 (Applicant): I think that neither international law nor the Lithuanian national law discussing about civilians not armed people in mind, whether they occupy power or enslave the human point of view.
AP1 (Applicant): It's clear by looking at the criminal law of Lithuania, Article Number 100.
AP1 (Applicant): There, the actions against civilians are prosecuted.
AP1 (Applicant): The applicant did not commit such actions.
AP1 (Applicant): Although the applicant has complied with reasonable position that their brothers have been persecuted lawfully because of their potential participating in genocide during the Nazi occupation.
AP1 (Applicant): And their brothers were killed after their decision five years from partisan squad.
AP1 (Applicant): Therefore, the action of the applicant subjectively is not crime.
AP1 (Applicant): The applicant agrees that the government may brothers' partisans hold.
AP1 (Applicant): But in this case, there are several aspects which eliminate any applicant's criminal activities and liability for that.
AP1 (Applicant): The government and Russia recognize that in Lithuania, military political resistance was organized against Soviet Union occupation, covering the entire territory of Lithuania.
AP1 (Applicant): The concept of resistance must be based not on the Soviet authorities view, what called it with fascist and nationalist elements of the movement.
AP1 (Applicant): But according to text and soul declared in resistance movements documents.
AP1 (Applicant): The first of all, there was an armed struggle for the will.
AP1 (Applicant): Lithuania would be democratic state.
AP1 (Applicant): These combatants and the international law, regardless or whether or not recognized by the Soviet Union.
AP1 (Applicant): Yes, and yet to be protected by international law.
AP1 (Applicant): For example, the Hague Convention and the other rules relating to the war for liberty.
AP1 (Applicant): I refer, there is not important what kind of Soviet troops participate against partisans.
AP1 (Applicant): If the government says about war law, then according to that rules, the government's provided archival documents about brothers and others must be called as a result of military's intelligence with the information about everything about partisans.
AP1 (Applicant): It should be noted that the brothers of different solutions were assessed and to do their own recruiting if it fails to destroy.
AP1 (Applicant): Even the amnesty was announced for partisans if they should stop their activity.
AP1 (Applicant): These facts are also by war rules, but not as killing of civilians as such.
AP1 (Applicant): If there is a law of war, it is necessary to evaluate the applicant's actions before brother's death.