CASE OF VASILIAUSKAS v. LITHUANIA

1. The case originated in an application (no. 35343/05) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Vytautas Vasiliauskas (“the applicant”), on 30 July 2005.
2. The applicant, who had been granted legal aid, was represented by Mr Š. Vilčinskas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Acting Agent, Ms Karolina Bubnytė.
3. The applicant complained that his conviction for genocide was in breach of Article 7 of the Convention, in particular because the national courts ’ broad interpretation of that crime had no basis in international law.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 June 2009 the President of the Section decided to give notice of the application to the Government.
5. On 17 September 2013 a Chamber of the Second Section, composed of Guido Raimondi, Danutė Jočienė, Peer Lorenzen, Dragoljub Popović, Işıl Karakaş, Nebojša Vučinić and Paulo Pinto de Albuquerque, judges, and Stanley Naismith, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. The applicant and the Government each filed further observations on the admissibility and merits.
8. In addition, third-party comments were received from the Government of the Russian Federation, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 4 June 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs K. Bubnytė, Ministry of Justice, Acting Agent, Ms L. Urbaitė, Ministry of Justice, Counsel, Mr W.A. Schabas, Middlesex University, Counsel, (b) for the applicantMr Š. Vilčinskas Counsel.
The Court heard addresses by Ms Bubnytė, Mr Schabas and Mr Vilčinskas, as well as their replies to questions put by Judges Power-Forde, Ziemele, Pinto de Albuquerque, Sajó, Spielmann, Turković and Vučinić.
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born on 21 October 1930 and lives in Tauragė.
A. Summary of the historical background
11. On 23 August 1939 the Union of Soviet Socialist Republics (USSR), led by Joseph Stalin, signed a non-aggression treaty with Germany, led by Adolph Hitler (“the Molotov-Ribbentrop Pact”). Under a secret additional protocol approved by the parties on the same date, as amended on 28 September 1939 and 10 January 1940, Lithuania and the other Baltic States were attributed to the USSR ’ s sphere of interest in the event of a future “territorial and political rearrangement” of the territories of these then independent countries. After Germany ’ s invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the USSR began exerting considerable pressure on the governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.
12. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The government of Lithuania was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union, the USSR ’ s only political party. On 3 August 1940 the USSR completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being renamed the “the Lithuanian Soviet Socialist Republic” (“the LSSR”). In 1941 the territory was occupied by Nazi German forces. In July 1944 Soviet rule was re-established on Lithuanian territory (see Kuolelis and Others v. Lithuania, nos. 74357/01 and 2 others, § 8, 19 February 2008, and also Ždanoka v. Latvia [GC], no. 58278/00, §§ 12-13, ECHR 2006 ‑ IV).
13. A nationwide partisan movement began in Lithuania. The goal of the entire armed and unarmed resistance was the liberation and re ‑ establishment of independent Lithuania. In 1949 an all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania ( Lietuvos laisvės kovos sajūdis (“the LLKS”)) was formed. On 16 February 1949 the organisation adopted a declaration stating that the LLKS Council was “the highest political authority of the nation, leading the nation ’ s political and military struggle for freedom [ aukščiausias tautos politinis organas, vadovaująs politinei ir karinei tautos išsilaisvinimo kovai ]”. The Soviet repressive structures, embodied in the NKVD (People ’ s Commissariat for Internal Affairs, Народный комиссариат внутренних дел ), the MGB (Ministry of State Security, Министерство государственной безопасности ) and other bodies, sought to suppress the resistance. The system of repressive organisations was reorganised on repeated occasions. Most of the leading and operative employees of those structures were non ‑ Lithuanians sent to Lithuania from the USSR. In the 1950s the partisan movement was suppressed by the Soviet authorities, although separate partisan formations were operating for some time until after 1953, the year in which the leadership of the LLKS was captured and murdered.
14. Lithuania regained its independence on 11 March 1990; this was officially recognised by the USSR on 6 September 1991. The Russian army left Lithuania on 31 August 1993.
B. The applicant ’ s career at the MGB and his conviction for genocide
1. The applicant ’ s status within the MGB of the LSSR
15. The Government provided the Court with copies from the Lithuanian Special Archive ( Lietuvos ypatingasis archyvas ) of the applicant ’ s service file from the period when he worked for the MGB of the LSSR. The documents are in Russian and were translated into Lithuanian by a translator from the Kaunas region public prosecutor ’ s office. It appears that these documents were relied upon by the prosecutor when he brought the bill of indictment against the applicant in 2001 (see paragraph 29 below). The documents disclose the following information.
16. Between 1950 and 1952 the applicant studied at the LSSR MGB School in Vilnius.
17. On 8 April 1952 the applicant was employed as an assistant operational agent ( operatyvinis įgaliotinis ), and from 15 September 1952 he worked as an operational agent in the Šakiai district unit of the LSSR MGB. As of 1 July 1953 the applicant worked as a senior operational agent in the MGB and subsequently in the KGB.
18. The minutes of the Šakiai district MGB unit of the Communist Party members ’ meeting of 2 March 1953 record that the agenda of that meeting was devoted to discussing “the decisions of the Soviet Central Committee, and orders from the Soviet MGB and LSSR MGB as to the extermination of nationalist elements in the [Šakiai] district”. The minutes further record that a member of the Šakiai district MGB urged that in the immediate future the “bandits and the nationalist underground should be eradicated”. The regional unit of the Communist Party was encouraged to put more effort into raising awareness among the inhabitants about the “fight against the bandits and nationalist underground”. The minutes record the applicant ’ s view that “[his MGB unit ’ s] goal was to exterminate as quickly as possible the bandits, those who help them and their contacts”.
19. It appears from the minutes of the meeting of 18 September 1953 of the Šakiai district MGB unit of the Communist Party members that on that occasion the applicant gave a speech about “the fight against the nationalist underground”. The applicant stated that so far he “had not succeeded in exposing all the members of the nationalist gangs in the district assigned to him”. In the applicant ’ s view, “if each communist, each member of his [MGB] unit, takes up his duties more thoroughly, they can obtain good results in the fight against the nationalist underground”.
20. During the meeting of 4 November 1953 of the Šakiai district MGB unit of the Communist Party members, the applicant was described as a person who had achieved good results in his work.
21. On 23 December 1953 the applicant became a member of the Communist Party of the Soviet Union. The record of the meeting of the Šakiai district MGB unit of the Communist Party members indicates that the applicant ’ s superiors characterised him as being disciplined ( disciplinuotas ), being politically aware ( politiškai raštingas ) and having good work results. The superiors pointed out that joining the ranks of the “glorious Communist Party” obliged the applicant to “raise his political awareness, study the history of the Communist Party in its fight with various enemies and always be alert”.
22. In 1964 the applicant gained the qualification of a jurist at the KGB Felix Dzerzhinsky Higher Institute.
23. From 1967 until he retired in 1975 on health grounds, the applicant worked as the head of the KGB Department in the Jurbarkas district.
24. According to the applicant ’ s service record, during his twenty-five years ’ service in the MGB and KGB, he was awarded, decorated or commended at least twenty-four times. During his service in the MGB and the KGB, the applicant served up to the rank of lieutenant-colonel ( papulkininkis ).
2. The operation to capture or kill partisans J.A. and A.A.
25. On 2 January 1953 the applicant took part in an operation against two Lithuanian partisans, J.A. and A.A., brothers who had been hiding in the forest in the Šakiai area. M.Ž., the applicant ’ s co-accused in the subsequent criminal proceedings for genocide, had provided the Soviet authorities with information about the partisans ’ whereabouts. An operation to capture or liquidate the partisans had been planned. Several soldiers were involved and the applicant was part of the operation. During the attempt to apprehend them, J.A. and A.A. resisted by opening fire on the MGB officers and Soviet soldiers. The partisans were shot and killed.
26. On the day of the operation, the head of the Šakiai district MGB drafted a report to his superior – the head of the Kaunas region MGB, wherein it was mentioned that the applicant had contributed to the success of the operation during which “two bandits had been liquidated”, and thus deserved to be commended ( užsitarnavo paskatinimą ).
27. On 1 September 1953 the head of the Šakiai district MGB wrote to the Minister of the Interior of the LSSR, informing him that on 2 January 1953 the applicant and the MGB officers had liquidated “two members of a nationalist gang [J.A. and A.A.]”. He proposed that the applicant be rewarded for that operation. The applicant ’ s service file indicates that on 15 September 1953 he received a commendation and was paid a premium of 500 roubles.
28. On 10 December 1971 the Chairman of the Executive Committee of the Šakiai district indicated that brothers J.A. and A.A. had belonged to a “bourgeois nationalistic armed gang” during the post-war period and that it was for this reason that they were shot in 1953.
3. The applicant ’ s conviction for genocide
29. After Lithuania regained its independence, the Kaunas region public prosecutor ’ s office started an investigation in April 2001 into the death of the brothers, J.A. and A.A. In September 2001 the prosecutor charged the applicant and M.Ž. with genocide, pursuant to Article 71 § 2 of the Criminal Code then in force (see paragraph 52 below). The prosecutor found it to be established that as of 15 September 1951 [1] the applicant had served as an operational agent in the Kaunas region Šakiai district branch of the LSSR MGB. He knew that “the LSSR MGB ’ s main purpose was to physically eradicate part of the Lithuanian population belonging to a separate political group [ atskira politinė grupė ], namely, the Lithuanian partisans, participants in the resistance to the Soviet occupation” and “[t]he applicant had been active in fulfilling that purpose of the LSSR MGB by killing some of the inhabitants of Lithuania belonging to the above-mentioned political group”. For the prosecutor, the applicant ’ s guilt was proved on the basis of his service record ( tarnybos kortelė ) and the applicant ’ s superiors ’ commendation for his persistence when executing search measures, managing the operation and personal participation when apprehending the bandits ( pareikšta padėka už atkaklumą pravedant agentūrines-tyrimo priemones, vadovavimą operacijai, asmeninį dalyvavimą sulaikant banditus ). The evidence examined by the prosecutor included statements by witnesses, minutes of the meetings of the Šakiai district MGB unit which were obtained from the Lithuanian Special Archives ( Lietuvos ypatingasis archyvas ) and the Genocide and Resistance Research Centre of Lithuania ( Lietuvos gyventojų genocido ir rezistencijos tyrimo centras ) and translations of those documents, which mentioned the applicant, the tasks he had been assigned with regard to the liquidation of banditry, bandits ’ assistants and contact persons. Other evidence included MGB reports about the liquidated bandits, J.A. and A.A.
(b) The trial court ’ s verdict
30. By a judgment of 4 February 2004, the Kaunas Regional Court found that there was sufficient evidence to convict the applicant of genocide. On the basis of witness statements, written evidence provided by the Genocide and Resistance Research Centre of Lithuania and statements by the applicant and his co-accused M.Ž., the court established that J.A. and A.A. had belonged to the 37th unit of the Tauras district partisans. The trial court noted that the information in the case file allowed it to conclude that, in order to compromise the partisan brothers, the Soviet authorities had spread misinformation which indicated that J.A. and A.A. had deserted from the partisan unit, were hiding alone and, thereafter, had no connection with the partisans. Those accusations were untrue. In reality, the partisans, including the brothers, J.A. and A.A., operated in small groups in order to avoid extermination by the Soviets. Lastly, there was no credible evidence in the case which would disprove the assertion that J.A. and A.A. “were members of the organised resistance and that they belonged to a political group”. The trial court also noted testimony by one witness that the partisan brothers had been hiding in the forest for three to four years, and that his family had given them food.
31. As to the applicant, the court noted that as of 15 September 1951 he had been working as an operational agent of the LSSR MGB and “knew the main goal of that Ministry, which was to physically eradicate a separate political group, Lithuanian partisans, constituting part of the Lithuanian population”. In the MGB files the two brothers had been listed as partisans, members of the armed national underground resistance ( partizanai – nacionalinio ginkluoto pogrindžio dalyviai ). The court dismissed the applicant ’ s contention that he had not actively participated in the operation to capture or to liquidate the two partisans during which those two partisans had died. On the contrary, the applicant ’ s superior officer ’ s operational file had stated that one of the bandits had been personally eliminated by the applicant. After the operation, the applicant had been admitted to the Communist Party and both he and M.Ž. had received a financial reward. Most importantly, neither the applicant nor M.Ž. denied taking part in the operation to liquidate the partisans. The trial court took the view that all of the circumstances allowed the conclusion that on 2 January 1953 both of the accused had participated “in the physical extermination (killing) of inhabitants of Lithuania who belonged to a separate political group [ atskira politinė grupė ], and were therefore participants in the resistance to the Soviet occupying power, that is to say, [the applicant] took part in genocide”.
32. The Kaunas Regional Court noted that Article 3 of the Law of 9 April 1992 on responsibility for genocide of inhabitants of Lithuania provided for the possibility of applying criminal liability for genocide retroactively.
33. The Kaunas Regional Court convicted the applicant of genocide under Article 99 of the Criminal Code (see paragraph 53 below) and sentenced him to six years ’ imprisonment. The applicant was granted a suspension of his sentence on health grounds.
M.Ž. was also convicted of being an accessory to genocide under the same provision of the Criminal Code. She was sentenced to five years ’ imprisonment, suspended on health grounds.
The trial court also granted a civil claim by the injured party, M.B., who was the daughter of J.A. and the niece of A.A., but reserved the question of the amount of damages for separate civil proceedings.
34. Both the applicant and M.Ž. appealed against their convictions.
(c) The Court of Appeal ’ s decision
35. On 21 September 2004 the Court of Appeal upheld the convictions and held that the trial court ’ s verdict had been lawful and well-founded. The Court of Appeal indicated that the trial court had not concluded that the applicant had personally shot one of the partisans. In fact, the applicant had been sentenced only for taking part in the operation to eradicate the partisans as representatives of a political group. The applicant himself acknowledged, and it had been proven by the witnesses ’ statements and documents, that he had taken an active part in the impugned operation; that he had been responsible for M.Ž., who had shown the Soviet authorities the partisans ’ hiding place; that he had been one of the officers who had surrounded the bunker; and that he had stayed with M.Ž. until the end of the operation. In passing sentence, the Court of Appeal observed that the applicant, as an operational officer of the Šakiai district MGB who had worked voluntarily for the occupying authority (MGB) “had clearly known that the goal of that organisation was to physically exterminate the Lithuanian partisans, as part of the Lithuanian population [ tikrai žinojo, kad šios įstaigos tikslas yra Lietuvos partizanų, kaip Lietuvos gyventojų dalies, fiziškas sunaikinimas ]”. Conscious of that fact, the applicant, together with other participants in the operation, had taken part in person in the killing of the partisan brothers, J.A. and A.A. Likewise, M.Ž., as an MGB agent, also understood the goals of that organisation and by providing it with information about the partisans ’ whereabouts and showing it the partisans ’ bunker, had understood that the brothers would be exterminated. Accordingly, both the applicant and M.Ž. had acted with direct intent ( tiesioginė tyčia). Lastly, the Court of Appeal found that at the time of the criminal proceedings against him the applicant had still been of the view that the Soviet authorities ’ actions against the Lithuanian partisans were lawful.
36. The Court of Appeal dismissed the argument by the applicant that the definition of genocide under Lithuanian law, pursuant to Article 99 of the Criminal Code, contradicted the definition enshrined in Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The Court of Appeal noted the trial court ’ s conclusion that the brothers, J.A. and A.A., had been exterminated for belonging to a “political group”. While admitting that the definition of the crime of genocide in Article 99 of the Criminal Code also included social and political groups, and was therefore wider than that established by the Genocide Convention, the Court of Appeal found that the addition of those groups was “reasonable and in line with reality”. The Genocide Convention did not contain specific provisions to the effect that the concept of genocide could be interpreted widely; however, neither did the Genocide Convention prohibit such an interpretation. The concept of genocide had been expanded in Criminal Codes of other countries. The Court of Appeal further explained that “political group means people connected by common political views and beliefs, and the goal to physically eradicate such a group also means genocide, because this involves an intention to eradicate part of the people [ politinė grupė – tai žmonės, susiję bendromis politinėmis pažiūromis ir įsitikinimais, ir siekimas tokią grupę fiziškai sunaikinti taip pat reiškia genocidą, nes siekiama sunaikinti dalį žmonių ]”. The court emphasised that
“the attribution of the Lithuanian partisans, that is to say, participants in armed resistance to occupational power, to a particular ‘ political ’ group, as was done in the trial court ’ s verdict, was in essence only relative/conditional and not very precise. The members of this group had at the same time been representatives of the Lithuanian nation, that is, the national group. The Soviet genocide was carried out precisely on the criteria of the inhabitants ’ nationality/ethnicity. It follows that Lithuanian partisans could be attributed not only to political, but also to national and ethnic groups, that is to say, to the groups listed in the Genocide Convention.”
37. The Court of Appeal dismissed the applicant ’ s and M.Ž. ’ s contention that their actions did not constitute genocide because at the time of their deaths the brothers, J.A. and A.A., had not been partisans and thus could not have been considered to belong to “a political, social or other group”:
“... The complaints of the convicted, V. Vasiliauskas and M.Ž., also contain allegations that during the war the brothers, J.A. and A.A., had collaborated with the German occupying forces and had committed crimes. Furthermore, in 1947 they had deserted from the partisan squad and afterwards did not keep in touch with other partisans. Therefore, in the appellants ’ view, J.A. and A.A. could not have been considered members of any political, social or other group, and actions against them could not have been considered to be acts of genocide. This Chamber is of the view that these arguments have been reasonably rejected by th[is] court and have already been addressed in the judgment of conviction. Both V. Vasiliauskas and M.Ž. mention certificate no. 1767 of the Lithuanian Archives Department, dated 13 November 2001. The certificate indicates that the KGB archives contain a criminal case on J.A., and that in the indictment of that case it is written that, when Germany occupied Lithuania, J.A. joined the armed squad of white partisans; he carried weapons and took part in arrests, detention and transportation of active Soviet party members and Jews. Furthermore, he conducted anti-Soviet agitation and made terrorist threats against communists, which means that he has committed the crime provided for in Article 58 1a of the Criminal Code of the Russian Soviet Federative Socialist Republic [counter-revolutionary crime and treason of the motherland]. On 4 May 1945 J.A. escaped from prison and joined the partisan squad.
As regards A.A., the certificate indicates that during the German occupation he served in the German police, and in 1944 he began living as an outlaw, joining the armed nationalist partisans ’ unit. It also indicates that in 1947 J.A. and A.A. left the partisan unit and went into hiding alone: they did not keep in touch with other partisans, and by order of the commander of the Tauras partisan unit were considered deserters. In respect of J.A. the same is indicated in the indictment of 16 March 1945 drawn up by the [MGB]. The specific acts that J.A. was accused of were not detailed. It appears that the above documents contain no data about the brothers ’ involvement in particular crimes against humanity. Moreover, given the charges against J.A., it is more likely that he had been accused primarily of carrying out activities against the [USSR] occupying forces themselves. There are no data in the case file about any involvement by the brothers in other criminal acts. Even in KGB documents it is indicated that from 1947 J.A. and A.A. were hiding “without committing robberies, and they did not belong to any [criminal] gang”. The Genocide and Resistance Research Centre ’ s letter entitled “Resistance activity by J.A. and A.A.” indicates that from 1945 they belonged to partisan unit no. 37... According to data from the Šakiai MGB, in 1949 [J.A. and A.A.] still belonged to partisan unit no. 37 ... Afterwards, they left the unit and took no further part in active partisan actions.
In the Chamber ’ s view, the information given does not indicate that until their liquidation J.A. and A.A. could not have been considered Lithuanian partisans. In the judgment of conviction it is rightly noted that during the relevant period partisans had already been forced to fight in small groups to avoid extermination. Even in the MGB files there is an indication that in August 1952 other partisans were looking for an opportunity to meet J.A. and A.A. in order to form a single squad. The MGB therefore decided to spread the rumour that J.A. and A.A. were MGB agents. Specific plans to discredit J.A. and A.A. are apparent from the plan of 12 September 1952 confirmed by the head of the MGB board of Kaunas district ... Witness A.S. testified that in 1952 she met partisans J.A. and A.A. and supplied them with food. In addition, J.A. and A.A. gave her a certificate confirming that she was a supporter of the partisans. She has kept that certificate to this day.
On 18 November 1992 the Office of the Prosecutor General cleared J.A. ’ s name in respect of crimes attributed to him in the indictment of 1 945. The prosecutor indicated that from October 1944 to May 1945 J.A. was unlawfully imprisoned. In 1998 and 2002 the Genocide and Resistance Research Centre of Lithuania posthumously granted J.A. and A.A. volunteer-fighter [ kario savanorio ] certificates. It is clear that the MGB itself had considered J.A. and A.A. to be partisans from the report of 11 June 1952, in which the head of the Kaunas MGB informed the LSSR Minister of the Interior that measures had been adopted to ascertain the hiding place of [J.A. and A.A.] and liquidate them. The Šakiai district MGB was to take measures for a speedier liquidation of [J.A. and A.A.]. All this served to prove that when putting those plans into action J.A. and A.A. had been killed as participants in the armed resistance.”
(d) The Supreme Court ’ s ruling
38. On 22 February 2005 the Supreme Court, in cassation proceedings, upheld the conviction of the applicant and M.Ž. As concerns the concept of genocide, the court held as follows.
“Both of those convicted argue that the concept of genocide, as established in Article 99 of the Criminal Code, is broader than the one established in Article II of the Genocide Convention, thus not corresponding to the norms of international law. This argument must be dismissed.
Indeed, Article 99 of the Criminal Code does provide for a broader concept [ platesnė nusikaltimo sudėtis ] of the crime of genocide than that in Article II of the [Genocide] Convention. According to Article 99 of the Criminal Code, genocide also comprises actions aimed at the physical eradication of some or all of the members of a social or political group. Article II of the Convention does not mention such groups.
By acceding to the [Genocide] Convention, the Republic of Lithuania acquired the obligation to ensure that its norms were applied on its territory. Accordingly, by acceding to the [Genocide] Convention, Lithuania acquired the obligation to punish actions aimed at the total or partial destruction of a national, ethnic, racial or religious group, and to prevent such actions. Acceding to the [Genocide] Convention does not deprive a State of the right to define actions which are crimes, and to prohibit them [ apibrėžti veikas, kurios yra nusikaltimai, ir jas uždrausti ]. This is even truer because Article V of the [above-mentioned] Convention provides that the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the Convention and to provide penalties for those guilty of genocide or any of the other acts listed in Article III. In Lithuania, this provision has been put into force by enactment of the Law of 9 April 1992 on responsibility for genocide of inhabitants of Lithuania. The concept of genocide, as established in Article 1 of that law, corresponds to the concept of genocide established in Article II of the Genocide Convention. At the same time, when joining the Convention, in Article 2 of the Law on responsibility for genocide of inhabitants of Lithuania, the Lithuanian Parliament established that the killings and torture of Lithuanian people and their deportations which took place during the years under Nazi German and Soviet occupation and annexation corresponded to the characteristics of the crime of genocide as established by the norms of international law. The 1998 amendments to the Criminal Code established the elements of the crime of genocide [ apibrėžta genocido nusikaltimo sudėtis ], and included acts aimed at the physical extermination of some or all of the members of a social or political group. This characteristic of the crime of genocide remained in Article 99 of the Criminal Code. It is clear that adding acts aimed at the physical extermination of some or all of the members of a social or political group to the definition of the crime of genocide amounts to nothing more than the execution of the legal norms of Article 2 of the Law of 9 April 1992 on responsibility for genocide of inhabitants of Lithuania. It follows that the doubts by the applicant and M.Ž. about the interpretation of the concept of the crime of genocide are not founded.”
39. The Supreme Court noted that the applicant and M.Ž. “had been convicted of involvement in the physical extermination of a part of the inhabitants of Lithuania, who belonged to a separate political group, that is Lithuanian partisans – members of the resistance to the Soviet occupying power [ nuteisti už dalyvavimą fiziškai sunaikinant Lietuvos gyventojų dalį, priklausiusią atskirai politinei grupei, t.y. Lietuvos partizanams – pasipriešinimo sovietų okupacinei valdžiai dalyviams ]”. The court dismissed arguments by the applicant and M.Ž. that the brothers, J.A. and A.A., had deserted from the partisans and that at the time of their death they therefore no longer belonged to the partisans ’ political group. That argument had been raised both before the trial and appellate courts and had been dismissed by them for sound and clear reasons.
40. The Supreme Court observed that between 1944 and 1953 the “nation ’ s armed resistance – the partisan war – against the USSR ’ s occupying army and structures of the occupying regime was underway in Lithuania”. It further pointed out that under the Law on the status of participants in resistance against the occupations of 1940-1990 ( Pasipriešinimo 1940-1990 metų okupacijoms dalyvių teisinio statuso įstatymas ), enacted on 28 November 1996, the partisans who fought against the occupation had been declared volunteer fighters. In 1998 and 2001 the Genocide and Resistance Research Centre of Lithuania granted volunteer-fighter status to J.A. and A.A., which meant that they had met the condition contained in that Law that such status could only be granted to individuals who had not committed crimes against humanity or had not killed civilians.
41. The Supreme Court also dismissed the applicant ’ s argument that he had not committed any act causing the death of the two partisans. It stated as follows.
“The trial court has concluded that V. Vasiliauskas took part in the killing of Lithuanian partisans, J.A. and A.A.: he and other MGB officers surrounded the bunker and attacked it; during the attack J.A. and A.A. were shot and killed. The trial court ’ s verdict does not state that V. Vasiliauskas himself killed any of the partisans, although data to that effect exist in the case file (the 2 January 1953 report by the head of the Šakiai district MGB).
Participation in killing people who belong to a political group is one of the objective elements [ vienas iš nusikaltimo sudėties objektyviosios pusės požymių ] of the crime of genocide listed in Article 99 of the Criminal Code. Involvement in the killing of members of the groups listed in Article 99 means not only committing acts causing loss of life, but also setting conditions [ sudarymas sąlygų ] so that the killings happen. It has been established that V. Vasiliauskas, as an MGB officer, together with an MGB subsection chief, took part in preparations for the operation to exterminate J.A. and A.A.; V. Vasiliauskas was armed, and during the operation he was responsible for the MGB agent [M.Ž.], who had located the partisans ’ bunker; V. Vasiliauskas stayed with M.Ž. until the end of the operation. V. Vasiliauskas himself acknowledges those actions. Having taken the above into account, the Court of Appeal arrived at the reasonable conclusion that V. Vasiliauskas had played an active role in the operation of the extermination of partisans J.A. and A.A. Even though it has not been established that V. Vasiliauskas killed either of the partisans himself, the actions he took when preparing the operation and at the time of the operation correspond to the objective element of the crime of genocide, as established in Article 99 of the Criminal Code – involvement in killing people who belong to a political group.
The actions of V. Vasiliauskas also correspond to the subjective element of genocide – direct intent [ tiesioginė tyčia ]: V. Vasiliauskas, when taking those actions, had known the goal of the Soviet government – to eradicate all Lithuanian partisans. He knew that the brothers, J.A. and A.A., were partisans, and understood that during the operation they would be killed or arrested and then tortured, tried as ‘ traitors to the homeland ’ and [possibly] sentenced to death, and [V. Vasiliauskas] wished that to happen.”
4. Civil proceedings for non-pecuniary damage
42. On 20 December 2004 M.B. brought civil proceedings, claiming 200,000 Lithuanian litai ((LTL), approximately 58,000 euros (EUR)) from the applicant and M.Ž., to be paid by them jointly. The plaintiff noted that one of the partisans who had been killed, J.A., was her father, and the other, A.A., her uncle. At the time of their death she was nearly seven years old. Her father ’ s death had left her an orphan. Because of the applicant ’ s actions she and her remaining family members had sustained enormous mental suffering, depression, humiliation, and loss of reputation; her opportunities to communicate with others had been reduced and she had had to hide and constantly change her place of residence. She argued that she continued to feel the repercussions of the crime, because the applicant and M.Ž. still refused to tell her where her father was buried.
43. On 9 November 2006 the Kaunas Regional Court dismissed the claim. It noted that the Lithuanian State had already paid M.B. the sum of LTL 20,000 as a one-off compensation payable to those whose families had suffered under the 1940-90 occupation (see paragraph 68 below ). It followed that the State had already compensated M.B. for the suffering caused by the loss of her family members.
44. By a ruling of 20 June 2007, the Court of Appeal overturned the above decision and found that the applicant and M.Ž. were to pay the sum of LTL 150,000 for the damage their criminal actions had caused M.B. The court also emphasised that M.B. could not have applied for damages in Soviet times, when Lithuania was under occupation, that is, during the period when the applicant and M.Ž. had committed the crimes “against the Lithuanian partisans ’ battles for the freedom and independence of the Lithuanian State [ nukreipti prieš Lietuvos partizanų kovas už Lietuvos valstybės laisvę ir nepriklausomybę ]”. It found that the loss of both an immediate family member and a close relative had caused M.B. serious suffering and emotional depression. Furthermore, the court emphasised that “it had to be taken into consideration that the criminal acts were committed on a massive scale and in essence were directed not against particular individuals, but against everyone who had fought for the independence of Lithuania”. Given the applicant ’ s and M.Ž. ’ s serious health problems and the fact that considerable time had elapsed since the crimes were committed, the Court of Appeal awarded M.B. the sum of LTL 150,000 in compensation for non-pecuniary damage, to be paid jointly by both individuals who had been found guilty of genocide.
45. By a ruling of 28 February 2011, the enlarged chamber of the Supreme Court upheld the Court of Appeal ’ s decision, but reduced the sum to be paid jointly ( solidariai ) by the applicant and M.Ž. to LTL 50,000 (approximately EUR 14,500). The court observed, inter alia, that the applicant and M.Ž. had committed the crime of genocide when acting together with officers of the LSSR Šakiai district MGB and Soviet soldiers. Accordingly, it was necessary not to impose a disproportionate burden on the applicant and M.Ž. Moreover, “crimes against humanity had the characteristic that they were directed against many people, that is to say the perpetrator caused harm to many victims”, which also had to be taken into account when adjudging the damages to be paid to each of the victims. Should the court grant too large a sum of money, it could complicate the execution of subsequent court decisions if not all the victims were known or should they come forward in the future.
5. The steps to have the applicant ’ s criminal case reopened
46. After the Constitutional Court ’ s ruling of 18 March 2014 (see paragraphs 56-63 below), by a decision of 10 April 2014, the Prosecutor General decided to initiate a process under Article 444 of the Code of Criminal Procedure on account of newly discovered circumstances. The Prosecutor General noted that the trial court had found the applicant and M. Ž. guilty of genocide of a political group. The conviction had been upheld by the appellate and cassation courts. The Prosecutor General ’ s decision states that, taking into consideration the conclusions set out in the Constitutional Court ’ s ruling to the effect that retroactive prosecution for genocide of persons belonging to a political or social group was in breach of the principle of the rule of law, it had to be ascertained whether the applicant and his co-accused, M.Ž., were to be considered innocent, guilty of genocide or, as another alternative, whether they might have committed some other criminal activity. A prosecutor from the Office of the Prosecutor General was appointed to examine those newly discovered circumstances.
47. By a final decision of 28 May 2014, the prosecutor held that the Constitutional Court ’ s ruling of 18 March 2014 constituted an interpretation of a legal norm and not a newly discovered factual circumstance (“another circumstance” within the meaning of Article 444 § 1 (4) of the Code of Criminal Procedure). Consequently, it could not be the basis for requesting the Supreme Court to reopen the applicant ’ s criminal case. Accordingly, this constituted a legal impediment to an application to the Supreme Court to reopen the criminal procedure in the applicant ’ s case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The restoration of independence of Lithuania
48. On 11 March 1990, by the Law on the restoration of validity of the Constitution of Lithuania of 12 May 1938, the Supreme Council restored the validity of essential provisions of that Constitution, which was in force before the Soviet occupation in 1940, thereby discontinuing the effect of the Soviet Constitution of 1977 and the LSSR Constitution of 1978. On the same date the Supreme Council adopted the provisional Constitution – the Provisional Fundamental Law of the Republic of Lithuania ( Laikinasis Pagrindinis Įstatymas ), setting out the constitutional principles of the re-established independent State of Lithuania. In particular, this Law referred to Lithuania as a sovereign democratic republic, power being vested in the people and exercised by the Supreme Council, the government and the judiciary. Moreover, it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with this new Law. This Law remained valid until 2 November 1992. On the basis of the plebiscite held on 9 February 1991, on 11 February 1991 the Supreme Council adopted a Constitutional Law stating that the notion that “the State of Lithuania is an independent and democratic republic” was a constitutional norm of the Republic of Lithuania and a fundamental principle of the State (see Kuolelis and Others, cited above, § § 64-65 and 71 ).
49. By the Treaty on the Foundations for Relations between States, signed by the Republic of Lithuania and the Russian Soviet Federative Socialist Republic (“the RSFSR”) on 29 July 1991, both States recognised each other as independent subjects of international law and as sovereign States. The Preamble to the Treaty noted that events in the past had prevented each of these States from freely and completely exercising its State sovereignty.
1. The Law on responsibility for genocide of inhabitants of Lithuania, Criminal Codes and the Supreme Court ’ s guidelines on the crime of genocide
50. During the years of Soviet rule and prior to 1992, the crime of genocide was not listed as a criminal offence in the criminal legislation in force in Lithuania – neither in the 1926 RSFSR Criminal Code which was in force in Lithuania until 1961, nor in the 1961 LSSR Criminal Code (see paragraphs 70-72 below).
51. On 9 April 1992 Lithuania acceded to the Genocide Convention and the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. On the same day, the Law on responsibility for genocide of inhabitants of Lithuania ( Įstatymas dėl atsakomybės už Lietuvos gyventojų genocidą ) was enacted. It reads as follows.
“Actions aimed at the physical extermination of some or all of the inhabitants who belong to a national, ethnic, racial or religious group, by killing members of the group, or deliberately inflicting on them torture or serious bodily or mental harm; living conditions calculated to bring about the inhabitants ’ 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 of five to ten years and the confiscation of property, or by the death penalty and the confiscation of property.”
“The killing, torturing and deportation of inhabitants of Lithuania committed during the occupation and annexation of Lithuania by Nazi Germany or the USSR shall be classified as a crime of genocide as defined by international law.”
“The Law on responsibility for genocide of inhabitants of Lithuania may be applied retroactively. There is no statute of limitations to prosecute individuals who have committed acts specified in this Law before [it] came into force. ”
52. On 21 April 1998 Articles 2 and 3 of the above Law were repealed and prosecution for genocide was thereafter incorporated into Articles 49 and 71 of the Criminal Code. The relevant provisions of the latter stipulated as follows.
Article 49 § 5 Statute of Limitations
“There is no statute of limitations for genocide. Those convicted of genocide may not be relieved from serving sentences by amnesty.”
“1. Actions aimed at the physical extermination of some or all of the inhabitants who belong to a national, ethnic, racial, religious, social or political group, consisting of the cruel torture of members of the group, serious bodily or to mental development; or the deliberate infliction of living conditions on the group calculated to bring about the inhabitants ’ physical destruction in whole or in part; the forcible transfer of children of the group to another group; or the imposing of measures intended to prevent births within the group, shall be punishable by imprisonment of five to twenty years.
2. Actions listed in paragraph 1 of this Article which result in murder, organising and leading actions listed in paragraphs 1 and 2, shall be punishable by imprisonment of ten to twenty years or by death.”
53. The new Criminal Code, in force from 1 May 2003, and thus valid at the time of the applicant ’ s conviction, reads as follows.
Article 3 Term of Validity of a Criminal Law
“1. The criminality of an act and punishability of a person shall be determined by a criminal law in force at the time of the commission of that act. The time of the commission of a criminal act shall be the time of that act (or omission) or the time of occurrence of the consequences provided for by the criminal law, where the occurrence of those consequences was desired at a different time.
2. A criminal law nullifying the criminality of an act, commuting a penalty or in otherwise mitigating legal circumstances for the person who committed the criminal act shall have a retroactive effect, that is, it shall apply to the persons who committed the criminal act prior to the coming into force of such a law, as well as to the persons serving a sentence and those with previous convictions.
3. A criminal law establishing the criminality of an act, imposing a more severe penalty upon or otherwise aggravating the legal circumstances of the person who has committed the criminal act shall have no retroactive effect. The provisions of this Code establishing liability for genocide (Article 99), subjecting persons to treatment prohibited under international law (Article 100), killing of persons protected under international humanitarian law (Article 101), deportation of the civil population of an occupied State (Article 102), causing bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law (Article 103), forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105) and prohibited military attack (Article 111) shall constitute an exception.
4. Only the penal or reformative sanctions as well as medical-treatment measures provided for by a criminal law in force at the time of the passing of a court judgment shall be imposed.”
Article 95 Statute of Limitations of a Judgment of Conviction
“8. The following crimes provided for in this Code shall have no statute of limitations:
“A person who, seeking to physically destroy some or all of the members of any national, ethnic, racial, religious, social or political group, organises, is in charge of or participates in killing, torturing or causing bodily harm to them, hindering their mental development, deporting them or otherwise inflicting on them situations which bring about the death of some or all of them, restricting births to members of those groups or forcibly transferring their children to other groups, shall be punished by imprisonment for a term of five to twenty years or by life imprisonment.”
54. In a ruling of 29 November 2010 on compatibility of the Law on compensation for the damage inflicted by Soviet occupation with the Constitution, the Constitutional Court held as follows:
“During the occupation by both the USSR and Nazi Germany not only was democracy denied, but crimes were also committed in respect of the people of the occupied State: genocide took place. It is obvious that those who had suffered from the crime of genocide, committed by individuals serving the regimes of occupying States during the years of occupation, had no legal recourse to claim damages from the perpetrators of the crimes of genocide.”
55. On 29 June 2012 the Supreme Court adopted Guidelines for Courts ’ Practice in Crimes against Humanity and War Crimes Cases. The Guidelines provide that in order to charge a person with genocide the context in which the crime was committed is important; it is also indispensable to establish that the person had the goal of exterminating some or all persons who belonged to a particular group. Genocide is an intentional crime. Intent can be established from the fact that the person had worked for the special units of the repressive organisation which were directly conducting repressive operations, for example, against the Lithuanian partisans who had opposed the occupational regime. Membership of a repressive organisation establishes that the person understood the goal of that organisation (points 10-11).
2. The Constitutional Court ’ s ruling of 18 March 2014
56. In 2011 a group of members of the Lithuanian Parliament as well as criminal courts in five criminal cases asked the Constitutional Court to examine whether, in view of the content, Article 3 § 3, Article 95 § 8 (1), and Article 99 of the Criminal Code were not in conflict with Article 31 §§ 2 and 4 and Article 138 § 3 of the Constitution and the constitutional principle of the rule of law.
57. One of those requests was lodged by the Court of Appeal (petition No. 1B-58/2011). [2] It transpires from the Court of Appeal ’ s decision seeking the guidance of the Constitutional Court that, on 9 June 2011, the Kaunas Regional Court had found the applicant guilty of genocide in another criminal case which also concerned the genocide of the Lithuanian partisans. The trial court in that case established that from 15 September 1952 the applicant had served as an operational agent in the occupational structure, the Šakiai district MGB, and “knew its main goal, namely to physically eliminate a part of the inhabitants of Lithuania belonging to a separate national, ethnic and political group, that is, the Lithuanian partisans”. On the night of 23 March 1953, the applicant, acting together with the commanding officers of the Kaunas region Šakiai district MGB and with the aim of killing or capturing and deporting the partisans who were hiding at a house in the Šakiai district, took part in an operation in which partisan J.B. was injured and arrested. On 20 July 1953 the Vilnius region MGB military tribunal sentenced the partisan in question to twenty-five years of deprivation of liberty. In August 1953 the partisan was deported from Lithuania to a special camp within the territory of the former USSR. The trial court thus held that, through those actions the applicant had taken part in the partisan ’ s deportation from Lithuania to the territory of the occupying State, thereby unlawfully imprisoning the partisan in a prison camp ( lageryje ).
58. On 18 March 2014 the Constitutional Court gave a ruling on whether the crime of genocide, as defined in the Criminal Code, and the possibility to punish that crime retroactively, were compatible with the Constitution. The court held that Article 99 of the Criminal Code, which stipulates that actions aimed at the physical destruction, in whole or in part, of persons belonging to any national, ethnic, racial, religious, and also social or political group, could be considered genocide, was compatible with the Constitution. Having reviewed the relevant international-law instruments, including the case-law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and of the International Court of Justice (ICJ), the Constitutional Court took the view that States have a certain discretion, because of particular historical, political, social and cultural contexts, to establish in their domestic law a broader definition of the crime of genocide than that which is established in international law. Thus, political and social groups may be included in the definition of genocide (see point 3.7 of the ruling, Chapter II, part of the reasoning).
59. The Constitutional Court also noted that, according to the conclusions of historians, Lithuanians, together with Latvians and Estonians, as well as some other nations which lived in the territory of the USSR (Germans, Ukrainians, Crimean Tatars, Chechens, the Ingush) were considered to be persons belonging to the “untrustworthy” nations. On account of their nationality, the persons belonging to “untrustworthy” nations were doomed to extermination, inter alia, by means of unbearable living conditions in exile. The Constitutional Court held as follows (here and further below, translation into English by the Constitutional Court itself).
“6.3. Thus, with consideration of such an international and historical context, inter alia, the aforesaid ideology of the totalitarian communist regime of the USSR upon which the extermination of entire groups of people was grounded, the scale of repressions of the USSR against residents of the Republic of Lithuania, which was a part of the targeted policy of the extermination of the basis of Lithuania ’ s political nation and of the targeted policy of the treatment of Lithuanians as an ‘ unreliable ’ nation, the conclusion should be drawn that, during a certain period (in 1941, when mass deportations of Lithuanians to the Soviet Union began and non-judicial executions of detained persons were carried out, and in 1944-1953, when mass repressions were carried out during the guerrilla war against the occupation of the Republic of Lithuania), the crimes perpetrated by the Soviet occupation regime, in case of the proof of the existence of a special purpose aimed at destroying, in whole or in part, any national, ethnic, racial or religious group, might be assessed as genocide as defined according to the universally recognised norms of international law ( inter alia, according to the Convention Against Genocide). As mentioned before, under the universally recognised norms of international law, actions are considered to constitute genocide if they are deliberate actions aimed at destroying, not only in whole but also in part, any national, ethnical, racial, or religious group; when a part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole; actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of any national, ethnical, racial, or religious group and the destruction of which would have an impact on the respective national, ethnical, racial, or religious group as a whole. It has also been mentioned that the physical destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members; in such cases, the forcible transfer of individuals could lead to the destruction of the group, since the group ceases to exist as a group or, at least, as the group it was”.
The Constitutional Court then held as follows.
“In other words, it has been mentioned that, according to the universally recognised norms of international law, the actions carried out during a certain period against certain political and social groups of the residents of the Republic of Lithuania might be considered to constitute genocide if such actions – provided this has been proved – were aimed at destroying the groups that represented a significant part of the Lithuanian nation and whose destruction had an impact on the survival of the entire Lithuanian nation. It should be noted that, in case of the absence of any proof of such an aim, in its turn it should not mean that, for their actions against residents of Lithuania (e.g., their killing, torturing, deportation, forced recruitment to the armed forces of an occupying State, persecution for political, national, or religious reasons), respective persons should not be punished according to laws of the Republic of Lithuania and universally recognised norms of international law; in view of concrete circumstances, one should assess whether those actions entail crimes against humanity or war crimes.
6.4. In this context it should be noted that, as mentioned before, the Preamble to the Law on responsibility for genocide of inhabitants of Lithuania of 9 April 1992 held, inter alia, that the policy of genocide and of crimes against humanity which was carried out against the residents of Lithuania was accomplished at the time of the occupation and annexation by the Nazi Germany or the USSR; Article 2 of the same law established that ‘ [t]he killing, torturing and deportation of inhabitants of Lithuania committed during the occupation and annexation of Lithuania by Nazi Germany or the USSR shall be classified as a crime of genocide as defined by international law ’.
6.5. To sum up, it should be noted that the inclusion of social and political groups into the definition of genocide in Article 99 of the [Criminal Code] that is being impugned by the petitioners was determined by a concrete legal and historical context – the international crimes committed by the occupation regimes in the Republic of Lithuania.”
60. The Constitutional Court also held that Article 95 of the Criminal Code, which provides that there is no statute of limitations for genocide (including genocide of social and political groups), was compatible with the Constitution. In the Constitutional Court ’ s view, the Constitution allows such legal regulation when the statute of limitations is not applicable to prosecute the most serious crimes, genocide against social or political groups being one of them. The Constitutional Court then observed that, in the light of the obligation under Article 135 § 1 of the Constitution to adhere to Lithuania ’ s obligations stemming from the universally recognised international-law norms prohibiting such crimes as genocide, Lithuanian laws could not set a lower standard than those provided by international law. However, the principle of the rule of law, and thus the principles of nullum crimen sine lege and nulla poena sine lege, would be breached if Lithuanian criminal legislation allowed retroactive punishment for crimes which have been defined only in accordance with the domestic law, in this case, for genocide of persons belonging to a political or social group. In other words, retroactive prosecution for genocide of social or political groups, when the genocide took place before the Criminal Code amendments of 21 April 1998, would be in breach of the Constitution and the principle of the rule of law.
61. As to the crimes perpetrated by the totalitarian regimes, including the USSR, the Constitutional Court also observed (point 6.1, Chapter II, part of the reasoning):
“Thus, crimes against humanity and war crimes are undoubtedly attributable to totalitarian communist regimes, inter alia, the Soviet Union, whilst the crimes committed against certain national or ethnic groups during a certain period might be considered to constitute genocide as defined according to the universally recognised norms of international law.
In this context it should be mentioned that the crimes perpetrated by the USSR totalitarian communist regime have been recognised by laws of the Russian Federation. For example, the Preamble to the Law on rehabilitation of the repressed peoples of 26 April 1991 states, among other things, that ‘ the renewal of the Soviet society ... has created favourable opportunities for the rehabilitation of those peoples that were repressed during the years of Soviet rule and were subjected to genocide and slanderous attacks ’ .” (See also paragraph 74 below.)
62. As to the scale of Soviet repressions in Lithuania during Soviet rule (in particular in 1940-41 and 1944-53), the Constitutional Court found as follows.
“6.2. According to various data, due to the both occupations carried out by the USSR, the Republic of Lithuania lost almost one fifth of its population, including refugees. According to the data presented by the Genocide and Resistance Research Centre of Lithuania, during the period of the Soviet occupation (1940-1941 and 1944 ‑ 1990), in all, 85,000 Lithuanian inhabitants perished or were killed, around 132,000 Lithuanian inhabitants were deported to the Soviet Union (at the time of the deportations of 1945-1952, 32,000 of the deportees were children). From among those perished or killed, 20,000 were participants of the armed resistance against the occupation (partisans) and their supporters (data for 1944-1952), around 1,100 – shot or tortured to death in June 1941 when the Soviet armed forces were retreating from Lithuania, around 35-37,000 political prisoners perished in special camps and prisons, and around 28,000 deportees perished in exile; on 14 June 1941, the first mass deportation of citizens of the Republic of Lithuania to Siberia began (all in all, 12,000 people were exiled then); one of the biggest repressions against the civil population was carried out in 1944-1946: up to 130,000 Lithuanian inhabitants were detained and arrested, 32,000 were repressed and transferred to special camps and prisons, around 108,400 were recruited to the USSR troops by force in 1944-1945. During the 1944-1953 partisan war against the occupation, all in all, 186,000 people were arrested and imprisoned.
It is obvious from these numbers that, in the territory of the Republic of Lithuania, the Soviet occupation regime perpetrated international crimes that could be qualified, according to the universally recognised norms of international law ( inter alia, the Charter of the Nuremberg Tribunal), as crimes against humanity (killing and extermination of civilians, deportation of residents, their imprisonment and persecution on political and national grounds, etc.) and war crimes (killing and deportation of persons protected under international humanitarian law, forced recruitment of residents of an occupied territory to the armed forces of an occupying State, etc.).
It needs to be emphasised that, according to the research conducted by historians, the crimes against the residents of the Republic of Lithuania were a part of the targeted and systematic totalitarian policy pursued by the USSR: the repressions against the residents of Lithuania were not in any manner coincidental and chaotic, but rather, such repressions sought to exterminate the basis of the political nation of Lithuania, inter alia, the former social and political structure of the State of Lithuania. Those repressions were directed against the most active political and social groups of the residents of the Republic of Lithuania: participants of the resistance against the occupation and their supporters, civil servants and officials of the State of Lithuania, Lithuanian public figures, intellectuals and the academic community, farmers, priests, and members of the families of those groups. It should be noted that, by means of the repressions, the occupation regime sought to exterminate, to cause harm and break those people: they were victims of non-judicial executions, they were imprisoned and sent to special camps for forced labour, they were deported to faraway harsh-climate sparsely populated places of the Soviet Union by purposefully creating intolerable life conditions that posed constant threat to one ’ s life and health.”
63. As to the partisans ’ role, the Constitutional Court observed as follows:
“It should also be noted that, according to the laws of the Republic of Lithuania ... the organised armed resistance against the Soviet occupation is regarded as self-defence of the State of Lithuania, the participants of the armed resistance are declared volunteer servicemen and their military ranks and awards are recognised ...”
The Constitutional Court also noted that
“[a]t the time of the occupation, the [Council of the Movement of the Struggle for Freedom of Lithuania was] the supreme national political body leading the political and military national struggle for freedom.”
The Constitutional Court then held as follows.
“7.3. Thus, in consideration of the international and historical context, it should be noted that, in the course of the qualification of the actions against the participants of the resistance against the Soviet occupation as a political group, one should take into account the significance of this group for the entire respective national group (the Lithuanian nation) which is covered by the definition of genocide according to the universally recognised norms of international law.
It has been mentioned that, according to the universally recognised norms of international law, the actions carried out during a certain period against certain political and social groups of the residents of the Republic of Lithuania might be considered to constitute genocide if such actions – provided this has been proved – were aimed at destroying the groups that represented a significant part of the Lithuanian nation and whose destruction had an impact on the survival of the entire Lithuanian nation. It has also been mentioned that in case of the absence of any proof of such an aim, in its turn it should not mean that, for their actions against residents of Lithuania (e.g., their killing, torturing, deportation, forced recruitment to the armed forces of an occupying State, persecution for political, national, or religious reasons), respective persons should not be punished according to universally recognised norms of international law and laws of the Republic of Lithuania; in view of concrete circumstances, one should assess whether those actions also entail crimes against humanity or war crimes. As regards the participants (partisans) of the armed resistance of the Republic of Lithuania against the Soviet occupation, account must also be taken of the fact that the Soviet Union, while ignoring the universally recognised norms of international law, neither recognised their status of combatants and prisoners of war nor provided them with the corresponding international guarantees related to such a status; from the conclusions of the historians that investigated documents of the repressive structures of the interior and security of the USSR it is clear that those structures pursued the targeted policy of the extermination of ‘ bandits ’, ‘ terrorists ’, and ‘ bourgeois nationalists ’ to which they also ascribed the Lithuanian partisans, inter alia, special ‘ extermination ’ squads were established and they were used in the fight against the Lithuanian partisans and their supporters.”
64. Article 31 § 4 of the Constitution stipulates that punishment may be imposed or applied only on grounds established by law. Article 135 states that the Republic of Lithuania shall follow the universally recognised principles and norms of international law and shall seek to ensure citizens ’ basic rights and freedoms. Article 138 § 3 provides that international treaties which have been ratified by Parliament are a constituent part of the Lithuanian legal system.
65. Pursuant to Article 11 of the Law on treaties, if a ratified treaty establishes norms other than those established by laws, the provision contained in the treaty shall prevail. On 14 March 2006 the Constitutional Court held that it was a legal tradition and a constitutional principle for the restored independent State of Lithuania to observe international obligations undertaken of its own free will and to respect the universally recognised principles of international law, including the principle of pacta sunt servanda. On 18 March 2014 the Constitutional Court further held that, pursuant to the principle of pacta sunt servanda, obligations arising from the universally recognised norms of international law that prohibit international crimes are to be fulfilled in good faith. Thus, in the context of the constitutional justice case in issue (see paragraphs 56-63 above), it was important to clarify the content of the universally recognised norms of international law which are related to international crimes, namely, inter alia, that of genocide.
66. On 2 May 1990 the Supreme Council adopted the Law on restoring the rights of persons repressed for resistance against the occupational regimes, which, inter alia, held that “the resistance of the inhabitants of Lithuania to aggression and occupation regimes did not contradict national and international law” and that “the Supreme Council of the Republic of Lithuania assesses the struggle of the participants in the resistance movement as the expression of the nation ’ s right to self-defence”. According to the initial version of this Law, the latter provision could not be applied to persons who took part in committing the crimes of genocide, killings and torture of unarmed civilian population. The 2008 version of this Law stipulates that this provision is also not applicable to persons who took part in committing crimes against humanity and war crimes, that the data contained in the cases of repressive structures of occupation regimes cannot be considered as evidence without additional investigation, and that the participants in the armed resistance are declared volunteer fighters of Lithuania ( skelbiami Lietuvos kariais savanoriais ).
67. On 23 January 1997 the Lithuanian Parliament adopted the Law on the status of participants in resistance against the occupations of 1940-1990. The Preamble to the Law notes that from 15 June 1940 to 11 March 1990 all Lithuanian territory was under German or Soviet occupation. It also stipulates that armed “national” resistance (the Lithuanian partisan war) took place between 1944 and 1953 in Lithuania against the occupying army of the USSR and the Soviet regime. “The partisan command was the highest lawful political and military authority.” The Preamble also stipulates that the 16 February 1949 declaration (see paragraph 13 above) expressed the “sovereign will of the nation”.
Article 2 § 1 (4) of the Law grants “volunteer fighter” ( karys savanoris ) status to partisans as participants in the armed resistance. The notion of “partisans” refers to those who belonged to the organisational structures of the armed resistance, gave an oath and did not breach it, were armed, lived outside the law, and took part in battles under the command of their leadership.
The status of volunteer fighter cannot be granted to those who committed war crimes, gave orders to kill civilians or killed civilians themselves (Article 6 § 2 (1) of the Law).
68. On 6 October 1998 the Lithuanian Parliament adopted the Law on State support to the families of those who lost their lives while resisting the 1940-1990 occupations ( Valstybės paramos žuvusių pasipriešinimo 1940-1990 metų okupacijos dalyvių šeimoms įstatymas ). The State was to pay a lump sum of LTL 20,000 to family members of voluntary soldiers (participants in the armed resistance) who had died in battle, during arrests, had been killed or had died during interrogation or who had been sentenced to death and executed (Article 2 § 2 (1)).
69. As to the possibility of reopening criminal proceedings, the Code of Criminal Procedure provides that criminal proceedings may be reopened if new circumstances come to light which were not known before the judgment was adopted and which could prove that the convicted person is not guilty or could have committed a less or a more serious crime (Article 444 § 1 (4)). A request for reopening may be submitted by the person convicted or by the Prosecutor General (Article 446 §§ 1-3). The final decision whether to reopen proceedings is taken by the Supreme Court, which may quash the judgment and transfer the case for fresh examination, quash the judgment and discontinue the criminal case, or reject the request for reopening (Articles 448 and 449).
D. Relevant Soviet and Russian law
70. In 1940 the RSFSR Criminal Code became applicable on the territory of the LSSR.
71. The RSFSR Criminal Code provided for criminal liability for a series of counter-revolutionary crimes (Article 58 1 ). “Counter-revolutionary” was understood as any action directed toward the overthrow, subversion, or weakening of the power of the Soviet government. Article 58 1a provided for criminal liability for treason against the motherland, which was described as the commission of acts by citizens of the USSR entailing harm to the military power of the USSR, its national sovereignty or the inviolability of its territory. It was punishable by death or, where mitigating circumstances existed, by deprivation of liberty for a term of ten years with confiscation of all property. Intentional homicide was punishable by deprivation of liberty of up to eight years. If intentional homicide was carried out by a member of the military, under especially aggravated circumstances, it could attract the death penalty (Articles 136 and 137).
72. On 26 June 1961 the Supreme Soviet of the LSSR adopted the LSSR Criminal Code, replacing the RSFSR Code. It came into force on 1 September 1961. Under Article 104 of the LSSR Criminal Code, murder was punishable by deprivation of liberty of three to twelve years. Aggravated murder, for instance murder of two or more persons, was punishable by imprisonment of eight to fifteen years, with or without deportation, or by capital punishment.
73. On 24 December 1989 the Congress of People ’ s Deputies of the USSR passed a Resolution on the political and juridical appraisal of the Soviet-German non-aggression treaty of 1939. It denounced the secret additional protocol to that treaty, as well as other secret agreements with Germany, as having no basis in law and invalid ever since its signature. In the Resolution, it is noted that the territorial divisions into Soviet and German spheres of influence had been contrary to the sovereignty and independence of several “third” countries (among them Latvia, Lithuania and Estonia). This was followed by a decision of the Supreme Council of the LSSR of 7 February 1990 denouncing the unlawful incorporation of Lithuania into the USSR in 1940 (see Kuolelis and Others, cited above, § 10 ).
74. The Preamble to the Law on rehabilitation of the repressed peoples ( Закон “ О реабилитации репрессированных народов” ) of the Russian Federation, enacted on 26 April 1991, provides that the “renewal of the Soviet society in the process of its democratisation and the formation of the rule of law in the country has created favourable opportunities for the rehabilitation of those peoples which were repressed during the years of Soviet rule and were subject to genocide and slanderous attacks”. The Law also states that its aim was as follows.
“To rehabilitate all repressed peoples of the Russian Soviet Federal Socialist Republic, having acknowledged that the acts against those nations were unlawful and criminal.”
“Those peoples (nations, nationalities or ethnical groups and other historically established cultural-ethnical communities of people, for example Cossacks), in respect of whom on the grounds of national or other affiliation a State-level policy of slander and genocide was conducted, accompanied by their forced relocation, abolition of nation-State formations, the reshaping of national territorial borders and establishment of a regime of terror and violence in the places of special settlements, shall be recognised as having been repressed. ”
III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW AND PRACTICE
A. Charter of the International Military Tribunal (“the Nuremberg Charter”) and the Nuremberg Principles
75. The Nuremberg Charter, set up in accordance with the London Agreement signed on 8 August 1945 by the governments of the United States of America, France, the United Kingdom and the USSR, contained the following definition of crimes against humanity.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(c) Crimes against humanity : namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. ”
76. The definition was subsequently codified as Principle VI in the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (“the Nuremberg Principles”), formulated by the International Law Commission in 1950 under UN General Assembly Resolution 177 (II) and affirmed by the General Assembly.
In particular, Principle I held:
“Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”
“The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.”
“The fact that a person acted pursuant to [an] order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
“The crimes hereinafter set out are punishable as crimes under international law:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.”
77. UN General Assembly Resolution 95 (I), adopted on 11 December 1946, provided:
“ The General Assembly ... [a]ffirms the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal;
78. UN General Assembly Resolution 96 (I), adopted on 11 December 1946, provided as follows.
“Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.
Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.
The punishment of the crime of genocide is a matter of international concern.
The General Assembly, therefore,
Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable;
Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime;
C. Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)
79. The UN General Assembly adopted the Genocide Convention by unanimous vote of the 56 participants at its 179th plenary meeting, on 9 December 1948 (Resolution 260 A (III)). The USSR signed the Convention on 16 December 1949 and ratified it on 3 May 1954. [3] The Republic of Lithuania acceded to the Genocide Convention after the restoration and international recognition of its independence, on 9 April 1992, and it came into force in respect of Lithuania on 1 May 1996. The Genocide Convention provides, in so far as relevant, as follows.
Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,
Hereby agree as hereinafter provided:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The following acts shall be punishable:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
80. In 1951 the ICJ stated, in its Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ( ICJ Reports 1951, p. 23), that the principles underlying the Genocide Convention were principles which were recognised by civilised nations as binding on States even without any conventional obligation, referring to UN General Assembly Resolution 96 (I) and to “the moral and humanitarian principles” which were at the basis of the Genocide Convention.
81. In Attorney-General of the Government of Israel v. Adolf Eichmann in 1961 [4], Adolf Eichmann was convicted by the District Court of Jerusalem under section 1(a) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, an Israeli law which punished crimes against the Jewish people and which was derived from Article II of the Genocide Convention. Having quoted from the Advisory Opinion cited in paragraph 80 above, the trial court found that there was no doubt that genocide was recognised during the Second World War as a crime under international law ex tunc, so that jurisdiction over such crimes was universal.
82. By a judgment of 29 May 1962, the Supreme Court of Israel confirmed the trial court ’ s judgment and added the following.
“... [I]f any doubt existed as to this appraisal of the Nuremberg Principles as principles that have formed part of the customary law of nations ‘ since time immemorial ’, two international documents justify it. We allude to the [UN] General Assembly Resolution [95 (I)] of December 11 1946, which ‘ affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal ’, and also to the General Assembly Resolution of the same date, 96 (I), in which the General Assembly ‘ affirms that Genocide is a crime under international law ’ ...
What is more, in the wake of Resolution 96 (I) of December 11, 1946, the [UN] General Assembly unanimously adopted on December 9, 1948, the [1948 Convention]. Article I of this Convention provides: ‘ [t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law. ’
As the District Court has shown, relying on the Advisory Opinion of the [ICJ] dated May 28, 1951, the import of this provision is that principles inherent in the Convention – as distinct from the contractual obligations embodied therein – ‘ were already part of customary international law when the dreadful crimes were perpetrated, which led to the United Nations resolution and the drafting of the Convention – the crimes of Genocide committed by the Nazis ’ (paragraph 21 of the judgment).
The outcome of the above analysis is that the crimes set out in the Law of 1950, which we have grouped under the inclusive caption ‘ crimes against humanity ’, must be seen today as acts that have always been forbidden by customary international law – acts which are of a ‘ universal ’ criminal character and entail individual criminal responsibility. That being so, the enactment of the Law was not from the point of view of international law a legislative act which conflicted with the principle nulla poena or the operation of which was retroactive, but rather one by which the [legislature] gave effect to international law and its objectives ...”
D. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
83. The UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), ratified by the Republic of Lithuania on 1 February 1996, provides, in particular, as follows.
“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.”
“If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.”
“The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.”
E. The Vienna Convention on the Law of Treaties
84. Article 31 § 1 of the Vienna Convention on the Law of Treaties, concluded on 23 May 1969 and ratified by the Republic of Lithuania on 15 January 1992, provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
85. The relevant parts of the ICTY Statute (1993) read as follows.
“1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
2. 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:
Article 5 Crimes against humanity
“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(h) persecutions on political, racial and religious grounds;
G. Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”)
86. The relevant parts of the ICTR Statute (1994) read as follows.
2. 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:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.”
H. Rome Statute of the International Criminal Court (“ICC Statute”)
87. The relevant parts of the ICC Statute (1998), in force in respect of Lithuania as of 1 August 2003, read as follows:
“For the purpose of this Statute, ‘ 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:
I. Resolution 1096 (1996) of the Parliamentary Assembly of the Council of Europe (PACE)
88. On 27 June 1996 PACE adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems, which provides as follows:
“7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.”
89. On 25 January 2006 PACE adopted Resolution 1481 (1996) on the need for international condemnation of crimes of totalitarian communist regimes, which reads as follows.
“1. The Parliamentary Assembly refers to its Resolution 1096 (1996) on measures to dismantle the heritage of the former communist totalitarian systems.
2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.
3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the ‘ elimination ’ of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.
5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).
6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.”
90. On 28 April 2010 PACE adopted Resolution 1723 (2010) commemorating the victims of the Great Famine ( Holodomor ) in the former USSR. The Resolution held that “[t]he totalitarian Stalinist regime in the former Soviet Union led to horrifying human rights violations which deprived millions of people of their right to life”.
IV. RELEVANT INTERNATIONAL AND COMPARATIVE LAW AND PRACTICE AS TO THE MEANING OF THE WORDS “IN PART” IN ARTICLE II OF THE GENOCIDE CONVENTION
91. The Preamble to UN Resolution 96 (I) states that many instances of genocide have taken place when “racial, religious, political or other groups have been destroyed, entirely or in part”.
Article II of the Genocide Convention reads that acts of genocide must be committed with the intent to destroy, “in whole or in part”, a protected group.
92. The Genocide Convention itself provides no indication of what constitutes intent to destroy “in part”. The travaux préparatoires provide little guidance as to what the drafters meant by “in part”.
93. Some early commentators on the Genocide Convention contended that the term “in part” contains a substantiality requirement. Pieter Drost remarked that any systematic destruction of a fraction of a protected group constituted genocide. [5] Raphael Lemkin took the view that “the Convention applies only to actions undertaken on a mass scale”. [6] He argued that “the destruction in part must be of a substantial nature so as to affect the entirety”. The commentators did not express the view either way on whether the destruction of political or economic groups could amount to the partial destruction of a national group within the meaning of Article II.
94. According to the International Law Commission (ILC), the perpetrators of the crime must seek to destroy a quantitatively substantial part of the protected group:
“... It is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group.” [7]
95. Benjamin Whitaker ’ s 1985 study on the prevention and punishment of the crime of genocide holds that the partial destruction of a group merits the characterisation of genocide when it concerns a large portion of the entire group or a significant section of that group:
“ ‘ In part ’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership.”
96. The final report of the Commission of Experts established pursuant to Security Council resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia (UN Doc. S/1994/674 – “the Commission of Experts ’ 1992 Report on Yugoslavia”) confirmed this interpretation. It held as follows.
“93. Destruction of a group in whole or in part does not mean that the group in its entirety must be exterminated. The words ‘ in whole or in part ’ were inserted in the text to make it clear that it is not necessary to aim at killing all the members of the group.
94. If essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others - the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose. Similarly, the extermination of a group ’ s law enforcement and military personnel may be a significant section of a group in that it renders the group at large defenceless against other abuses of a similar or other nature, particularly if the leadership is being eliminated as well. Thus, the intent to destroy the fabric of a society through the extermination of its leadership, when accompanied by other acts of elimination of a segment of society, can also be deemed genocide.”
97. The interpretation history of the words “in whole or in part” since 1948 was outlined by the ICTY Trial Chamber in Prosecutor v. Radislav Krstić (ICTY-98-33-T, trial judgment, 2 August 2001, §§ 584-87). The ICTY has further interpreted the intent requirement to destroy a group “in whole or in part” within the meaning of Article 4 § 2 of its Statute, which is based on Article II of the Genocide Convention.
98. In Prosecutor v. Goran Jelisić (ICTY-95-10-T, trial judgment, 14 December 1999), the ICTY Trial Chamber, citing in support the ILC Draft Code of Crimes Against the Peace and Security of Mankind of 1996 and the Commission of Experts ’ 1992 Report on Yugoslavia, held as follows.
“80. ... [I]t is recognised that the destruction sought need not be directed at the whole group which, moreover, is clear from the letter of Article 4 of the Statute. The ILC also states that ‘ [i]t is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe ’. The question which then arises is what proportion of the group is marked for destruction and beyond what threshold could the crime be qualified as genocide? ...
82. Given the goal of the [Geneva] Convention to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group. ... Genocidal intent may therefore be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘ selectively ’. ...”
99. In Krstić (cited above) the ICTY Trial Chamber analysed whether Mr Krstić had committed acts of genocide in the Srebrenica massacre of 1995. As to the term “in part”, the Trial Chamber held as follows.
“590. The Trial Chamber is thus left with a margin of discretion in assessing what is destruction ‘ in part ’ of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups, as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. ...”
100. Among other arguments, the defence had maintained that the army of the Republika Srpska, also called the Bosnian Serb army, had solely intended to kill all potential fighters in order to eliminate any future military threat. The Trial Chamber did not accept this argument. It analysed together the fact of the killing of military-age males and the deportation of the rest of the group, viewing the deportation as an indication that the killing of the military-age males was done with intent to destroy the Bosnian Muslims of Srebrenica (see Krstić, trial judgment, cited above, §§ 594-95, 598 and 634).
101. On 19 April 2004 the ICTY Appeals Chamber in Prosecutor v. Radislav Krstić (ICTY-98-33-A, 19 April 2004) held that “part” is determined not only by numbers:
“12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.”
The ICTY Appeals Chamber also considered that
“16. [t]he elimination of the Muslim population of Srebrenica ... would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims”.
102. In Prosecutor v. Duško Sikirica et al. (ICTY-95-8-T, Judgment on Defence Motions to Acquit, 3 September 2001), the ICTY Trial Chamber stated as follows.
“65. The United Nations Expert Study on Genocide defines the term ‘ in part ’ as implying ‘ a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership ’. This definition means that, although the complete annihilation of the group is not required, it is necessary to establish ‘ the intention to destroy at least a substantial part of a particular group ’. The Chamber believes that it is more appropriate to speak of a ‘ reasonably substantial ’ rather than a ‘ reasonably significant ’ number. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. While the Chamber does not reject that aspect of the definition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference.
76. If the quantitative criterion is not met, the intention to destroy in part may yet be established if there is evidence that the destruction is related to a significant section of the group, such as its leadership.
77. The Chamber finds persuasive the analysis in the Jelisić Trial Judgement that the requisite intent may be inferred from the ‘ desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. ’ The important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimisation within the terms of Article 4(2) (a), (b) and (c) would impact upon the survival of the group, as such.”
103. The prosecutor asked the Trial Chamber to view the Bosnian Muslims who were active in the resistance and defence of their villages from Bosnian Serb attacks as leaders of the group, since their elimination would have a significant impact on the survival of the group. The Trial Chamber refused, holding that
“... very little evidence has been adduced as to the leadership status of those [persons]. There is evidence that among those detained were taxi-drivers, schoolteachers, lawyers, pilots, butchers and café owners. But there is no specific evidence that identifies them as leaders of the community. Indeed, they do not appear to have been persons with any special significance to their community, except to the extent that some of them were of military age ...” (ibid., § 80)
The ICTY Trial Chamber thus rejected the submission that all those Bosnian Muslims who were active in the resistance of the take-over of their villages, should be treated as leaders. “Acceptance of that submission would necessarily involve a definition of leadership so elastic as to be meaningless” ( § 81 ).
104. In Prosecutor v. Zdravko Tolimir (ICTY-05-88/2-T, trial judgment, 12 December 2012), the majority of the ICTY Trial Chamber considered, with regard to the killing of three leaders of the Žepa Bosnian Muslim enclave (the mayor of the municipality, who was also a religious leader, the military commander and the head of the civil protection unit), that “[w]hile the individuals killed were only three in numbers, in view of the size of Žepa, they constituted the core of its civilian and military leadership” (ibid., § 780). Therefore, their killing “ was a case of deliberate destruction of a limited number of persons selected for the impact that their disappearance would have on the survival of the group as such” (ibid., § 782). Moreover, the killing of one of those three persons, who at the time enjoyed a special status as the defender of the Bosnian Muslim population of Žepa, had a symbolic purpose for the survival of the Bosnian Muslims of eastern Bosnia and Herzegovina. On that basis and also taking into account the forcible transfer of the remaining population of Žepa, the majority of the Trial Chamber was satisfied beyond reasonable doubt that Bosnian Serb forces had killed the three leaders of the Žepa enclave with the specific genocidal intent of destroying part of the Bosnian Muslim population as such.
105. The ICJ concluded, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide ((Bosnia and Herzegovina v. Serbia and Montenegro ), Judgment of 26 February 2007, ICJ Reports 2007, §§ 198-201), that genocide in Bosnia and Herzegovina had been committed in relation to the 1995 Srebrenica massacre. With regard to the drafting history of the Genocide Convention, the ICJ held as follows.
“194. The drafting history of the Convention confirms that a positive definition must be used. Genocide as ‘ the denial of the existence of entire human groups ’ was contrasted with homicide, ‘ the denial of the right to live of individual human beings ’ by the General Assembly in its 1946 resolution 96 (I) cited in the Preamble to the Convention. The drafters of the Convention also gave close attention to the positive identification of groups with specific distinguishing characteristics in deciding which groups they would include and which (such as political groups) they would exclude. The Court spoke to the same effect in 1951 in declaring as an object of the Convention the safeguarding of ‘ the very existence of certain human groups ’ ( Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23). Such an understanding of genocide requires a positive identification of the group. The rejection of proposals to include within the Convention political groups and cultural genocide also demonstrates that the drafters were giving close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics. A negatively defined group cannot be seen in that way. ”
106. In paragraphs 198 to 201 of the above-mentioned judgment, the ICJ considered the words “in part” in the first place to refer to a requirement of substantiality, following the approach of the ICTY and the ILC. It also referred to the criterion of opportunity, meaning the opportunity available to the perpetrators, according to their area of activity and control. As a useful consideration, the ICJ also accepted the qualitative criterion (the “prominence” of certain individuals “within the group”, as mentioned in paragraph 12 of the ICTY Appeals Chamber judgment in Krstić, cited above). The ICJ nevertheless held as follows:
“200. ... Establishing the ‘ group ’ requirement will not always depend on the substantiality requirement alone although it is an essential starting point. It follows in the Court ’ s opinion that the qualitative approach cannot stand alone. The Appeals Chamber in Krstić also expresses that view.”
107. The ICJ found that acts of killings and of causing serious bodily and mental harm (both to those who were about to be executed and those who were separated and displaced) had been committed in Srebrenica in July 1995. Following the ICTY Appeals Chamber in Krstić (cited above), the ICJ considered the Bosnian Muslims of Srebrenica to be a “part” of the Bosnian Muslim group. Moreover, it endorsed the findings of the ICTY that, “[a]lthough this population [40,000 people] constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size” (ibid., § 296, citing Krstić ).
108. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (( Croatia v. Serbia ), Judgment of 3 February 2015, ICJ Reports 2015 ), the ICJ held as follows (references omitted).
“142. The Court recalls that the destruction of the group ‘ in part ’ within the meaning of Article II of the Convention must be assessed by reference to a number of criteria. In this regard, it held in 2007 that ‘ the intent must be to destroy at least a substantial part of the particular group ’, and that this is a ‘ critical ’ criterion. The Court further noted that ‘ it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area ’ and that, accordingly, ‘ [t]he area of the perpetrator ’ s activity and control are to be considered ’. Account must also be taken of the prominence of the allegedly targeted part within the group as a whole. With respect to this criterion, the Appeals Chamber of the ICTY specified in its Judgment rendered in the Krstić case that
‘ [i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the ICTY Statute, paragraph 2 of which essentially reproduces Article II of the Convention] ’.
In 2007, the Court held that these factors would have to be assessed in any particular case. It follows that, in evaluating whether the allegedly targeted part of a protected group is substantial in relation to the overall group, the Court will take into account the quantitative element as well as evidence regarding the geographic location and prominence of the allegedly targeted part of the group.”
Additionally, it should be noted that in the said judgment the ICJ also dealt with the question as to whether the status of the victims – combatants or civilians – was relevant for its assessment. It found:
“218. The Court will first consider the allegations concerning those killed during the siege and capture of Vukovar. The Parties have debated the number of victims, their status and ethnicity and the circumstances in which they died. The Court need not resolve all those issues. It observes that, while there is still some uncertainty surrounding these questions, it is clear that the attack on Vukovar was not confined to military objectives; it was also directed at the then predominantly Croat civilian population (many Serbs having fled the city before or after the fighting broke out). ...”
V. OTHER RELEVANT PRACTICE BY INTERNATIONAL COURTS
109. With regard to the groups protected by Article II of the Genocide Convention, in Prosecutor v. Georges Anderson Nderubumwe Rutaganda ((Judgment and Sentence), ICTR-96-3-T, 6 December 1999), and confirmed in its subsequent case-law, the ICTR Trial Chamber held as follows.
“ Potential Groups of Victims of the Crime of Genocide
55. The Chamber is of the view that it is necessary to consider the issue of the potential groups of victims of genocide in light of the provisions of the Statute and the Genocide Convention, which stipulate that genocide aims at ‘ destroy[ing], in whole or in part, a national, ethnical, racial or religious group, as such ’.
56. The Chamber notes that the concepts of national, ethnical, racial and religious groups have been researched extensively and that, at present, there are no generally and internationally accepted precise definitions thereof. Each of these concepts must be assessed in the light of a particular political, social and cultural context. Moreover, the Chamber notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as belonging to the said group.
57. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be ‘ mobile groups ’ which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups.
58. Therefore, the Chamber holds that in assessing whether a particular group may be considered as protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political and cultural context as indicated supra .”
110. The said line of reasoning was maintained and reaffirmed in later cases decided by the ICTR. In particular, in Prosecutor v. Laurent Semanza ((Judgment and Sentence), ICTR-97-20-T, 15 May 2003, § 317 ), the Trial Chamber held that the determination of whether a group comes under the protection of the Genocide Convention must be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context and by the subjective perceptions of the perpetrators; the determination of a protected group must be made on a case-by-case basis, by consulting both objective and subjective criteria. In Prosecutor v. Jean de Dieu Kamuhanda ((Judgment), ICTR-95-54A-T, 22 January 2004, § 630), the Trial Chamber held that that the concept of a group enjoys no generally or internationally accepted definition, rather each group must be assessed in the light of a particular political, social, historical, and cultural context.
111. With regard to crimes against humanity and the concept of “directed against [a] civil population”, in Prosecutor v. Zoran Kupreškić et al. (ICTY-95-16-T, trial judgment, 14 January 2000), which concerned the killing of some 116 Muslims in order to expel the Muslim population from a village, the ICTY Trial Chamber found as follows.
“3. ’ Directed Against a Civilian Population ’
547. It would seem that a wide definition of ‘ civilian ’ and ‘ population ’ is intended. This is warranted first of all by the object and purpose of the general principles and rules of humanitarian law, in particular by the rules prohibiting crimes against humanity. The latter are intended to safeguard basic human values by banning atrocities directed against human dignity. One fails to see why only civilians and not also combatants should be protected by these rules (in particular by the rule prohibiting persecution), given that these rules may be held to possess a broader humanitarian scope and purpose than those prohibiting war crimes. However, faced with the explicit limitation laid down in Article 5, the Trial Chamber holds that a broad interpretation should nevertheless be placed on the word ‘ civilians ’, the more so because the limitation in Article 5 constitutes a departure from customary international law.
548. The above proposition is borne out by the case law. Of particular relevance to the present case is the finding in Barbie [the Barbie case, French Court of Cassation (Criminal Chamber), 20 December 1985, 78 ILR 125] (admittedly based on general international law) that ‘ inhumane acts and persecution committed in a systematic manner, in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community but also against the opponents of that policy, whatever the form of their opposition ’ could be considered a crime against humanity. In the Vukovar Rule 61 Decision of 3 April 1996, a Trial Chamber held that crimes against humanity may be committed even where the victims at one time bore arms.
549. Thus the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity.”
112. As to the requirements that must be satisfied before the conviction for genocide may be imposed, in Bosnia and Herzegovina v. Serbia and Montenegro (cited above, § 293), the ICJ held as follows, citing paragraph 37 of the ICTY Appeals Chamber judgment in Krstić, cited above.
“... The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name. ...”
113. Different international tribunals have held that the prohibition of genocide is a peremptory norm of international law ( jus cogens ). Among such authorities are the ICJ cases Armed Activities on the Territory of the Congo (( Democratic Republic of the Congo v. Rwanda ), Judgment of 3 February 2006, ICJ Reports 2006, p. 6), Bosnia and Herzegovina v. Serbia and Montenegro (cited above, p. 43) and Jurisdictional Immuinities of the State (( Germany v. Italy ), Judgment of 3 February 2012, ICJ Reports 2012, p. 99), as well as the ICTR case Prosecutor v. Clément Kayishema et al. ((Judgment), ICTR-95-1-T, 21 May 1999).
I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
114. The applicant complained that the wide interpretation of the crime of genocide, as adopted by the Lithuanian courts, did not have a basis in the wording of that offence as laid down in public international law. He claimed that his conviction for genocide therefore amounted to a breach of Article 7 of the Convention, which reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
115. The Government argued that the applicant had failed to lodge his application within six months of the date on which the final decision was taken. While admitting that the postmark on the envelope containing the application was dated 30 July 2005, they noted that the application form was received at the Court only on 29 September 2005. Such a delay was inexplicable.
116. The applicant submitted that his application to the Court was sent in due time.
117. The Court observes that the applicant ’ s conviction was upheld by the Supreme Court on 22 February 2005. Accordingly, the six-month time-limit to lodge an application with the Court, within the meaning of Article 35 §§ 1 and 4 of the Convention, expired on 22 August 2005. Having examined the materials submitted by the applicant, the Court notes that the envelope containing his application form was posted from Lithuania on 30 July 2005, given that the envelope bears a postmark of the Tauragė post office with that date. The envelope also bears a stamp to the effect that it was received at the Registry of the Court on 28 September 2005. The application form is stamped as having been received at the Court on 29 September 2005. Although acknowledging that there was some delay in the application reaching the Court, it considers the postmark to be the date on which the application was introduced (see Kipritçi v. Turkey, no. 14294/04, § 18, 3 June 2008 ). Accordingly, the Government ’ s objection must be dismissed.
2. The Government ’ s request to strike the case out of the Court ’ s list of cases
118. In their observations on the admissibility and merits of the case, received by the Court on 11 April 2014, the Government also drew the Court ’ s attention to the fact that, after the Constitutional Court ’ s ruling of 18 March 2014, new facts emerged in the present case. On 10 April 2014 the Prosecutor General considered that the conclusions of the Constitutional Court could raise doubts as to the lawfulness of the applicant ’ s conviction for genocide. The prosecutor thus decided to initiate the process of reopening the criminal case. The Government admitted, however, that the final decision on whether to reopen the criminal proceedings against the applicant lay with the Supreme Court (see paragraphs 47 and 69 above). According to the Government ’ s submission of 11 April 2014, the procedural step taken for the reopening of the applicant ’ s criminal case should lead to the conclusion that the applicant ’ s situation was in the process of being resolved at the national level (they referred to Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 40-50, 24 October 2002). That being so and taking into account the principle of subsidiarity, the Government asked the Court to strike the case from the Court ’ s list of cases in accordance with Article 37 § 1 (b) and (c) of the Convention. In their view, no particular reason relating to respect for human rights as defined in the Convention required the Court to continue the examination of the application in accordance with Article 37 § 1 in fine of the Convention.
119. The Court observes, however, that by a final decision of 28 May 2014 the prosecutor decided not to ask the Supreme Court to reopen the applicant ’ s criminal case (see paragraph 47 above). It thus cannot be said that the matter has been resolved or that it is no longer justified to continue the examination of this application within the meaning of Article 37 § 1 (b) and (c) of the Convention.
120. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds it must therefore be declared admissible.
121. The applicant complained that the wide interpretation of the crime of genocide, as adopted by the Lithuanian courts, had no basis in public international law. He claimed that his conviction under Article 99 of the Criminal Code was retroactive and therefore amounted to a breach of Article 7 of the Convention.
122. The applicant noted that in 1992 Lithuania enacted its law on the Genocide Convention. Pursuant to Article II therein, genocide is defined as acts committed with the aim of exterminating a “national, ethnical, racial or religious” group. Lithuania signed the Convention without reservation. For the applicant, any expansion of the concept by the addition of “social and political groups” in 1998 was, therefore, impermissible. The applicant further noted that the exhaustive definition of the crime of genocide which limited protection to four specific groups was established in the Law on responsibility for genocide of inhabitants of Lithuania of 9 April 1992. He also maintained that the Lithuanian delegates argued for the expansion of the concept of genocide in 1998, when the International Criminal Court (ICC) was established within the framework of the United Nations. The definition, however, remained unchanged.
123. The applicant observed that social and political groups were added to the Lithuanian definition of genocide by the Criminal Code amendments of 21 April 1998. In the light of Article 7 of the Convention, he claimed that criminal liability for genocide in respect of those two groups was thus not applicable at one particular point in time but was applicable at another, although the facts potentially giving rise to an issue were the same. In his specific case, he contended, the Lithuanian State had applied the criminal law retroactively, despite the fact that from 1992 to 1998 the State itself regarded the applicant ’ s actions as not constituting the crime of genocide. Even acknowledging that the crime of genocide could be prosecuted retroactively, he submitted that it was difficult to accept that criminal liability for such a crime depended on the State ’ s ability to amend the legislation or to find new characteristics of the crime which were relevant only for Lithuania. The applicant pointed to the fact that Lithuania itself prohibits the retroactive application of criminal law.
124. The applicant also submitted that a feature of international law was that States may not derogate from the international treaties which they have signed, unless permitted to do so under the relevant treaty. He accepted that Lithuania had a sovereign right to pass its own laws. However, that right was not an absolute one. Firstly, all of its laws had to comply with the Lithuanian Constitution pursuant to which international treaties which have been ratified by Lithuania are an integral part of its national law. As to the elements of the Lithuanian criminal law, namely, the inclusion of political and social groups in Article 99 of the Criminal Code, these were not covered by Article II of the Genocide Convention. Therefore, they could not be defended on the basis of international law, which Lithuania had committed itself to observe.
125. Secondly, prosecution for the killing of persons belonging to political and social groups was subject to prescription. The Lithuanian courts ’ interpretation of the domestic criminal law and responsibility for genocide, given that it was wider than that in the Genocide Convention, thus failed to comply with the principle of nullum crimen sine lege. This approach had been confirmed by the Constitutional Court ’ s ruling of 18 March 2014, which acknowledged that retroactive prosecution for the genocide of a political or social group, when the crime was committed prior to the amendment of the Criminal Code establishing responsibility for genocide of persons belonging to those two categories, was unconstitutional.
126. As to the historical background, the applicant noted that he was not in a position to dispute the very broad review of general political, historical or other circumstances as presented by the Government (see paragraph 133 below). He accepted that the number of victims in Lithuania “in the years 1939-53 was about 500,000 Lithuanians”. That being so, the applicant nevertheless observed that between 1941 and 1944 Lithuania had been under German occupation. During that time the Nazis, together with their local auxiliaries, had killed hundreds of thousands of innocent persons in Lithuania. This was of relevance to the case as, according to the applicant, the brothers, J.A. and A.A., had been Nazi collaborators.
127. In that connection, the applicant contested the domestic courts ’ finding that J.A. and A.A. were partisans. He asserted that they had voluntarily served in the Nazi police force and were suspected of having participated in the persecution of Jews and other innocent people. After the Soviets returned to Lithuania in 1944, the authorities lawfully prosecuted J.A. and A.A. for those crimes. In any case, the applicant claimed that J.A. and A.A. had left the partisans years before the events in issue. Accordingly, J.A. and A.A. had not been partisans on the day of their death in 1953. Therefore, the argument that they were members of a political group (protected by Article 99 of the Criminal Code) or representatives of the national group (protected by Article II of the Genocide Convention) had no factual basis.
128. Finally, the applicant argued that even if one accepted the domestic courts ’ position that J.A. and A.A. had been partisans and had been members of the armed resistance at the time of their death in 1953, their killing could not constitute genocide. On this point the applicant argued that genocide consisted of actions directed at the extermination of unarmed civilians, but not at armies or countrywide liberation movements.
129. The applicant concluded that by finding him guilty of genocide the Republic of Lithuania had been in breach of international and domestic law that allowed the State to prosecute for genocide only where the victims were members of a protected group. Whichever version of the facts was accepted, his (according to which the Soviet authorities prosecuted the brothers, J.A. and A.A., as criminals) or the Government ’ s (according to which they were members of the armed resistance), J.A. and A.A. could not possibly fall into any of the protected groups.
130. In the light of the above, the applicant maintained that his conviction for genocide was in breach of Article 7 § 1 of the Convention. He added that Article 7 § 2 was also not applicable. As the acts he was accused of did not constitute the crime of genocide, they could not be qualified as “criminal according to the general principles of law recognised by civilised nations” either.
131. The Government submitted that to understand this case it was of paramount importance to comprehend the Soviet repressive policy in Lithuania. They noted that the crimes against Lithuanians were part of a targeted and systematic totalitarian policy pursued by the USSR. The repressions against Lithuanians were not coincidental or chaotic. They sought to exterminate the former social and political structure of the State, which was the very basis of the political nation of Lithuania. They were directed against the most active political and social groups, namely resistance members and their supporters, civil servants and officials of the State of Lithuania, Lithuanian public figures, intellectuals, academics, farmers, priests, and members of the families of those groups.
132. The Government stressed that the Lithuanian partisans were representatives of the Lithuanian nation. The movement acquired its power from society itself; it united people of different backgrounds (members of the intelligentsia, peasants, teachers, former military officers, and so on). Partisans did not profess any specific political views other than that independence should be restored to Lithuania and the Soviets driven out of the country. They came together under nationalist symbols and were able to maintain their resistance for ten years in the harshest conditions of the Soviet repressions because they received significant support from the Lithuanian people. In its ruling of 18 March 2014, the Constitutional Court had noted the significance of partisans for the entire national group, that is, the Lithuanian nation (see paragraph 63 above).
133. As to the scale of the repressions in Lithuania, the Government first submitted that, according to the Statistical Yearbook, in 1939 the Lithuanian population had stood at 2,925,271. By 1953 some 500,000 Lithuanians had been directly affected by the terror and political repressions of the Soviet regime – they had either been killed, deported or imprisoned (see A. Anušauskas, Demografiniai karo ir okupacijos nuostoliai: okupuotos Lietuvos istorija (“Demographic losses of war and occupation: the history of occupied Lithuania”), Vilnius, Lietuvos gyventojų genocido ir rezistencijos tyrimo centras, 2007, p. 395). The Government also noted that the numbers of the victims of Soviet repressions in Lithuania had already been established in the Constitutional Court ’ s ruling of 18 March 2014 (see paragraph 62 above) and the Conclusions of the International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania. [8]
134. As to partisans, the Government stated that during the resistance between 1940 and 1941 and 1944 and 1953, some 20,000 partisans had been killed and a large number of their supporters imprisoned or deported to Siberia. The repressive USSR institutions had employed a number of severe measures to suppress the underground movement: deportations of families of resistance members, torture of resistance members, acts of psychological warfare or terror and punitive actions against resistance members and their supporters, such as the burning of villages and extrajudicial executions. Most of these measures were applied in clear breach of international law, and of the Constitution of the USSR and other Soviet laws. In particular, the Constitutional Court had noted that the USSR did not regard partisans as having the status of combatants or prisoners of war and did not accord to them the international guarantees related to such status.
135. The aim was to destroy the former Lithuanian way of life and to replace it by a new Soviet order comprised of persons without nationality or ethnicity ( homo sovieticus ). That the Soviet policy was criminal and that its regime committed war crimes, crimes against humanity and genocide in Lithuania are established historical facts. In this connection, the Government referred to Resolution 1481 (2006) of the Parliamentary Assembly of the Council of Europe on the need for international condemnation of crimes of totalitarian communist regimes (see paragraph 89 above). Furthermore, they noted the fact that the crimes, including genocide, perpetrated by the Soviet totalitarian communist regime had been recognised by laws of the Russian Federation itself as, for example, in the Law on rehabilitation of the repressed peoples of 26 April 1991 (see paragraph 74 above).
136. Turning to the question of whether there was a contemporaneous legal basis for the applicant ’ s conviction, the Government noted that at the relevant time, in 1953, the Criminal Code of the Russian Soviet Federative Socialist Republic was in force. While genocide was not listed as a criminal offence under that Code, the Government maintained that the applicant ’ s acts constituted a criminal offence under international treaty and customary law at the relevant time. Acts of genocide were also criminal according to the general principles of law recognised by civilised nations.
137. On the specific question as to whether acts committed with the intent to destroy a protected group could be qualified as genocide at the material time, the Government referred to the Charter of the International Military Tribunal set up in accordance with the London Agreement of 8 August 1945 (“the Nuremberg Charter”), which had confirmed that natural persons had responsibilities under international law in respect of the most heinous crimes. Furthermore, the Government relied upon UN General Assembly Resolution 96 (I) of 11 December 1946, adopted unanimously and without debate, which had affirmed that genocide was a crime under international law and had noted that “crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part”. Therefore, as early as December 1946 it was clear that persecutions on political grounds and the destruction and extermination of political groups were recognised crimes under international law.
138. In the Government ’ s view, the fact that the Genocide Convention did not list “political groups” among the protected groups was not decisive. The initial drafters of the Genocide Convention were of the opinion that the definition of genocide as it had emerged in customary international law was broader than that ultimately determined in the drafting process and the travaux préparatoires of the Genocide Convention show that the exclusion of “political groups” was the result of political compromise rather than legal reasoning.
139. The Government further submitted that the protected groups included in the Genocide Convention may overlap and be interchangeable. One group (nationality) may intersect with another (religion). The Lithuanian courts recognised this in their interpretation of genocide. The Soviet policy in the Baltic States, which the Soviet authorities regarded as “untrustworthy nations”, was targeted against political and social groups precisely because these formed the backbone of the national group. Thus, “politically” motivated killings were merely a screen for national and ethnic genocidal aspirations.
140. The Government also submitted that the Lithuanian domestic legislative changes in 1998 reflected trends in the practice of a number of States as well as in the opinions of legal writers on the subject of genocide. A significant number of States, including Estonia, Poland, France, Switzerland, Finland, Slovenia, Romania, Ecuador and Costa Rica had extended the definition of genocide in national law. While most extended it to social or political groups, some chose an open-ended inclusive approach, such as “groups determined by any other arbitrary criterion” (France, Romania).
141. Turning to the applicant ’ s case, the Government submitted that the question was whether at the time of committing the act he could reasonably have foreseen himself being charged with and convicted for a crime under international law. The interpretation that the Lithuanian courts gave to the crime of genocide was compatible with the essence of the offence at the relevant time and was thus reasonably foreseeable.
142. The Government observed that the applicant had been convicted of taking part in the extermination of J.A. and A.A. As partisans, the brothers were considered by the Soviet authorities, including the MGB (Ministry of State Security, Министерство государственной безопасности ), to be “bandits”, “illegals” or “bourgeois nationalists” who had to be liquidated. The Soviet regime sought to annihilate the culture, religion, language, politics and identity of the Lithuanian nation, with the aim of eliminating it as a group. The Court of Appeal had thus rightly concluded that J.A. and A.A. could not only be regarded as members of a political group (as the trial court had done), but also as belonging to two groups specifically protected by the Genocide Convention, namely, a national and an ethnic group. This approach had been confirmed by the Supreme Court and the Constitutional Court.
143. As to the applicant ’ s argument that the brothers, J.A. and A.A., could not be protected by the Genocide Convention as they had been members of the armed resistance, the Government referred to the close link between crimes against humanity and genocide. According to Professor Antonio Cassese, at least two sub-classes of crimes against humanity could be distinguished under the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (“the Nuremberg Principles”) : firstly, crimes committed against civilians within the framework of a widespread or systematic practice of gross violations of fundamental human rights; and, secondly, crimes of persecution against a particular group of persons, whether civilian or military, in pursuance of a discriminatory or persecutory policy or practice based on religious, racial, ethnic or political grounds ( A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002 ). The Government pointed out that this approach had subsequently been confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY), in particular, in Prosecutor v. Zoran Kupreskić et al. (see paragraph 111 above).
144. On the question of the applicant ’ s subjective guilt, the domestic courts emphasised that he had voluntarily joined the MGB and must be considered to have been well aware of the nature and methods of the totalitarian policy towards the Lithuanian nation. Accordingly, the applicant could have expected that he would be obliged to implement illegal orders (see K.-H.W. v. Germany [GC], no. 37201/97, § 74, ECHR 2001 ‑ II). In that context, Nuremberg Principle IV was of special relevance, as it clearly indicated that a person acting pursuant to an order of his government may not escape responsibility under international law, provided a moral choice was in fact possible to him (the Government referred to Penart v. Estonia (dec.), no. 14685/04, 24 January 2006, and Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I).
145. Lastly, the Government rejected the applicant ’ s allegation that the victims, brothers J.A. and A.A., had collaborated with the Nazis and therefore been legitimately executed. They also contested the applicant ’ s further allegation that at the time of their liquidation J.A. and A.A. could not have been considered to be partisans. They noted that both issues had been thoroughly examined by the domestic courts and dismissed as unsubstantiated.
146. In view of the foregoing, the Government concluded that the applicant ’ s conviction for genocide was based on international law at the relevant time. While the Constitutional Court ’ s ruling of 18 March 2014 held that the retroactive prosecution for genocide of a social or political group as such was unlawful, it also held that deliberate actions aimed at the destruction of certain social or political groups as a significant part of a national, ethnic, racial or religious group could be classified as genocide under universally recognised international-law norms in circumstances where the destruction of the groups had an impact on the survival of the entire protected group. The applicant had participated with intent in the implementation of the Soviet policy which aimed to exterminate the Lithuanian partisans who constituted a significant part of the Lithuanian national group. There was thus no violation of Article 7.
2. The submissions of the Russian Government, third-party intervener
147. The Russian Government noted that the present case was not the first time the Court had been called upon to rule on the issue of the compatibility of an applicant ’ s conviction in the Baltic States with the provisions of Article 7 of the Convention. The core of such cases was the prosecution of the applicants for acts that they allegedly committed in the 1940s and 1950s at the time when, according to the Russian Government, the Baltic States formed an integral part of the USSR (they referred to Kolk and Kislyiy, cited above; Kononov v. Latvia [GC], no. 36376/04, ECHR 2010; and Tess v. Latvia (dec.), no. 19363/05, 4 January 2008). They contended that in order to substantiate the “legitimacy” of the applicant ’ s conviction the Lithuanian Government had relied on a distorted historical description of “atrocities” by the Soviet government in the Baltic States. Furthermore, their observations were “supersaturated” with numerous questionable facts, which they adduced in an attempt to support their unfounded assertion that the Soviet authorities had perpetrated “genocide” and “crimes against humanity” in the Lithuanian Soviet Socialist Republic (“the LSSR”). The Russian Government objected to what they considered to be a blatant distortion of historical realities and the obvious intention of the Baltic governments to modify history in accordance with their own preferences at the expense of the people whose activities in the past did not correspond to the official point of view of the present-day national authorities.
148. The policies and legislation of the USSR were not aimed at the destruction or eradication of the Lithuanian nation. They had never been acknowledged as amounting to genocide in any authoritative international instruments. After the withdrawal of the German troops in 1944, parts of the local population refused to disarm and, instead, chose the path of military resistance to the Soviet army. These were mainly persons who had collaborated with the Nazis. The illegal armed groups were lawfully combated by the Soviet army and prosecuted by the Soviet government of the LSSR, which was the only internationally recognised authority on that territory after 1945. There was no specific intent on the part of the Soviet authorities or the applicant to destroy any of the constituent parts of Lithuanian society.
149. The Russian Government submitted that national authorities could opt to legalise a wider notion of genocide by adding other groups to those already protected by the Genocide Convention. However, actions that may have been targeted against these “newly protected groups” should not be exempt from the restrictions enshrined in Article 7 of the European Convention on Human Rights. Such actions may constitute a crime only if committed after the introduction of the expanded definition of genocide, unless they were already punishable under international law in force at the material time. As to political groups, these were excluded from the definition in Article II of the Genocide Convention. That definition has been repeated in subsequent international instruments.
150. They further observed that customary international law did not include political groups within the notion of genocide. A single mention of political groups in UN General Assembly Resolution 96 (I) in 1946 was not enough to disprove this. The fact that Raphael Lemkin, the scholar who first conceptualised the term and whom the Lithuanian Government extensively cited in their written submissions, considered that “genocide” meant “the destruction of a nation or of an ethnic group” was also relevant (R. Lemkin, Axis Rule in Occupied Europe, 1944, p. 79). There was no evidence that political groups were granted special protection by the general principles of law recognised by civilised nations in 1953. Moreover, political groups were not, and never had been, regarded as a protected category within the notion of genocide in the jurisprudence of the international tribunals.
151. Lastly, the applicant ’ s acts also lacked the relevant constituent elements of crimes against humanity, despite the Government ’ s assertion to the contrary. His acts were not aimed at the civilian population – brothers J.A. and A.A. were indeed members of an illegal armed group. The acts did not take place before or during the war. They were not committed in execution of or in connection with any crime provided for in the Nuremberg Charter. These charges had not been brought against the applicant by the national prosecution authorities.
152. In sum, the long-term consistency in international law and practice concerning the definition of genocide demonstrated the existence of a clear-cut and enduring consensus in the international community regarding the scope and exhaustive character of the list of protected groups. No wider approach to the definition of genocide than that in the Genocide Convention had ever been acknowledged on an international level. There were no relevant legal provisions as of 1953 which would have been sufficiently clear, accessible and foreseeable for the applicant to reasonably expect that his actions would entail criminal liability and to regulate his conduct accordingly. Therefore, there was no legal basis in national or international law for the applicant ’ s conviction and punishment.
153. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Kononov, cited above, § 185, and Del Río Prada v. Spain [GC], no. 42750/09, § 77, ECHR 2013).
154. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused ’ s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy. It follows from these principles that an offence must be clearly defined in the law, be it national or international. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts ’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. The Court has thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see Korbely v. Hungary [GC], no. 9174/02, § 70, ECHR 2008; Kononov, cited above, §§ 185 and 196; and Del Río Prada, cited above, § 91 ).
155. The Court reiterates that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial interpretation is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see S.W. v. the United Kingdom, 22 November 1995, § 36, Series A no. 335 ‑ B; C.R. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ C; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001 ‑ II; K. ‑ H.W. v. Germany, cited above, § 45; Jorgic v. Germany, no. 74613/01, § 101, ECHR 2007 ‑ III; and Kononov, cited above, § 185).
156. In Jorgic, there were two possible interpretations of the term “to destroy” in the definition of the crime of genocide and the Court examined the compatibility of the applicant ’ s conviction, on the basis of the wider interpretation (destruction of a distinct social unit as opposed to physical destruction), with Article 7 of the Convention. It stated that an interpretation of the scope of the offence which was consistent with the essence of that offence “must, as a rule, be considered as foreseeable”, although, exceptionally, an applicant could rely on a particular interpretation of the provision being taken by the domestic courts in the special circumstances of the case. The Court went on to examine whether there were special circumstances warranting the conclusion that the applicant, if necessary with legal advice, could have relied on a narrower interpretation of the scope of the crime of genocide by the domestic courts. The Court found that, while various authorities (international organisations, national and international courts as well as scholars and writers) had favoured both the wider and the narrower interpretations of the crime of genocide at the time of the impugned acts, Mr Jorgic, if need be with the assistance of a lawyer, could reasonably have foreseen the adoption in his case of the wider interpretation and, therefore, that he risked being charged with and convicted of genocide (see Jorgic, cited above, §§ 108-14).
157. The scope of the concept of foreseeability depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying out a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see Pessino v. France, no. 40403/02, § 33, 10 October 2006).
158. According to the general principles of law, defendants are not entitled to justify the conduct which has given rise to their conviction simply by showing that such conduct did in fact take place and therefore formed a practice. While this defence was not raised specifically by the applicant, the Court nevertheless considers it important to reiterate its previous finding in K.-H.W. v. Germany (cited above, § 75) to the effect that even a private soldier could not show total, blind obedience to orders which flagrantly infringed internationally recognised human rights, in particular the right to life, which is the supreme value in the hierarchy of human rights. A State practice of tolerating or encouraging certain acts that have been deemed criminal offences under national or international legal instruments and the sense of impunity which such a practice instils in the perpetrators of such acts does not prevent their being brought to justice and punished (see Streletz, Kessler and Krenz, cited above, §§ 74 and 77-79).
159. The Court reiterates that in the event of a change of State sovereignty over a territory or a change of political regime on a national territory, it is entirely legitimate for a State governed by the rule of law to bring criminal proceedings against those who have committed crimes under a former regime. The courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law (see Streletz, Kessler and Krenz, cited above, § 81, and Kononov, cited above, § 241). As well as the obligation on a State to prosecute drawn from the laws and customs of war, Article 2 of the Convention also enjoins the States to take appropriate steps to safeguard the lives of those within their jurisdiction and implies a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences which endanger life (see Kononov, cited above, § 241).
160. The Court also reiterates that, in principle, it is not its task to substitute itself for the domestic jurisdictions. Its duty, in accordance with Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. Given the subsidiary nature of the Convention system, it is not the Court ’ s function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Streletz, Kessler and Krenz, cited above, § 49, and Jorgic, cited above, § 102) and unless that domestic assessment is manifestly arbitrary (see Kononov, cited above, § 189). This is particularly the case where the domestic court assesses facts of some historical sensitivity, although the Court may accept certain well-known historical truths and base its reasoning on them (see Ždanoka v. Latvia [GC], no. 58278/00, § 96, ECHR 2006 ‑ IV ). This principle also applies where domestic law refers to rules of general international law or international agreements (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I, and Korbely, cited above, § 72) and where domestic courts apply principles of international law (see Kononov, cited above, § 196).
161. That being so, the Court nevertheless reiterates that its powers of review must be greater when the Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicant ’ s conviction and, in particular, it must satisfy itself that the result reached by the Lithuanian courts was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power of review to this Court would render Article 7 devoid of its purpose (ibid., § 198).
162. In sum, the Court ’ s function under Article 7 § 1 is to assess whether there was a sufficiently clear legal basis, having regard to the applicable law in 1953, for the applicant ’ s conviction (ibid., § 199). In particular, the Court will examine whether the applicant ’ s conviction for genocide was consistent with the essence of that offence and could reasonably have been foreseen by the applicant at the time of his participation in the operation of 2 January 1953 during which the two partisans, J.A. and A.A., were killed (see paragraph 25 above; see also Jorgic, cited above, § 103).
163. Before examining the merits of the applicant ’ s complaint, the Court will first address the factual dispute between the Government and the applicant, regarding the latter ’ s claim that at the time of their death the brothers, J.A. and A.A., were no longer partisans, which would preclude him being convicted for genocide of Lithuanian partisans as a group. Both during the court proceedings in Lithuania and in his submissions to the Court, the applicant submitted that J.A. and A.A. had been Nazi collaborators under German occupation, this claim being supported by the Russian Government, and that the brothers had stopped being partisans once the USSR had re-established its grip on Lithuania.
164. The Court observes that the domestic courts came to a clear finding on this part, having carefully considered all of the submissions. In the light of its constant case-law, the Court reiterates that it is not within its province to substitute its assessment of the facts for that of the domestic courts (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII, and Donohoe v. Ireland, no. 19165/08, § 73, 12 December 2013 ). The Court confirms that the question of the applicant ’ s criminal responsibility was primarily a matter for assessment by the domestic courts (see Streletz, Kessler and Krenz, cited above, § 51, and Kononov, cited above, § 187). It also considers that, in view of the complexity of the task of reconstructing the facts of the case more than fifty years after the events, the national courts were in a better position to assess all the available material and evidence. On this point the Court notes that the Court of Appeal gave thorough consideration to the applicant ’ s allegations. However, the court also had regard to the historical background, the special methods used by the resistance movement at the relevant time, and to the archive documents indicating the MGB ’ s orders to spread disinformation about the brothers, J.A. and A.A., in order to compromise their integrity or to prevent them joining other partisans. Following its thorough analysis, the Court of Appeal dismissed the applicant ’ s allegations as unfounded (see paragraph 37 above). That conclusion was fully endorsed by the Supreme Court (see paragraph 41 above). The Court sees no reason to depart from the domestic courts ’ conclusions which, moreover, were based on their direct knowledge of the national circumstances.
(c) Whether the applicant ’ s conviction for genocide was compatible with Article 7 of the Convention
165. The Court reiterates that the crime of genocide was introduced into Lithuanian law in 1992 (see paragraph 51 above). In 2001 the prosecutor charged the applicant with the genocide of Lithuanian partisans, as representatives of a political group, under Article 71 § 2 of the Criminal Code, as amended in 1998 (see paragraphs 29 and 52 above). By the time the trial court convicted the applicant of genocide in 2004, a new Criminal Code had come into force and the applicant was convicted under Article 99 of that new Criminal Code. The Court of Appeal and the Supreme Court upheld the applicant ’ s conviction on the basis of the same Article (see paragraphs 33, 36, 38 and 53 above).
166. The Court therefore considers it clear that the applicant ’ s conviction was based upon legal provisions that were not in force in 1953 and that such provisions were therefore applied retroactively. Accordingly, this would constitute a violation of Article 7 of the Convention unless it can be established that his conviction was based upon international law as it stood at the relevant time. The applicant ’ s conviction, in the Court ’ s view, must therefore be examined from that perspective (see, by converse implication, K.-H.W. v. Germany, cited above, § 50 ).
167. The Court notes that the USSR was a party to the London Agreement by which the Nuremberg Charter was enacted (see Kononov, cited above, §§ 116-17). Pursuant to Article 6 (c) of the Charter, extermination, deportation and other inhuman acts against any civilian population, including persecutions on political grounds, were defined as crimes against humanity. On 11 December 1946 the UN General Assembly condemned the crime of genocide by adopting Resolution 96 (I). The Genocide Convention, affirming the principles of international law recognised by that Resolution, was adopted unanimously by the UN General Assembly on 9 December 1948. The USSR signed the Genocide Convention on 16 December 1949. After twenty instruments of ratification or accession had been deposited, the Convention came into force on 12 January 1951. The Court further observes that in the Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ( ICJ Reports 1951) the International Court of Justice (ICJ) pointed out that the principles underlying the Genocide Convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation (see paragraph 80 above).
168. In view of the foregoing, the Court finds that the crime of genocide was clearly recognised as a crime under international law in 1953. It was codified in the 1948 Genocide Convention and, even before that date, it was acknowledged and condemned by the United Nations in 1946. In these circumstances the Court finds that instruments of international law prohibiting genocide were sufficiently accessible to the applicant.
169. In order to verify compliance with Article 7 in the present case, the Court must determine whether it was foreseeable under international law as it stood in 1953 that the act for which the applicant was convicted could be qualified as genocide (see paragraph 162 above).
(α) The definition of the crime of genocide as it stood in 1953
Article II of the Genocide Convention
170. The Court begins by noting that the crime of genocide prohibited by Article II of the Genocide Convention lists four protected groups of persons: national, ethnic, racial and religious. That provision does not refer to social or political groups. Furthermore, the travaux préparatoires disclose an intention by the drafters not to include political groups in the list of those protected by the Genocide Convention. The ICJ, when examining the drafting history of Article II of the Genocide Convention in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (( Bosnia and Herzegovina v. Serbia and Montenegro ), Judgment of 26 February 2007, ICJ Reports 2007 ), observed that the drafters of the Convention “gave close attention to the positive identification of groups with specific distinguishing characteristics in deciding which groups they would include and which (such as political groups) they would exclude” (see paragraph 105 above). The Court finds no convincing arguments for departing from the treaty definition of genocide as established in 1948, including the list of the four protected groups referred to therein. On the contrary, all references to the crime of genocide in subsequent international-law instruments – the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968, the ICTY Statute of 1993, the Statute of the International Criminal Tribunal for Rwanda (ICTR) of 1994, as well as in the most recent international-law instrument – the ICC Statute of 1998 – describe that crime in similar, if not identical, terms. In particular, genocide is defined as acts committed to destroy a national, ethnic, racial or religious group, without reference to political groups (see paragraphs 83 and 85-87 above). In the Court ’ s view, the fact that certain States decided later to criminalise genocide of a political group in their domestic laws (see paragraphs 36 and 38 above) does not, as such, alter the reality that the text of the Genocide Convention did not do so.
171. The Court turns to the question of whether the definition of genocide in the Convention existed alongside broader customary norms of international law, which could provide a valid basis for the applicant ’ s conviction for genocide.
172. It is clear from the Court ’ s earlier finding in relation to the accessibility of the offence that in 1953 genocide was already a crime under international customary law (see paragraph 168 above). The indictment of October 1945 before the Nuremberg International Military Tribunal, as well as certain prosecutors ’ oral submissions, charged the defendants with genocide, the significance of which is not necessarily undermined by the fact that the final judgment made no mention of the crime of genocide. UN General Assembly Resolution 96 (I) of 11 December 1946, adopted unanimously and without debate, affirmed the existence of the international crime of genocide. There followed several references in indictments to the crime of genocide, and convictions for crimes with genocidal purposes in the post-Nuremberg trials under Control Council Law no. 10 [9] as well as in the trials by the Supreme National Tribunal of Poland (1946-48) of Hoess and Greiser [10]. Article 1 of the Genocide Convention “confirmed” that genocide was a crime under international law. The ICJ later referred to Resolution 96 (I) and confirmed that the principles underlying the Genocide Convention were recognised by civilised nations as binding on States even without any conventional obligation (see paragraph 80 above).
173. However, as to whether the scope of the crime of genocide under customary international law could be said to be different and, notably, broader than the conventional definition, opinions appear divided.
174. Raphael Lemkin, who coined the term “genocide”, proposed a broad definition of the offence. In his 1944 book [11] he addressed crimes against national groups but accepted that genocide could comprise acts aimed at destroying the national group by destroying its political institutions, culture and livelihood. The later UN General Assembly Resolution 96 (I) called for the preparation of a genocide Convention to protect “racial, religious, political groups and other groups”. Certain authors considered that that Resolution reflects a customary jus cogens prohibition of genocide [12] while others have questioned this view [13]. Some authors were also of the view that the final list of groups to be protected by the Genocide Convention was the result of political expediency and not the result of a principled reflection based on some philosophical or other distinction between certain types of groups. [14] In the late 1940s some commentators also expressed concern that the exclusion of political and economic groups would mean that the Genocide Convention could not address acts committed by the Soviet authorities against property owners. [15] Other authors, however, disagreed that the exclusion of political groups was the result of Soviet pressure. [16]
175. Having regard to the factors outlined above, the Court finds that there are some arguments to the effect that political groups were protected by customary international law on genocide in 1953. However, there are equally strong contemporaneous countervailing views. At this juncture, the Court reiterates that notwithstanding those views favouring the inclusion of political groups in the definition of genocide, the scope of the codified definition of genocide remained narrower in the Genocide Convention and was retained in all subsequent international-law instruments (see paragraph 170 above). In sum, the Court finds that there is no sufficiently strong basis for finding that customary international law as it stood in 1953 included “political groups” among those falling within the definition of genocide.
Subsequent interpretations of the term “in part”, as used in Article II of the Genocide Convention
176. The Court next turns to the Government ’ s submission that because of their prominence the Lithuanian partisans were “part” of the national group, that is, a group protected by Article II of the Genocide Convention. In this connection, the Court notes that in 1953 there was no case-law by any international tribunal to provide a judicial interpretation of the definition of genocide. The travaux préparatoires to the Genocide Convention provide little guidance on what the drafters meant by the term “in part”. The early commentators of the Genocide Convention emphasised that the term “in part” contained a substantiality requirement (see paragraph 93 above). The Genocide Convention itself provides that the crime is characterised by an “intent to destroy, in whole or in part, ... [a] group, as such”, and the substantiality requirement is supported by Resolution 96 (I) according to which “[g]enocide is the denial of the right of existence of entire human groups”. Bearing in mind that the goal of the Genocide Convention was to deal with mass crimes, the ICTY noted the wide acknowledgment that the intention to destroy must target at least a substantial part of the group (see paragraph 98 above). The gravity of genocide is further reflected in the stringent requirements which must be satisfied before a conviction is imposed – the demanding proof of specific intent and demonstrating that the group was targeted for destruction in its entirety or in substantial part (see paragraph 106 above). The Court therefore considers it reasonable to find that in 1953 it was foreseeable that the term “in part” contained a requirement as to substantiality.
177. That said, however, the Court is mindful of subsequent developments in international case-law on the crime of genocide. Half a century after the events for which the applicant was convicted, judicial guidance as to the interpretation of the phrase “in part” emerged when cases concerning genocide were brought before the ICTY, ICTR and ICJ. In particular, as transpires from the case-law referred to in paragraphs 97 to 108 above, the intentional destruction of a “distinct” part of a protected group could be considered to be genocide of the entire protected group, provided that the “distinct” part was substantial because of the very large number of its members. Furthermore, in addition to the numerical size of the targeted part, judicial interpretation confirmed that its “prominence” within the protected group could also be a useful consideration. Be that as it may, this interpretation of the phrase “in part” could not have been foreseen by the applicant at the relevant time.
178. In sum, the Court finds that in 1953 international treaty law did not include a “political group” in the definition of genocide, nor can it be established with sufficient clarity that customary international law provided for a broader definition of genocide than that set out in Article II of the 1948 Genocide Convention.
(β) Was the domestic courts ’ interpretation of the applicant ’ s actions in accordance with the understanding of the concept of genocide as it stood in 1953?
179. 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 account 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).
180. For its part, the Constitutional Court also acknowledged that the organised armed resistance against Soviet occupation was to be regarded as self-defence of the State of Lithuania. The partisans had led the political and military national struggle for freedom.
181. The Court accepts that the domestic authorities have discretion to interpret the definition of genocide more broadly than that contained in the Genocide Convention. However, such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. The Court has already established that in 1953 political groups were excluded from the definition of genocide under international law (see paragraph 178 above). It follows that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant for the genocide of Lithuanian partisans, for being part of a political group (see also the Constitutional Court ’ s judgment, paragraph 60 above). Moreover, even if the international courts ’ subsequent interpretation of the term “in part” was available in 1953, there is no firm finding in the establishment of the facts by the domestic criminal courts to enable the Court to assess on which basis the domestic courts concluded that in 1953 the Lithuanian partisans constituted a significant part of the national group, in other words, a group protected under Article II of the Genocide Convention. That being so, the Court is not convinced that at the relevant time the applicant, even with the assistance of a lawyer, could have foreseen that the killing of the Lithuanian partisans could constitute the offence of genocide of Lithuanian nationals or of ethnic Lithuanians.
182. In addition, the Court notes that Article II of the Genocide Convention requires the perpetrator to act with intent to destroy a protected group in whole or in part. The applicant ’ s statements at the relevant time refer to action against “bandits”, the “nationalist underground” and “nationalist gangs” (see paragraphs 18 - 19 above). Moreover, the aims expressed at the MGB meetings in 1953 were directed against these groups. In the Court ’ s view, even if the MGB ’ s policy of extermination extended to “those who help them and their contacts”, the essential goal of this wider group of “Lithuanian nationalists” was to secure independence for the State of Lithuania (see, in this connection, paragraphs 13, 44 and 67 above). Indeed, as the prosecutor noted, and the appellate and cassation courts confirmed, the Lithuanian partisans were fighting against Soviet occupation and for the independence of the Lithuanian State (see paragraphs 29, 39-40 and 44 above). In the light of the above, the Court accepts that the applicant ’ s argument is not without weight, namely that his actions, and those of the MGB, were aimed at the extermination of the partisans as a separate and clearly identifiable group, characterised by its armed resistance to Soviet power.
183. The Court also notes that, in accordance with Article 31 § 1 of the Vienna Convention on the Law of Treaties, the ordinary meaning is to be given to the terms of the treaty. In this regard, it is not immediately obvious that the ordinary meaning of the terms “national” or “ethnic” in the Genocide Convention can be extended to cover partisans. Thus, the Court considers that the domestic courts ’ conclusion that the victims came within the definition of genocide as part of a protected group was an interpretation by analogy, to the applicant ’ s detriment, which rendered his conviction unforeseeable (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; see also Korbely, cited above, § 70).
184. On this last point, the Court also gives weight to the applicant ’ s argument that the definition of the crime of genocide in Lithuanian law not only had no basis in the wording of that offence as expressed in the Genocide Convention, but had also been gradually enlarged during the years of Lithuania ’ s independence, thus further aggravating his situation (see paragraphs 51 - 53 and 123 above). It has been pointed out by the Constitutional Court that to prosecute retroactively for the genocide of persons belonging to a political or social group, if the events took place before those two groups were added to the Criminal Code, would be against the rule of law and in breach of Lithuania ’ s obligations under international law (see paragraph 60 above). The Court cannot accept the argument by the Supreme Court that the 1998 amendments to the Criminal Code, expanding the definition of genocide to include “political groups”, could be justified on the basis of Article V of the Genocide Convention. While Article V of the Genocide Convention does not prohibit expanding the definition of genocide, it does not authorise the application of a broader definition of genocide retroactively (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 93, 17 September 2009, and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 66, ECHR 2013 ).
185. Consistently with the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro (cited above), the Court considers that the gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements – the proof of specific intent and the demonstration that the protected group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly (see paragraph 112 above). Noting the Lithuanian courts ’ arguments in the instant case, the Court is not persuaded that the applicant ’ s conviction for the crime of genocide could be regarded as consistent with the essence of that offence as defined in international law at the material time and thus could reasonably have been foreseen by him in 1953.
186. In the light of the foregoing, the Court takes the view that the applicant ’ s conviction for genocide could not have been foreseen at the time of the killing of the partisans.
(γ) Whether the applicant ’ s conviction could have been justified under Article 7 § 2 of the Convention
187. The Court notes the Government ’ s argument that the applicant ’ s acts at the relevant time were criminal according to the general principles of law recognised by civilised nations and thus come within the provisions of the second paragraph of Article 7 of the Convention.
188. The Court has to consider whether Article 7 § 2 is applicable to the applicant ’ s conviction. Although the Court has, on only one occasion, applied Article 7 § 2 in the context of post-Second World War and Soviet deportations (see Penart and Kolk and Kislyiy, both cited above ), the Grand Chamber in Kononov (cited above, § 186 ) noted the original and exceptional purpose of that paragraph:
“Lastly, the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see Tess v. Latvia (dec.), no. 34854/02, 12 December 2002). Having regard to the subject matter of the case and the reliance on the laws and customs of war as applied before and during the Second World War, the Court considers it relevant to observe that the travaux préparatoires to the Convention indicate that the purpose of the second paragraph of Article 7 was to specify that Article 7 did not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish, inter alia, war crimes so that Article 7 does not in any way aim to pass legal or moral judgment on those laws (see X. v. Belgium, no. 268/57, Commission decision of 20 July 1957, Yearbook 1, p. 241). ...”
189. More recently, this restrictive interpretation of Article 7 § 2 was confirmed in Maktouf and Damjanović (cited above, § 72):
“Furthermore, the Court is unable to agree with the Government ’ s argument that if an act was criminal under ‘ the general principles of law recognised by civilised nations ’ within the meaning of Article 7 § 2 of the Convention at the time when it was committed then the rule of non-retroactivity of crimes and punishments did not apply. This argument is inconsistent with the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war (see Kononov, cited above, § 186). It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity. Indeed, the Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see, for example, Tess v. Latvia (dec.), no. 34854/02, 12 December 2002, cited above, and Kononov, cited above, § 186).”
190. That being so, and taking into account the Court ’ s conclusion in paragraph 186 above that the applicant ’ s conviction could not be justified under Article 7 § 1 of the Convention, it cannot be justified under Article 7 § 2 either.
191. The Court holds that there has been a violation of Article 7 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
192. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
193. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.
He also claimed 53,173 Lithuanian litai ((LTL), approximately EUR 15,400) in respect of the pecuniary damage which he suffered because the Lithuanian courts had granted M.B. ’ s civil claim (see paragraph 45 above) and had also ordered him to pay M.B. ’ s legal costs. The applicant submitted invoices indicating that he had paid LTL 34,778 (approximately EUR 10,072) to M.B.
194. If the Court were to find a violation of Article 7 of the Convention, the Government considered that the sum of EUR 60,000 was excessive and unjustified. The applicant had participated in the killing of two partisans; he did not question that fact. Moreover, he was attempting to degrade the memory of those partisans and their fight for independence by submitting ill-founded accusations about the partisan brothers ’ alleged crimes against humanity during the Nazi occupation.
As to pecuniary damage, the Government submitted that, taking into account that the applicant had been required to pay the awarded compensation jointly, he could ask to be awarded only LTL 26,750 (of that sum, LTL 25,000 was half the amount awarded to M.B. in respect of non-pecuniary damage and LTL 1,750 was the half of M.B. ’ s legal costs that he had had to bear) or EUR 7,750.
195. While finding that the applicant is entitled to claim that he has suffered non-pecuniary damage, the Court considers, having regard to the very particular circumstances of the case, that such damage is sufficiently compensated by its finding of a violation of Article 7 of the Convention.
The Court awards the applicant EUR 10,072 in respect of pecuniary damage.
196. The applicant also claimed the sum of LTL 8,000 (approximately EUR 2,300) in relation to legal fees for the preparation of the submissions made by his lawyer to the Court. He also claimed EUR 2,000 for translation and postal expenses in connection with Court proceedings.
197. The Government argued that the lawyer ’ s fees were excessive. They also noted that only part of the applicant ’ s claim for translation fees was justified by supporting documents.
198. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in the Court ’ s possession and the above criteria, the Court considers it reasonable to award the claim in full, less the sum already paid under the Court ’ s legal-aid scheme (EUR 850). Consequently, the Court awards the final amount of EUR 2,450 in respect of the applicant ’ s costs and expenses before the Court.
199. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares, by a majority, the application admissible;