CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 20 octobre 2015

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LITHUANIA   (Application no. 35343/05)                   JUDGMENT     STRASBOURG   20 October 2015           This judgment is final. In the case of Vasiliauskas v. Lithuania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Josep Casadevall,   Guido Raimondi,   Mark Villiger,   Isabelle Berro,   Işıl Karakaş,   Ineta Ziemele,   Khanlar Hajiyev,   Dragoljub Popović,   András Sajó,   Ann Power-Forde,   Nebojša Vučinić,   Paulo Pinto de Albuquerque,   André Potocki,   Ksenija Turković,   Egidijus Kūris,   Jon Fridrik Kjølbro, judges , and Erik Fribergh, Registrar , Having deliberated in private on 4 June 2014 and 2 July 2015, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 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 Government Ms   K.   Bubnytė , Ministry of Justice,   Acting Agent , Ms   L. Urbaitė, Ministry of Justice,   Counsel , Mr   W.A. S chabas , Middlesex University,   Counsel , (b)     for the applicant Mr   Š. V ilčinskas   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. THE FACTS 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 (a)     The bill of indictment 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 1945. 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. B.     The crime of genocide 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. Article 1 “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.” Article 2 “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 i