CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 mars 2019

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LITHUANIA   (Application no. 28859/16)                   JUDGMENT     STRASBOURG   12 March 2019     FINAL   09/09/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Drėlingas v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Péter Paczolay, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 29 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   28859/16) 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 Stanislovas Drėlingas (“the applicant”), on 18   May 2016. 2.     The Lithuanian Government (“the Government”) were represented by their Agent, Ms K.   Bubnytė-Širmenė. 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.     On 29   January 2018 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1931 and lives in Utena. A.     Historical background 6.     The historical background is summarised in Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 11-14, ECHR 2015. B.     The partisans A.R.   “Vanagas” and B.M.   “Vanda” 1.     A.R. “Vanagas” 7.     Adolfas Ramanauskas, code name “Vanagas” (hereinafter – also A.R. “Vanagas”), was born in 1918 in the United States of America. In 1921 his family returned to Lithuania. He was a teacher. 8 .     As established by the domestic courts, A.R. “Vanagas” became a participant in the armed resistance against the Soviet occupation, a Lithuanian partisan, on 25   June   1945. Initially, he led a partisan squad, later he became a commander of a partisan battalion, then commander of a brigade, and from October   1948 he was the commander of the south Lithuania region. In 1949 an all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania ( Lietuvos laisvės kovos sajūdis (“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”. That year, in the assembly of partisan commanders of the whole of Lithuania, A.R. “Vanagas” was appointed first deputy of the Chairman of the Presidium of the LLKS ( Lietuvos laisvės kovos sajūdžio tarybos prezidiumo pirmininko pavaduotojas ). Later that year he was also elected commander in chief of the defence forces of the LLKS. In 1951 A.R. “Vanagas” became chairman of the LLKS Council. 9.     In 1956 he was captured and tortured, and in 1957 sentenced to death and shot (see also paragraphs 20-31 below). 10.     After restoration of Lithuania’s independence in 1990, by a ruling of 19   March 1991 A.R.   “Vanagas” was rehabilitated by the Supreme Court. 11 .     In 1997 “Vanagas” was posthumously recognised as a participant in the armed resistance to the Soviet occupation and granted volunteer serviceman status. 12.     In 1998 and 1999 he posthumously received the military rank of brigadier general, and was granted the State decorations. 13.     On 16 October 2003 the Seimas granted to A.R. “Vanagas”, as a person who had signed the declaration of the LLKS of 16 February 1949, the status of signatory to the act of independence of Lithuania. 14 .     The Seimas, inter alia, having regard to the fact that on 6 March 2018 it was 100 years since the birth of A.R. “Vanagas”, emphasising the importance of the partisan movement fighting against the Soviet occupation, seeking to give due respect to that historic personality for the Lithuanian nation, proclaimed the year 2018 as the year of Adolfas Ramanauskas “Vanagas”. 15 .     On 20   November 2018 the Seimas also declared the leader of the partisans A.R. “Vanagas” the head of the Lithuanian State which had fought the Soviet occupation. His remains were discovered the same year and he received State funeral. 2.     B.M.   “Vanda” 16 .     Birutė Mažeikaitė, code name “Vanda” (hereinafter – also B.M.   “Vanda”), was born in 1924. From 1945 she was a liaison person ( ryšininkė ) of the partisans of the Dainava Region, and was later a partisan in that region. She was A.R. “Vanagas” wife. 17.     In 1956 she was captured, and in 1957 sentenced to deportation (see also paragraphs 20-32 below). 18.     She was rehabilitated on 18   September 1989 by the Supreme Court of the Lithuanian SSR. 19.     In 1998 B.M.   “Vanda” was recognised as a participant in the armed resistance to the Soviet occupation. C.     The applicant’s career at the MGB/KGB and his conviction for genocide 1.     The applicant’s status within the MGB/KGB of the Lithuanian SSR 20 .   As established by the domestic courts, for two years from March 1950 the applicant had studied at the Lithuanian SSR (hereinafter – the LSSR) Ministry of State Security (MGB) School in Vilnius. Upon graduation from that establishment in 1952, he was granted the military rank of officer-lieutenant, and joined the 2-N Board of the LSSR MGB, the main function of which was the fight against the national resistance movement. In particular, the division where the applicant worked was tasked with carrying out surveillance of the members and leadership of the Lithuanian underground movement. From 1952 the applicant was also a member of the USSR Communist Party. 21.     At the time of arrest of A.R. “Vanagas” and B.B. “Vanda” in 1956, the applicant was a senior operative officer at the KGB (successor to the MGB; see paragraph   24 of the Supreme Court’s ruling in paragraph   51 below and paragraph 54 below), and had the rank of senior lieutenant. 2.     The operation to capture partisans A.R.   “Vanagas” and B.M.   “Vanda” 22 .     According to a report of 18 October 1956 by the Chairman of the KGB of the Lithuanian SSR to the Chairman of the KGB of the USSR, which was relied on during the criminal proceedings against the applicant, from 1945 A.R. “Vanagas” had been an active participant in the “bourgeois” “national underground”. The report also noted the role of A.R.   “Vanagas” in the LLKS, where he had eventually been declared the chief commander of the defence forces and had been granted the military rank of general (also see paragraph 8 above). Notwithstanding the fact that A.R. “Vanagas” had been in hiding with his wife B.M. “Vanda”, he retained that rank until the day of his capture. 23.     The report also stated that following the plan for “liquidating the remaining banditry in the Republic ( banditizmo likučių Respublikoje likvidavimas )” set by the KGB of the USSR, “particular attention” and “paramount importance” had been given to the search for and capture of A.R.   “Vanagas”. The report noted that in 1950-53 some of the “bandit gangs” had been liquidated. Nonetheless, A.R. “Vanagas” and his wife had succeeded in avoiding capture by moving within Lithuanian territory. A special operative group from among the qualified Chekists of the KGB was therefore established to work continuously in the search for A.R.   “Vanagas”. In 1956 alone, a total of thirty agents were recruited to pursue A.R.   “Vanagas” and his family. Places where it was possible A.R.   “Vanagas” and his wife would show up in the towns of Kaunas and Merkinė were covered by reliable and qualified agents; in other places where he might also appear active measures, including cooperation with the armed forces of the Ministry of the Interior, were employed so that A.R.   “Vanagas” could not set up a new hideout. 24.     The report also stated that on 11   October 1956 one of the agents, “Ž”, alerted the security services that A.R. “Vanagas” and his wife B.M.   “Vanda” would be staying at his home in Kaunas overnight. The same day operation was then planned for their capture. 25 .     The plan specified that two detention groups were composed to effect the seizure: the first group, consisting of six operative agents and led by mayor J.O., was to be in a car approximately 200 metres from “Ž”‘s house in Kampo Street; the second group, consisting of six operative agents and led by mayor N.D., was to be in another car in Algirdo Street, approximately 300   metres from that house. As later established by the trial court, the applicant was included in the second detention group (see paragraph   38 below). Radio contact between the two detention groups and surveillance of the house as well as surrounding objects (railway tracks, bridges, and so on) was to be assured. The plan also stipulated that either group could arrest A.R. “Vanagas” and B.M. “Vanda”; it only depended which street they chose to walk into. The plan also stipulated that further instructions to the agents who were to take part in that operation would be given by the deputies to the LSSR KGB Chairman. 26.     According to the KGB documents, on 12   October 1956 at about 8.30   a.m., A.R. “Vanagas” and B.M. “Vanda” left “Ž”‘s house in Kaunas. They walked on to Kampas Street, where they were seized by the KGB officers. They were carrying two pistols and two seals inscribed “LLKS Presidium” and “LLKS Military Headquarters ( LLKS ginkluotųjų pajėgų štabas )”, forged passports, and other documents. After the arrest, A.R. “Vanagas” and B.M. “Vanda” were transported to Vilnius, where at about 2 p.m. they were detained in the prison of the KGB of the Lithuanian SSR in Vilnius. 27 .     On 15   October 1956 the head of the KGB of the Lithuanian SSR wrote a special report to the Chairman of the LSSR Communist Party to the effect that now that A.R.   “Vanagas” had been captured “the liquidation of the commanders of Lithuania’s bourgeois nationalist banditry formations was complete”. 28 .     The report of 18   October 1956 (see paragraph   22 above) also concluded that “having arrested the last leader of the Lithuanian nationalist underground [A.]R., the liquidation of the former heads of the Lithuanian bourgeois nationalist banditry formations was totally completed”. 29 .     As detailed in a medical report of 15 October 1956 by the doctors at the KGB hospital in Vilnius, A.R. “Vanagas” was taken to that hospital at 4:30 p.m. on 12   October 1956 in a particularly grave condition. He was unconscious, his blood pressure was barely felt; he had muscle tremors. Upon medical examination it was established that A.R. “Vanagas” had six stab wounds to his right eye socket, wounds in his stomach, a wide wound from a tearing on his scrotum; both his testicles were gone. He was given a blood transfusion and thus stabilised, and he was operated on. The doctors noted that if his health allowed A.R. “Vanagas” could be interrogated after two or three weeks. 30.     In the KGB decision of 13   October 1956 on the detention of “Vanagas” it was, inter alia, stated that by nationality he was Lithuanian, and he also belonged to “Lithuanian bourgeois nationalists”. The decision underlined the specific, active and leading role of A.R.   “Vanagas” in the partisan movement. The decision also noted that in 1946-47 A.R.   “Vanagas” took an active part in the publication of the anti-Soviet newspapers Bell of Freedom ( Laisvės varpas ) and Voice of Freedom ( Laisvės balsas ). 31 .     On 24-25   September 1957 the Supreme Court of the Lithuanian SSR found A.R.   “Vanagas” guilty of counter-revolutionary crime and treason against the “Motherland” and sentenced to death. He was shot on 29   November 1957 in Vilnius. 32 .     By a decision of the Supreme Court of the LSSR of 8   May 1957, B.M. “Vanda” was sentenced to eight years’ imprisonment. She was deported to the Soviet Gulags in Kemerovo region, in Siberia, in what is now the Russian Federation. 3.     The applicant’s conviction for genocide (a)     The criminal proceedings against the applicant 33 .     After Lithuania regained its independence, on 13   June 2014 the applicant was charged with being an accessory to genocide, in accordance with Articles   24 §   6 and 99 of the Criminal Code (see paragraph 58 below), for having taken part in the operation of 11-12   October 1956 during which A.R. “Vanagas” was captured, and subsequently tortured, sentenced to death and executed, and B.M. “Vanda” was captured and afterwards sentenced to deportation. The prosecutor noted that both partisans were members of the “Lithuanian armed resistance to the Soviet occupation” and members of a “separate national-ethnic-political group”. (b)     The trial court’s judgment 34.     By a judgment of 12   March 2015 the Kaunas Regional Court found the applicant guilty of being an accessory to genocide under Article   99 of the Lithuanian Criminal Code. It held that on 11 and 12   October 1956 the applicant had taken part in an operation during which one of the most prominent leaders of the Lithuanian partisans, who was also the chairman of the all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania, A.R.   “Vanagas”, was captured together with his wife, B.M.   “Vanda”, who was also a partisan. Afterwards, A.R.   “Vanagas” was detained in a KGB prison, tortured nearly to death, sentenced, and executed (see paragraphs   29 and 31 above); B.M.   “Vanda” was sentenced to deportation (see paragraph 32 above). 35.     Referring at length to the Lithuanian Constitutional Court ruling of 18   March 2014 (see paragraph 59 below; other relevant extracts from that ruling are reproduced in Vasiliauskas , cited above, §§   56-63), the trial court pointed out that, in cases where the intention was to exterminate part of a protected group, that part should be sufficiently significant to have an impact on the survival of the entire protected group (see paragraph   59 below). The trial court underlined that Lithuanian partisans were also representatives of the Lithuanian nation ( lietuvių tauta ), and therefore representatives of a national group. It noted that Soviet genocide had been perpetrated precisely in accordance with the inhabitants’ “national” criterion. In the case at hand, given their background, to which the court also gave particular consideration (see paragraphs 8 and 16 above), A.R.   “Vanagas” and B.M. “Vanda”, as active participants in the resistance to the Soviet occupation, “had been important for the survival of the entire national group (the Lithuanian nation), defined by ethnic characteristics, given that armed resistance to the occupation obstructed the Soviet occupation authorities in carrying out deportations or taking other repressive measures against Lithuanian civilians”. Relying on the aforementioned Constitutional Court ruling, the trial court also noted that the applicant “had served in the MGB/KGB unit, the main task of which was the elimination of part of Lithuania’s population – members of the armed resistance to the Soviet occupation, belonging to a separate national-ethnic-political group, and which had an impact on the survival of the national-ethnic group”. 36.     The trial court held that by having taken part in the aforesaid operation the applicant had committed genocide of Lithuanian partisans, who constituted a “national ‑ ethnic ‑ political group”. Article   99   of the Criminal Code could thus be applied retroactively. The court also noted that four of the protected groups listed in that Article (national, ethnic, racial and religious) coincided with those protected under international law norms. 37 .     On the facts of the case the trial court also rejected the applicant’s arguments that he could not be held liable for the fate of A.R.   “Vanagas” and B.M.   “Vanda” since he had not personally arrested them, nor had he been involved in the sentencing of A.R.   “Vanagas” or the deportation of B.M. “Vanda”. The court noted that from 1952 the applicant had worked as an operational agent of the MGB. Furthermore, on 12   October 1956 he had been not a simple member of that repressive organisation, but an officer of senior rank. Accordingly, “he perfectly well understood one of the core goals of that repressive structure of that period in occupied Lithuania – to finally physically eliminate the members of the organised Lithuanian national resistance to the Soviet occupation – Lithuanian partisans, their contacts and supporters”. Moreover, the applicant had served in the MGB/KGB voluntarily, and had not been forced by anyone. From his earlier experience in that service “he had clearly known that such a high-ranking participant in the Lithuanian national resistance to the occupational regime as A.R.   “Vanagas” and his spouse B.M. “Vanda” without doubt would be physically eliminated or deported, since this was the practice of the repressive structures in Lithuania at that time, and was applied not only to those representing resistance to the occupying Soviet regime, but even to those individuals who had nothing to do with the resistance”. 38 .     The trial court also noted that the applicant had taken part in the impugned “particularly professionally organised and very much clandestine” operation for the capture of A.R. “Vanagas” and his spouse B.M. “Vanda” of his own free will. Although the applicant did not apprehend them personally, he took actions which assisted in their arrest. It was also clear that apart from the members of the group that personally arrested A.R. “Vanagas” and B.M. “Vanda”, other individuals, including the applicant, also took actions which aided the arrest. Without those other persons’ participation in the operation – such as those who had betrayed the two partisans, and those who had followed them and blocked neighbouring streets, yards or bridges so that they could not escape, the arrest would not have been successful. Furthermore, according to the archive materials, the applicant was a member of the reserve group for the arrest, whose role according to the plan was analogous to the role of those who actually had arrested A.R.   “Vanagas” and B.M.   “Vanda”. It was only because A.R.   “Vanagas” and B.M. “Vanda” chose to walk on to the street where the applicant’s arrest group was not positioned that meant it was the first arrest group which captured the two partisans (see paragraph   25 above). Accordingly, the applicant’s role in that operation had still been an important one. 39 .     In that context the trial court also rejected the applicant’s line of defence that he had not even been present in the operation in Kaunas, because he had already arrived at the KGB headquarters in Vilnius, where all the participants in that operation had gathered in its wake, in service uniform instead of plain clothes, and that he had therefore been excluded from taking part in that operation. The trial court pointed out that every action in a repressive organisation such as the KGB was painstakingly regulated and documented. Had the applicant in reality arrived in service uniform, this would have been evaluated as a gross breach of his duties and, without a doubt, would have been recorded in the KGB documents. On the contrary, after the operation the KGB placed even more confidence in him, and he was entrusted with the guard of A.R.   “Vanagas” at the KGB hospital and visiting him in prison, a right which was not vouchsafed to other participants in that operation. 40.     Having taken into account the applicant’s advanced age and the fact that the crime had been committed more than fifty years previously, the trial court considered that the minimum sanction – deprivation of liberty in a correctional home for a period of five years – was appropriate. The court noted that although the applicant’s health was weak, it was not so fragile that he could not serve a sentence involving deprivation of liberty. He began serving the sentence. (c)     The Court of Appeal 41.     On 10   July 2015 the Court of Appeal dismissed an appeal by the applicant and upheld his conviction for genocide under Article   99 of the Criminal Code. Relying on the Constitutional Court ruling of 18 March 2014, the Court of Appeal emphasised the Lithuanian partisans’ role during the Lithuanian inhabitants’ resistance to the Soviet occupation. It underscored that the Lithuanian partisans had been significant for the survival of the entire national group (the Lithuanian nation) defined by ethnic characteristics, given that the partisans obstructed the Soviet repressive structures designed to facilitate deportation and other forms of persecution of civilians in Lithuania. The partisans accordingly fell within a “separate national-ethnic-political group”. 42.     The Court of Appeal also underlined that both A.R.   “Vanagas” and B.M. “Vanda” had been active participants in the resistance to the Soviet occupation. In fact, A.R.   “Vanagas” had been one of its leaders (the court referred to his service history, see paragraphs 8–15 above, and Lithuanian legislation as to the status of volunteer soldiers). Accordingly, the repressive structures’ actions against them could be considered as targeted against a “significant part of a national-ethnic-political group”. This was also proved by the fact that their capture had been declared by the KGB as the end of the “liquidation of former bourgeois nationalist banditry formations” (see paragraphs 27 and 28 above). Although the active resistance ended in 1953, A.R.   “Vanagas” and B.M. “Vanda” were searched for by the Soviet authorities even after this. The domestic court paid attention to documents from the relevant time which showed that a particular commitment was made to ensuring the capture of A.R. “Vanagas” in pursuance of the plan for liquidation of the Lithuanian partisans. In his testimony the applicant confessed that at the time he was aware of A.R.   “Vanagas”, that the latter was leader of the partisan movement, and that he was in hiding. Accordingly, the mere fact that A.R.   “Vanagas” and B.M. “Vanda” had succeeded in hiding from repression, not only during the partisan war but until their capture in 1956, was not an impediment to qualifying the applicant’s actions as genocide. 43 .     As to the applicant’s guilt, the appellate court also found that he, having studied at the MGB school and joined that service of his own free will, understood at the time the special goal of the Soviet totalitarian policy, which was to physically exterminate those participating in the Lithuanian national resistance to the Soviet occupation regime – the Lithuanian partisans − “so that the basis of the Lithuanian civil nation ( pilietinė tauta ) would be destroyed”. Accordingly, when briefed on 11   October 1956 about the operation for the arrest of A.R.   “Vanagas” and B.M.   “Vanda”, the applicant must have understood the danger of his actions, comprehended what was the intended result of that operation, and sought that outcome (the death and deportation of those arrested). In that context, the fact that A.R.   “Vanagas” and B.M. “Vanda” were not killed during the operation in which they were captured did not refute the special aim of exterminating the “national-ethnic-political group”, namely the Lithuanian partisans. Nor had that aim been negated by the fact that afterwards the applicant was not responsible for deciding the means, namely issuing a death sentence or a sentence of deprivation of liberty, by which that goal would be achieved. 44 .     The Court of Appeal also rejected the applicant’s claim that during the impugned operation he had been at the KGB headquarters in Kaunas and had not been in the street where the operation took place, and thus had not taken part in the operation for the capture of A.R.   “Vanagas” and B.M.   “Vanda”. This was proved by the archive documents, a witness statement, and the applicant’s own testimony given during the pre-trial investigation. Lastly, the Court of Appeal rejected the applicant’s argument that, when arrested on 12   October 1956, A.R.   “Vanagas” had attempted to commit suicide. The injuries, such as those noted in the medical expert report (see paragraph   29 above), could not have been self-inflicted. (d)     The Supreme Court 45.     At the applicant’s request, on 18   January 2016 the Supreme Court suspended the execution of his sentence and ordered that he be released from the correctional home until the merits of his appeal on points of law had been examined by the Supreme Court. 46 .     By a final ruling of 12   April 2016, the Supreme Court, sitting in a plenary session formation ( plenarinė sesija ) of seventeen judges, upheld the lower courts’ decisions as regards the applicant being guilty of genocide. However, it amended the lower courts’ decisions by reducing the applicant’s sentence to five months’ deprivation of liberty, which meant that by that time he had already served his sentence. 47.     Relying, among other sources, on the Court’s judgment in Vasiliauskas (cited above), the Supreme Court firstly established that in 1956, at the time of commission of the act by the applicant, genocide was recognised as a crime under international law. Given the applicant’s background in MGB/KGB, the international legal instruments prohibiting genocide (as well as complicity in committing genocide) and providing for criminal liability for genocide must have been known to him. (i)     Regarding the elements of the crime of genocide and the application of Article 99 of the Criminal Code 48 .     As to the definition of genocide in Lithuanian law and its compatibility with the principle of rule of law, the Supreme Court recapitulated: “11. When defining the crime of genocide in Article 99 of the Criminal Code, in addition to national, ethnic, racial and religious groups, social and political groups, that is, the two groups which were not provided for when defining the crime of genocide under the universally recognised norms of international law have been included. The Constitutional Court of the Republic of Lithuania has pointed out in the Ruling of 18 March 2014 that ‘<...> the inclusion of social and political groups into the definition of genocide in Article 99 of the Criminal Code <...> was determined by a concrete legal and historical context – the international crimes committed by the occupation regimes in the Republic of Lithuania’. The Constitutional Court, inter alia , concluded that the legal regulation established in Article 99 of the Criminal Code and a broader interpretation of the crime of genocide does not conflict with the Constitution. On the other hand, the Constitutional Court has held that paragraph 3 of Article 3 of the Criminal Code ..., in so far as this paragraph establishes the legal regulation under which a person may be brought to trial under Article 99 of the Criminal Code for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group (thus, the establishment of the retroactive effect of Article 99 of the Criminal Code for the actions which are classified as genocide only under the norms of national law) was in conflict with Article 31 §4 of the Constitution and the constitutional principle of a State under the rule of law.” 49 .     The Supreme Court also gave particular consideration to the Court’s judgment in Vasiliauskas (cited above) , and held: “12. In the context of the cassation case at issue, the judgment rendered by the Grand Chamber of the European Court of Human Rights on 20 October 2015, after the decisions disputed in the given proceedings, in the case Vasiliauskas v. Lithuania (application no. 35343/05) is relevant. The Court held that there has been a violation of Article 7 ( nullum crimen sine lege ) of the Convention for the Protection of Human Rights and Fundamental Freedoms by the conviction of the applicant under Article 99 of the Criminal Code for the genocide of a political group of the Lithuanian population – participation in the killing of two Lithuanian partisans in 1953. The Court, inter alia , found that in 1953 international treaty law did not include a ‘political group’ in the definition of genocide, nor could 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 ( Vasiliauskas v. Lithuania , §   178). In examining whether the interpretation of the actions of V.   Vasiliauskas provided by the Lithuanian courts in the case of the applicant V. Vasiliauskas conformed to the concept of the notion of genocide as it stood in 1953, the Court, inter alia , noted that authorities have discretion to interpret the definition of genocide more broadly than that contained in the 1948 Genocide Convention. However, such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. Considering the fact that in 1953 political groups were excluded from the definition of genocide under international law, the [Court] held that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting, the applicant of genocide of Lithuanian partisans, as members of a political group.   It also follows from the judgment of the [Court] in the case of Vasiliauskas v. Lithuania that the Grand Chamber held that the Lithuanian courts had failed to adequately substantiate their conclusions in the judgments rendered in the criminal case of V. Vasiliauskas that the Lithuanian partisans constituted a significant part of the national group, that is, a group protected under Article II of the Genocide Convention.” 50 .     On the question of attribution of A.R. “Vanagas” and B.M. “Vanda” to a significant part of a “separate national-ethnic-political group”, and the twofold concept of the nation, the Supreme Court held: “13. It has been mentioned that in the criminal case at issue S.D. has been convicted of aiding representatives of the Soviet occupational power to commit genocidal acts against A.R. and B.M. as ‘members of a distinct national-ethnic-political group, namely one engaging in armed resistance to the Soviet occupation’. The appellate court noted that Lithuanian partisans – members of the armed resistance to the occupational power – are attributed to a ‘separate national-ethnic-political group’ and assessed the unlawful actions directed against A.R. and B.M. by the repressive structures of the occupational power as directed towards a significant ‘part of the national-ethnic-political group’. Thus, the courts described partisans as a national- ethnic-political group. According to the law, where at least one element of a national or ethnic or political group (or a part thereof) under extermination is identified, that is a sufficient basis (also in the presence of other constitutive elements of genocide) to apply Article 99 of the Criminal Code. The above-referred characteristics of a group (or a part thereof) exterminated by genocide have an autonomous alternative meaning of a constitutive element of corpus delicti .   Thus, S.D. has been convicted of aiding in the commission of genocide against the persons belonging to the national, ethnic and political group. A political group is not on the list of groups protected by the Genocide Convention. However, that does not make the application of criminal liability to S.D. for genocide unjustified. Criminal actions directed at the extermination of persons belonging to any group protected under the Convention are deemed to be genocide. The courts have held that A.R. and B.M., as members of the resistance to the Soviet occupation who belonged to a political group, were also members of the groups of individuals protected under the Genocide Convention – a national and an ethnic group – therefore, where genocide against any of these groups is discovered, this constitutes a basis for the application of criminal liability. It should be noted that the factual circumstance identified by the courts, namely the affiliation of A.R. and B.M. to a political group, Lithuanian partisans, is relevant in disclosing the essence of the criminal offence and historically may not be assessed separately from the assessment of a national and ethnic group as a characteristic.” “18. It should be noted in the context of the case at issue that the definition of a national and an ethnic group should be linked with the concept of a nation, the understanding whereof is twofold ... The first meaning is related to the notion of ethnicity or an ethnic group, and means a historically developed community – an ethnic nation with common ethnic, cultural characteristics (origin, language, self-awareness, territory, ethnopsychology, traditions, and so on). Thus, an ethnic group is a community of persons with a common origin, language, culture, and self-identity. The other meaning of a nation pertains to the notion of nation (Latin natio ) or a modern nation to which, as a formation, the attributes of statehood, nationalism and citizenship are characteristic. Therefore, a nation may be defined as a community of people historically formed on the basis of a common language, territory, socioeconomic life, culture and national self-identity, with a common national, political and economic perspective. Thus, a national group means a historically developed community of people belonging to a certain nation, formed on the basis of language, territory, socioeconomic life, culture, national self-identity and other common characteristics. Individuals belonging to both a national and an ethnic group may be interrelated, and a complete delimitation of such groups as a separate formation in the crime of genocide is not always possible.” 51 .     As to the international legal and historical context in 1940-56 and the national resistance to the Soviet repression the Supreme Court expounded: “20. In the context of the proceedings at issue, it is highly important to consider the international legal and historical circumstances of the period between 1940 and 1956, as well as the scope (massive scale) of the national resistance to the occupying power and the scale of repression of the Soviet occupying power against the Lithuanian population.   21. As is generally known, on 15 June 1940 an act of aggression was carried out by the USSR against the Republic of Lithuania, namely the invasion of the Soviet armed forces into the territory of the Republic of Lithuania and the occupation of the territory of the Republic of Lithuania. Continuing its aggression, the USSR carried out the annexation of the territory of the Republic of Lithuania on 3 August 1940. In June 1941 the Republic of Lithuania was occupied by the German Reich: the latter occupation began on 22 June 1941 when Germany attacked the Soviet Union and ended in 1944–45 after the USSR had reoccupied the territory of the Republic of Lithuania. The second Soviet occupation continued until 11 March 1990, when the independence of the Republic of Lithuania was restored.   22. After the Soviet Union occupied Lithuania, its residents suffered mass acts of repression that violated fundamental human rights to life, health, freedom and dignity... [The Supreme Court then cited passages from the ruling of 18 March 2014 of the Constitutional Court about the scale of repressions, see Vasiliauskas , cited above, §   62]. 23. The occupants used the most brutal methods of fighting: they destroyed the farmsteads of partisan families and their supporters with mortar fire, publicly disfigured dead bodies in public squares of towns and villages, and arranged provocations by hitmen agents ... Repression was also applied against the families of participants in the resistance and their supporters: their property (farms) was confiscated, and their families were exiled en masse . On the basis of resolutions of the Council of Ministers of the USSR, the largest deportations of Lithuanians were carried out in 1948-51. The first two deportations (in May 1948 and March-April 1949) were officially directed against the families of known partisans and persons in hiding, partisans who had been killed, and convicted persons, also against the participants in the resistance: in May 1948 more than 40,000 residents (around 11,000 families) were deported from Lithuania, and in March–April 1949 more than 32,000 people (around 10,000 families)...   24. The main bodies of the Soviet occupational power that carried out repressive acts in the suppression of the Lithuanian national resistance against occupants from 1944 were the relevant structures of the People’s Commissariat for Internal Affairs and the People’s Commissariat for State Security (NKVD and NKGB) of the LSSR; from 1946, the people’s commissariats were renamed ministries (the Ministry of Internal Affairs (MVD) and the Ministry of State Security (MGB)), which became from 1954 the State Security Department of the LSSR (KGB), there were also internal security units of the USSR NKVD-MVD-MGB, special “extermination” squads ( stribai ) and other repressive bodies. By the Law of 16 July 1998 “On the Assessment of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Current Activities of the Staff Members of this Organisation”, the Seimas of the Republic of Lithuania recognised the NKVD, NKGB, MGB, KGB as a criminal organisation which had committed war crimes, genocide, acts of repression, terror and political persecution in the Republic of Lithuania occupied by the USSR.   25. The annihilation of the participants in the armed national resistance, namely Lithuanian partisans, their connections and supporters, by the occupying power and its repressive bodies, was systematic, consistent, based on a clear methodology and instructions. It has been mentioned that the acts of repression were directed against the most active and advanced part of the Lithuanian nation as a national, ethnic group. Such extermination had the clear aim of influencing the demographic changes of the Lithuanian nation and its very survival, as well as at facilitating the sovietisation of the occupied Lithuania. The extermination of the resistance participants not only meant the elimination of obstacles to the objectives of the occupying regime; it also had another purpose, namely to intimidate the residents of Lithuania by showing what destiny awaited those who refused to obey the occupying power.   It should be noted that Resolution No   1481 of 25   January 2006 of the Parliamentary Assembly of the Council of Europe ‘On the Need for International Condemnation of Crimes of Totalitarian Communist Regimes’ stated that the communist regimes justified massive violations of human rights and crimes against them in the name of the class struggle theory and the principle of dictatorship of the proletariat; they legitimised the elimination of people who were considered harmful to the construction of a new society and as such enemies of the regime, and a vast number of victims in every country concerned were its ethnic residents.” 52 .     As to the partisans’ role specifically, the Supreme Court stated: “26. When the Soviet Union occupied Lithuania for the second time, tens of thousands of Lithuanian residents joined the struggle against the occupants. In 1944-45, about 30,000 armed men joined forces in the forests. ... The majority chose armed struggle consciously and were committed to fighting until the restoration of an independent Lithuanian State... Partisan groups regulated their activities with statutes and rules. Those who joined the partisans took an oath. Partisans wore military uniforms with distinctive signs. The ten years of resistance, also known as the Lithuanian War or the resistance or partisan war, is exceptional in the history of Lithuania from several aspects: its duration (almost ten years), universality (during the entire period there were at least 50,000 active members of the armed resistance and about 100,000 others who participated in the resistance as members of underground organisations and supporters), and the unequal balance of power which was unfavourable to the Lithuanian partisans .... On 10-20 February 1949 an assembly of Lithuania’s partisan commanders took place; this brought together the units of the anti-Soviet resistance into one organisation, namely the Movement of the Struggle for the Freedom of Lithuania (LLKS). This organisation, under the leadership of General Jonas Žemaitis–Vytautas, adopted military-political documents proclaiming the LLKS as the organisation which was leading the political and military liberation struggle of the nation and represented the ideals of independent Lithuania in the occupied country. During the assembly, on 16 February 1949, a political declaration was adopted, whereby the restoration of the independent parliamentary Republic of Lithuania was declared the final goal of the partisan movement’s struggle. 27. According to the laws of the Republic of Lithuania ... ‘[d]uring the occupation period, the LLKS Council [was] the supreme political body of the nation, in charge of the political and military fight for the liberation of the nation’)... 29. People of different status participated in the national armed resistance, mostly Lithuanians by nationality; they were united by a common goal, namely to restore the independence of Lithuania. The resistance was supported and the occupation was also resisted in other ways by a large part of the Lithuanian nation. As mentioned, according to the data available not less than 50,000 people participated actively in the armed resistance that lasted for a decade, and the whole resistance movement involved around 100,000 residents of Lithuania, as members of underground organisations and supporters; around 20,000 Lithuanian partisans and their supporters were killed in total during the resistance. It should be noted that according to the data of the Department of Statistics of Lithuania, in 1945 the population of Lithuania was 2.5 million ..., and there were approximately 2.3 million residents in 1951 .... Although the numbers who participated in the resistance and suffered from the repression are undoubtedly high, they should be considered not only by “quantitative” criterion but also in the context of the overall scale of the repression, including massive deportations of civilians. It has been mentioned that the acts of repression by the Soviet power were also directed against the family members of partisans and their connections and supporters, who were also incarcerated, deported or killed: [in this way,] it was also aimed at the extermination of a large part of the Lithuanian nation, a national, ethnic group. Thus, the total number of victim participants in the resistance – Lithuanian partisans, their connections and supporters, who were killed or suffered repression of other kinds, is significant both in absolute terms and considering the size of the total population of Lithuania at that time. 30. It has been mentioned that armed participants in the resistance, Lithuanian partisans, who had the support of Lithuanian residents, were putting into practice the right of the nation to self-defence against occupation and aggression. The armed resistance obstructed the Soviet occupational structures in carrying out their deportations, exiles, and other repressive measures against Lithuanian civilians. In this way the participants in the resistance not only really sought to ensure the survival of the nation (by defending it) but also embodied that survival. The leadership of Lithuanian partisans was the supreme political and military power, represented abroad by the Supreme Committee for the Liberation of Lithuania (Preamble of the Law of the Republic of Lithuania on the Status of Participants in Resistance against the Occupations of 1940-90 ....” 53 .     Regarding the role of A.R. “Vanagas” and B.M. “Vanda” in the national resistance movement, the Supreme Court reiterated the lower courts’ findings of fact (see paragraph 8 above). It also held: “31. ... The courts established in the proceedings that A.R. and B.M. were active participants in the armed resistance against the Soviet occupation, and A.R. was also one of the leaders of this resistance . Lithuanian partisans, as a separate political group, were sign