CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sB5688C0F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s6ED1B729 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .sA3DA653D { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s6088A1B { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 29 January 2018   FOURTH SECTION Applications nos. 28859/16 and 58905/16 Stanislovas DRĖLINGAS against Lithuania and Vytautas VASILIAUSKAS against Lithuania lodged on 18 May 2016 and 5 August 2015 respectively STATEMENT OF FACTS The applicant in the first case, Mr Stanislovas Drėlingas (hereinafter “the first applicant”), is a Lithuanian national who was born in 1931 and lives in Utena. The applicant in the second case, Mr   Vytautas Vasiliauskas (hereinafter “the second applicant”), was a Lithuanian national. He died on 7 November 2015, after having lodged this application with the Court on 5 August 2015. He is represented before the Court by Mr Š.   Vilčinskas, a lawyer practising in Vilnius. In a letter which the Court received on 4 November 2016, the second applicant’s lawyer informed the Court that Mr   V.   Vasiliauskas’ wife and daughter were supporting his application after his death. The lawyer also provided a letter of authority to that effect, signed by both Mr   V.   Vasiliauskas’ wife and daughter. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Application no.   28859/16, lodged by Mr   Stanislovas Drėlingas (the first applicant) (a)     The trial court’s judgment By a judgment of 12 March 2015 the Kaunas Regional Court convicted the first applicant of genocide, under Article 99 of the Lithuanian Criminal Code, as in force from 1   May 2003. The trial court established that as of 1952 the first applicant had worked as an operational agent of the MGB (Ministry of State Security, Ministerstvo Gosudarstvenoj Bezopastnosti ), a Soviet repressive structure tasked with suppressing the resistance to the Soviet occupation (for the historical context see Vasiliauskas v. Lithuania [GC], no.   35343/05, §§ 11-14, ECHR 2015). The Kaunas Regional Court also established that on 11 and 12 October 1956 the first applicant had taken part in the 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 ( Lietuvos laisvės kovos sajūdis (the “LKKS”)), A.   R.   “Vanagas”   −   had been captured together with his wife, B.   M.   “Vanda”, who was also a partisan. Afterwards, A.R.   “Vanagas” was detained in the MGB prison in Vilnius and tortured nearly to death. In September 1957 the Supreme Court of the Lithuanian Soviet Socialist Republic (hereinafter the “LSSR”) sentenced him to the death penalty, and he was executed on 29   November 1957. As to B.M.   “Vanda”, in a judgment of December 1957 the Supreme Court of the LSSR sentenced her to eight years’ exile, and she was deported to Kemerovo district, in Siberia, Russia. The Kaunas Regional Court held that, by virtue of having taken part in the aforementioned operation, the first applicant had committed the genocide of Lithuanian partisans, who constituted a “national ‑ ethnic ‑ political group”. The trial court underlined that Lithuanian partisans were also representatives of the Lithuanian nation, and therefore representatives of a national group. It noted that Soviet genocide had been perpetrated in accordance with the “national criterion” of the inhabitants. The trial court also pointed out that on 18   March 2014 the Lithuanian Constitutional Court concluded that Article 99 of the Criminal Code   ‒   insofar as it established that actions by which it had been sought to physically exterminate all or part of persons belonging to a national, ethnic, social or political group ‒ was not in breach of the Constitution. The trial court also noted that, in cases where the intention was to exterminate a part of a protected group, that part should be sufficiently significant to have an impact on the survival of the entire protected group. It considered that, in the case at hand, A.R. “Vanagas” and B.M. “Vanda” had been active participants in the armed resistance to the Soviet occupation, and that therefore their extermination and deportation, respectively, had been properly classified as genocide   –   the physical elimination of part of the Lithuanian inhabitants, belonging to the “national-ethnic-political group”. The trial court also considered that participants in resistance such as A.R.   “Vanagas” and B.M. “Vanda” “had been important for the survival of the entire national group (the Lithuanian nation), defined by ethnic characteristics, because 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’s ruling, the trial court also held that since the first applicant “had served in the MGB 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”, Article 99 of the Criminal Code could be applied retroactively. Having taken into account the first 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 ( pataisos namai ) for a period of five years   –   was appropriate. The court noted that although the first applicant’s health was weak, it was not so fragile that he could not serve a sentence involving deprivation of liberty. (b)     The Court of Appeal On 10 July 2015 the Court of Appeal dismissed the first applicant’s appeal and upheld his conviction of genocide, under Article 99 of the Criminal Code. The court emphasised the Lithuanian partisans’ role during the Lithuanian inhabitants’ resistance to the Soviet occupation. It pointed out that the Lithuanian partisans, as a separate political group, 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 the deportation and other forms of persecution of civilians in Lithuania. That being so, the partisans fell within a “separate national-ethnic-political group”. The appellate court also held that the first applicant had understood the special goal of the Soviet policy 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”. The fact that A.R. “Vanagas” and B.M. “Vanda” had not been killed during the operation when they had been apprehended did not refute the special aim of exterminating the “national-ethnic-political group”, namely the Lithuanian partisans. Nor had that aim been refuted by the fact that afterwards the first applicant was not responsible for deciding the means by which – issuing a death sentence or issuing a deprivation of liberty or deportation sentence – that goal would be achieved. (c)     The Supreme Court At the first 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. By a final ruling of 12 April 2016, the Supreme Court, sitting in a plenary session formation ( plenarinė sesija ) of seventeen judges, amended the lower courts’ decisions by reducing the first applicant’s sentence to five months’ deprivation of liberty, which meant that he had already served his sentence by that time. Regarding the first applicant’s conviction of genocide under Article 99 of the Lithuanian Criminal Code, the Supreme Court established that, by 1956   −   when the crime was committed   −   the first applicant had already been working in the MGB for some years. He had been not a low-ranking operational agent of that repressive organisation but had held the military rank of a senior lieutenant and had also worked at the MGB unit tasked with suppressing national resistance. The first applicant had also had been a member of the USSR Communist party. All that proved that he had been aware of the repressive policy of the USSR aimed at the physical extermination of the Lithuanian partisans, their contacts and their supporters, as members of a national and ethnic group. The Supreme Court then gave particular consideration to the Court’s conclusion in the judgment of Vasiliauskas v. Lithuania (cited above, §   179), in which it found that, when convicting Mr   V.   Vasiliauskas of genocide, the domestic courts had not explained or given much of a historical or factual account of how the Lithuanian partisans had represented the Lithuanian nation, so that they could be considered to constitute a significant part of the national group, that is to say a group which was protected under Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter   –   the Genocide Convention). For that reason, in the first applicant’s case the Supreme Court provided an extensive explanation, elaborating upon the elements which had led to the conclusion that the Lithuanian partisans had been “a significant part of the Lithuanian nation as a national and ethnic group”. Among other things, the Supreme Court noted that the Soviet repression had been targeted against the most active and prominent part of the Lithuanian nation ( lietuvių tauta ), defined by the criteria of nationality and ethnicity. Such extermination had a clear goal to have an impact on the demographic situation of the Lithuanian nation. In turn, the members of the resistance   ‑ Lithuanian partisans, their contact persons and their supporters   −   had represented a significant part of the Lithuanian population, as a national and ethnic group, because the partisans had played an essential role when protecting the national identity, culture and national self ‑ awareness of the Lithuanian nation. The Supreme Court therefore held that such characteristics led to the conclusion that partisans, as a group, were a significant part of a protected   –   national and ethnic   –   group, and that their extermination had therefore constituted genocide, both under Article   99 of the Criminal Code, and under Article II of the Genocide Convention. Lastly, the Supreme Court noted that the fact that the applicant had taken part in an operation in 1956, after active armed resistance to the Soviet occupation was over (as noted by the Constitutional Court, such active armed resistance took place between 1944 and 1953), had no bearing on the classification of his actions as genocide. Actions could qualify as genocide even if they had not been committed during one single period. In the first applicant’s case, it was paramount that his and the MGB’s actions had been prompted by one single goal, namely to physically exterminate all or part of the persons belonging to a protected group. The case-file documents showed that the Soviet authorities’ goal of completely eliminating the leadership and members of the national resistance had remained in place even after the period of their active resistance was over. In this connection it was also pertinent that A.R. “Vanagas” had been one of the leaders of the national resistance, that more than forty MGB agents had been involved in the efforts to capture him, and that it was only after several years of searching that the MGB succeeded in apprehending him. After that operation the MGB had declared that with the capture of A.R.”Vanagas”, “the liquidation of the Lithuanian bourgeois nationalists’ leaders” had been terminated. 2.     Application no.   58905/16, lodged by Mr   Vytautas Vasiliauskas (the second applicant) (a)     The second applicant’s conviction of genocide in respect of the partisan J.B. “Nemiras” (i)     The trial court’s judgment By a judgment of 9 June 2011, the Kaunas Regional Court convicted the second applicant of genocide, under Article 99 of the Lithuanian Criminal Code. The court established that the second applicant   −   who as of 1952 had been an operational agent with the LSSR MGB   −   had taken part in the operation on 23 and 24   June 1953 during which a Lithuanian partisan J.B.   “Nemiras” had been captured. In July 1953 that partisan had been sentenced to twenty-five years’ deprivation of liberty, and in August 1953 he had been deported to Siberia. The trial court also established that by taking part in the aforementioned operation the second applicant had been aware of the fact that the aim of that operation had been to physically eliminate the partisans as part of the Lithuanian population, belonging to a separate “national-ethnic-political group”. The trial court also took into account the fact that the second applicant had already been convicted of the genocide of other two partisans   ‑ brothers J.A. and A.A. (see Vasiliauskas , cited above, paragraph   25 et seq.)   −   and that he was in poor health, and therefore considered that a punishment milder than the minimum five-year term of imprisonment set out in Article   99 of the Criminal Code could be imposed on him. The trial court thus convicted the second applicant to four years’ imprisonment, but exempted him from serving the sentence on health grounds. (ii)     The appellate court’s ruling At a certain point, the Court of Appeal suspended the criminal case in respect of the second applicant and asked the Constitutional Court to rule on the issue of whether Article 99 of the Criminal Code was in compliance with the Constitution. The Constitutional Court delivered a ruling on 18   March 2014 (the relevant extracts from that ruling are reproduced in the Court’s judgment in Vasiliauskas , cited above, §§   56-63). By a ruling of 13   June 2014 the Court of Appeal upheld the second applicant’s conviction of genocide, on the basis of Article 99 of the Criminal Code. The appellate court pointed out that the second applicant had served in the MGB unit, the main task of which was “to exterminate part of the Lithuanian population – participants in the organised armed resistance to the Soviet occupation, belonging to a separate national ‑ ethnic ‑ political group, which had an impact on the survival of the national-ethnic group”. The Court of Appeal also pointed out that the members of the resistance, as a group, had been significant for the survival of the entire national group (the Lithuanian nation) defined by the criterion of ethnicity, because armed resistance to the occupation had impeded the Soviet authorities in carrying out deportations or taking other repressive measures against the civilian population in Lithuania. (iii)     The proceedings before the Supreme Court On 31   July 2014 the second applicant lodged an appeal on points of law with the Supreme Court. Hearings took place at the Supreme Court on 19   January and 24   February 2015. The second applicant argued, among other things, that the appellate court had failed to properly take into account the Constitutional Court’s conclusion that the genocide of persons belonging to a social or political group could not be punished retroactively. On that point, the second applicant submitted that the trial and appellate courts had simply convoluted the “national”, “ethnic” and “political” groups and the partisans’ attribution to them without having properly explained why the second applicant’s actions had amounted to each element of the crime of genocide, and also notwithstanding the Constitutional Court’s conclusion that such an explanation was a prerequisite. The second applicant asserted that during the time when Lithuania was occupied by Nazi Germany in 1941, J.B.   “Nemiras” had been a policeman who had persecuted the Jews, but had become a partisan when the Soviet forces returned to Lithuania in 1944. The second applicant maintained that that showed how volatile J.B. “Nemiras” had been, and supported the view that political and social groups had not been included among those protected by Article II of the Genocide Convention because those two groups lacked stability. By a ruling of 24 February 2015 the Supreme Court dismissed the second applicant’s appeal on points of law as unfounded. The Supreme Court considered that the content of the lower courts’ decisions allowed the conclusion that J.B. “Nemiras” had belonged to the armed resistance against the Soviet occupation, a political group, and that at the same time he had been a representative of the Lithuanian nation, a national group. The Supreme Court also noted that the second applicant had known the Soviet authorities’ goal of eliminating the “bandits”, as the partisans had been called by those authorities. The Supreme Court thus concluded that the second applicant had taken part in actions which were intended to “physically exterminate Lithuanian partisans   –   members of the armed resistance to the Soviet occupation, belonging to a political group”. For the Supreme Court, the Court of Appeal   −   in interpreting and applying Article   99 of the Criminal Code   −   had not deviated from the interpretation of the Constitutional Court given in its ruling of 18 March 2014. (b)     The reopening of the second applicant’s criminal case, in which he was convicted of the genocide of the partisan brothers J.A. and A.A. The second applicant died on 7 November 2015, three weeks after on 20   October 2015 the Court had delivered judgment in the case regarding his conviction for the genocide of the partisan brothers J.A. and A.A. The Court held that there had been a violation of Article 7 of the Convention, because the second applicant’s conviction of genocide had not been foreseeable. On the basis of a request by the second applicant’s heirs   –   his wife and his daughter   −   and having taken account of the Court’s judgment, by a ruling of 5   May 2016 the Supreme Court reopened the criminal proceedings regarding the second applicant’s conviction of genocide of the two partisan brothers. Subsequently, in a final ruling of 27 October 2016, the plenary session of the Supreme Court (seventeen judges) pointed out that in its judgment of 12   April 2016 in the first applicant’s case (see above) the Supreme Court had already provided extensive answers to the question why the Lithuanian partisans, their contact persons and their supporters had constituted a significant part of the Lithuanian nation, as a national and ethnic group. The arguments in that previous ruling also allowed the conclusion that the partisans’ extermination could be considered as genocide, both under Article 99 of the Criminal Code and under international law. The Supreme Court also considered that, although the Court’s Grand Chamber had doubts as to whether partisans could be treated as part of a protected national or ethnic group (the Supreme Court referred to paragraphs 179 and 181-185 of the Court’s judgment in Vasiliauskas ), on the basis of the Grand Chamber’s arguments the Supreme Court considered that those doubts were chiefly prompted by the fact that the Lithuanian courts had not provided a wider historical and factual account as to how the Lithuanian partisans had represented the Lithuanian nation, and that their role (“the partisans’ specific mantle”) with regard to the “national” group had not been interpreted. The Supreme Court considered that “the Grand Chamber’s statements about the connection between the concepts “national group” and “the Lithuanian partisans” had been given in a form of an opinion ( Didžiosios kolegijos teiginiai dėl ryšio tarp sąvokų „nacionalinė grupė“ ir „Lietuvos partizanai“ pateikt[i] nuomonės forma )”, and that they did not provide a sufficient basis for a departure from the Constitutional Court’s interpretation and a change in the Lithuanian courts’ case-law on this issue. The Supreme Court confirmed that the Lithuanian courts’ position, according to which “the Lithuanian partisans constituted a significant part of the Lithuanian nation, as a part of a national and ethnic group ( Lietuvos partizanai buvo reikšminga lietuvių tautos, kaip nacionalinės, etninės grupės, dalis )”   −   notwithstanding the doubts ( abejonės ) expressed in the Court’s judgment   −   remained valid ( išlieka aktuali ) and that this position would continue to be used when the courts were evaluating the Soviet authorities’ actions against participants in the resistance during the relevant period. Turning to the second applicant’s conviction of the genocide of the partisan brothers J.A. and A.A., on the basis of the letter and the content of the trial, and the appellate and cassation courts’ decisions, the Supreme Court however established that the second applicant “had been retroactively charged with and convicted of the genocide of part of the population of Lithuania, which belonged precisely to a separate political group ( teismų priimtų sprendimų turinys rodo, kad V.   Vasiliauskas buvo retrospektyviai kaltinamas ir nuteistas už Lietuvos gyventojų dalies, priklausiusios būtent atskirai politinei grupei, genocidą )”. The Supreme Court also highlighted that although the Court of Appeal held, when finding the second applicant guilty, that the attribution of the Lithuanian partisans to a political group “in essence was only relative/conditional and not very precise”, and that “the members of this group had at the same time been representatives of the Lithuanian nation, that is, the national group” (see Vasiliauskas , cited above, §   36), its argumentation, which was only couple of sentences long, was clearly insufficient to justify the conclusion that V.   Vasiliauskas had been charged and convicted on precisely such charges (that is to say, on charges of the genocide of a national group), and that therefore during the criminal proceedings he had not been in the position of knowing the nature of that criminal charge and being able to defend himself against it effectively. The Supreme Court thus considered that the second applicant’s conviction of the genocide of the partisan brothers J.A. and A.A. had been in breach of Article 7 of the Convention and Article 31 § 4 of the Constitution, which states that punishment may be imposed or applied only on grounds established by law. Such a breach could have been remedied only by amending the criminal charges, but that had been impossible because the second applicant had died. It followed that the court decisions in the second applicant’s case, in which he had been found guilty of the genocide of the partisan brothers J.A. and A.A., had to be quashed, and the criminal case had to be discontinued on the basis that the accused had died. Lastly, the Supreme Court noted that M.Ž., who had been convicted along with V. Vasiliauskas in that previous criminal case, had also died in the meantime. B.     Relevant domestic law and practice For the relevant domestic law and practice see Vasiliauskas v. Lithuania (cited above, §§   48-69). C.     Relevant international and comparative law and practice For the international and comparative law and practice see Vasiliauskas (cited above, §§   75-113). COMPLAINTS The first applicant complains that he was convicted of genocide in breach of Article 7 of the Convention. He contends, among other things, that by 1953 the partisan movement in Lithuania had been suppressed, and that it had therefore been unreasonable to find him guilty of the genocide of the Lithuanian partisans. In the first applicant’s view, and for the same reason that in 1956 the partisan movement had no longer been active and as many as 2,000,000 Lithuanians were living in Lithuania at that time, it was also unjustified to consider that A.R. “Vanagas” and B.M. “Vanda” constituted a significant part of the protected national group under Article II of the Genocide Convention. The first applicant also asserts that his role in the operation targeting the two partisans’ capture had been too insignificant to attract criminal liability for genocide. Lastly, he considers that he was retroactively convicted of the crime of genocide on the basis of Article 99 of the Criminal Code, which did not have a basis in the wording of that offence as laid down in public international law. The second applicant likewise complains that he was convicted of the crime of genocide in breach of Article 7 of the Convention. He disagrees that his taking part in the operation during which partisan J.B. “Nemiras” was apprehended had amounted to genocide. The second applicant asserts that J.B. “Nemiras” could not have been a victim of genocide because he had committed crimes during the Nazi occupation, and also because he had later been a participant in the armed organised resistance to the Soviet occupation, which circumstances the Lithuanian courts failed to properly take into account. The second applicant also points to the fact that, as underlined by the Constitutional Court, retroactive prosecution for the genocide of persons belonging to a political or social group is not possible. Accordingly, after the Constitutional Court’s ruling, the Court of Appeal and the Supreme Court should have reconsidered what remained in the criminal charges against him, because the trial court had used the term “genocide of a political-ethnic-national group”, which was an unjustified assimilation of all three concepts. Furthermore, the criminal court decisions were silent on the issue of how Lithuanian ethnicity, religion or race had manifested itself in J.B.’s “Nemiras” case. In other words, the violation of Article 7 of the Convention had been twofold: firstly due to the fact that the second applicant had been charged with and convicted of the crime of genocide as it had not been defined in international law, which fact also had been pointed out by the Constitutional Court, and, secondly, on account of the fact that the interpretation of the crime of genocide as including social and political groups remained in the court decisions finding the second applicant guilty. And finally, as an additional aggravation, the Court of Appeal and the Supreme Court had failed to differentiate between the protected groups in their decisions.   QUESTIONS TO THE PARTIES 1.     Did the acts of which both of the applicants had been convicted constitute the criminal offence of genocide under national or international law at the time when they were committed, as provided for by Article 7 of the Convention (see Vasiliauskas v. Lithuania [GC], no.   35343/05, §§   165 ‑ 178, ECHR 2015)?   2.     Was the Lithuanian courts’ interpretation of the applicants’ actions in accordance with the understanding of the concept of genocide as it stood in international law in the 1950s? Was the applicants’ conviction of the offence of genocide in breach of the principle of nullum crimen, nulla poena sine lege and thus of Article 7 of the Convention (ibid., §§   154 and   179 ‑ 186)?   The Government are requested to provide a copy of the translation, into one of the Court’s official languages, of the Supreme Court’s ruling of 12   April 2016 in the first applicant’s case.