CEDH · CASELAW;CLIN;ENG — 12 mars 2019

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Lithuania - 28859/16 Judgment 12.3.2019 [Section IV] Article 7 Article 7-1 Nullum crimen sine lege Conviction for 1950s genocide of Lithuanian partisans following Supreme Court clarification of domestic case-law: no violation Facts – In its October 2015 judgment in the case of Vasiliauskas v.   Lithuania the Grand Chamber of the Court held that the applicant’s conviction for the crime of genocide could not be regarded as consistent with the essence of that offence as defined in international law at the material time and had not therefore been reasonably foreseeable by him. As such, there had been a violation of Article   7 of the Convention. The applicant in that case had been convicted under Article   99 of the new Lithuanian Criminal Code of the genocide of a political group in 1953 and had been sentenced to six years’ imprisonment. Unlike the Convention on the Prevention and Punishment of the Crime of Genocide 1948 , Article   99 included political groups among the range of protected groups. It was clear that international law in 1953 did not include “political groups” within the definition of genocide. The fact that certain States had later decided to criminalise genocide of a political group in their domestic laws did not alter the reality that the text of the 1948 Convention did not. Meanwhile, in March 2015 the applicant in the current case had been convicted for being an accessory to genocide under Article   99 for having taken part in an operation during which two Lithuanian partisans had been captured, one of whom had been tortured and executed. The prosecutor noted that both partisans had been members of the “Lithuanian armed resistance to the Soviet occupation” and members of a “separate national-ethnic-political group”. The applicant’s appeal was dismissed by the Court of Appeal. Subsequently, the Supreme Court considered the position under Lithuanian law in the light of the Vasiliauskas judgment and on 12   April 2016 upheld the lower courts’ decisions. The applicant complained that his conviction for genocide had been 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. Law – Article 7: The Government’s submissions were essentially confined to the issue of whether, in view of the Supreme Court’s ruling of 12   April 2016, the applicant’s situation in relation to his conviction for genocide had been in keeping with the requirements of Article   7 as those had been laid down in the Vasiliauskas judgment. In that connection, the Court had to first examine whether the lack of clarity in the domestic case-law had been dispelled, and if so whether the relevant requirements had been met in the applicant’s case. In its reasoning in the ruling of 12   April 2016, the Supreme Court had analysed the content of the Court’s judgment of October 2015. It had inferred from its reading of the latter judgment that the Court had found a violation of Article   7 on account of the fact that the Lithuanian courts had failed to adequately substantiate their conclusions that the Lithuanian partisans had constituted a significant part of a national group, that was, a group protected under the Genocide Convention. Such understanding of the Court’s judgment by the Supreme Court had also been confirmed by its subsequent ruling in the reopened Vasiliauskas case, where it had pointed out that during the initial proceedings against him the domestic courts had not provided sufficient argumentation to justify the partisans’ specific “mantle” with regard to the national group. In the light of the principles governing the execution of judgments, it was unnecessary for the Court to express a position on the validity of that interpretation by the Supreme Court. It was sufficient for the Court to satisfy itself that the judgment of 12   April 2016 had not distorted or misrepresented the judgment delivered by the Court. In the applicant’s case the Supreme Court had provided an extensive explanation, elaborating upon the elements constituting the “nation” as well as elements which had led to the conclusion that the Lithuanian partisans had constituted “a significant part of the Lithuanian nation as a national and ethnic group”. Among other things, the Supreme Court had noted that the Soviet repression had been targeted against the most active and prominent part of the Lithuanian nation, defined by the criteria of nationality and ethnicity. Those repressive acts had had the clear goal of creating an impact on the demographic situation of the Lithuanian nation. In turn, the members of the resistance – Lithuanian partisans, their liaison 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 had therefore held that such characteristics led to the conclusion that the partisans as a group had been 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 the Genocide Convention. The Supreme Court had therefore addressed the weakness identified by the Court in Vasiliauskas . Having regard to the principle of subsidiarity and to the wording of the Court’s 2015 judgment, the Supreme Court’s finding that the applicant had been guilty of genocide, the partisans being significant for the survival of the entire national group (the Lithuanian nation) as defined by ethnic features, had provided plentiful indication of the grounds on which it was based. Those grounds did not distort the findings of the Court’s judgment. On the contrary, that was a loyal interpretation of the Court’s judgment, taken in good faith in order to comply with Lithuania’s international obligations. Thus, the Supreme Court’s interpretation of the Court’s 2015 judgment was not, seen as a whole, the result of any manifest factual or legal error leading to the applicant’s unforeseeable conviction for genocide. In sum, the Supreme Court had drawn the necessary conclusions from the Vasiliauskas judgment and, by clarifying the domestic case-law, had addressed the cause of the Convention violation. The statutory obligation on the domestic courts to take into account the Supreme Court’s case-law provided an important safeguard for the future. The applicant’s conviction for genocide could be regarded as foreseeable. Conclusion : no violation (five votes to two). (See Vasiliauskas v. Lithuania [GC], 35343/05, 20   October 2015, Information Note 189 ; see also Hutchinson v.   the United Kingdom [GC], 57592/08, 17   January 2017, Information Note   203 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes