The Plenary Session of the Supreme Court of Lithuania (SCL) adopted on April 12, 2016, the final ruling in a case in which a former KGB officer, Stanislovas Drėlingas, was accused of being an accomplice in genocide, and sentenced for this crime both by the trial court and the appeals court.

Drėlingas was prosecuted for his participation in a KGB operation that resulted in the capture of one of the last leaders of the Lithuanian partisan resistance to the Soviet rule. The active resistance to the Soviet occupation in Lithuania was crushed in 1953, and no large stale repressions were implemented by the Soviet authorities since the death of Stalin the same year, but some of the partisans remained in hiding. One of the leaders of partisans Adolfas Ramanauskas and his wife Birutė Mažeikaitė were living with forged documents for about three years, when they were taken by the KGB in the mentioned operation. Allegedly, Adolfas Ramanauskas was subsequently tortured, and in the next year he was sentenced to death by the Supreme Court of the Lithuanian Soviet Socialist Republic. Adolfas Ramanauskas was sentenced for the killing of soviet citizens during his time as a leader of the partisans, whom the soviet authorities did not consider as lawful combatants. His wife was sentenced to eight years in prison, of which she served two years.

Drėlingas, although an officer of the KGB, was not the leader of the operation, and he was not found to be among those who arrested the former partisans; neither was he charged with torture or other inhumane acts. He was indicted and sentenced for genocide of Lithuanian partisans, part of “national-ethnic-political group.”

On April 12, the plenary session of the Supreme Court of Lithuania, composed of 17 judges of the criminal law division of the court, unanimously upheld the previous judgment, that Drėlingas was guilty as a participant in the genocide directed at Lithuanian partisans, a separate political group, who were held to have been a substantial part of Lithuanian nation or ethnic Lithuanians, thus a protected by the Genocide Convention of 1948.

The court held that:

„The participants in the struggle against occupation – Lithuanian partisans, their liaisons and supporters – were a significant part of the Lithuanian nation – national, ethnic group. This part of the national, ethnic group had a substantial impact on the survival of the Lithuanian nation, was very important in that it protected and defended the national Lithuanian identity, culture and national self-awareness. These features conform to the previously described features of the part of the protected group of the Article II of the Genocide Convention and the destruction of the persons belonging to that group both according to the international law, and according to the Criminal Code, are to be considered genocide. Therefore the conclusions of the courts, that Adolfas Ramanauskas and Birutė Mažeikaitė, as Lithuanian partisans, were, according to the Genocide Convention, members of the protected national, ethnic group, against which the occupational authorities directed its actions in attempt to destroy part of that group.”

When evaluating the mens rea aspect of the crime of genocide and the responsibility of the accused, the court held that the accused new about the repressive actions of KGB against the partisans and about the purpose of KGB to physically destroy the members of the national resistance movement.

„Therefore S. Drėlingas, by working in the LSSR security structures, helped to implement the policy against the inhabitants of Lithuania. The above mentioned circumstances allow for a conclusion, that international legal documents forbidding genocide (as well as participation in genocide) were known to the accused in 1956, and the qualification of extermination of Lithuanian partisans, as a significant part of Lithuanian nation – the protected national, ethnic group, as genocide could have reasonably been foreseen by him.”

Although the Supreme Court of Lithuania upheld the judgment of the trial court and the ruling of the Court of Appeals, it reduced the 6-year sentence to the time already served by Stanislovas Drėlingas, consisting of about 6 months of imprisonment, arguing that the purpose of the punishment could not be achieved by a longer sentence.

Although the news of the confirmation of the verdict for the crime of genocide was widely reported in the press of Lithuania, not a single news outlet took note of the fact that in this ruling the Supreme Court of Lithuania has ignored the jurisprudence of the European Court of Human rights, in particular, the case Vasiliauskas v. Lithuania, which the Grand Chamber adopted on October 20, 2015.

As I mentioned before, this was done with surprising unity (not one of the 17 judges did express a separate opinion on the question). And, in my opinion, after adoption of this ruling Lithuania finds itself violating the Article 7 of the European Convention of Human Rights in exactly the same way as it did when Vytautas Vasiliauskas was sentenced about 12 years ago.

What is even more surprising and disturbing, is that the Supreme Court, while mentioning the ECHR judgment in case Vasiliauskas v. Lithuania, presented only very partial and biased review of the judgment. Let us look at this aspect of the ruling in more detail.

References of the ECtHR case Vasiliauskas v. Lithuania in the ruling of the Supreme Court

In its ruling, the Supreme Court of Lithuania, referred to the Vasiliauskas case as a significant precedent and source of law in a few places, and then presented the part of judgment directly related to the case of Drėlingas:

„12. In the context of this cassation case a significant judgment of the Grand Chamber of the European Court of Human Rights in a case Vasiliauskas v. Lithuania (petition No. 35343/05) was adopted after the decisions of courts in this case, on October 20, 2015. In that case a violation of the article 7 of the Convention (nullum crimen sine lege) was found due to the conviction of the petitioner based on the article 99 of the Criminal Code for genocide of a political group of Lithuanian inhabitants – participation in 1953 in killing of two Lithuanian partisans. Besides other things ECHR noted that it cannot be asserted with enough clarity, that the international customary law had a wider definition of genocide that the one set out in the Genocide Convention article II (Vasiliauskas v. Lithuania, § 178). When evaluating, if the Lithuanian courts interpretation of the petitioner V. Vasiliauskas acts were in conformity with the understanding of genocide, as it stood in 1953, the ECHR, among other things, noted, that domestic authorities have discretion to interpret the definition of genocide more broadly than that contained in 1948 Genocide Convention. However, such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. Referring to the fact that in 1953 the political groups were not included into the definition of genocide according to the international law, the ECHR held that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant for the genocide of Lithuanian partisans, as members of a political group.

It can also be seen from the ECtHR judgment in case Vasiliauskas v. Lithuania that the Grand Chamber did not find to have been sufficiently established by the domestic courts that Lithuanian partisans were a significant part of the national group, that is, a group, protected according to the article II of the Genocide Convention.”

It would follow from this summary that the violation of Article 7 in the Vasiliauskas case was found because of two circumstances. First, the violation was supposedly found because the domestic courts applied a wider definition of genocide, which included the political groups besides the groups protected by the Genocide Convention, and because Vasiliauskas was charged with actions against political groups. The second circumstance does not seem to be related to the summary presented, since the summary focuses exclusively on the “political group” aspect of the judgment. The second reason supposedly was, that ECtHR did not find to have been “sufficiently established by the domestic courts that Lithuanian partisans were a significant part of the national group“. Therefore in the SCL ruling below the §12 the court proceeded to present an analysis to establish just that.

What ECtHR really said

When the SCL mentioned the second reason – failure to sufficiently establish significance of Lithuanian partisans – it alluded to the part of the ECtHR judgment that it has – without doubt consciously – been silent about when describing the reasoning of the ECtHR in Vasiliauskas case.

SCL alluded to the fact that the ECtHR actually evaluated the version presented in the argumentation of the domestic courts and heavily defended by the representative of the government in the proceedings, that Vasiliauskas was actually charged and convicted for destruction of partisans as a significant part of the national group. Let us therefore look at the total paragraph from the ECtHR judgment that SCL cited very selectively (emphasis on the evaded parts of the paragraph are mine; the whole text of the ECtHR decision can be found here):

„181. The Court accepts that the domestic authorities have discretion to interpret the definition of genocide more broadly than that contained in 1948 Genocide Convention. However, such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. The Court has already established that in 1953 political groups were excluded from the definition of genocide under international law (see paragraph 178 above). It follows that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant for the genocide of Lithuanian partisans, as members of a political group (see also the Constitutional Court’s judgment, paragraph 60 above). Moreover, even if the international courts’ subsequent interpretation of the term “in part” was available in 1953, there is no firm finding in the establishment of the facts by the domestic criminal courts to enable the Court to assess on which basis the domestic courts concluded that in 1953 the Lithuanian partisans constituted a significant part of the national group, in other words, a group protected under Article II of the Genocide Convention. That being so, the Court is not convinced that at the relevant time the applicant, even with the assistance of a lawyer, could have foreseen that the killing of the Lithuanian partisans could constitute the offence of genocide of Lithuanian nationals or of ethnic Lithuanians.”

Therefore, SCL breaks the referred paragraph in the middle and therefore intentionally misses the main argument of the ECtHR judgment. The argument was that, even if we hold that Vasiliauskas was sentenced for genocide not because partisans were a political group, but because partisans were a significant part of a national group, even if such a case had been proved in the domestic courts, the conviction would still be violating article 7 of the Convention.

Such a conviction would still have been held to have been in violation of Article 7, because such an interpretation of destruction “in part” was not accessible in 1953 for Vasiliauskas. The ECtHR held that an interpretation like this was part of a development of interpretation of the Genocide Convention that happened decades after the actions in question, and that the substantiality requirement in deciding if „in part“ clause was applicable, was satisfied only when a major part of the group was targeted.

Therefore, neither Vasiliauskas nor Drėlingas could have foreseen, that their actions against Lithuanian partisans can be interpreted as genocide against Lithuanian nation when the actions were carried out. It follows, that a significant part of the ruling of SCL in Drėlingas case, in which the court tries to argue that the partisans were a significant part of Lithuanian nation, was futile, since the ECtHR has, in advance, said that it such efforts have no significance in judging if the principle nullum crimen sine lege has been violated in cases like Vasiliauskas’s.

But still, can it be reasonably held that the Lithuanian partisans formed a part of the Lithuanian nation so significant that their elimination would have significantly affected the survival of Lithuanian nation? In other words, can genocide be proved according to the somewhat more nuanced interpretations of genocide, developed by the ICTY, ICR and ICJ?

With all due respect for the court, I think that is not the case. Although SCL has quoted the reasoning regarding circumstances allowing to determine, when even a numerically insignificant number is substantial, as it was presented in the jurisprudence of ICTY, ICR and ICJ, it has completely failed to see how that reasoning is applied in practice, for example, in cases that are somewhat reminiscent of the Drėlingas case, the ICTY cases Prosecutor v. Tolimir or Prosecutor v Sikirica et. al., which addressed the status of resistance fighters as de facto leaders and evaluated the impact of killing of leaders of the community on the survival of the group as such.

In these cases, the tribunal has reached conclusions quite different from those we would expect if we only read the SCL ruling on Drėlingas. In vain would we also search for the attention to the facts in ruling on Drėlingas, that is so natural in the jurisprudence of the international tribunals. As it is argued in judgments of those tribunals, notably the last year Appeals Chamber of ICTY judgment in case Prosecutor v. Tolimir, the character of the attack on the smaller significant group must be viewed in the context of the fate of the rest of the group at the same time or in the wake of that attack in order to determine, if the attack against the smaller part of the group was calculated to bring about destruction of the larger group as such. However, the ruling of SCL contains no findings or reference to evidence as to the impact of the destruction of the partisan movement in general or the arrested leader and his wife in particular on the survival of the Lithuanian nation. Also, in Tolimir case, a timespan of a mere month or so was enough to make the killing of the leaders of Žepa town a different episode from the Srebrenica massacre, while in S. Drėlingas case we have full three years of time span. Therefore, in light of ICTY jurisprudence, the special intent of S. Drėlingas to destroy Lithuanian nation cannot be considered to be proven.

Let us go back now to the Vasiliauskas case and explore how the ECtHR presented the argument regarding inaccessibility of the interpretation of the clause “in part” used by the Lithuanian courts. This is described in the same judgment, above the already cited §181:

„176. The Court next turns to the respondent Government’s submission that because of their prominence the Lithuanian partisans were “part” of the national group, that is, a group protected by Article II of the Genocide Convention. In this connection the Court notes that in 1953 there was no case-law by any international tribunal to provide a judicial interpretation of the definition of genocide. The travaux préparatoires to the Genocide Convention provide little guidance on what the drafters meant by the term “in part”. The early commentators of the Genocide Convention emphasised that the term “in part” contained a substantiality requirement (see paragraph 93 above). The Genocide Convention itself provides that the crime is characterised by an “intent to destroy in whole or in part … a group, as such” and the substantiality requirement is supported by Resolution 96(I) according to which “genocide is the denial of the right of existence of entire human groups”. Bearing in mind that the goal of the Genocide Convention was to deal with mass crimes, the ICTY noted the wide acknowledgment that the intention to destroy must target at least a substantial part of the group (see paragraph 98 above). The gravity of genocide is further reflected in the stringent requirements which must be satisfied before a conviction is imposed – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part (see paragraph 106 above). The Court, therefore, considers it reasonable to find that in 1953 it was foreseeable that the term ‘in part’ contained a requirement as to substantiality.”

„177. That said, however, the Court is mindful of the subsequent development in the international case-law on the crime of genocide. Half a century after the events for which the applicant was convicted, judicial guidance as to the interpretation of the phrase “in part” emerged when cases concerning genocide were brought before the ICTY, ICTR and the ICJ. In particular, as transpires from the case-law referred to in paragraphs 97-108 above, the intentional destruction of a “distinct” part of the protected group could be considered as genocide of the entire protected group, provided that the “distinct” part was substantial because of the very large number of its members. Furthermore, in addition to the numerical size of the targeted part, judicial interpretation confirmed that its “prominence” within the protected group could also be a useful consideration. Be that as it may, this interpretation of the phrase “in part” could not have been foreseen by the applicant at the relevant time.”

Therefore, the Grand Chamber of the ECtHR concludes, that at the material time the “in part” clause of the genocide convention was understood as referring to destruction of numerically substantial part of the protected group. It stresses, that a wider interpretation of the destruction “in part” appeared at about 1985 and was later developed by ICTR, ICTY and ICJ, and therefore could not have been foreseen at the material time by Vasiliauskas 50 years before the later interpretation appeared. Likewise this later interpretation could not have been foreseen by S. Drėlingas.

How did the ECtHR understand the actions of Vasiliauskas, if not as genocide? The answer to that question we find in §182, which was also ignored by SCL in it’s ruling on S. Drėlingas. in §182 we read:

„In addition, the Court notes that Article II of the 1948 Genocide Convention requires the perpetrator to act with intent to destroy a protected group in whole or in part. The applicant’s statements at the relevant time refer to action against “bandits”, the “nationalist underground” and “nationalist gangs” (see paragraphs 18 and 19 above). Moreover, the aims expressed at the MGB meetings of 1953 were directed against these groups. In the Court’s view, even if the MGB’s policy of extermination extended to “those who help them and their contacts”, the essential goal of this wider group of “Lithuanian nationalists” was to secure independence for the State of Lithuania […]. Indeed, as the prosecutor noted, and the appellate and cassation courts confirmed, the Lithuanian partisans were fighting against the Soviet occupation and for the independence of the Lithuanian State […]. In the light of the above, the Court accepts that the applicant’s argument is not without weight, namely that his actions, and those of the MGB, were aimed at the extermination of the partisans as a separate and clearly identifiable group, characterised by its armed resistance to Soviet power.”

Accepting an argument as being “not without weight” refers us back to the ICTY, ICTR and ICJ jurisprudence, requiring genocidal intent to be proved “beyond reasonable doubt”. This is clearly not the case if the argument of the accused is considered to be “not without weight”. Therefore, the majority of the Grand Chamber of the ECtHR found that Lithuanian courts failed to prove that Vasiliauskas (or MGB, to that matter) had a special intent to destroy a part of a group protected by the Genocide Convention. Instead, the Grand Chamber referred to the fact that the group they were fighting against was defined by its armed resistance, and not, first of all, by it being a part of a national group.

I should also mention, that the postwar armed struggle in Lithuania was bloody and brutal methods were used by both sides of the conflict. Although the lion share of brutality was the doing of the Soviet authorities and lack of discipline in the Soviet side paramilitary units was both widely known and deadly, the partisans responded with killing a lot of civilians suspected of aiding the Soviet authorities. The number of the killed partisans was more than matched by the number of civilians killed by the partisans, therefore lending credibility to the Soviet authorities argument that in reality they were fighting against the “nationalist bands’’ to restore peace and order. And although surprisingly, these facts were not related to the Grand Chamber, they would have much strengthened their reasoning.

These failures of proof, described in the judgment Vasiliauskas v. Lithuania, found no mention in the SCL ruling regarding Drėlingas. They found no mention despite the fact that the proofs against Drėlingas were similar to (if also weaker than) those against Vasiliauskas. If Vasiliauskas did participate in the killing of the partisans, the operation to arrest the former partisan leader and his execution (after a trial and judgment by a court) were separated by a timespan of a year. Moreover, the operation took place 3 years after active resistance was crushed, so, there was not even a possibility of a genocidal context to be established.

The majority of the Grand Chamber also found that sentencing of Vasiliauskas ammounted to application of the criminal law by analogy, since there is a world of difference between partisans, who are united as a group by their armed opposition to occupation, and a nation as a group. This was stated in §183 of the judgment:

“[…] it is not immediately obvious that the ordinary meaning of the terms “national” or “ethnic” in the Genocide Convention can be extended to cover partisans. Thus, the Court considers that the domestic courts’ conclusion that victims came within the definition of genocide as part of a protected group was an interpretation by analogy, to the applicant’s detriment, which rendered his conviction unforeseeable”.

This is another weighty argument of the ECtHR that was not so much as mentioned in the ruling of SCL.

The consequences of the SCL ruling on Drelingas

It is evident form the above that SCL ignored the ECtHR judgment in the case Vasiliauskas v. Lithuania. It follows that Lithuania has again violated the Article 7 of the European Convention on Human Rights, and it is also evident that the general measures regarding the implementation of the judgment Vasiliauskas v. Lithuania have not been carried out.

It is still to be seen if the criminal conviction for Vasiliauskas will be lifted by the SCL upon reopening of the proceedings, that have been requested by the descendents of Vasiilauskas, who passed away shortly after the judgment of the ECtHR. And, of course, any person sentenced for genocide after the Vasiliauskas judgment can defend his rights before the ECtHR. It is almost certain that a complaint will be presented by Drėlingas himself.

It is understandable that the ECtHR judgment in the case Vasiliauskas v. Lithuania was dismaying for many people in Lithuania, where the pain caused by the Soviet repressions is still remembered, and where a lot has been done by politicians and, unfortunately, by the courts to blur the lines between legitimate fight with armed resistance and crimes against humanity, that have been carried out by the Soviet regime.

It is understandable that the Supreme Court of Lithuania is weary to change its jurisprudence in genocide cases. It has been developing that jurisprudence for more than a decade. But it is hard to understand why a plenary session of this court decided to simply ignore the main arguments of the ECtHR, as if they had never been stated.

It is customary for the sides in a court case to act in this manner. Concealing arguments relevant in a case by prosecution or defense would hardly lift anyone’s eyebrows. But one can surely expect more from a Supreme Court of the country, and ever more so – from a plenary session of that court.

This article was originally published at liberties.eu