The text below discusses the grounds for referral of the case „Drėlingas v. Lithuania“ to the Grand Chamber of the European Court of Human Rights.
Unfortunately the case was not referred to the Grand Chamber for review. It failed to be referred to the Grand Chamber not because there were not enough grounds, however. It should not be forgotten that the Grand Chamber of ECHR is not much like an appeals instance in the national court systems. Usually an appeals instance would take any appeal submitted in time. The cassation courts would accept any appeal that challenges the previous decisions based on the interpretation of the law. But it is not so with the Grand Chamber of ECHR. According to the Chancellery of the Court only ~5% of all cases that are appealed are examined by the Grand Chamber. That is, one case in twenty. Same happened in the case of Drėlingas v. Lithuania: 20 applications were rejected and one was accepted for review by a panel of five judges. Therefore, though the Chamber decision in the Drėlingas case did enter into force once the panel of five judges chose a different case as a more important one on September 9, 2019, the reasoning in the Chamber case is still superceded by the decision of the Grand Chamber in the case Vasiliauskas v. Lithuania. The text below explains, why I think the Chamber in Drėlingas case was wrong.
The decision in the case Drėlingas v. Lithuania (application no. 28859/16, hereafter also – Drėlingas case) was a departure from the previous jurisprudence of the Court as set out in the case Vasiliauskas v. Lithuania, where a decision was reached by the Grand Chamber of the Court. There have been ample grounds to refer the case to the Grand Chamber of the Court according to the Article 43 of the European Convention on Human Rights (hereafter – Convention), since the Chamber judgment in the case, that was delivered on 12 March 2019 (hereafter – Chamber judgment) raises serious questions affecting the application of the Article 7 of the Convention as well as serious issues of general importance. Besides the formal reasons for referral, it has to be pointed out, that justice has not been served with this Chamber judgment.
The serious questions affecting the application of the Article 7 of the Convention are related to the consistency of the case law of the European Court of Human Rights (hereafter – ECHR or the Court). It has been contend that the judgment of ECHR in Chamber judgment is inconsistent with the previous Grand Chamber (hereafter – GC) judgment in case Vasiliauskas v. Lithuania (hereafter – Vasiliauskas), and that, if the Chamber in this case had followed the principles in Vasiliauskas faithfully, it would have reached different conclusions. It is also noteworthy that the Chamber judgment allows the national courts an interpretation of the crime of genocide that is incompatible with the understanding of that crime as developed by the international ad hoc tribunals. Since it was clear that GC in Vasiliaukas case expressly followed the accepted interpretation of the crime of genocide (with the exception as to the foreseeability of the current interpretation of “in part” clause of the Genocide Convention), this issue can be attributed both to the serious issues of the interpretation of Convention and to the serious issues of general importance, as specified in the Article 43 of the Convention.
It should be noted at the outset that both of the above mentioned aspects of the Chamber judgment have been noted by the judges who expressed dissenting opinions in Drėlingas case. Judge Motoc has drawn attention to the extremely serious divergence of the majority judgment with the accepted definition of genocide in the international law, and judge Ranzoni has shown, how the majority opinion diverges from the GC Vasiliauskas case. So, much of what is written bellow is actually borrowed from those dissenting opinions.
a) Departure from the Courts’ practice in claimed extent of review in Article 7 cases
In the judgment the Chamber took a very restrictive view on the power of review accorded to the Court in dealing with Article 7 cases. The Chamber confined it’s review to the question whether or not the domestic courts’ interpretation “distorted” the findings of the Court’s Vasiliauskas judgment with a conclusion, that the national interpretation “was not, seen as a whole, the result of any manifest factual or legal error” (Drėlingas, §105). However, this position is different from the consistent practice of the Court. In Vasiliauskas judgment the GC stated that its powers of review must be greater when the Convention right itself requires a conviction and sentence to have a legal basis. This applies in particular to Article 7, which requires the Court to examine whether there was a contemporaneous legal basis for the applicant’s conviction. Notably, the Court must satisfy itself that the result reached by the domestic courts was compatible with Article 7, which provision, in principle, prohibits the retroactive application of criminal law to an accused’s disadvantage. To accord a lesser power of review to this Court would render Article 7 devoid of its purpose (Vasiliauskas §160-161; see also Kononov v. Latvia [GC], §198).
Thus we can only agree with position of the judge Ranzoni expressed his dissenting opinion, his third point of disagreement with the majority:
“16. The Court thus cannot confine its review to the question whether or not the domestic courts’ interpretation “distorted” the findings of the Court’s Vasiliauskas judgment and to the conclusion that the national interpretation “was not, seen as a whole, the result of any manifest factual or legal error” (see paragraph 105 of the above judgment). In this respect, it is likewise not appropriate to apply, particularly without any reference to the Court’s case-law, the “principles governing the execution of judgments” (see paragraph 102 of the above judgment). The present case is not about the execution of the Vasiliauskas judgment and therefore did not absolve the Court from conducting a full examination of the applicant’s criminal conviction from the standpoint of Article 7 of the Convention, thereby assessing itself whether there had been a sufficiently clear basis in international law for such a conviction at the time of the events in 1956.”
b) Failure to examine if the domestic courts’ judgments could have been foreseen by me at the material time
In Drėlingas case the Chamber has departed from the previous GC practice when interpreting the foreseeability of “in part” clause of the Article II of the Genocide Convention of 1948. Basically the Chamber completely ignored the arguments related to foreseeability of the interpretation of destruction of groups “in part” at the material time.
The domestic courts based their decisions on an assumption that Lithuanian partisans were a significant “part” of the national group, a group protected by the Article II of the Genocide Convention. However, in Vasiliauskas’ case the Court, while accepting that such interpretation of Genocide Convention became accessible at the end of the 20th century, did not agree that such an interpretation was foreseeable until such interpretation was, at the very least, proposed by legal scholars (and accepted by the international tribunals), so, at least up until 1985, therefor, when it comes to foreseeability, the situation in 1956 was not different from situation of 1953 described in Vasiliauskas (see Vasiliauskas §95, 176-177). In Vasiliauskas, the Court therefore considered it “reasonable to find that in 1953 it was foreseeable that the term “in part” contained a requirement as to substantiality“ (§176), noted that the subsequent developments in the international law regarding the interpretation of the “part” of the group as “distinct” or “prominent” part, but then narrowed down the foreseeable interpretations: “[b]e that as it may, this interpretation of the phrase “in part” could not have been foreseen by the applicant at the relevant time” (§177). In Vasiliauskas §181, after reviewing the meager statements presented by the domestic courts about the significance of the partisans, the GC stated, that it could not asses “on which basis the domestic courts concluded that in 1953 the Lithuanian partisans constituted a significant part of the national group” “even if the international courts’ subsequent interpretation of the term “in part” was available in 1953” – thus repeating the position on the unavailability of the interpretation of the term “in part” at the material time.
In Vasiliauskas case the GC elaborates on the foreseeability aspect of conviction also in §182-185, noting, that the applicants statements regarding the target group of his and soviet security forces was a group distinct from the national group in that it could be defined as a group characterized by armed resistance to the soviet power, that the words “ethnic” and “national” in the Genocide Convention have an ordinary meaning that is quite different from the word “partisans” and that “it is not immediately obvious” that those terms in Genocide Convention can be extended to cover partisans.
Thus it is clear from Vasiliauskas case that the foreseeability of interpretation that destruction of partisans means the “in part” destruction of the national/ethnic group is at the heart of the Vasiliauskas judgment, and that it was this flaw in the domestic court’s arguments that made the later conviction of applicant in that case unforeseeable. And yet the Chamber in Drėlingas case notes only the other two flaws of the domestic case law noted in GC Vasiliauskas’ case: that “genocide of persons belonging to a political group, which was not protected under Article II of the Genocide Convention, as such could not be prosecuted retroactively” (§107) and “that the interpretation of the partisans’ role earlier given in that case by the criminal courts was insufficient and thus lacking” (§106).
Thus the Chamber, failing to examine the foreseeability of interpretation that destruction of partisans means the “in part” destruction of the national/ethnic group in Drėlingas case has ignored it’s mandate given by the Convention in Article 7 cases, misrepresented the GC judgment in Vasiliauskas case and thus has adopted a judgment that is inconsistent with the case law of the Court.
These problematic aspects of Chamber judgment have been covered by Judge Ranzoni in his dissenting opinion extensively, namely in his third and fourth point of disagreement with the majority. Judge Ranzoni, in particular, writes:
“19. Fourth point: It is a different matter whether, in 1956, the applicant could at all have foreseen such an interpretation of the definition of genocide and of the term “part of a national group” leading to his later conviction. In this respect, another reference could be made to Vasiliauskas, § 181 in fine, where the Grand Chamber held as follows:
“… 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.”
“20. In the present case, how could the applicant, even with the assistance of a lawyer, have foreseen the interpretation of the crime of genocide made in 2015-2016 by the domestic courts? To my mind, actually, he could not have foreseen either the classification of the Lithuanian partisans as a group protected under the Genocide Convention or the fact that the applicant’s participation in the arrest of a former leader of the partisans as such could constitute the offence of genocide. If that had been so obvious and foreseeable for the present applicant in 1956, the Grand Chamber would have been all the more convinced of the respective foreseeability for the applicant in Vasiliauskas who – it might be remembered – directly and knowingly took part in the killing of Lithuanian partisans. The foreseeability requirements cannot be lower for the applicant in the present case than for Mr Vasiliauskas.”
c) Failure to assess, if the domestic courts’ interpretation of the role of the partisans is consistent with the international law
In Vasiliauskas judgment §181 the GC stated, that
“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.”
As it has been have pointed out above, the Chamber in Drėlingas case ignored the foreseeability aspect of the interpretation of the term “in part”. It has also noted, that “in the applicant’s case the Supreme Court did indeed provide an extensive explanation, elaborating upon the <…> 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”” (§103). In such a case it should have been expected that the Chamber would not only cite the “extensive explanations” made by the Supreme Court (as it did), but would also provide assessment of this explanation, – what the Court was precluded of doing in Vasiliauskas case because of the lack of arguments, – in the light of Article 7 requirements. We can see, however, that it was not the case. The Chamber specifically noted, that “In the light of the principles governing the execution of judgments, the Court considers it unnecessary to express a position on the validity of that interpretation by the Supreme Court” (§102), though the Drėlingas case did not concern the execution of the judgment in Vasiliauskas case.
Had the Chamber attempted to do that assessment, it would have discovered that the domestic courts did not not present any evidence as to the partisans being “most active and prominent part of the Lithuanian nation”, so the criticism mentioned in Vasiliauskas §103 would still have applied in Drėlingas case. The Chamber would have had to determine what the statement about the soviet repressions being targeted at “creating an impact on the demographic situation of the Lithuanian nation” meant, as it is likewise not substantiated with any evidence in the Supreme Court judgment, and is expressed in very vague terms that have nothing in common with destruction or survival of a nation (any government policy related to overpopulation or ageing of society could be described as targeted at “creating impact on demographic situation”). When the LS Court explains, why the partisans were a significant part of Lithuanian population, it only references “defence of national identity, national self awareness and culture” – the reasons that cannot be related to physical or biological destruction of the population (as International Criminal Tribunal for Former Yugoslavia (hereafter – ICTY) has noted repeatedly, “acts amounting to “cultural genocide” are excluded from the scope of the Genocide Convention” – see, for example, 2015 ICTY appeals judgment in case Prosecutor v. Tolimir). All these aspects of the judgment have direct implications as to the description of the Soviet actions as genocide, and therefore, as to the foreseeability of Drėlingas later conviction. Refusal to assess these aspects has, effectively, made the Article 7 of the Convention “devoid of any meaning” in the Chamber judgment.
d) Failure to examine, how the situation in October 1956 was different from the situation in 1953
Judge Ranzoni in his dissenting opinion’s fifth point of disagreement with the majority raises a question on how much the situation has changed between the years 1953 and 1956 (that is, between the year in which Mr. Vasiliauskas participated in killing two partisans and the year in which the operation to arrest the two partisans A.R. and B.M. took place). Judge Ranzoni asks:
“22. <…> (a) What was the significance of the resistance movement and of the Lithuanian partisans in October 1956? (b) Did the Lithuanian partisans in October 1956 still constitute a significant part of the national group protected by the Genocide Convention? (c) Were the Lithuanian partisans in October 1956 still significant for the survival of the entire national group, namely the Lithuanian nation (see inter alia paragraphs 53 and 105 of the above judgment)?”
He goes on to state that
„23. These questions were answered neither by the domestic courts nor by the majority in the present judgment. They had regard only to the situation as it existed till 1953 without even considering whether the legal assessment of the situation in 1956 could have been different from 1953. For lack of positive answers to the above questions (b) and (c), I am unable to find that the applicant’s conviction for genocide could have been foreseeable for him in October 1956.”
As it happens, it is not difficult to answer those questions even without special historical research. It is common knowledge that in 1953 the Soviet dictator Joseph Stalin died, and that his death was followed by reforms of the Soviet system: the mass deportations of the populations ended, part of the political prisoners were released from the GULAG camps, and this camp system was shut down later on. Rehabilitation processes of the people who were unfairly condemned during the Stalinist era were commenced. At the start of 1956 the new Soviet leader Nikita Khrushchev issued his speech condemning stalinist crimes and the cult of his personality in the XXth Conference of the Communist party. When it comes to the changes in the Lithuanian territory, let me quote the English edition of a book Lithuania in 1940-1991 (Lithuanian edition: Lietuva 1940-1990, Vilnius: Lietuvos gyventojų genocido ir rezistencijos tyrimo centras, 2007; English edition: Genocide and Resistance Research Center of Lithuania, 2015). This book was quoted by the Supreme Court in Drėlingas case to illustrate the extent of Soviet repressions (see Decision of the Supreme Court of 12 April 2016, § 29). The book clearly distinguishes the stalinist era (1940-1953) and the destalinization era (1953-1964). Here are a few quotes:
“The year 1953 marked the end of the period of Stalin’s totalitarian regime in Lithuania.<…> After the events of 1953 the Russification of Lithuania weakened, and later (from 1956) the situation stabilised, more trust was placed in leading Lithuanian personnel, the use of the Lithuanian language in public life and administration institutions become more widespread, and the development of Lithuanian culture intensified.“ (p. 359).
“after 1953 Lithuania changed very much. Because the armed resistance was broken and people had lost hope of getting help from the West, the moral condemnation for collaboration during the long-term Soviet occupation was hushed. After 1953 the underground still existed, dissidents appeared, but with the decline of terror there was now a choice between imprisonment and conformism. Few opted for imprisonment, so conformist was widespread. However, in the post-Stalin years <…> collaboration as a political and moral phenomenon differed from that in the years of the former armed resistance activities (1944-1953). Then <…> not only the high LSSR Lithuanian leaders, but also ordinary communists, stribai and other officials <…> were condemned by the nation for collaboration and sometimes the armed underground carried out the death sentences of the military courts.“ (p. 360).
“Until 1953 Lithuania, terrorised by Soviet armed forces, was an occupied country deprived of all rights, whose people were openly despised and the whole country was subjected to russification. During the years of Khrushchev’s rule and later the Lithuanian SSR gradually gained more rights in the fields of economics, administration and culture. Following the request of LSSR leaders, the kremlin allowed Lithuania to train its own national staff, pay more attention to culture and education. The Lithuanian language increasingly became the focus of public life <…>, the LSSR administration was becoming predominantly Lithuanian and Lithuanian schools became stronger. (p. 361).
“Proclaiming policy of “peaceful coexistence“ with the “capitalist” world Nikita Khrushchev argued that the USSR had abandoned political repressions. One of major goals of his political reform was to abandon the relapses of Stalinism, therefore the majority of political prisoners and deportees were released from the places of their imprisonment or deportation. There were 2.7 million deportees in the entire USSR in January 1953, while in January 1959 only 50,000 of them remained“ (p. 367).
“In 1954 the Lithuanian SSR Council of Ministers got the right to review the cases of deportees. <…> In 1954 735 persons were released <…>, in 1955 1,779 persons were released <…>, and in 1956 15,879 were released. However, on 17 September and 24 November 1955 and on March 1956 the USSR Supreme Council Presidium passed decisions allowing the majority of the repressed soviet people to return home“ (p. 370).
The quotes (as it has been mentioned, the book was quoted by the Supreme Court) clearly reveal, that:
- Soviet repressive policy underwent significant changes from 1953 to 1956; mass repressions were stopped, the cases of many political prisoners came under review;
- Soviet organs became more and more supported by Lithuanian cadre;
- The national and cultural autonomy of Lithuania has increased (though still limited);
- There was no extermination of Lithuanian nation, in whole or in part, underway;
- After the suppression of the partisan movement this movement no longer played any part in the public life of Lithuania (and it surely could not have been essential for the survival of Lithuanian nation).
Therefore, to answer the questions posed by Judge Ranzoni in §22:
a) after the anti-soviet resistance was extinguished the partisans no longer existed as a group, but the Lithuanian nation continued, it did not experience as much repression as before, during the “partisan war”;
b) the partisans in October 1956 did not constitute a significant part of Lithuanian nation, though doubtless part of inhabitants of Lithuania continued to cherish their memory;
c) whatever we think about the situation as it was in 1953, there was no threat to the survival of Lithuanian nation in October 1956, and the armed resistance simply no longer existed as a social phenomenon, it could not have been “still significant for the survival of the entire national group”.
When it comes to the general question of the significance of the partisans for the survival of the nation (say, as the situation stood in 1953), the case law of the ad hoc tribunals, for example, International Criminal Tribunal for the former Yougoslavia (ICTY), should be noted. ICTY notes, that “<…> selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent“. It further notes, that “for a finding of genocide it suffices that the leaders“ were “selected for the impact that their disappearance would have on the survival of the group as such.“ However, as the appeals chamber noted in Tolimir, “the character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group at the same time or in the wake of that attack“. Therefore the appeals chamber in Tolimir recognized that the conclusion of the trial chamber that the three Žepa leaders were killed with genocidal intent were unsubstantiated, since there was “no evidence in support of its finding that the disappearance of the three Žepa leaders would have an impact on the protected group”, and “there are no findings or references to evidence as to whether the [Bosnian Serb Forces] members who detained and murdered the three Žepa leaders intended, for instance, to use their actions in a way that would intimidate and expedite the removal of the Bosnian Muslims of Žepa, prevent their return, or impact their survival as a group in any other way.” (see appeals judgment in case Prosecutor v. Tolimir, §§264-270). If we return to the Lithuanian context, there are no findings in the decisions of the domestic courts regarding the real impact of the suppression of partisan movement towards the survival of Lithuanian nation as such. Since the Soviet authorities had unlimited possibilities to destroy Lithuanian nation if they really had a genocidal intent, the fact that no such destruction occurred negates that supposed intent.
Judge Ranzoni illustrated his 5-th point of disagreement with the majority with a vivid example:
This point might also be emphasised by a hypothetical example. What if a person had been killed, let’s say, in 1985, because he had been a leading Lithuanian partisan in the 1950s? Would such an offence still have been characterised as genocide?
The way the Lithuanian courts might solve this hypothetical problem is seen in the Supreme Court ruling of the 25 February 2016 in the case of Marijonas Misiukonis, who has been accused of participation in an operation of Soviet repressive structures in 1965 with an aim to arrest a (former) partisan Antanas Kraujelis. A summary of the motives of the Supreme Court is provided in §§67-70 of the Chamber judgment in Drėlingas case. The summary makes it clear that the Supreme Court did consider the operation in question an act of genocide. The Supreme Court did not question the correspondence of the actions of the Soviet repressive structures against Antanas Kraujelis to the crime of genocide, and neither did it question the subjective part, the special intent of destroying partisans as an important part of Lithuanian nation, that the Soviet forces supposedly had. Marijonas Misiukonis was acquitted only because the Supreme Court failed to find that he personally knew that Antanas Kraujelis was a partisan, and therefore the Court could not be certain that Marijonas Misiukonis personally could have had the special intent to destroy Antanas Kraujelis as a partisan. If the Supreme Court held to such a position regarding the events of 1965 (that is, events 12 years removed from the end of the partisan war), another 20 years (to arrive at the year Ranzoni gives as an example) would not have changed much. The Marijonas Misiukonis’ Case is also a part of interpretation of the crime of Genocide that the Chamber judgment in Drėlingas case lends validity to.
e) Failure to consider, if the supposed role of Drėlingas as an accomplice to genocide was covered by the Genocide Convention at the material time
This failure of the Chamber, which is related to foreseeability of Drėlingas conviction, was well described by Judge Ranzoni, so it will be quoted it in full:
“25. Sixth point: The present case comprises one more specific feature which was not examined in the majority’s judgment. Article III of the Genocide Convention defines the following acts as punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide (see Vasiliauskas, § 79).
26. The applicant was apparently convicted as an “accessory to genocide” under Article 99 taken in conjunction with Article 24 § 6 of the Lithuanian Criminal Code (see paragraph 58 of the above judgment) for having taken action which had assisted in the arrest of A.R. and B.M. on 12 October 1956 (see paragraph 38). Pursuant to Article 24 of the Lithuanian Criminal Code, an “accessory” is one type of “accomplice”, albeit in the less serious mode of criminal participation and liability.
27. The relevant question now is whether the criminal act of being an “accessory to genocide” pursuant to Article 99 in conjunction with Article 24 § 6 of the Lithuanian Criminal Code, as in force from 1 May 2003, was covered by the punishable act of “complicity in genocide” under Article III (e) of the Genocide Convention as interpreted by international law in 1956. This again raises the question of the foreseeability of the applicant’s conviction in 2015/2016. It should be remembered in this respect that the legal provisions on which the applicant’s conviction was based were applied retroactively, and that Article 7 should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Vasiliauskas, § 153).
28. However, the domestic courts failed to consider whether being an “accessory to genocide” as provided by Articles 99 and 24 § 6 of the Lithuanian Criminal Code was covered by the Genocide Convention as interpreted in 1956, and whether this could have been foreseeable for the applicant (see, in this respect, the Supreme Court’s ruling of 12 April 2016, and paragraphs 45-56 of the present judgment). The majority also refrained from assessing this aspect.
29. Against this background, I am once again unable to find that the applicant’s conviction as “accessory to genocide” was foreseeable for him in October 1956.“
Given the implications of this case, the clear fact that the GC decision in Vasiliauskas was reversed with regard to the violation of Article 7 of the Convention in Drėlingas case, it was very unfortunate that the panel of the 5 judges of ECHR did not forward this case for review by the Grand Chamber. The reasons to reconsider the case were clearly sufficient and important.