On the 20th October 2015, the ECtHR Grand Chamber decided a case involving criminal acts which took place some 60 years ago. In Vasiliauskas v Lithuania (35343/05), not only were the facts politically and legally interesting, but more fascinating still was the 9:8 split between the 17 judges of the Grand Chamber. Such splits being a notable rarity for the court.
The facts of the case had their origin in the power struggle between Stalin and Hitler over control of the Baltic States in the 1940s. Stalin won this battle, annexing Lithuania and subsuming it into the Soviet Union. This led to the rise of a partisan movement dedicated to the restoration of an independent Lithuania. Various Soviet organisations sought to suppress the resistance. The Applicant, Mr Vytaytas Vasiliauskas, served for 25 years in two such organisations rising to the rank of Lieutenant Colonel in the KGB. The particular offences which concerned the domestic courts were the ‘liquidation’ (para.26) of two partisans, J.A. and A.A. on the 2nd January 1953 by a group of soldiers which included the Applicant.
Following the collapse of the Soviet Union and the gaining of Lithuanian independence in 1990, questions were raised about the horrific incidents that occurred under the previous regime. Nearly 50 years after their deaths, an investigation commenced into the deaths of J.A. and A.A. As a result of this investigation in 2004 the Applicant was charged with genocide under Art.99 of the Lithuanian Criminal Code of 2003 [LCC], found guilty and sentenced to six years imprisonment.
Court of Appeal
On appeal in September 2004 the conviction was upheld. The Applicant contended that his actions did not, according to the law as it stood in 1953, amount to genocide. In assessing these arguments, the court sought to establish what the applicable law was at the time the offences were committed. In 1948 the United Nations had passed The Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). The key Article of this convention is Art.II which it is worth reproducing in full:
‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial , religious group’ (emphasis added).
It was the Applicant’s argument that his killing of the Lithuanian partisans fell outside the ambit of the Convention’s definition of genocide. However, the Court of Appeal relying on Article 99 LCC which, in addition to those groups defined by the Genocide Convention also included ‘political groups’ and which thus brought the crimes of the Applicant within the grasp of the law. The Applicant appealed once more.
In February 2005, the Supreme Court of Lithuania dismissed the appeal and upheld the conviction. The applicant once again argued that the LCC defined a broader interpretation of genocide than the Genocide Convention and therefore it did not ‘correspond to the norms of international law’ (para.38). This was categorically rejected by the Court, which also held that even if the national law was too broad, the Applicant’s conviction was still legal as the partisans could be classed as being a part of a ‘national’ group as included in Art.II of the Genocide Convention.
It is worth highlighting the key questions that the Court was required to examine:
- Were the Applicant’s rights under Article 7 ECHR; ‘no punishment without law’ (nullum crimen sine lege) infringed by the Respondent?
- And if so, how?
The Applicant argued that the Lithuanian courts ‘had [wrongly] applied the criminal law retroactively’ (para.123). The Respondent, relying on both the Genocide Convention and the U.N. Resolution of 1946, contended that the partisans were not only ‘political’ but also ‘nationals’ and that genocide was a crime in 1953. Fundamentally their argument was that the lack of the word ‘political’ in Art.II of the Genocide Convention was ‘not decisive’ (para.138) since the broader meaning found legitimacy in relation to customary international law. The main question for the Court was whether the Applicant in 1953, could ‘reasonably have foreseen himself being charged and convicted of a crime under international law’ (para.141). The Court held that there was no violation of the applicant’s rights under Art.7.1 ECHR.
The Majority Decision
The Court predictably started by highlighting the fundamental importance of the ECHR and specifically Art.7. They noted that Art.7 clearly prohibits retrospective application of criminal law but affirmed that there is always a level of judicial interpretation with any law and further that they must ‘adapt to changing circumstances’ (para.155). They rejected the non-retroactive law mantra and stated that when there has been a change in ‘political regime on a national territory’ (para.159) that it is fully within the boundaries of law that one can ‘bring criminal proceedings against those who have committed crimes under a former regime’ (para.159). Art.7 then required them to assess whether there was a legal basis, which was sufficiently clear in 1953 for the Applicant’s conviction.
The majority stated that it was crystal clear that genocide was considered a crime under international law at that time and that the Soviet Union under whose authority the Applicant acted, was a signatory to the Genocide Convention.
The majority then discussed whether the crime the Applicant committed could be classed as genocide. They concluded that ‘political’ was indeed left out of Art.II of the Genocide Convention but then considered whether the inclusion of ‘political’ could find support from customary international law. The Court concluded that given the plethora of opinions in this area that they could not find a ‘sufficiently strong basis’ (para.175) to find in this respect.
The Court proceeded to discuss the Respondent’s claim that the deceased formed ‘part’ of the ‘national’ group as protected in Art.II. There is little clarification in past case law regarding what ‘in part’ really entails but the Court concluded that the phrase involves a requirement as to substantiality. Due to lack of clarity on this issue it can merely be inferred that they did not view the deceased as ‘part’ of the ‘national group’.
This reasoning led to the majority finding that:
- National courts can give genocide a broader interpretation than that embodied in the Genocide Convention, but they cannot use this discretion to convict under any broader concept retrospectively.
- In relation to the need to be able to foresee an act constituting a crime, the Court found that even with legal advice at the time it was unlikely that the applicant would have foreseen that his actions could constitute genocide.
- They supported this decision by reference to EU law, stating that both ECHR law and EU law recognise the seriousness of the crime of genocide and thus there should be ‘stringent requirements’ (para.185) that need to be met before a conviction is imposed.
- Therefore Art.7.1 has been infringed and cannot be justified using Art.7.2
- The Applicant was entitled to damages of €10,072 plus legal fees.
The Plentiful Dissentions
Judges Villiger, Power-Forde, Pinto de Albuquerque and Kuris
This minority group disagreed with the majority about whether the Applicant’s conviction was in line with the law as it stood in 1953. They concluded that the law was sufficiently clear and believed there was no issue with the lack of the word ‘political’ in the Genocide Convention, since the deceased partisans clearly constituted a ‘part’ of the ‘national’ group.
They felt that the Applicant could easily have foreseen his conviction at the time the criminal act was committed. They cited the Applicant’s direct intent to eliminate such persons as the deceased and, unlike the majority, felt that if the Applicant had sought legal advice, that he would have been informed that his acts ‘bore the essential characteristics of the crime of genocide as it stood under international law at the time’ (para.30 of their dissenting opinion). This minority viewed the majority’s verdict on Art.7 infringement as ‘a matter of regret’ (para. 38 of their dissenting judgment).
Judge Ziemele agreed with the above dissention but felt the need to criticise the majority’s interpretations of EU Law on what constitutes ‘in part’ saying their interpretation is clearly ‘more nuanced’ (para.17 per Judge Ziemele).
Judges Sajo, Vucinic and Turkovic
This dissention numbers a mere eight lines and refers to a decision made by the Constitutional Court in March 2014. In summary, these judges use Arts.35.1 and 35.4 of the ECHR to deem this claim inadmissible.
It is clear that there is more going on than mere differing interpretations of the words in the relevant law and conventions. The minority highlighted that legal theory is playing a role, when they question the formalistic approach adopted by the majority. The minority looked upon the use of formalism in this case as repugnant, especially Judge Kuris. He felt that the majority was expounding an image of ‘Courts in their ivory towers dealing with law’ (para.8, Judge Kuris) without looking at the impact of their decisions. In the eyes of Judge Kuris and perhaps the other dissenting judges the function of the court is ‘more importantly, about dealing with human justice’ (para.8, Judge Kuris). This denotes flavours of natural law in its 21st Century form with human rights constituting the ‘higher law’.
Viewing the law through the filter of natural law it seems only right that the Applicant who took part in the murder of not only the two deceased but as an active part in the bigger scheme that killed 20,000 people who embodied the partisan movement, should not be allowed to rely on his human rights when he flagrantly ignored those who he oppressed. This case proves that issues arise when judges take different stances as to the purpose of law in cases like these or of law more generally.
Isabelle Le Gallez is a 3rd Year Law Student at the School of Law, University of Sussex