The European Court of Human Rights on 12th of March issued a judgment in the case of Drėlingas v. Lithuania (Application no. 28859/16). The case at the ECHR was considered under Article 7 and focused on the principle of nullum crimen sine lege. However, in broader terms this case dealt with the definition of genocide, and the protected group issue in particular. This judgement continues a series of judgements related to Soviet mass repressions in the Baltic States after they were occupied and annexed by the Soviet Union and “sovietised” in a most brutal way from 1940 up to Stalin’s death in 1953. In fact, this case is a continuation of the case Vasiliauskas v. Lithuania (Application no. 35343/05), discussed on this blog previously.
The main facts of the Drėlingas case are as follows: Drėlingas was an operative of the soviet repression structures (MGB/KGB) and in 1956 he participated in the arrest of one of the most famous anti-soviet armed resistance (partisans) leaders – A. R. (nome de guerre “Vanagas”) and his wife B. M. “Vanda”. After being captured, Vanagas was horribly tortured, maimed, then tried by the Soviet court and eventually executed, his wife was deported to Siberia. These events happened after the active armed resistance was almost over, while Vanagas and his wife were still on the run. After restoring Lithuania’s independence in 1990, Drėlingas was put on trial in 2014 and sentenced for his participation in genocide, as an accessory to the crime.
The last sentence perhaps needs further explanation. Back in the 1990s, Lithuania was one of a handful of countries that adopted a broader definition of genocide in its national laws; it included political and social groups together with national, ethnic, racial and religious. The main aim of this was to address the historic Soviet crimes. However, it soon became clear that the direct inclusion of political and social groups in the genocide definition created a conflict with the internationally accepted definition of genocide. Another approach was needed, and it was tested in the case of Vasiliauskas (mentioned above).
Vasiliauskas was a former MGB/KGB officer and was also convicted of genocide, because he participated in the killing of two partisans in 1953. His case was not only heard by various courts of instance and the ECHR, but also resulted in a case before the Constitutional Court of Lithuania. In 2014 the Constitutional Court deliberated as to whether the broadened definition of genocide was contrary to the Constitution of Lithuania, including the principle nullum crimen sine lege. The Constitution Court came to the conclusion that the broadened definition as such (i.e. social and political groups) cannot be applied retroactively, however, if the political or social group formed a substantial part of a protected national, ethnic, religious or racial group, it would not be a violation even if the law was applied retroactively. Such reasoning was based on the 1948 Genocide convention’s provision (in the Convention’s words “in whole or in part”) that provided for the responsibility for genocide, even if only a part of the group was targeted, and relevant case law of ad hoc tribunals. It was also one of the main arguments by the Government in the case of Vasiliauskas before the ECHR.
The ECHR Grand Chamber heard the Vasiliauskas case back in 2015. Although with a split decision (9 to 8), it did not accept the aforementioned reasoning. Lithuania was found to be in breach of ECHR Art. 7, on three parts: 1) The ECHR was not satisfied with Lithuania’s position that in 1953 (when the events of the Vasiliauskas case took place) a customary definition of genocide existed which was broader than the one established in 1948; 2) The ECHR did not accept that the “part of the group” interpretation could be foreseen in 1953, even though it may be supported by subsequent international practice; and, 3) Lithuania failed to justify the significance of the targeted group (“in part”, partisans) in relation to the national group (Lithuanians). The judgement was followed by a number of dissenting opinions that mainly criticized the majority for an overly formalistic approach.
The Drėlingas case followed in the wake of the Vasiliauskas case. Despite losing the battle in the case of Vasiliauskas at the ECHR, national courts in all instances supported Drėlingas’ conviction for genocide, stating that Drėlingas’ actions contributed to the destruction of Lithuanian partisans, which were considered a political group, however, this political group also formed a substantial part of national / ethnic group (Lithuanian nation). Indeed, wide sweeping repressions in 1940 – 1953 targeted not only the armed resistance but different layers of Lithuanian society: intellectuals, state officials, police, military personnel, farmers, entrepreneurs, politicians, supporters of partisans in particular, etc. – the backbone of pre-war Independent Lithuania. According to various estimates, around twenty thousand people were killed during the armed resistance, more than two hundred thousand were deported to GULAG camps or exiled to Siberia, where around fifty thousand perished. The onslaught on a three million-size nation was brutal, widespread and crippling.
Almost everyone expected that in the case of Drėlingas, the ECHR would follow the same path as it did in the case of Vasiliauskas. However, this time the ECHRs position was different. Again, it could be summed up to two main points: 1) The ECHR stated that it would not re-evaluate the facts, established by the national courts regarding Drėlingas’ role during the capture, nor his status as an accessory despite the fact that he was not the one who took the decision to execute Vanagas and to deport his wife; 2) The ECHR analyzed judgments of domestic courts, in particular Lithuania’s Supreme Courts Plenary Session judgement, where it clarified the points raised in the case of Vasiliauskas, and found that the Supreme Court’s judgement successfully proved the argument “in part” and dismissed any doubts previously found in the case of Vasiliauskas. The ECHR judgement stated:
105. Having regard to the principle of subsidiarity and to the wording of the Court’s 2015 judgment, the Court considers that the Supreme Court’s finding, that the applicant was guilty of genocide of partisans A.R. “Vanagas” and B.M. “Vanda”, the partisans being significant for the survival of the entire national group (the Lithuanian nation) as defined by ethnic features <…>, provides plentiful indication of the grounds on which it was based. Those grounds do not distort the findings of the Court’s judgment. On the contrary, this was a loyal interpretation of the Court’s judgment, taken in good faith in order to comply with Lithuania’s international obligations. The Court thus concludes that the Supreme Court’s interpretation of the Court’s 2015 (Vasiliauskas – add.) 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.
I.e. the Chamber decided that the main problem in both the Vasiliauskas and Drėlingas cases was the insufficient proof of the “part of the group” issue by the national courts. In the case of Drėlingas, the proof was sufficient. Therefore, there was no violation of Art. 7.
The Drėlingas judgement was also not unanimous: 2 of 7 judges voted against and presented dissenting opinions. Judge Motoc considered that such judgement, which in fact recognises “ethno-political” genocide and reverses Vasiliauskas decision, must be transferred to the Grand Chamber. In addition to that, judge Ranzoni also pointed out that the majority grossly misinterpreted Vasiliauskas case, especially regarding the “foreseeability issue”, emphasized in the latter, i.e. that the applicant, even with the help of the lawyer, would not be able to foresee that:
his actions, having regard to international law, in particular the Genocide Convention, as interpreted at that time, could constitute the offence of being an “accessory to genocide”, leading to his later criminal conviction.
In general terms, the dissenting opinions followed the Vasiliauskas case majority trend, and the arguments presented were of the same character with minor particularities (e.g. discussion about whether being an accessory to genocide is the same as being an accomplice to genocide under the Convention).
To sum up, in the case of Drėlingas, the Vasiliauskas case minority position took over. It is also interesting and important to note that in the case of Vasiliauskas, two Grand Chamber minority judges (Kūris and Pinto de Albuquerque) who co-authored the joint dissenting opinion were also present in the Drėlingas Chamber. Kūris, a Lithuanian judge, also wrote a particularly emotional dissenting opinion in the case of Vasiliauskas on his own, emphasizing that courts shall deal with human justice, not just with the formal law from their ivory towers. Ironically, this opinion is also cited in Motoc’s dissenting opinion in the case of Drėlingas, perhaps implying that the fight between justice and injustice is an intricate issue.
Even though the Vasiliauskas and Drėlingas cases carry certain sui generis character, and are mainly related to historic crimes, the implications of genocide interpretation could be far reaching. First of all, it challenges a widely accepted view, that Soviet Union and communist regime repressive policies cannot be considered as “genocide” because they were imposed on the basis of social and political rather than national ethnic attitude. Second, it brings us back to the discussion, started by the father of the concept of genocide – Raphael Lemkin – whether protection of political groups must be included in the genocide ambit, this time through the back door. Third, with the concept of crimes against humanity reserved for an attack against a civilian population, it looks that those who are resisting an inhumane regime with open arms may still be an object of protection within the bigger picture. The Drėlingas case has a good chance to be transferred to the Grand Chamber, so most likely the discussion with regards to the definition of genocide at the ECHR is not over yet.