Difficulties with Proving The Crime of Genocide on Example of The Case Vasiliauskas. V. Lithuania

In our unstable world a lot of crimes are committed on the grounds of discrimination. And among such crimes the crime of genocide is to be the most violent and the most difficult to prove. This crime is characterized by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means like causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.

There are some cases when a State denied the fact of genocide, or there are not enough evidences to prove it, or other criminal acts are thought to be a genocide. Such situation is seen in the case of Vasiliauskas v. Lithuania in the European Court of Human Rights.

In 1949, in the period when Lithuania was a part of the USSR, an all-partisan organization fighting for the independence of Lithuania was formed. From 1951, Mr. Vasiliauskas had been working as an operation agent of the KGB, on the territory of the Lithuanian SSR. On January 2, 1953, Mr. Vasiliauskas took part in an operation against two Lithuanian partisans of the Movement of the Struggle for the Freedom of Lithuania, the brothers J.A. and A.A, who were shot and killed in the Šakiai area in Lithuania. In 2001, Vasiliauskas, along with another co-defendant, were charged with the crime of genocide perpetrated against the pair of Lithuanian partisans as representatives of a political group under article 71(2) of the Lithuanian Criminal Code. In 2004, the Trial Court in Lithuania convicted Vasiliauskas for the crime of genocide against political, national and ethnic groups under the newly amended article 99 of the Criminal Code of 1998; and he was sentenced to six years’ imprisonment. Later the Supreme Court found that the 1998 amendments to the Criminal Code established the elements of the crime of genocide, and included in them acts aimed at physical extermination of some or all of the members of a social or political group. This characteristic of the crime of genocide remained in Article 99 of the Criminal Code.

In the case the court decided that exactly crime of genocide was committed on the basis of definition of the term “genocide”. Two persons from a special political group were killed and they were killed because of being a part of this special political group, what made a ground for pretending that it was precisely genocide. But everything is not that easy.

Later on the Grand Chamber of the European Court of Human Rights looked through the issue of whether under article 7(1) of the European Convention on Human Rights there was a clear legal basis in the applicable law in 1953 for Vasiliauskas’ conviction in Lithuania. Also the ECHR was tasked to examine whether the domestic conviction for genocide matched the offence and whether Mr. Vasiliauskas was aware of that definition of genocide at the time of his participation in the operation of January 2, 1953, which resulted in the deaths of two partisans. The ECHR decided in favor of Vasiliauskas that there was a violation of article 7 of the European Convention on Human Rights, which in its turn says that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Mr. Vasiliauskas’ main argument was that the wide interpretation of the crime of genocide applied by the various court instances in Lithuania had no basis in public international law. Article 99 of the Lithuanian Criminal Code of 21 April 1998 defines the crime of genocide as “a person who, seeking to physically destroy some or all of the members of any national, ethnic, racial, religious, social or political group, organizes, is in charge of or participates in killing…them…shall be punished by imprisonment for a term of from five to twenty years or by life imprisonment.” In its turn the State told that at given period of time in Lithuania organized military groups of partisans against the Soviet regime were existing. The State also said that during that period of time many people were killed, imprisoned or even deported as the aim of the Soviet regime was to destroy previous way of life in the country and to build absolutely new way of life. The murders of J.A. and A.A. could not only be regarded as murders of two members of a political group, but also as killings of persons belonging to two protected groups under the Genocide Convention, namely a national and an ethnic group, as the Soviet regime sought “to annihilate the culture, religion, language, politics and identity of the Lithuanian nation”. So the State claimed that the acts of the applicant constituted the criminal offence of genocide under conventional and customary international law in 1953 and the main evidence is the provisions of the Genocide Convention to which the USSR was a party in 1953.

So as a result Mr. Vasiliauskas’ conviction was based on legal provisions that were not in force in 1953 as Lithuania was not an independent state at that time. But at the same time, taking into account the fact that the USSR was a member to the Genocide Convention, the Court did not have trouble in finding that the crime of genocide was clearly recognized as an international crime in 1953, and the prohibition of genocide was “sufficiently accessible to the applicant.”

Then the ECHR examined the definition of the crime of genocide as it was in 1953. As it is said in the Genocide Convention, four groups of persons are protected: national, ethnical, racial or religious, and nothing is said about social or political groups.[7] Such statement means that in case of Mr. Vasiliauskas there were no crimes of genocide as persons, who were killed, belonged to other political and social groups as well. Nevertheless some judges claimed that such partisans were also the members and representatives of national and ethnic groups as they wanted to save and protect Lithuanian people from the Soviet regime. So it was the Applicant’s argument that his killing of the Lithuanian partisans fell outside the ambit of the Convention’s definition of genocide.

So as a result the Court found that at that time it was unlikely that the applicant would have foreseen that his actions could constitute genocide, art.7.1 of ECHR has been infringed and cannot be justified using art.7.2 and the applicant was entitled to damages of €10,072 plus legal fees.

And to sum up, European Court of Human Rights has found Lithuania in breach of European Convention on Human Rights, article 7. In this case Lithuania retroactively applied broadened definition of genocide embedded in the national law. Such definition was created with the aim to prosecute persons that carried out soviet repressions in Soviet Union occupied Lithuania after World War Two.

As it can be seen from that case, the crime of genocide is very difficult to prove. Such kind of crime is of a very serious nature, so the evidences and the legal bases should be as strong as it possible. It is very difficult to prove given kind of crime but also very important for international organs and national courts to learn how to do it as to protect all the people from inhuman attitude toward anyone.