Case Note: Case of Vasiliauskas v. Lithuania in the European Court of Human Rights

Introduction and Facts of the CaseLithuania was incorporated in the USSR under the name "the Lithuanian Soviet Socialist Republic" in 1944.In 1949, an all-partisan organization fighting for the independence of Lithuania was formed.From mid-September 1951, Mr. Vasiliauskas had been working as an operation agent of the MGB, the precursor 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.After the January 2, 1953 operation, Mr. Vasiliauskas was promoted to a senior operational agent and was awarded and decorated at least 24 times in his 25-year service in the KGB.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. 1 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, suspended on health grounds.On September 21, 2004, the Court of Appeal upheld his conviction and, on February 22, 2005, the Supreme Court of Lithuania followed suit.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." 2 The Grand Chamber of the European Court of Human Rights (ECtHR) was seized of the issue of whether under Article 7(1) of the European Convention on Human Rights (ECHR) there was a sufficiently clear legal basis in the applicable law in 1953 for Vasiliauskas' conviction in Lithuania.In particular, the ECtHR was tasked to examine whether the domestic conviction for genocide matched the offence and could have been foreseen by Vasiliauskas at the time of his participation in the operation of January 2, 1953, which resulted in the deaths of J.A. and A.A. The ECtHR decided in favor of Vasiliauskas by nine to eight votes that there was a violation of Article 7 of the ECHR. Procedure and Claims of the PartiesArticle 7(1) of the ECHR contains the nullum crimen sine lege principle, namely 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, in particular his conviction under Article 99 of the Lithuanian Criminal Code.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."(emphasis added)The applicant, Mr. Vasiliauskas, claimed that prosecution for the killing of persons belonging to a political or social group was wider than what the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) allowed for.The applicant also contended that the genocide clause amended in 1998 was retroactively applied.3 Finally, he asserted that Article 1

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