The Crime of Genocide Against the Lithuanian Partisans: A Dialogue Between the Council of Europe and the Lithuanian Courts

• Main Author: Nika Bruskina
• Format: Article
• Language: English
• Published: European Papers (www.europeanpapers.eu) 2020-07-01
• Series: European Papers
• Subjects: genocide; partisans; soviet occupation; convention for the protection of human rights and fundamental freedoms; european court of human rights; non-retroactivity of criminal law
• Online Access: https://www.europeanpapers.eu/en/e-journal/crime-of-genocide-against-lithuanian-partisans

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 137-159 | Article | (Table of Contents) I. Introduction. - II. Historical background. - III. The ruling of the Constitutional Court of Lithuania of 18 March 2014 and the judgment of the Grand Chamber of the European Court of Human Rights in the case of Vasiliauskas v. Lithuania - their impact on the case-law of the Lithuanian courts in the genocide cases - III.1. The ruling of the Constitutional Court of Lithuania of 18 March 2014 as the first call to review the domestic case-law in the genocide cases - III.2. The judgment of the Grand Chamber of the European Court of Human Rights in the Vasiliauskas v. Lithuania case as the second call to review the domestic case-law in the genocide cases. - IV. The cases examined by the Lithuanian courts following the ruling of the Constitutional Court of 18 March 2014 and the judgment of the European Court of Human Rights in the Vasiliauskas v. Lithuania case. - V. The Drėlingas case before the European Court of Human Rights as the test for the progress done by the domestic courts. - VI. Conclusion. | (Abstract) The Article begins with a historical background and an overview of the earlier case-law of the Lithuanian courts which concluded that certain individuals' acts directed against the Lithuanian partisans as a "separate political group" during the Soviet occupation regime could be qualified as a crime of genocide. Second, the Article analyses two relevant decisions - the ruling of the Constitutional Court of Lithuania of 18 March 2014 and the judgment of the Grand Chamber of the European Court of Human Rights of 20 October 2015 in the case of Vasiliauskas v. Lithuania (judgment of 20 October 2015, no. 35343/05). Third, the Article argues that in light of the reasoning in these two decisions, the Lithuanian courts modified their argumentation as regards the notion of a protected group under the crime of genocide that was done during the Soviet occupation. The Article notes that such a change of the case law of the domestic courts was positively assessed by the Committee of Ministers of the Council of Europe and the European Court of Human Rights in its judgment of 12 March 2019 in the Drėlingas v. Lithuania case (no. 28859/16). The Article concludes that this modified argumentation of the Lithuanian courts demonstrates the existence of effective dialogue between the Council of Europe and the domestic courts of Lithuania as well as their ambition to ensure the rule of law is respected while putting the individuals on trial for their crimes committed in the past.