By a 9-8 vote, the ECtHR held that there had been a violation of Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (no punishment without law) in the case of Vasiliauskas v. Lithuania.

The Lithuanian courts had previously convicted Vasiliauskas, a former MGB (KGB) officer, for the 1953 genocide of freedom fighters and sentenced him to four years imprisonment, only suspending the sentence due to his infirmity and old age.

In his appeal to the European Court of Human Rights, the applicant claimed that, based on Article 7 of the Convention, the Lithuanian courts applied a wider definition of the crime of genocide, one that was not in tune with international law because it also included the genocide of a political group - which, according to the national courts, the partisans were.

Wrongfully convicted of genocide

The Grand Chamber of the court found that Vasiliauskas was convicted based upon "legal provisions that were not in force in [national or international law in] 1953," thus violating the European Convention of Human Rights.

Last year, the Constitutional Court of Lithuania had put forth that Soviet deportations and repressions during the partisan war would constitute genocide if it were proved that these crimes sought to destroy a significant portion of the Lithuanian nation. According to the interpretation offered by the Constitutional Court, Lithuania may apply a wider definition of the crime of genocide, but these provisions could not be applied retroactively.

The Strasbourg court noted a lack of "historical and factual account" of how the Lithuanian partisans represented the nation. The judgment reads:

"The Court is not convinced that at the relevant time the applicant, even with the assistance of a lawyer, could have foreseen that the killing of the Lithuanian partisans could constitute the offence of genocide of Lithuanian nationals or of ethnic Lithuanians."

Sensitive topic

Soviet history is an extremely sensitive topic for the Lithuanian public. Many organizations and movements condemned the ECtHR judgment. The public council, which is made up of associations related to the fight against the Soviet occupation, announced a protest "regarding the acquittal of the murderer of partisans," claiming that the ECtHR decision was "biased and unfair."

Vytautas Landsbergis (the first head of state of Lithuania following the declaration of independence from the Soviet Union and currently a politician and MEP) stated that "the current text of the ECtHR judgment indirectly legitimizes the occupation and annexation of the Republic of Lithuania by the USSR."

The Conservative Party prepared a resolution to appeal to the ECtHR, claiming that in 1953 Vasiliauskas was subject to the criminal law in force prior to the occupation that "was never repealed by any act of a sovereign Lithuania."

'We went a little too far'

The legal profession is of a different opinion. "After restoring our independence, we started categorizing all Soviet crimes as genocide in all cases - we went a little too far. Well, now we have to deal with the results of our zeal, which, I hope, will prompt our law enforcement and the courts to take international law more seriously," said Justinas Žilinskas, an expert of international law, commenting on the case.

According to him, mistakes were made due to a multitude of reasons. "This includes certain political reasons, the youth and inexperience of our state, also the desire to ensure that the guilty parties do not avoid prosecution and are in fact prosecuted as soon as possible."

Žilinskas stressed that there is cause for optimism - the court judgment was "replete with dissenting opinions" and that some judges understood and supported Lithuania's position. Egidijus Kūris, the judge representing Lithuania, expressed his dissenting opinion via the poem of Archibald MacLeish, "The Young Dead Soldiers Do Not Speak."