SECRETARIAT GENERAL
SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES
Contact: Clare OVEY Tel: 03 88 41 36 45
Date: 09/10/2017 DH-DD(2017)1132
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1302nd meeting (December 2017) (DH)
Item reference: Action report (05/10/2017)
Communication from Lithuania concerning the case of VASILIAUSKAS v. Lithuania (Application No. 35343/05) (53 pages)
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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1302e réunion (décembre 2017) (DH)
Référence du point : Bilan d’action
Communication de la Lituanie concernant l’affaire VASILIAUSKAS v. Lituanie (requête n° 35343/05) (anglais uniquement) DGI 05 OCT. 2017
SERVICE DE L’EXECUTION DES ARRETS DE LA CEDH
AGENT OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA TO THE EUROPEAN COURT OF HUMAN RIGHTS
Gedimino ave. 30, LT-01104 Vilnius, tel. +370 5 266 2990, fax +370 5 266 2863, +370 5 262 5940, e-mail [email protected]
MmeGeneviève Mayer 5 October 2017 Department for the execution of judgments of the ECHR DGI Directorate General ofHuman Rights and Rule of Law Council of Europe F-67075 STRASBOURG CEDEX
Cc: MmeLaima Jurevicienè Ambassador Extraordinary and Plenipotentiary Permanent Representation of Lithuania to the Council of Europe
BYE-MAIL AND MAIL TRANSMISSION
EXECUTION OF THE ECHR JUDGMENT IN CASE V ASILIAUSKAS v. LITHUANIA UPDATED ACTION REPORT
The Agent of the Government of the Republic of Lithuania to the European Court of Human Rights submits action report conceming the execution of the judgment of the Grand Chamber of the European Court of Human Rights (hereafter - the Court) of 20 October 2015 in case Vasiliauskas v. Lithuania (application No. 35343/05). The judgment became final on 20 October 2015 in accordance with Article 44§ 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter - the Convention).
Case description The case concerns the violation of the principle "nullum crimen sine lege" on account of the applicant's conviction by the retroactive application of criminal-law provisions which were not in force at the time of the impugned events in 1953 (neither under domestic nor international law as it stood at the relevant time) (violation of Article 7 of the Convention). In 2004, the applicant was convicted for genocide of a political group for having participated, as an operational agent of the Ministry of State Security of the Lithuanian Soviet Socialist Republic ("MGB" - Ministerstvo Gosudarstvenoj Bezopastnosti), in an operation which resulted in the killing of two Lithuanian partisans in 1953. His conviction was based on the relevant provisions of the Criminal Code of the Republic of Lithuania of 2003 which, unlike the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (hereafter - the Genocide Convention), included "political groups" among the range of protected groups 1• The Court held that the applicant' s conviction cou Id not be regarded as consistent with the essence of the crime of genocide as defined in internati onal law at the material time and had therefore not been reasonably foreseeable by the applicant at the time of the killings of the two partisans in 1953. Namely, it was concluded by the Court in § 181 of the judgment that: "The Court accepts that the domestic authorities have discretion to interpret the definit ion of genocide more broadly than that contained in 1948 Genocide Convention. However , such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. The Court has already established that in 1953 political groups were excluded from the definition of genocide under international law (see paragraph 178 above). It follows that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant for the genocide of Lithuanian partisans, as members of a political group (see also the Constitutional Court's ruling, paragraph 60 above). Moreover, even if the international courts' subsequent interpretation of the term "in part" was available in 1953, there is no firm finding in the establishment of the facts by the domestic criminal courts to enable the Court to assess on which basis the domestic courts concluded that in 1953 the Lithuanian partisans constituted a significant part of the national group, in other words, a group protected under Article II of the Genocide Convention. That being so, 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 ethnie Lithuanians."
Individual measures
Payment ofawarded compensation According to the judgment of the Court in the present case, the Government of the Republic of Lithuania was obliged to pay the applicant EUR 10,072 (ten thousand seventy two euro) in respect of pecuniary damage and EUR 2,450 (two thousand four hundred fifty euro) in respect of costs and expenses. The sums awarded as just satisfaction following the request of the applicant's advocate of 11 November 2015 were transferred to the indicated account of the applicant in due time on 19 November 2015 (thejust satisfaction form was e-mailed on 23 November 2015).
Individual situation The applicant was sentenced to six years' imprisonment, however he was released2 from the imposed sentence on the health grounds.
1 Article 99. Genocide "A person, who, with intent to destroy, in whole or in part, a national, ethnical, racial, religious, social or political group, organises, is in charge of or participates in killing, torture, causing physical or mental harm, or deportation, or otherwise creates such living conditions as to cause the death of the group, in whole or in part, imposes measures that prevents birth within the groups, or forcibly transfers children of the group to another group, shall be sentenced to imprisonment from 5 to 20 years or for life." 2 The term used by the Court in the paragraph 33 of the judgment that the applicant was granted a suspension of his sentence is not correct, because the applicant was not granted a suspension, but he was released from serving the imposed penalty in accordance with Article 76 of the Criminal Code of the Republic ofLithuania providing that: ,,1. A person who committed a criminal act may be released from a penalty where, before ajudgement is passed by a court, he contracts a terminal illness rendering him unable to serve the sentence. In such a case, the court shall, when passing a judgement of conviction, impose a penalty upon this person and release him from serving the sentence. The court shall decide this issue taking into consideration the gravity of the committed criminal act, the personality of the convicted person and the nature of the illness. < ... >"
2 By the award of just satisfaction in respect of pecuniary damage the ap plicant was compensated the sum which he had paid to the victim (relative of the partisans killed in 1953) as an award for damages granted within the domestic civil proceedings.
Reopening ofthe do mes tic proceedings The Lithuanian legal system provides for the possibility of the re-opening of crirninal proceedings once the European Court of Human Rights finds that the conviction ju 3 Under Article 456 of the Code of Criminal Procedure of 2003 the criminal cases examined by the Lithuanian courts may be reopened when the ECtHR finds that the convicting judgment was adopted in violation of the Convention and its Protocols, if the violations taken into consideration their nature and gravity raise reasonable doubts as to the conviction as such and if they might be remedied only upon reopening of the case of the convicted person. Under Article 458 the request for the reopening may be submitted before the Supreme Court of Lithuania within 6 months from the date on which thejudgment of the ECtHR becomes final. 4 Decision of the Supreme Court ofLithuania of27 October 2016 in the criminal case no. 2A-P-8-788/2016 Accordingly, the Government of the Republic of Lithuania consider that the applicant's individual situation was fully remedied through the award of just satisfaction under Article 41 of the Convention and the annulment of the contested conviction as well due to termination of the criminal proceedings. General measures Legal regulation With regard to domestic law, namely the provisions of Article 99 of the Criminal Code of the Republic of Lithuania, which in addition to groups protected by the Genocide Convention also include political and social groups, the Government would like to draw attention to the Court's finding that domestic authorities have the discretion to interpret the definition of genocide more broadly than that contained in the Genocide Convention, however such discretion does not authorise the application of a broader application retroactively (§§ 181, 184 of the judgment). In this regard it should be reiterated that in finding the violation of the Convention in the applicant's case the Court clearly established that in 1953 political groups were excluded from the definition of genocide under international law. However, the Court did not exclude an assumption that in 1953 interpretation of the term "in part" as related to the significant part of the protected group was available, had the national courts given firm finding in the establishment of facts that in 1953 the Lithuanian partisans constituted a significant part of the national group, in other words, a group protected under Article II of the Genocide Convention. Accordingly, the execution of the judgment in the present case does not require any legislative amendments, as the violation was found due to the improper application of the domestic law. Domestic case-law In this regard the Govemment would like to draw the attention of the Committee of Ministers, that since the examination of the applicant's criminal case a material development in the domestic case-law of both constitutional and criminal jurisdiction took place, which should be regarded as a sufficient general measure, to the Government's view, taken into account the nature and scope of the violation found in the present case. Jurisprudence of the Constitutional Court - Ruling of 18 March 20145 The Constitutional Court gave a ruling on whether the crime of genocide, as defined in the Criminal Code, and the possibility to impose punishment for that crime retroactively, were compatible with the Constitution of the Republic of Lithuania. The Constitutional Court held that Article 99 of the Criminal Code, which stipulates that actions, aimed at physical destruction, in whole or in part, of persons belonging to any national, ethnie, racial, religious, and also social or political group, could be considered as genocide was compatible with the Lithuanian Constitution. Having reviewed the relevant international law instruments, including the case-law of the International Criminal Tribunal for the former 5 English translation of the Ruling of the Constitutional Court of 18 March 2014 ruling "On the compliance of certain provisions of the criminal code of the Republic ofLithuania that are related to criminal liability for genocide with the Constitution of the Republic ofLithuania" Case-law of courts of general jurisdiction The prosecution and domestic courts took into account the conclusions of the Constitutional Court and the violation found by the European Court of Human Rights in Vasiliauskas case and modified their practice in the cases under Article 99 of the Criminal Code abstaining from the retroactive persecution for genocide of political groups in cases related to Soviet repressive policy towards paitisans. In such cases persons would be charged for genocide of national-ethnic-political group at the same time providing motivated argumentation in order to prove that the person charged with genocide was acting with special intent to destroy the Lithuanian partisans as constituting a significant part of the national group, i.e. the group protected by the Genocide Convention at the time of the commission of criminal acts during Soviet occupation: In criminal case no. 2K-5-895/20166 the Supreme Court upheld the acquittai of the accused due to the absence of subjective elements of the genocide crime. The Supreme Court also noted that at the time of the commission of the act in 1965 there was no law providing for the liability for genocide of a political group, commission of which the accused was charged with, thus there was no possibility for retroactive application of Article 99 of the Criminal Code (see enclosed copy of the English translation of the decision). 7 In criminal case no. 2K-P-18-648/2016 , which was examined by the Plenary Session of 17 judges of the Chamber of Criminal Cases, the Supreme Comt upheld the conviction of the accused for committing genocide, taking into account both the Ruling of the Constitutional Court of 18 March 2014 and the most extensively the Court's judgment adopted in Vasiliauskas case. The Supreme Court having noted that, in the Grand Chamber's view, Lithuanian courts in the judgments adopted in the criminal case of the applicant V. Vasiliauskas did not provide sufficient argumentation that Lithuanian paitisans constituted a significant part of the national group, i.e. the group, protected 6 Decision of the Supreme Court ofLithuania of25 February 2016 in the criminal case no. 2K-5-895/2016 Dissemination lt should be noted that under the Constitution of the Republic of Lithuania the Convention upon its ratification became a constituent part of the Lithuanian legal system and pursuant to the well established case-law of the Constitutional Court, the Supreme Court and the Supreme Administrative Court, the Convention and the Court's case-law have direct effect in Lithuania. Thus, the dissemination of the judgment is to be considered as a general measure. Accordingly, explanatory note regarding the judgment in Vasiliauskas case and its content together with its translation into Lithuanian was placed on the official website of the Agent of the Government of the Republic of Lithuania to the European Court of Human Rights Accordingly, the Government of the Republic of Lithuania consider that necessary general measures are sufficiently implemented by the development of the case-law of the Supreme domestic courts, as it is binding on the lower courts and ail law-enforcement institutions. CONCLUSION Taking into account the above mentioned individual and general measures, it could be concluded that the Republic of Lithuania has complied with its obligations under Article 46§ 1 of the Convention, thus the Government Agent invites the Committee of Ministers to terminate the supervision and close the present case. Enclosures: 1. Copy of the English translation of the decision of the Supreme Court of Lithuania of 27 October 2016 in the re-opened criminal case of V. Vasiliauskas, 11 pages; 2. Copy of the English translation of the decision of the Supreme Court of Lithuania 25 February 2016 in the criminal case no. 2K-5-895/2016, 15 pages; 6 3. Copy of the English translation of the decision of the Supreme Court of Litbuania of 12 April 2016 in the criminal case no. 2K-P-18-648/2016, 20 pages. Respectfully, Karolina Bubn Agent of t overnment of the Republic of Lithuania to the European Court of Human Rights 7 Translation from Lithuanian Criminal Case No. 2A-P-8-788/2016 Judicial process No. NOT ASSIGNED Procedural decision category: 1.2.1.1; 2.13.3; 3.1.6 SUPREME COURT OF LITHUANIA DECISION IN THE NAME OF THE REPUBLIC OF LITHUANIA 27 October 2016 Vilnius A plenary session of the Criminal Division of the Supreme Court of Lithuania, consisting of Jonas Prapiestis, the President, Armanas Abramavičius, Viktoras Aidukas, Rima Ažubalytė, Dalia Bajerčiūtė, Gintaras Goda, Eligijus Gladutis, Aurelijus Gutauskas, Audronė Kartanienė, Vytautas Masiokas, Artūras Pažarskis, Alvydas Pikelis, Aldona Rakauskienė, Vladislovas Ranonis, the judges, and Rapporteur Olegas Fedosiukas, Daiva Kučinskienė, acting as a secretary, with the participation of Regimantas Žukauskas, the prosecutor, attorney at law Šarūnas Vilčinskas, the representative of the successor of convict Vytautas Vasiliauskas, Martyna Bikulčienė, the victim, at the court hearing examined, on the basis of the application of Liuda Vasiliauskienė and Inga Cylikienė, the successors of convict Vytautas Vasiliauskas, and in accordance with Article 459§ 2(3), and §3(2) of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter – the CCP), the re-opened criminal case of Vytautas Vasiliauskas in which: by the Judgement of 4 February 2004 of the Chamber of Judges of the Criminal Division of the Kaunas Regional Court Vytautas Vasiliauskas was convicted under Article 99 of the Criminal Code of the Republic of Lithuania (hereinafter – the CC) and sentenced to imprisonment of six years. According to Article 76 of the CC the convict was released from serving the sentence due to his illness. By the Decision of 21 September 2004 of the Chamber of Judges of the Criminal Division of the Court of Appeal of Lithuania the appeal of convict Vytautas Vasiliauskas was rejected. By the Decision of 22 February 2005 of the Chamber of Judges of the Criminal Division of the Supreme Court of Lithuania the cassation appeal of convict Vytautas Vasiliauskas was rejected. The Grand Chamber of the European Court of Human Rights (hereinafter – ECHR) in its Judgement of 20 October 2015 in case Vasiliauskas v. Lithuania (Application No. 35343/05) found a violation of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. the requirement 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 was infringed. By its Decision of 5 May 2016, the Chamberof Judges of the Criminal Division of the Supreme Court of Lithuania granted the application of Liuda Vasiliauskienė and Inga Cylikienė, the successors of convict Vytautas Vasiliauskas, to re-open the criminal case of Vytautas Vasiliauskas, and the case concerning the conviction of Vytautas Vasiliauskas was referred to be examined to the plenary session of the Criminal Division of the Supreme Court of Lithuania (hereinafter – also as the Plenary Session). The Plenary Session of the Criminal Division of the Supreme Court of Lithuania heard the statements of the Rapporteur on the merits of the case, the contents of the decisions of the courts and the application to re-open the criminal cases, the explanation of the representative of the successor of the convict requesting the application of the successors of the convict to be granted, and the victim who asked the application of the successors to be dismissed, the prosecutor who requested the application of the successors of the convict to be partially granted, the judgement and the decisions of the courts to be annulled and the case to be terminated due to the death of the convict, and established the following: 1. Vytautas Vasiliauskas was convicted of the offence as he, starting from 15 September 1951, while serving as an operative officer of the Šakiai region division of the Kaunas County of the State Security Ministry (SSM) of the Lithuanian SSR, and being aware of the main intention of the Ministry, i.e. to physically eradicate part of the Lithuanian population belonging to a separate political group, namely Lithuanian partisans, on 2 January 1953, acting according to a pre-agreement with the heads and the officers of the Šakiai region unit of the Kaunas County of the State Security Ministry (MGB), and being assisted by Martina Žukaitienė who had provided the data about the Lithuanian partisans Jonas Aštrauskas and Antanas Aštrauskas, personally showed the way to their whereabouts and was paid for that 2,000 roubles, went to the bunker (shelter) designated by Martina Žukaitienė in Žalgiris forest in the Šakiai region, together and assisted by other officials of the MGB, surrounded the bunker and attacked it, during the attack the two partisans, Jonas Aštrauskas and Antanas Aštrauskas, were shot, i.e. physically destroyed as the participants of a separate political group of resistance to the Soviet occupation regime. 2. In their application Liuda Vasiliauskienė and Inga Cylikienė, successors of convict Vytautas Vasiliauskas, requested to annul the Judgement of 4 February 2004 of the Kaunas Regional Court, the Decision of 21 September 2004 of the Chamber of Judges of the Criminal Division of the Court of Appeal of Lithuania, and the Decision of 22 February 2005 of the Chamber of Judges of the Criminal Division of the Supreme Court, and terminate the case against Vytautas Vasiliauskas. 2.1. The Applicants indicated that the Grand Chamber of the ECHR in its Judgement of 20 October 2015 concluded that the State of Lithuania had violated Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by convicting Vytautas Vasiliauskas under Article 99 of the CC for genocide of a political group of Lithuanian citizens - the participation in killing two Lithuanian partisans in 1953. The ECHR had decided that the conviction of Vytautas Vasiliauskas for genocide could not have been foreseen at the time of killing the partisans, because in 1953 the relevant international law did not include political groups into the definition of genocide, also it was not possible to clearly determine that the customary international law would provide for a definition of genocide to be broader than the one defined in Article 2 of the UN Convention for the Prevention and Punishment of the Crime of Genocide of 1948 (hereinafter – Convention against Genocide, the Genocide Convention). Although the ECHR indicated that the States had a discretion to interpret the concept of genocide in broader terms than provided in the Genocide Convention of 1948, this, however, did not permit national courts to convict persons under such broader definition retrospectively. Thus, in the light of the fact that in 1953 according to the international law political groups were not included into the definition of genocide, the ECHR in its Judgement concluded that national courts were precluded from retrospectively convicting Vytautas Vasiliauskas of genocide of Lithuanian partisans as members of a political group. 2.2. Furthermore, the application indicated that while being partisans A. and J. Aštrauskai could not have been equated to groups of other residents, because the partisans that were using armament in the fight 2 against the Soviet occupation and for the independence of the Lithuanian State constituted a separate and clearly identifiable group characterised by armed resistance to the Soviet occupation. Furthermore, the words should be interpreted in their regular meaning, therefore the terms ‘national’ and ‘ethnic’ should not be extended to such extent as to include the partisans as well. The regulatory norm of genocide in the Lithuanian national law was elaborated in the period of Lithuanian independence, and therefore the legal position of Vytautas Vasiliauskas was aggravated. 2.3. In view of the above arguments, as claimed by the Applicants, V. Vasiliauskas could not have been convicted of genocide under Article 99 of the CC, therefore the criminal case against him has to be terminated. 3. The application of L. Vasiliauskienė and I. Cylikienė, the successors of convict V. Vasiliauskas, should be partially granted. Regarding the obligations arising from the Judgement of the European Court of Human Rights finding the violation of the Convention 4. According to Article 456 of the CCP, the criminal cases examined by the courts of the Republic of Lithuania may be re-opened in case the United Nations Human Rights Committee has recognised that the decision to convict the person has been adopted in violation of the International Covenant on Civil and Political Rights, or the optional protocols thereto, or the ECHR has recognised that the decision to convict the person has been adopted in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, or its additional protocols, where the nature and the severity of the violations raise reasonable doubts concerning the person’s conviction, and the continuous violations may be rectified only upon renewal of the case of the convicted. 5. When interpreting Article 138 §3 of the Constitution providing that ‘International treaties ratified by the Seimas of the Republic of Lithuania shall be a constituent part of the legal system of the Republic of Lithuania’, the Constitutional Court of the Republic of Lithuania (hereinafter – also as the Constitutional Court) has stated on several occasions that this provision means that such international treaties which are ratified by the Seimas acquire the force of law (Rulings of the Constitutional Court of 17 October 1995, 14 March 2006, 5 September 2012). The constitutional jurisprudence emphasises that the above provision cannot be construed as meaning that, purportedly, the Republic of Lithuania may disregard its international treaties, if a different legal regulation is established in its laws or constitutional laws than that established by the international treaties. On the contrary, the principle entrenched in the Constitution that the Republic of Lithuania observes international obligations undertaken of its own free will and respects universally recognised principles of international law implies that in cases when the national legal acts establish a legal regulation which competes with that established in an international treaty, then the international treaty should be applied (Rulings of the Constitutional Court of 18 March 2014, 14 March 2006, 21 December 2006, 5 September 2012). 6. On 27 April 1995, the Republic of Lithuania adopted the Law ‘On the Ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, its Fourth, Seventh and Eleventh Protocols’ whereby the Seimas of the Republic of Lithuania in accordance with Article 138 of the Constitution of the Republic of Lithuania ratified, subject to reservations and declarations, the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 14 May 1993, and the Fourth, Seventh and Eleventh Protocols of this Convention (Article 1). Thereby the Republic of Lithuania acknowledged the binding nature of the jurisdiction of the ECHR in all cases related to the interpretation and application of the Convention. The ECHR was established to ensure full compliance with the obligations assumed according to the Convention and the Protocols thereto. The jurisprudence of the ECHR as a source of construction of law is also important to construction and applicability of the Lithuanian law (Ruling of 8 May 2000 of the Constitutional Court). 3 7. Under Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms governing the binding force and enforcement of judgements of the ECHR, the High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties. The final judgement of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. 8. The plenary session of the Criminal Division of the Supreme Court of the Republic of Lithuania notes, that within the course of examination of the re-opened case of V. Vasiliauskas, convicted for genocide, the conclusions made in the Judgement of 20 October 2015 of the Grand Chamber of the ECHR of 20 October 2015 in case Vasiliauskas v. Lithuania (Application No. 35343/05) must be taken into account. By this ECHR judgement it was concluded that within the case under examination there was a violation of the requirement of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 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. The Plenary Session has no authority to challenge this conclusion, disagree with it or refuse to rely upon it. Acting in accordance with Article 456 of the CCP the Plenary Session has to decide whether or not the specified violation of the Convention raises doubts regarding the conviction of V. Vasiliauskas in the present case for genocide under Article 99 of the CC, and if so – how this violation could be remedied. Regarding the essence of the violation of the Convention as established in the judgement of the ECHR 9. Article 7 § 1 of the Convention provides 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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. Article 7 § 2 shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. 10. In the case at issue V Vasiliauskas was convicted under Article 99 of the CC of participating on 2 January 1953, while serving in the Soviet occupational structure, i.e. working as an operative officer of the Šakiai region unit of the Kaunas County of the State Security Ministry (MGB) of the Lithuanian SSR, in the genocide of the part of Lithuanian residents belonging to a separate political group, i.e. of the Lithuanian partisans. 11. The Grand Chamber of the ECHR in its Judgement of 20 October 2015 indicated that in 1953 international treaty law did not include a “political group” in the definition of genocide, nor could it be established with sufficient clarity that customary international law provided for a broader definition of genocide than that set out in Article II of the 1948 Genocide Convention (Vasiliauskas v. Lithuania, § 178). 12. When explaining the motives for its decision regarding the Lithuanian courts’ interpretation on the correspondence of the actions of V. Vasiliauskas to the concept of genocide, as it stood in 1953, the Grand Chamber noted that the first instance court found V. Vasiliauskas guilty as charged by the prosecutor of genocide of the Lithuanian partisans as a separate political group. The Court of Appeal of Lithuania, for its part, rephrased the conviction holding that the attribution of the Lithuanian partisans, as participants in the armed resistance, to a particular political group was only conditional and not very precise, and that the Lithuanian partisans had also been representatives of the Lithuanian nation, i.e. a national group. On the other hand, the Court of Appeal of Lithuania did not explain what the notion “representatives” entailed, nor did the court present much historical or factual substantiation as to how the Lithuanian partisans were representing the Lithuanian nation. Nor did the partisans’ specific mantle with regard to the “national” group appear to have been interpreted by the Supreme Court of Lithuania, having acknowledged that the applicant 4 was “convicted of participation in the physical extermination of part of the Lithuanian residents belonging to a separate political group”(Vasiliauskas v. Lithuania § 179). 13. The Grand Chamber of the ECHR indicated that the discretion of the public authorities to interpret the definition of genocide more broadly than in the Genocide Convention of 1948 did not permit national courts to convict persons accused on such broader definition retrospectively, the prosecutors were precluded from retrospectively charging and the national courts˗˗ from retrospectively convicting the applicant of genocide of the Lithuanian partisans as members of a political group. In the Judgement of the ECHR it was noted that there was no firm finding in the establishment of the facts by the domestic criminal courts to enable the Court to assess on which basis the domestic courts concluded that in 1953 the Lithuanian partisans constituted a significant part of the national group, in other words, a group protected under Article II of the Genocide Convention. The Grand Chamber concluded that the Court was 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 the Lithuanian national or ethnic group. The ECHR acknowledged the importance of the applicant’s argument that his actions, and those of the MGB, were aimed at the extermination of the partisans as a separate and clearly identifiable group, characterised by its armed resistance to Soviet power (Vasiliauskas v. Lithuania, § 181, 182). 14. In the Judgement of the ECHR it was noted that in accordance with Article 31 § 1 of the Vienna Convention on the Law of Treaties, the ordinary meaning was to be given to the terms of the treaty. In this regard, it is not immediately obvious that the ordinary meaning of the terms “national” or “ethnic” in the Genocide Convention can be extended to cover the partisans. Thus, in the view of the ECHR, the domestic courts’ conclusion that victims came within the definition of genocide as part of a protected group was an interpretation by analogy, to the applicant’s detriment, which rendered his conviction unforeseeable (Vasiliauskas v. Lithuania, § 183). Regarding the scope of examination of the re-opened case 15. For the purpose of examining the re-opened case of V. Vasiliauskas the Plenary Session refers to the facts established by the courts, and the basis for the re-opening of the case is challenging the legal assessment, rather than the determination of facts. It should be stated that the participation of V. Vasiliauskas in the operation of the Soviet occupation structure – the State Security Ministry (MGB) – during which two Lithuanian partisans (J. Aštrauskas and A. Aštrauskas) were killed, has been established and does not raise any doubts. These actions committed by V. Vasiliauskas were part of the repressions committed by the occupational soviet regime against the Lithuanian population, and should be assessed as targeting not only the specific persons, but also the State of Lithuania in the broader sense. 16. Following the ECHR’s finding of violation of Article 7 of the Convention in the present case, the Plenary Session examines the issue of the reasonableness and compliance with the requirements of the Convention, the Constitution of the Republic of Lithuania, criminal and criminal procedure laws of the charges against V. Vasiliauskas and qualification of the actions committed by him under Article 99 of the CC. Regarding the norm of genocide in the Lithuanian national law and its retroactive effect 17. The genocide crime was established in the Lithuanian national law after the restoration of the independent Lithuanian State on 11 March 1 990 . On 9 April 1992, the Republic of Lithuania accessed the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968. On the same day the Supreme Council of the Republic of Lithuania – the 5 Reconstituting Seimas – enacted the Law ‘On Responsibility for Genocide of Inhabitants of Lithuania’ wherein Article 2 provided that the killing and torturing and deportation of inhabitants of Lithuania, committed during the occupation and annexation of Lithuania by Nazi Germany or the USSR, shall be classified as the crime of genocide as defined by the international law, while Article 3 provided that the Law on Responsibility for Genocide of Inhabitants of Lithuania may be applied retroactively, and that there was no statute of limitations to prosecute individuals who had committed acts specified in this Law before it came into force. Starting from 1998, the genocide crime was incorporated in the CC of 1961 (Article 71), and later in the new CC of 2000 (Article 99). According to Article 3 § 3 of the CC genocide is attributed to the category of crimes not subjected to the regular rule of the validity of law in terms of time, according to which a criminal law establishing the criminality of an act, imposing a more severe penalty upon or otherwise aggravating legal circumstances of the person who has committed the criminal act shall have no retroactive effect. According to Article 95§ 9(1) of the CC no statutory limitation is applied to the crime of genocide. 18. Article 99 of the CC provides for a criminal liability for a person who, intending to physically destroy, in whole or in part, a group of persons belonging to any national, ethnic, racial, religious, social or political group, organises, is in charge of or participates in their killing, torturing, causing bodily harm to them, hindering their mental development, their deportation or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricts the birth of the persons belonging to those groups or forcibly transfers their children to other groups. It should be noted that the valid wording of Article 99 of the CC provides for a broader definition of the genocide concept than that established in the recognised international law norms, and in particular, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The characteristics of social and political groups were included into the genocide norm in the national Lithuanian law as late as on 21April 1998, and it came into force on 6 May 1998. 19. In the Ruling of 18 March 2014 ‘On the Compliance of certain provisions of the Criminal Code of the Republic of Lithuania that are related to criminal liability for genocide with the Constitution of the republic of Lithuania’ the Constitutional Court of the Republic of Lithuania concluded that the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, is (was) in conflict with Article 31 § 4 of the Constitution and the constitutional principle of a state under the rule of law. This conclusion means that the retroactive effect of the crime referred to in Article 99 of the CC does not cover the actions committed with intent to physically destroy, in whole or in part, persons belonging to any social or political group. Such actions may be considered, under Article 99 of the CC, to be the acts of genocide only if they had been committed after 6 May 1998. At the same time this interpretation of the Constitutional Court means that the part of the genocide norm (Article 99 of the CC) that is consistent with the definition recognised in the international law and provided for in the Genocide Convention, i.e. exclusive of social and political group characteristics, shall have a retrospective effect upon the actions committed within the period relevant for the present case, i.e. in 1953. Regarding the legal evaluation of the repressions of the Soviet occupation regime against Lithuanian partisans as participants of resistance to occupation within the relevant period 20. The basis for the legal evaluation of the repressions of the Soviet occupation regime targeted against the Lithuanian partisans as participants of the resistance to the occupation within the relevant period is specified in the mentioned above Ruling of 18 March 2014 of the Constitutional Court, and in the Decision 6 of 12 April 2016 of the plenary session of the Criminal Division of the Supreme Court of Lithuania in Criminal Case No. 2K-P-18-648/2016. 21. In the Ruling of 18 March 2014 the Constitutional Court concluded that according to the universally recognised norms of the international law, genocide meant only the actions committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group; therefore the list of protected groups is exhaustive and it does not include political or social groups; the specific feature of the crime of genocide that makes this crime different from, inter alia crimes against humanity is the special intent (dolus specialis) to destroy the protected group in whole or in part; when part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole (I, 3.7). It is specifically the genocide norm, compliant with this concept, which has a retroactive effect upon the events that took place in the relevant period, when the repression structures of the soviet occupation regime were fighting against Lithuanian partisans, and persecuting them. 22. In its Ruling, referred to earlier, the Constitutional Court noted that according to the universally recognised norms of the international law, the actions carried out during a certain period against certain political and social groups of the residents of the Republic of Lithuania might be considered to constitute genocide if such actions—provided this has been proved—were aimed at destroying the groups that represented a significant part of the Lithuanian nation and whose destruction had an impact on the survival of the entire Lithuanian nation (III, 6.3). Thus, in consideration of the international and historical context, the Constitutional Court noted that, in the course of the qualification of the actions against the participants of the resistance against the Soviet occupation as a political group, one should take into account the significance of this group for the entire respective national group (the Lithuanian nation) that is covered by the definition of genocide according to the universally recognised norms of the international law. An account must also be taken of the fact that the Soviet Union, while ignoring the universally recognised norms of the international law, neither recognised their status of combatants and prisoners of war, nor provided them with the corresponding international guarantees related to such status; from the conclusions of the historians that investigated documents of the repressive structures of the interior and security of the USSR it is clear that those structures pursued the targeted policy of the extermination of “bandits”, “terrorists”, and “bourgeois nationalists” to which they also ascribed the Lithuanian partisans, inter alia, special “extermination” squads were established and they were used in the fight against the Lithuanian partisans and their supporters (III, 7.3). The repressions against the residents of Lithuania were not in any manner coincidental and chaotic, but rather such repressions sought to exterminate the basis of the political nation of Lithuania inter alia, the former social and political structure of the State of Lithuania. Those repressions were directed against the most active political and social groups of the residents of the Republic of Lithuania: participants of the resistance against the occupation and their supporters, civil servants and officials of the State of Lithuania, Lithuanian public figures, intellectuals and the academic community, farmers, priests, and members of the families of those groups. The occupation regime sought to exterminate, to cause harm and break those people: they were victims of non-judicial executions, they were imprisoned and sent to special camps for forced labour, they were deported to faraway harsh-climate sparsely populated places of the Soviet Union by purposefully creating intolerable life conditions that posed constant threat to their lives and health (III, 6.2). 23. The criteria for the assessment of the actions against the Lithuanian partisans as specified by the Constitutional Court are specifically elaborated in the Decision of the plenary session of the Criminal Division of the Supreme Court of Lithuania of 12 April 2016 in Criminal Case No. 2K-P-18-648/2016. While considering whether the genocide norm (Article 99 of the CC) was correctly applied to a person who participated in a secret operation of the State Security Committee (KGB) of the Lithuanian SSR, where the Lithuanian partisans were arrested (in 1956), the cassation-instance court concluded that the participants of the resistance to occupation (resistance), the Lithuanian partisans, their liaisons and supporters, were a 7 significant part of the Lithuanian nation, as a national and ethnic group. This part of the national and ethnic group had an essential impact upon the survival of the Lithuanian nation, was extremely important with a view to protecting and preserving the national Lithuanian identity, culture and the national self-awareness. That is consistent with the features of the part of the protected group according to Article II of the Genocide Convention, and therefore the extermination of individuals belonging to this group should be regarded as genocide both according to the international law, and Article 99 of the CC, provided all the mandatory elements of this criminal activity have been established. The mentioned cassation decision contains exhaustive arguments substantiating this conclusion. 24. Although the Judgement of the Grand Chamber of the ECHR raised doubts regarding a possibility to treat partisans as part of the national, ethnic group protected by the genocide norm (Vasiliauskas v. Lithuania, §§ 182-185), the arguments presented in the Judgement evidence that the doubts had been raised primarily because the courts of the Republic of Lithuania had failed to provide a broader historic and factual context explaining how the Lithuanian partisans represented the Lithuanian nation, and the special significance of the partisans with respect to the ‘national’ group (Vasiliauskas v. Lithuania, §§ 179, 181). However, the statements of the Grand Chamber of the ECHR regarding the relation between the concepts ‘national group’ and ‘Lithuanian partisans’ have been presented in the form of an opinion, and are not a sufficient basis to deviate from the explanations of the Constitutional Court and change the Lithuanian case law in this respect. The Plenary Session confirms that a legal approach, developed by the Lithuanian jurisprudence, whereby the Lithuanian partisans are considered as a significant part of the Lithuanian nation, as a national and ethnic group, remains relevant irrespective of the doubts raised in the judgement of the ECHR, and is continuously being followed for the purpose of assessing the actions of the repressive Soviet occupational regime against the participants of the resistance movement in the period under consideration. Regarding the violation of the Convention found by the ECHR, and its legal significance for the case at issue 25. As it was earlier mentioned, the Grand Chamber of the ECHR in its Judgement of 20 October 2015 concluded that the requirement of Article 7 of the Convention, providing 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, was violated in the criminal case of V. Vasiliauskas. The ECHR in its judgment has explained that the guarantee under Article 7 of the Convention which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. It is noted in the judgment that Article 7 is not confined to prohibiting the retrospective application of the criminal law to the accused’s detriment: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege), and the principle that the criminal law must not be construed to the accused’s detriment too extensively, for instance by analogy. It follows from these principles that an offence must be clearly defined in the law, be it national or international. This requirement is satisfied where an individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable (Vasiliauskas v. Lithuania, § 154). 26. It should be noted that both the content of Article 7 of the Convention and the interpretation of this Article in the Judgement of the ECHR are fully consistent with the provisions of the Lithuanian national law. Article 31§ 4 of the Constitution provides: ‘Punishment may be imposed or applied only on the grounds established by law’. This provision of the Constitution establishes the principle nulla poena sine lege, which means that a person may not be punished for actions for which no punishment was provided for in the laws effective at the time of committing the actions. As the Constitutional Court noted in the Rulings of 8 13 December 2004 and 16 January 2006 that when applying law inter alia it is necessary to follow the following requirements originating from the constitutional principle of the rule of law: the liability (sanction, punishment) for violation of law must be provided in advance (nulla poena sine lege); no action is considered to be criminal if it is not provided for in law (nullum crimen sine lege). The provision consistent with those requirements is provided for in Article 2 § 1 of the CC: ‘A person shall be held liable under this Code only when the act committed by him is forbidden by a criminal law in force at the time of commission of the criminal act.‘ 27. The Plenary Session therefore concludes that the violation of the fundamental requirements set forth in Article 7 of the Convention and established in the Judgement of the ECHR, which at the same time means also a violation of the relevant provisions in the Lithuanian national law, must be rectified. 28. It should be noted that in the case at issue V. Vasiliauskas was charged and convicted under Article 99 of the CC for participation in the operation while serving in the Soviet occupational structure – the State Security Ministry (MGB) – and being aware of the purpose of the Ministry – a physical extermination of a part of Lithuanian population belonging to a separate political group, i.e. Lithuanian partisans, during which the two Lithuanian partisans – J. Aštrauskas and A. Aštrauskas – were killed. It is evident from the case file that the charges have been brought and the judicial decisions have been adopted on the basis of incorrect assumption that the genocide norm, supplemented by the characteristics of social and political groups as established in Lithuanian national law (the respective amendments of the law came into force on 6 May 1998), in its entirety has full retroactive effect, and can be applied without any exceptions to the events that took place in the period relevant for the case (in 1953). As it was already mentioned, the legal regulation that provided for the possibility to bring such charges was recognised by the Constitutional Court as contradicting to Article 31 § 4 of the Constitution, the constitutional principle of the rule of law. The Grand Chamber of the ECHR concluded that in 1953 the international treaty law did not include a “political group” in the definition of genocide, thus the prosecutors were precluded from retrospectively charging and the national courts - from retrospectively convicting the applicant of genocide of the Lithuanian partisans as members of a political group (Vasiliauskas vs Lithuania, §§ 178, 181). 29. It should be also noted that the operative part of the decision of the appellate-instance court included the court’s position that the attribution of the Lithuanian partisans to a political group ‘in essence was only relative and not very precise’, and ‘that the members of this group were at the same time the representatives of the Lithuanian nation, that is, a national group’, therefore they could be attributed to the same groups as listed in the Genocide Convention (Vol. 8, file pages 131-132). On the other hand, the arguments set out in few lines of the decision are not sufficient for drawing up a conclusion that V. Vasiliauskas has been charged with and convicted of specifically according to that accusation, and that in the course of the process he has been provided with all the necessary conditions to be well aware of the nature of the charges in order to prepare an efficient defence in that respect. 30. When examining the constitutionality of the legal regulation on changing of charges, the Constitutional Court in its Ruling of 15 November 2013 (IV.1) emphasised the importance of Article 6 of the Convention: ‘The ECHR has noted on numerous occasions that the provisions of Article 6 §3(a) of the Convention, according to which everyone charged with a criminal offence shall have a right to be informed promptly, in a language which they understand and in detail, of the nature and cause of the charges against them, the provisions indicate that specific attention should be paid to notification of the charges to the accused; the exhaustive information about the charges plays a crucial role in the criminal process as from the moment of its submission the suspect is formally notified of the actual and legal basis of the charges against him/her; according to Article 6§ 3(a) of the Convention the accused is provided for the right to be informed not only of the cause of the charges, i.e. the acts he/she has allegedly committed and in which the accusation is based, but also the legal characterisation given to those acts; that information should be exhaustive (Judgement of 25 March 1999 in case Pélissier and Sassi v. France (application no. 25444/94); 9 Judgement of 1 March 2001 in case Dallos v. Hungary (application no. 29082/95); Judgement of 24 April 2007in case Juha Nuutinen v. Finland (application no. 45830/99)’. 31. In the Lithuanian case law on more than one occasion it has been noted that a person subject to criminal persecution does not have an obligation to defend himself from all possible modifications of the charges. In case the charges are amended, and the scope of the charges is not only narrowed, the person must be immediately notified about the possibility to modify the charges, and in the course of the judicial examination he must be given a possibility to state his arguments regarding the legal assessment of the action, as well as regarding the factual circumstances relevant for the adoption of the decision (cassation decisions in cases nos. 2K-7-228/2008, 2K-P-36/2010, 2K-7-330/2011, 2K-551/2011, 2K-614/2011, 2K- 651/2012, etc.). 32. In the case at issue the courts did not take any procedural actions to amend the charges against V. Vasiliauskas under the order provided for by law (Article 256 of the CCP), in order to ensure a possibility to accurately understand the nature of the reformulated charges, and be provided a possibility to prepare the defence accordingly (Article 44 §7 of the CCP). Even though the appellate-instance court briefly mentioned the attribution of the Lithuanian partisans to the category of protected groups under the Genocide Convention, nevertheless it also provided the arguments whereby the court justified the retrospective incrimination of a political group in respect of V. Vasiliauskas, and indicated that a broader concept of genocide was not prohibited (Vol. 8, file page 131). While rejecting the reasoning of the cassation appeal regarding the impossibility to refer to the political group indication when formulating the charges against V. Vasiliauskas, the cassation-instance court was guided by the same erroneous assumption that Article 99 of the CC had retroactive effect to its full extent. The cassation decision avoided the issue regarding the attribution of the Lithuanian partisans to a part of the Lithuanian nation, as a national and ethnic group, or the compliance of the charges to the concept of genocide as defined in the Genocide Convention, and did not present any arguments in that respect. Thus, the content of the procedural decisions adopted by the courts shows that V. Vasiliauskas has been retrospectively charged with and convicted of genocide of part of the Lithuanian population belonging to a separate political group. 33. In view of the observations and circumstances referred to above, the Plenary Session hereby concludes that the judicial decisions underlying the conviction of V. Vasiliauskas under Article 99 of the CC, and the rejection of his appeal and appeal in cassation do not comply with the requirements of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 31§ 4 of the Constitution of the Republic of Lithuania, Article 2 §1, Article 3 §3 of the CC, therefore they cannot be upheld. 34. The violations found in the continued process in the present case could be rectified only by changing the charges against V. Vasiliauskas, however, the CCP norms do not provide for a possibility to modify or amend the charges against the deceased person. 35. In view of the above arguments, the decisions taken in the case of V. Vasiliauskas should be annulled, and the proceedings should be terminated on the basis of Article 3§ 1(7) of the CCP, due to the death of the accused. 36. According to the general rule, indicated in Article 376 §2 of the CCP, in cases where an incorrect application of the criminal law, and the material procedural violations could have had an effect also on other convicted persons, the court shall also review the lawfulness of the judgment adopted in respect of the other convicted persons who have not appealed. Since another person, M.Žukaitienė, who is deceased, in the case at issue has been convicted together with V. Vasiliauskas, the criminal case with respect to M.Žukaitienė should also be terminated on the basis of Article 3 § 1(7) of the CCP. 10 In view of the above arguments and acting in accordance with Article 461§ 1(2) and Article 3 §1(7) of the Code of Criminal Procedure of the Republic of Lithuania the plenary session of the Criminal Division of the Supreme Court of Lithuania, hereby decides: to annul the Judgement of 4 February 2004 of the Chamber of Judges of the Criminal Division of the Kaunas Regional Court, the Decision of 21 September 2004 of the Chamber of Judges of the Court of Appeal of Lithuania, and the Decision of 22 February 2005 of the Chamber of Judges of the Supreme Court of Lithuania, and, the accused persons being dead, to terminate the case against Vytautas Vasiliauskas and Martina Žukaitienė. Judges: /signature/ Jonas Prapiestis /signature/ Armanas Abramavičius /signature/ Viktoras Aidukas /signature/ Rima Ažubalytė /signature/ Dalia Bajerčiūtė /signature/ Eligijus Gladutis /signature/ Gintaras Goda /signature/ Aurelijus Gutauskas /signature/ Audronė Kartanienė /signature/ Vytautas Masiokas /signature/ Artūras Pažarskis /signature/ Alvydas Pikelis /signature/ Aldona Rakauskienė /signature/ Vladislovas Ranonis /signature/ Olegas Fedosiukas 11 Translation from Lithuanian Criminal Case No. 2K-5-895/2016 Judicial process No. 1-89-2-00005-1998-2 Procedural decision category: 1.1.1.5. 1.1.2.1. 1.2.1.1. 2.1.7 (S) SUPREME COURT OF LITHUANIA DECISION IN THE NAME OF THE REPUBLIC OF LITHUANIA 25 February 2016 Vilnius A Chamber of Judges of the Criminal Division of the Supreme Court of Lithuania consisting of Artūras Pažarskis, the President, Olegas Fedosiukas and Armanas Abramavičius, a rapporteur, Rūta Večerskaitė, acting as a secretary, with participation of Sergejus Stulginsis, the prosecutor, attorney at law Vytautas Sviderskis, the defence lawyer, M. M., the acquitted person, J. Š., the victim, at the court hearing examined the criminal case on the basis of the cassation appeal of J. Š., the victim, against the Judgement of the Chamber of Judges of the Criminal Division of the Panevėžys Regional Court of 26 November 2014 whereby M. M. was acquitted under Article 99 of the Criminal Code of the Republic of Lithuania (hereinafter - the CC) as not having committed the activity having elements of this crime. The Decision of the Chamber of Judges of the Criminal Division of the Court of Appeal of Lithuania of 3 July 2015 whereby the appeals of the Prosecutor of the Panevėžys Regional Prosecutor’s Office and J. Š., the victim, have been dismissed is also appealed. Having heard the report of judge Armanas Abramavičius, the explanations of the Prosecutor who asked to dismiss the cassation appeal, the victim who asked to grant the cassation appeal, the acquitted person and his defence who asked to dismiss the cassation appeal, the Chamber of Judges established the following: 1. M. M. was acquitted of the charges under Article 99 of the CC that while being an agent (sensitive data), junior lieutenant of the USSR repressive structure that occupied the Republic of Lithuania – (sensitive data) under the Council of Ministers of the Lithuanian SSR 2 – and being aware of and understanding one of the essential aims of this repressive structure – physical destruction of the members of the organised armed Lithuanian national resistance movement against the Soviet occupying regime – the Lithuanian partisans, their liaisons and supporters, i.e. the persons belonging to a separate political group – members of the resistance against the Soviet occupation and the occupying regime – the Lithuanian partisans and by realising this aim, on 17 March 1965 in (sensitive data), in cooperation with (sensitive data) chief lieutenant N. D. of (sensitive data) under the Council of Ministers of the Lithuanian SSR, senior operations representative major S. V., senior investigator captain of (sensitive data) division V. V., junior sergeant R. K. of (sensitive data) under the Council of Ministers of the Lithuanian SSR in (sensitive data) region, senior operative representative of (sensitive data) captain P. L., representative of (sensitive data) major V. R., representative of (sensitive data) lieutenant S. T., senior militia sergeant V. Ž. of (sensitive data) division of the Lithuanian SSR, senior operations representative Č. I. of (sensitive data) region and other employees of (sensitive data ) of the Lithuanian SSR not identified during the pre-trial investigation, having arrived at the homestead of A. and O. P. in (sensitive data), having the sanctioned decision for the search issued by V. Galinaitis, the state 2nd degree advisor of the prosecutor of the Lithuanian SSR of 16 March 1965 with an aim to find a member of the resistance against the Soviet occupying authority – the Lithuanian partisan A. K., participated in the operation of (sensitive data) the Lithuanian SSR during which, having identified and found the place of the bunker of the Lithuanian partisan A. K. located under the furnace in the homestead of A. and O. P., having surrounded this residential house by the armed participants of the operation and persons not identified during the pre-trial investigation and having opened the fire from non-identified firearms, during this active armed attack, knowing and understanding that the Lithuanian partisan A. K. will be killed or captured and later tortured and tried as a “homeland traitor”, and actually threatened by the capital punishment and destruction as the member of a separate political group – resistance to the Soviet occupation and the occupying regime – the Lithuania partisan, and having wilful intents, participated in the physical destruction of the Lithuanian partisan A. K., however, A. K., under the aforementioned conditions, decided not to surrender alive and killed himself with the German automatic gun No 6726 a. 2. By submitting the cassation appeal J. Š., the victim, hereby requests to annul the judgement of the court of the first instance and the decision of the appellate instance court and to send the case back for a fresh examination before the first instance court. 2.1. It is claimed in the cassation appeal that in the case at issue the criminal law (Article 99 of the CC) has been applied improperly and the procedural violations have been committed (Article 20 of the Code of Criminal Procedure of the Republic of Lithuania (the CCP)). 2.2. The case has been incorrectly solved due to unlawful interpretation and application of Article 99 of the CC without recognising the status of A. K., the partisan, volunteer, freedom-fighter, as the member of significant national-ethnic-political group and due to the legitimation of the activities of the Lithuanian occupying structures. 2.3. The Ruling of the Constitutional Court of 18 March 2014 was cited in the cassation appeal whereby the court noted that Article 99 of the CC inasmuch it included the protected social and political groups in addition to the national, ethnic, racial and religious groups protected by the norms of the international law was consistent with the Constitution of the Republic of Lithuania. The inclusion of political and social groups in the definition of genocide worded in the criminal law of the Republic of Lithuania was conditioned by a specific international legal, historical and political context. The ideology of the USSR totalitarian communistic regime used as the basis for the destruction of the entire groups of people, the scale of the USSR repressions against the residents of the Republic of Lithuania which was a part of purposeful politics to destroy the basis of the Lithuanian civil nation and to treat Lithuanians as the “unreliable” part of the nation, formed the basis to evaluate the 3 crimes of the Soviet occupying regime of the certain period against social and political groups as a genocide as defined according to the universally recognised norms of the international law. In such case, it is necessary to prove a special intent – the aim to destroy certain social or political groups of the residents of the Republic of Lithuania as a significant part of the Lithuanian nation the destruction of which would have influence on the survival of the entire nation of Lithuania. The Constitutional Court listed the groups of persons to whom the intent of genocide was directed. It is much wider than a single narrow social or political group. 2.4. According to the cassation appeal, the practice of extension of the definition of genocide may be found in the criminal laws of other countries (e.g. in the Criminal Code of France) and it is also noted that the European Court of Human Rights (the ECHR), when examining the issue of extension of the definition of genocide in case Jorgic v. Germany (application no. 74613/10, judgement of 12 July 2007), it found that the courts of Germany did not violate the norms of international law by applying a broader definition of genocide in the national laws. Furthermore, it is necessary to note the provision of Article 2 of the Law on Liability for Genocide of Residents of Lithuania that killing or torture of people of Lithuania, deportation of its residents that have been committed during the period of Nazi Germany or USSR occupation and annexation met the elements of the crime of genocide as stipulated in the norms of the international law. 2.5. According to the appellant in cassation, despite the fact that the Constitutional Court in its Ruling provided that Article 3 § 3 of the CC inasmuch it stipulated the legal regulation under which the person could be convicted under Article 99 of the CC for the actions whereby it was aimed to physically destroy all or part of people belonging to the social or political group is in conflict with Article 31 § 4 of the Constitution, the constitutional principle of the state under the rule of law, it does not mean that in the case at issue M. M. could not be subjected to criminal liability on the charges brought against him. According to the Constitution, the criminal laws may stipulate the exception to the principle of nulla crimen, nulla poena sine lege applicable to the crimes according to the international law or general principles of law as well to the crime of genocide. Where the crime of genocide is directed against the social or political group of people which forms a significant part of the national, ethnic, racial or religious group, the criminal law is also applied with regard to the criminal activities committed before its entry into force (Decision of the Court of Appeal of Lithuania of 10 July 2015 in the case no. 1A-469-518/2015). The laws of Lithuania that are based on the universality of Nuremberg principles provide an opportunity to apply the criminal liability to all the perpetrators of genocide, other crimes against humanity, and the crimes of war irrespective of the regime, the orders of which they performed, and the time of their commitment. 2.6. Claiming that the killing of one partisan is not a case of destruction of the significant national-ethnic-political group, the courts of both instances are in conflict with logics and the principle of reasonableness, and they unreasonably narrow the concept of genocide. One of the elements of genocide is the intent to destroy the entire group of certain persons or part thereof. The genocide covers one, several or many criminal activities directed against the persons of a specific group in order to perform the master plan of genocide, as well as the situations where the crimes are performed by different persons, however, associated by the common aim of genocide. The KGB followed its own plan (individual or group) of destruction of such a group and the completion of its execution was not restricted by any date or period. The destruction of each partisan was an approach to the intent to destroy the entire group irrespective of whether the representatives of the group were liquidated by one, two or by larger groups. There is no indication that genocide is performed in order to destroy a part of the nation at once. Both the entirety and part consist of separate individuals without whom there would be no destructible entirety. The operation of A. K. destruction was part of the overall plan of genocide to destroy the freedom-fighters of Lithuania and their supporters. 4 2.7. According to the case-law of the courts of Lithuania, the partisans are considered as a political group belonging to a wider national or ethnic group (Lithuanians), thus, the aim to destroy such a group is understood as the aim to conduct genocide both according to the national law which includes the political groups in the definition of the genocide, and according to the international law which mentions only the national and ethnic groups that may be subjected to genocide. The Soviet authority openly expressed its aim to destroy the partisans and even established the special military units of partisan destroyers, thus, confirming the aim to perform genocide. The aim of genocide can always be established by relating it to the existence of the genocide campaign, i.e. the aim of the person to conduct genocide is virtually implied from the surrounding common criminal context (e.g. the behaviour of other persons, the existence of the unifying aim of genocide, the existence of the plan of genocide, the participation of the perpetrator in the organisation with such a plan, the purposes, aims and activity of the joint criminal association in which the perpetrator was involved). For example, the membership or active participation in the special units oriented to the destruction of the specific group of the Lithuanian residents, thus, implementing the politics of the Soviet occupying authority directed against the Lithuanian residents, are considered within the trial proceedings as a sufficient evidence of the genocidal intent (the intent of the convicted persons is derived from their service in the Soviet units of destroyers which had the task to destroy “hostile elements” and performed mass killings of Lithuanians and their families). The collaboration, assistance and abetting with repression structures seeking to destroy part of the Lithuanian residents by forming a separate political group is also considered as the possession of the unifying intent of genocide and a sufficient evidence for the establishment of the intent of genocide in case of the individual criminal liability (e.g. the functions of a secret agent or agent-stormtrooper in the Soviet repression structures having the aim to notify about the activities of the partisans or even destruction of partisans was considered as a sufficient evidence of the awareness about the aim and support of genocide). For example, in its Judgement of 25 January 2008, the Kaunas Regional Court found that all the operations directed against the destruction of partisans and their supporters were carefully planned by preparing specific plans in advance and by appointing specific persons for the realisation of those plans (the absence of such plan was also considered as the evidence of the aim of genocide). The appellant in cassation disagrees with the conclusion of the courts that M. M. had no purpose of the physical destruction of the members of the organised movement of national resistance of Lithuanians against the occupying regime – the Lithuanian partisans. The main purpose of the policy implemented by (sensitive data) of the Lithuanian SSR against the partisans was “the liquidation of the banditry remainders in the Republic”. Thus, by performing his former duties, M. M. helped to implement the policypursued by the USSR against the residents of Lithuania. He was aware of the actions of repressive nature against the partisans and understood the dangerousness of his activities and could foresee the consequences that may be caused and deliberately pursued such consequences by participating in the operation against A. K. He voluntarily entered the (sensitive data) organisation, worked assiduously to this organisation, had progress in his career, knew that A. K. was a partisan and belonged to a significant national-ethnic-political group (Lithuanian partisans). In (sensitive data) (sensitive date) he completed the requalification courses and performed the operational practises in (sensitive data) for a period of two years before that, therefore, it is unreasonable to claim that he had no information on the search of A. K. Due to his everyday job functions he could not have been unaware of the partisan and directly participated in the partisan’s detention operation, was not an accidental person, was armed, prepared the protocol of identification of the body of the deceased and received the award for that. Having the respective education and readiness, M. M. understood and knew which legal, political, historical purpose and irrevocable consequences the actions against A. K. had; before the operation he was 5 familiarised with and informed by N. D. about the purpose of the armed operation and his specific functions. The fact that the operation has been indicated as the search in the documents does not deny the existence of the special intent – the physical destruction of the national-ethnic-political group. 2.8. The appellant in cassation hereby notes that the case-law of Lithuania can count a single activity of an individual as genocide if it is a broader part of the genocide context. It was noted in the Judgement No 1A-21/2009 of the Court of Appeal of Lithuania that a person is considered as having committed the crime of genocide if it was established that he committed at least one of the activities attributable to genocide (organisation, leading or involvement in the activities attributable to genocide); the crime of genocide may consist of several criminal activities unified by the same intent – to destroy a specific group of persons. In order to convict, it is sufficient to establish the active involvement of the perpetrator in the genocide activities and it is not that much important if the person killed a specific member of the group himself – it is sufficient that he was one of the performers of the activity. The active involvement in the genocide activity can be not only a direct participation and performance of an activity, but also a certain support, which is one of the forms of complicity: intelligence, organisation and performance of operations against the partisans, provision of information and helping to find the location of partisans (cassation decision in the criminal case No 2K- 158/2005). M. M. was a member of the criminal organisation ((sensitive data)) and successfully participated in the operation of destruction of A. K. 2.9. According to the appeal, Article 1 § 2 of the Law on Rehabilitation of Persons Repressed for Resistance to the Occupying Regimes of the Republic of Lithuania, the participants of the armed resistance were declared as Lithuanian soldiers-volunteers and their military degrees and awards were recognised, according to Article 2 § 4 of the Law of 3 July 1997 on the Legal Status of Persons Who Participated in the Resistance to Occupations of 1940-1990 and on the Recognition of the Ranks of Volunteer Militaries, the soldiers- volunteers are the partisans which belonged to the armed resistance structures, made an oath and kept it, had the distinctive signs and weapons and lived illegally, as well as the members of reserve troops, organisational departments and other confidential armed resistance structures who made an oath and kept it, had weapons and under the order of the command participated in the battles or other armed operations, as well as supporters and liaisons of partisans who were injured, killed in case of appearance in the battle situation, participated with a weapon in such battles and were arrested during them or who died during the imprisonment. The Lithuanian partisans were associated by common political attitudes and beliefs, they belonged to a political group oriented to the liberation of Lithuania from the aforementioned regime. The said aims of the partisans are confirmed by the Declaration of the Council of the Lithuanian Freedom Fight Movement recognised as the law of the Republic of Lithuania. During the partisan war, the Council of the Lithuanian Freedom Fight Movement united the military units and social groups that were fighting for the liberation of Lithuania; the Council of the Lithuanian Freedom Fight Movement was the supreme political and military structure to lead this fight, the only legal authority in the territory of occupied Lithuania. The armed resistance against occupation prevented the Soviet occupying structures from carrying out deportations, exiles and other means of repression against the Lithuanian civil residents, furthermore, the members of this political group were the representatives of the Lithuanian nation, the national group, as well. The participants of resistance as a separate political group was a significant part of the entire national group (Lithuanian nation) defined by ethnic elements; therefore, the Lithuanian partisans are attributable to a separate national- ethnic-political group. On 17 December 1997, A. K. was granted a legal status of the soldier-volunteer. He was an active member of the Lithuanian armed resistance against the Soviet occupation, therefore, the unlawful actions of the occupying authority force directed against him could be considered as directed against the significant part of the national-ethnic-political group. 6 2.10. The fact that the partisan war was already over in 1965 is irrelevant, because A. K. was charged by the KGB for the activities committed during the mass partisan movement before 1953, i.e. for the previous active resistance period. It was only due to his skills that A. K. was not destroyed until 1953; the fact that the partisan was found only in 1965 by continuing the repressive actions is considered as the continuation of the persecution that started before 1953 based on the intent to destroy a significant national-ethnic-political group. A. K. was persecuted exclusively for the activities committed by him, as a partisan, against the occupying authority during the partisan war which was recognised by the occupying authority as criminal activities. This is also confirmed by the conclusion of the Genocide and Resistance Research Centre of Lithuania of (sensitive data). The mere fact that he managed to hide until 1965 is not a basis not to recognise the actions of KGB as genocide. According to the appellant in cassation, A. K. was recognised by the KGB as an active partisan, it was also confirmed by the references to the examples regarding this person in the educational literature prepared for the KGB agents. Furthermore, the appellant notes that the starting date of the partisan war was not identified in Lithuania and there was also no declaration on the end of the partisan activity from the partisan management authority, agreement with the occupying authority, ceasefire or capitulation. A. K. wore the partisan’s uniform until his very death. In 1953–1965, at least 14 partisans were sentenced to death and these are clear facts of the repressive means against them and a continuation of the partisan war. The defeat of the mass armed resistance did not stop the activity of individual partisans or the KGB repressions against them. 2.11. According to the appellant in cassation, the provisions of Article 20 of the CCP were breached. In (sensitive data), the Genocide and Resistance Research Centre of Lithuania performed the additional investigation regarding the activities found to have been committed by A. K. according to the Lithuanian KGB. It was found that all the potential actions of A. K. made in 1949–1952 met the partisan structure and attitudes of that time, i.e. the prerogatives of partisans and leaders. Although this conclusion was submitted to the court, however, it was not investigated and evaluated neither by the court of first instance nor by the appellate instance court. 2.12. According to the appellant in cassation, although according to Article 1 of the Law on the Evaluation of the USSR State Security Committee and the Present Activities of Permanent Employees of the Organisation of the Republic of Lithuania, the USSR State Security Committee is recognised as a criminal organisation that committed military crimes, genocide, repressions, terror and political persecution in the Republic of Lithuania, occupied by the USSR, in its decision the appellate instance court treated the KGB as a legal authority that worked to the benefit of Lithuania also considering the actions of M. M. as legal. According to the appellant in cassation, the courts unreasonably approved the argument of M. M. that during the time of the crime he acted legally and without violating any valid norms of law. In this case, the explanation of the case-law of the European Court of Human Rights is important which emphasised the universal nature of the principals of Nuremberg Tribunal and that their application cannot be restricted by certain persons or certain period of the Second World War (decisions as to the admissibility in cases Kolk and Kislyiy v. Estonia, applications nos. 23052/04 and 24018/04, 17 January 2006; Penart v. Estonia, application no. 14685/04, 24 January 2006). According to the principal formed by the Nuremberg Tribunal, the fact that a person acted pursuant to orders of his Government or of a superior does not relieve him from the responsibility under international law, provided a moral choice was in fact possible to him. In view of the foregoing, it is argued that the person’s involvement in the criminal organisations which conduct the crimes against humanity is considered as the objective of an individual to contribute to the crime, because the mere choice of the person to associate his activities with the criminal organisation shows the tendency of his intentions irrespective of the reasons that forced such person to commit such activities, i.e. personal, egoistic, etc. 7 The Soviet Union confirmed the provisions of the Nuremberg Tribunal, furthermore, it was a member of the United Nations Organisation and these provisions were recognised as the principles of the criminal law, thus, they entered into effect in the territory occupied by the Soviets as part of the international customary law. Thus, the application of the criminal liability to persons who made the violations of the international law during the Soviet occupation does not violate the principle of legitimacy. 3. The appeal in cassation of J. Š., the victim, shall be rejected. Regarding the classification of activity under Article 99 of the CC and observance of the requirements originating from Article 20 of the CCP 4. According to the cassation appeal, by acquitting M. M. for the crime stipulated in Article 99 of the CC, the courts of first and appellate instances incorrectly applied the criminal law. 5. Article 99 of the CC stipulates that criminal liability is applied to a person who, seeking to physically destroy, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group, organises, is in charge of or participates in their killing, torturing, causing bodily harm to them, hindering their mental development, their deportation or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricts the birth of the persons belonging to those groups or forcibly transfers their children to other groups. 5.1. One of the special elements characterising this crime and allowing to distinguish it from similar criminal activities is that the victims of this crime are the persons belonging to any national, ethnic, racial, religious, social or political group. The genocide objectively manifests itself in organising, leading or involving in one or several alternative activities directed to the complete or partial destruction of persons belonging to any of the aforementioned groups. These activities are listed in Article 99 of the CC – participation in killing, torturing, causing bodily harm to people belonging to the aforementioned groups, hindering their mental development, their deportation or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricting the birth of the persons belonging to those groups or forcibly transferring their children to other groups, as well as organisation and operation of such activities. 5.2. The direct intent in the case of genocide means that the perpetrator understands that he organises, leads or is involved in the destruction of persons belonging to any national, ethnic, racial, religious, social or political group and wants to act this way. A special intent is also a necessary subjective element of genocide. The mere fact that the perpetrator organises, leads or is involved in the destruction of persons belonging to the groups stipulated in Article 99 of the CC does not mean in itself that his activity is considered as genocide according to Article 99 of the CC. Such activity may be classified according to other articles of the CC, e.g. stipulating the liability for killing or terror act. The aforementioned activities related to the destruction of persons belonging to the groups indicated in Article 99 of the CC are recognised as genocide if they are committed by having a special intent – they are targeted at the destruction, in whole or in part, of persons belonging to such groups. Namely these subjective elements of genocide are of particular importance in deciding whether the activities of the perpetrator are considered as genocide according to Article 99 of the CC and, thus, distinguishing this crime from other similar criminal activities. 5.3. It is noted in the context of the examined case that genocide may be committed not only by destructing the persons who belong to the groups as indicated in Article 99 of the CC at the same time. Such actions aimed at physical destruction, in whole or in part, of persons belonging to any national, ethnic, racial, religious, social or political group, can be separated by a longer or shorter period, they can be committed by various perpetrators and it has no importance on the classification according to Article 99 of the CC. In this case, the key element is to establish that such actions of the perpetrators are unified by a single idea of 8 physical destruction, in whole or in part, of people belonging to the groups indicated in Article 99 of the CC. 6. In the case at issue, M. M. was accused under Article 99 of the CC of the participation in physical destruction of the Lithuanian partisan A. K., a member of the separate political group – resistance against the Soviet occupation and the occupying regime while being the agent (sensitive date), junior lieutenant of the repressive structure of the USSR that occupied the Republic of Lithuania – (sensitive data) under the Council of Ministers of the Lithuanian SSR, by participating in (sensitive data) operation of arrest of partisan A. K. 7. When evaluating the actions of the repressive structures of Germany and USSR that occupied the Republic of Lithuania as well as the KGB within the meaning of Article 99 of the CC, it should be noted that in 1940-1990 the resistance against the USSR and German occupations took place in Lithuania in various forms. In 1944-1953, the national organised armed resistance took place in Lithuania – the Lithuanian partisan war against the Soviet Union occupying military and the structures of the occupying regime. The Lithuanian partisans showed resistance to the aggression of the other state, in this case, the Soviet occupation. The nationals of the Republic of Lithuania had such a right according to the universally recognised norms of the international law, the organised armed fight of the nationals of the Republic of Lithuania during this period with the Soviet occupation is considered as self-defence of the state of Lithuania. By Law No VII-11 of 28 November 1996, the participants of the armed resistance were declared as the Lithuanian soldiers-volunteers and their military degrees and awards were recognised. According to Article 2 § 4 of the Law of 3 July 1997 on the Legal Status of Persons Who Participated in the Resistance to Occupations of 1940-1990 and on the Recognition of the Ranks of Volunteer Militaries, the soldiers-volunteers were the partisans who belonged to the armed resistance structures, made and oath and kept it, had the distinctive signs and weapons and lived illegally as well as the members of reserve troops, organisational departments and other confidential armed resistance structures, who made an oath and kept it, had weapons and under the order of the command participated in the battles or other armed operations as well as supporters and liaisons of partisans who were injured, killed in case of appearance in the battle situation, participated with a weapon in such battles and were arrested during them or who died during the imprisonment. The Lithuanian partisans were associated by common political attitudes and beliefs, i.e. belonged to a political group engaged in the liberation of Lithuania from the aforementioned regime. 7.1. Within the context of the case at issue, it should be noted that the mere fact that A. K. was arrested in 1965 does not deny his status as a partisan, moreover it does not deny the fact that this arrest could also be related to the activity of A. K. as a partisan (as well as during the partisan war) during the resistance against the Soviet occupation and the occupying regime. All the more so, as seen from the material of the case, the criminal case was initiated against A. K. also according to the articles of the then-effective Soviet Criminal Code stipulating the criminal liability for high treason and participation in the anti-Soviet organisation. 8. It should also be noted that the mere participation of M. M. in the arrest of A. K. does not imply his guilt of committing genocide. When deciding whether such involvement of M. M. meets the elements of the crime stipulated in Article 99 of the CC, it is necessary to establish whether it is possible to decide from the material of the case whether he understood his involvement in the detention of the partisan as a member of a separate political group – resistance against the Soviet occupation and the occupying regime – and wanted to act this way. It is also crucial to evaluate whether such actions of M. M. can be considered as committed by having a special intent, i.e. seeking to physically destroy, in whole or in part, people belonging to a political group (the partisans). 9 8.1. In the case under consideration, the courts in fact established the following: 1) in the evening, M. M. was informed in advance by his direct chief that he would have to participate in the search in (sensitive data) on the next day, however, the courts provided no details of it; 2) only after visiting (sensitive data) region, he and other persons were informed by the investigator from (sensitive data), not known to M. M., that the search would be performed in order to find and arrest an “armed illegal person” A. K. against whom a criminal case had been initiated; 3) he (M. M.) did not know for what crimes a criminal case had been initiated against A. K.; 4) he (M. M.) had not seen and had not been familiarised with any documents possessed by (sensitive data) structures and related to A. K. and his activities; 5) he (M. M.) was appointed to (sensitive data) to do an internship and then left for two years in order to write a diploma work, in 1964 departed to (sensitive data) special school and returned in February 1965, i.e. a month before the search. It also transpired from the material that the criminal case was initiated against A. K. in (sensitive data) investigation division (sensitive data), that there was no data certifying that M. M. performed any procedural actions before the discussed event or collected or was familiarised with the operative material regarding A. K., already collected and possessed by the KGB. It should also be noted that there is in general no data in the case certifying that M. M. has ever been on the site of killing or suicide of any other Lithuanian partisan. 8.2. In view of the aforementioned circumstances established by the courts, there is no basis for stating that M. M. understood that he participated in the arrest of A. K. namely as of a partisan when he committed the aforementioned activity. Furthermore, there is no basis for stating that such actions of M. M. can be considered as committed with special intent, i.e. seeking to physically destroy, in whole or in part, people belonging to a political group (partisans). Furthermore, as seen from the material of the case, M. M. was not the one organising or leading the operation of the arrest of A. K. Thus, it can be concluded that there are no subjective elements of genocide in the actions of M. M. as stipulated in Article 99 of the CC – the direct intent and special purpose. 8.3. These conclusions are not denied by the arguments of the cassation appeal as well. For example, the awareness of M. M. of being involved namely in the detention of partisan A. K. who belonged to a significant national-ethnic-political group is based on the fact that M. M. (sensitive data) (sensitive data) completed requalification courses and had worked operational work in (sensitive data) for over two years before that. Furthermore, according to the appellant in cassation, due to his everyday job functions he could not have been unaware of the partisan and directly participated in the partisan’s detention operation, was not an accidental person, was armed, and drew up the protocol of the identification of the body of the deceased. However, such circumstances do not on their own lead to the conclusion that M. M. understood his involvement in the detention of the partisan and, thus, sought to physically destroy, in whole or in part, the persons belonging to a political group (partisans). In general, it should be noted that the person’s accusation of having committed a criminal activity cannot be based on the assumptions. 9. In this context it should be noted that Article 2 § 4 of the CC stipulates that only a person who is guilty of committing a criminal act shall be liable under the criminal law; it means that the guilt of the perpetrator in the criminal law is not presumed, but shall be established in case of each criminal activity. The norms of the law of criminal procedure prohibit the adoption of the convicting judgement in case of doubt with regard to the circumstances relevant to the case or the qualification of the act in accordance with the charges the elements of which are not proven undeniably and in accordance with the established procedure. While examining the question of criminal liability, it is necessary to observe the principle of in dubio pro reo, according to which all doubts and uncertainties that have to remain, i.e. there is no possibility to eliminate them, should be explained to the benefit of the person subjected to the criminal liability (cassation decision in the criminal case No 2K-7-173/2014). In its decisions the cassation instance court has repeatedly argued that 10 the person can be recognised as guilty of committing criminal activity only in case of collection of sufficient indisputable material that proves the guilt of the person. According to the established case-law, the judgment of conviction cannot be based on the presumptions, whereas the conclusions of the court should be substantiated by evidence, indisputably certifying the guilt of the accused person in committing the criminal activity and other important circumstances of the case (cassation decision in criminal cases Nos. 2K-177/2009, 2K-205/2012, 2K-532/2012, 2K-619/2012, 2K-232/2014). The data on the basis of which it can only be assumed that the criminal activity could have been committed are insufficient for the conclusions about the guilt of a person and adoption of the judgement of conviction (cassation decision in the criminal case No. 2K-24/2014). The European Court of Human Rights has repeatedly argued that the doubt should be interpreted to the benefit of the accused person (Barberà, Messegué and Jabardo v. Spain, application no. 10590/83, judgment of 6 December 1988; Telfner v. Austria, application no. 3333501/96, judgment of 20 March 2001; etc.). 10. It should also be noted that the mere fact that M. M. was the employee of the (sensitive data) of the Lithuanian SSR, does not in itself lead to his involvement in the genocide of the residents of Lithuania. When recognising the person as guilty of committing genocide, it is necessary to establish that actions of such person correspond to the elements of genocide as stipulated in Article 99 of the CC. Thus it should be concluded that by stating that there are no elements of the crime stipulated in Article 99 of the CC in the actions of M. M., the courts of the first and appellate instances have properly applied the criminal law. 11. Having examined the case in terms of application of the law and having analysed the content of the appealed judgements and other material of the case, the Chamber of Judges of the cassation instance court made a conclusion that the arguments, listed in the cassation appeal with regard to the violations of Article 20 of the CCP, allegedly committed by the courts, are in conflict with the material of the case and the content of the judgement of the court. The factual circumstances of the case recognised by the courts as proven were established after the evaluation of the entirety of evidence of the case, and after the comparison with the legally obtained data, as well as examination of the circumstances that have influence on the fair solution of the case. It should be noted that the provision stipulated in Article 20 § 2 of the CCP (the fact whether the data obtained in the case are considered as evidence is decided by the judge or the court having the disposition of the case) and in Article 20 § 5 (the court analyses the evidence in accordance with its own firm conviction), establish the exceptional competence of the court to decide which data of the case meet all the requirements of the law and have the evidentiary effect and which conclusions are made on the basis of them. The rejection of proposals or versions provided by the participants of the judicial proceedings does not in itself violate the norms of the Code of Criminal Procedure if the judgement of the court is reasoned and not controversial, whereas the conclusions are based on the entirety of evidence, collected and investigated in the case. 11.1. For example, as could be seen from the material of the case, the judgements of the courts regarding the acquittal of M. M. under Article 99 of the CC were based on the testimonies of witnesses, the written material of the case and other evidence, collected and examined in the case. The evidence was exhaustively examined and evaluated, the testimonies of witnesses were verified conducting procedural actions provided by the CCP, some evidence was compared with other. There is no data about the violation of any rules established by the CCP conducting procedural actions, therefore, there is no basis for doubt in the reliability and legitimacy of their results as evidence in the case at issue. In the judgements of the courts, all the evidentiary material was discussed, the statements were made regarding their reliability, legitimacy, as well as the circumstances of the case which they confirmed or denied and the reasoned conclusion regarding the evaluation of evidence and the established factual circumstances of the case were listed. 11 11.2. One of the arguments whereby the violation of Article 20 of the CCP is based in the cassation appeal is that neither the court of first nor of the appellate instance investigated and evaluated the conclusion of (sensitive data) the Genocide and Resistance Research Centre of Lithuania under which all the potential actions of A. K. made in 1949-1952 met the partisan structure and attitudes of that time. The Chamber of Judges has no basis for doubt in the partisan activity of A. K. and its significance to the statehood of Lithuania. However, in case of recognition that there are no subjective elements of the crime stipulated in Article 99 of the CC in the actions of M. M., this conclusion is not relevant to the qualification of the activity of M. M. Regarding the retroactivity of Article 99 of the CC 12. In the context of the case under examination, it is also important to note that on the basis of the charges under Article 99 of the CC M. M. was accused of being involved in the physical destruction of A. K. as a member of a separate political group – resistance against the Soviet occupation. On the basis of, inter alia, the application of the first instance court that examined this case, the Constitutional Court of the Republic of Lithuania adopted the Ruling On the Compliance of Certain Provisions of the Criminal Code of the Republic of Lithuania Related to Criminal Liability for Genocide with the Constitution of the Republic of Lithuania on 18 March 2014 (the Ruling of the Constitutional Court). 13. In this Ruling, the Constitutional Court, inter alia, claimed that under the universally recognised norms of the international law, the genocide means the actions committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group; thus, the list of protected groups is exhaustive and it does not include the social and political groups. The legally binding and universally recognised definition of genocide is stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide of the United Nations adopted in 9 December 1948 which is relevant to the case at issue. There are 144 States Parties to the Convention, including the Republic of Lithuania (the Convention for the Republic of Lithuania came into force on 1 May 1996). The principles used as a basis for the Convention against Genocide are recognised by the civilised nations as binding to the states even in case of absence of conventional obligations. Such principles are, therefore, a part of the general international law; the Convention against Genocide is a universal international treaty establishing the universally recognised norms of the international law. The States Parties to the Convention against Genocide confirmed that genocide, whether committed in time of peace or in time of war, is a crime under the international law which they undertook to prevent and punish for it (Article 1). According to Article 2 of this Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group. 14. Under the universally recognised norms of the international law, there is a possibility of establishing in the national law of states an exception to the principle of nullum crimen, nulla poena sine lege by providing that the national laws establishing criminal liability for actions constituting the crimes under the international law may have a retroactive effect (e.g. principles II and IV approved in 1950 by the International Law Commission of the United Nations recognised in the Charter of Nuremberg Tribunal and in the verdict of the Tribunal). Such exception is also established in the acts of the international human rights law (Article 11 § 2 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Civil and Political Rights, Article 7 of Convention for the Protection of Human Rights and Fundamental Freedoms). For example, Article 7 § 1 (No punishment without law) of the Convention for the Protection of Human Rights and Fundamental Freedoms 12 (hereinafter - the Convention) establishes 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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. Article 7 § 2 of the Convention stipulates that this Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. According to the Constitutional Court, it is clear from the travaux préparatoires of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms that the references to international law in Article 15 of the Covenant and Article 7 of the Convention were consolidated in order to create an exception to the general rule of nullum crimen, nulla poena sine lege by establishing that the liability for an act or omission constituting a crime under international treaties and customs or the general principles of law at the time when it was committed may also be imposed in the cases where the act or omission did not constitute a crime under the national law valid at the time when it was committed. The provisions of Article 15 § 2 of the Covenant Article 7 § 2 of the Convention intended to reaffirm, inter alia, the principles formulated by the Nuremberg Tribunal. According to the case-law of the European Court of Human Rights referred to in the Ruling of the Constitutional Court, the travaux préparatoires of the Convention for the Protection of Human Rights and Fundamental Freedoms implies that Article 7 § 1 of this Convention can be considered to contain the general rule of non-retroactivity of the criminal law and that Paragraph 2 of this article is only a clarification of the liability limb of that rule, included to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war; the two paragraphs of Article 7 of the Convention are interlinked and are to be interpreted in a concordant manner (Maktouf and Damjanovic v. Bosnia and Herzegovina, applications nos. 2312/08 and 34179/08, judgment of the Grand Chamber of 18 July 2013; Kononov v. Latvia, application no. 36376/04, judgment of the Grand Chamber of 17 May 2010). In cases Kolk and Kislyiy v. Estonia and Papon v. France (No. 2), the ECHR pointed out that Article 7 § 2 of the Convention is applicable to the crimes against humanity as specified in the Charter of the Nuremberg Tribunal (decisions as to the admissibility in cases Kolk and Kislyiy v. Estonia, applications nos. 23052/04 and 24018/04, 17 January 2006; Papon v. France (No. 2), application no. 54210/00, 15 November 2001). By summing up, the Constitutional Court noted that the universally recognised norms of international law permit an exception to the principle of nullum crimen, nulla poena sine lege by providing for the retroactivity of the national laws establishing criminal liability for the crimes recognised under international law or the general principles of law; this exception is not applied to other crimes specified under the national law. The aforesaid exception to the principle of nullum crimen, nulla poena sine lege is applicable to, inter alia, the crime of genocide as defined under the universally recognised norms of international law (i.e., the crime of genocide directed exclusively against the national, ethnic, racial, or religious, but not the social or political groups). 14.1. Article 31 § 4 of the Constitution specifies that “Punishment may be imposed or applied only on the grounds established by law”. Thus, the principle of nulla poena sine lege established in this provision of the Constitution, which means that a person cannot be punished for the activity which was not punishable under the law at the time it was committed. It should be noted that this principle also originates from the constitutional principle of the state under the rule of law. As the Constitutional Court noted in the Rulings of 13 December 2004 and 16 January 2006, when applying law, one must pay heed, inter alia, to the following requirements originating from the constitutional principle of a state under the rule of law, for example: the liability (sanction, punishment) for violations of law must be established in advance (nulla poena sine lege); an act is not considered to be criminal, if it is not provided for in the law (nullum crimen sine lege). Thus, it should be noted that the 13 constitutional principle of the state under the rule of law integrates two interrelated principles that are relevant to this case of constitutional justice, i.e. nulla poena sine lege and nullum crimen sine lege. 14.2. Furthermore, the respect for international law is an inseparable part of the constitutional principle of a state under the rule of law, whose essence is the rule of law. Under Article 135 § 1 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the said provision consolidates the constitutional principle of respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling, in good faith, the obligations assumed by the Republic of Lithuania under the international law, inter alia, the international treaties; the constitutional principle of pacta sunt servanda also means the imperative of fulfilling, in good faith, the international obligations arising from the universally recognised norms of international law (general international law), prohibiting international crimes. In discharging these obligations, the criminal legislation of the Republic of Lithuania related to the liability for the international crimes, inter alia, genocide, may not establish any such standards that would be lower than those established under the universally recognised norms of international law. Disregard for the said requirement would be incompatible with the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution and expressed through the constitutional principle of a state under the rule of law. 14.3. In view of Article 135 § 1 of the Constitution, the aspirations of the open, just, harmonious civil society and a state under the rule of law expressed by the constitutional principle of a state under the rule of law, the principle of nullum crimen, nulla poena sine lege, established in Article 31 § 4 and deriving from the constitutional principle of a state under the rule of law, is not absolute. According to the Constitution, the criminal laws may establish the exception to this principle applied to the crimes according to the international law or the general principles of the law, inter alia, the crime of genocide defined according to the universally applied norms of the international law (i.e. directed only against the national, ethnic, racial or religious groups); only this would ensure the compliance with the requirements originating from Article 135 § 1 of the Constitution and related to the aspirations of the open, just, harmonious civil society and a state under the rule of law expressed by the constitutional principle of a state under the rule of law not to set lower standards by the criminal laws of the Republic of Lithuania related to the liability for the international crimes than those, set according to the universally recognised norms of the international law. This requirement, as well as the principle of nullum crimen, nulla poena sine lege, established in Article 31 § 4 of the Constitution and originating from the constitutional principle of a state under the rule of law, would be disregarded if the criminal laws stipulated their retroactive power to the crimes defined only according to the national law. 14.4. In view of the foregoing, the Constitutional Court found that by establishing, in Article 3 § 3 (wordings of 26 September 2000 and 22 March 2011) of the CC, the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions that had been aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, the legislature established the retroactive effect of Article 99 of the CC for such actions that are considered to constitute the crime of genocide only under the norms of the national law; by establishing such legal regulation, no regard was paid to Article 31 § 4 and Article 135 § 1 of the Constitution and the constitutional principle of a state under the rule of law. The Constitutional Court made a conclusion that Article 3 § 3 (wordings of 26 September 2000 and 22 March 2011) of the CC, insofar as it established the legal regulation under which a person may be brought to trial under Article 99 of the CC for 14 the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, is (was) in conflict with Article 31 § 4 of the Constitution and the constitutional principle of a state under the rule of law. 15. The Chamber of Judges of the appellate instance court also noted that in the criminal case at issue, pursuant to the provisions laid down in the Ruling of the Constitutional Court, having evaluated the scope of the charges brought against M. M. both in the indictment and those amended under the application brought by the prosecutor before the first instance court, the courts reasonably decided that during the event examined in this case, i.e. in 1965, there was no law stipulating the liability for the activities that M. M. is accused of having committed (involvement in the physical destruction of the member of separate political group – resistance against the Soviet occupation – Lithuanian partisan A. K.), whereas the exception of the retroactive effect of the criminal law (Article 3 § 3 of the CC) is not applicable to such activity. Thus, the criminal liability according to the charges brought against M. M. is impossible in this aspect as well. 15.1. By upholding such conclusions made by the courts in this criminal case, the Chamber of Judges of the cassation instance court also takes note of the decision of the Grand Chamber of the European Court of Human Rights adopted after the contested decisions on 20 October 2015 in case Vasiliauskas v. Lithuania (application no. 35343/05). This Judgement established the violation of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (nullum crimen sine lege) with regard to conviction of the applicant under Article 99 of the CC for the genocide of the political group of Lithuanian nationals – participation in killing of two Lithuanian partisans in 1953. According to the ECHR, such conviction of the applicant for the genocide could not be foreseeable at the time of killing of partisans. The ECHR, inter alia, found that in 1953 the international treaty law did not include a “political group” in the definition of genocide, nor could it be established with sufficient clarity that customary international law provided for a broader definition of genocide than that set out in Article II of the 1948 Genocide Convention (Vasiliauskas v. Lithuania, § 178). When examining whether the interpretation of the actions of Vasiliauskas presented by the Lithuanian courts in the case of applicant Vasiliauskas met the concept of the genocide as it was in 1953, the ECHR, inter alia, indicated that the state institutions have a discretion to interpret the definition of genocide in a broader way than it is stipulated in the Convention against Genocide of 1948. However, such discretion does not permit the domestic courts to convict the persons accused under such broader definition retrospectively. In view of the fact that in 1953 the political groups were not included in the definition of genocide according to the international law, the ECHR found that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant V. Vasiliauskas for the genocide of the Lithuanian partisans, as members of a political group (in this regard, the ECHR also indicated the previously listed conclusions made in the Ruling of the Constitutional Court). Concerning the arguments of cassation appeal not to be examined 16. In case of statement in this decision of the Supreme Court of Lithuania that the activity committed by M. M. has no subjective elements of the crime as stipulated in Article 99 of the CC, other arguments laid down in the cassation appeal actually become legally irrelevant in the solution of issue regarding the qualification of act committed by M. M. These include the arguments regarding the understanding of certain objective elements of genocide (e.g. the killing of one partisan can also be considered as genocide), that according to the decisions of the courts, the significant status of the national-ethnic-political group was not granted A. K., regarding the legitimacy of actions of M. M. at the time of his work at (sensitive data) and involvement in the arrest of A. K. and that the activity of a single 15 individual also could be acknowledged as a genocide, etc. Thus, these arguments of the cassation appeal are not examined. Pursuant to Article 382 §1 of the Code of Criminal Procedure of the Republic of Lithuania, the Chamber of Judges hereby decides : to dismiss the cassation appeal of J. Š., the victim. Judges: /signature/ Artūras Pažarskis /signature/ Olegas Fedosiukas / signature/ Armanas Abramavičius Translation from Lithuanian Criminal case No 2K-P-18-648/2016 Judicial procedure No 1-20-9-00479-2014-9 Procedural decision categories: 1.2.1.1; 1.1.4.4.5; 1.1.8.1.2 (S) SUPREME COURT OF LITHUANIA DECISION IN THE NAME OF THE REPUBLIC OF LITHUANIA 12 April 2016 Vilnius The Plenary Session of the Criminal Division of the Supreme Court of Lithuania (hereinafter also – the Plenary Session), consisting of the Jonas Prapiestis, the President, Armanas Abramavičius, Viktoras Aidukas, Rima Ažubalytė, Dalia Bajerčiūtė, Olegas Fedosiukas, Eligijus Gladutis, Gintaras Goda, Aurelijus Gutauskas, Audronė Kartanienė, Vytautas Masiokas, Vytautas Piesliakas, Alvydas Pikelis, Aldona Rakauskienė, Vladislovas Ranonis, Tomas Šeškauskas and Artūras Pažarskis, a rapporteur, Rita Bartulienė acting as a secretary, with participation of Gintautas Paškevičius, the prosecutor, attorney at law Kęstutis Rakauskas, the defence counsel, A. R.-S., the victim, attorney at law Vytautas Zabiela, the representative of the victim, at the court hearing examined the criminal case on the basis of the cassation appeals of convict S. D. and of the convicted person's defence counsel, attorney at law Kęstutis Rakauskas, concerning the Judgment of 12 March 2015 of the Chamber of Judges of the Criminal Division of the Kaunas Regional Court and the Decision of 10 July 2015 of the Chamber of Judges of the Criminal Division of the Court of Appeal of Lithuania. S. D. has been sentenced by the Judgment of 12 March 2015 of the Chamber of Judges of the Criminal Division of the Kaunas Regional Court under Article 99 of the Criminal Code of the Republic of Lithuania (hereinafter also – the CC) to imprisonment for five years. By the decision of 10 July 2015 of the Chamber of Judges of the Criminal Division of the Court of Appeal of Lithuania the appeal of attorney at law Kęstutis Rakauskas, defence counsel of convicted person S. D., was dismissed. A clerical error in the operative part of the Judgment of 12 March 2015 of the Criminal Division of the Kaunas Regional Court was corrected by indicating that S. D. was held guilty of having committed the criminal offence provided for in Article 24 §6 and Article 99 of the CC. The Plenary Session, having heard the report of judge Artūras Pažarskis, the explanations of the defence counsel of the convicted person who requested to grant the cassation appeals, also the prosecutor, the victim and her representative who requested to dismiss the cassation appeals, established the following: 1. S. D. has been convicted of the offence as he while being an officer of the repressive structure of the USSR that occupied the Republic of Lithuania at the time of the Soviet occupation – 2 senior operative officer of the 1st Unit of the 3rd Division of the 4th Board of National Security Committee (NSC) (KGB) of the LSSR, knowing and understanding one of the principal goals of this repressive structure, i.e. to destroy physically the members of the organised movement of the Lithuanian national resistance to the soviet regime – Lithuanian partisans, their liaisons and supporters, complying with the tasks specified in the detention operation plan, which was drawn up by N. D., deputy head of the 2nd Division of the 4th Board of the LSSR NSC, and approved by J. O., Head of the 4th Board of the LSSR NSC, and L. M., deputy chairman of the LSSR NSC, on 11 October 1956, acting together with the members of the detention groups: N. D., deputy head of the 2nd Division of the 4th Board of the LSSR NSC, J. K., A. G. and J. P., senior operative officers of the 2nd Division of the 4th Board of the LSSR NSC, A. Z., head of the 4th Unit of the Kaunas Board of the LSSR NSC, J. O., head of the 4th Board of the LSSR NSC, V. L., senior operative officer of the 3rd Division of the 4th Board of the LSSR NSC, P. Š. and S. Š., operative officers of the 2nd Division of the 4th Board of the LSSR NSC, D. A., assistant operative officer of the 7th Unit of the Kaunas Board of the LSSR NSC, within the time period between 6:00 p.m. of 11 October 1956 and 9:00 a.m. of 12 October 1956, the time was not identified more precisely, took part in a secret operation in detaining A. R. , colonel of the partisans, Chairman and Commander of the Council of the Lithuanian Freedom Fight Movement (LLKS) (a structure of the movement of the Lithuanian armed resistance to soviet occupational authorities), codename ‘Vanagas’ (‘Hawk’), and his wife-partisan B. M., codename ‘Vanda’; On 12 October 1956, at around 2:00 p.m., A. R. was incarcerated in the internal prison of the LSSR NSC in Vilnius; on that same day he was severely tortured and heavily injured by unidentified persons at the prison, later also interrogated and subsequently sentenced by illegal social occupational authorities’ court – the Supreme Court of the LSSR - to capital punishment by the judgment of 24–25 September 1957 and killed on 29 November 1957 executing this punishment by unidentified persons, i.e. physically destroyed as a member of a distinct national-ethnic-political group – the Lithuanian armed resistance to the Soviet occupation, and B. M. was deported to a camp in Kemerov oblast, Russian Soviet Federative Socialist Republic (RSFSR) of the USSR, for eight years under the judgment of 8 May 1957 of the court of the illegal social occupant authorities – the Supreme Court of the LSSR - as a member of a distinct national-ethnic-political group – the Lithuanian armed resistance to the Soviet occupation. In this way, S. D. aided the representatives of the Soviet occupational authorities in committing genocide acts against A. R. and B. M. 2. The convicted person S. D. requests by his cassation appeal to quash the Judgment of 12 March 2005 of the Kaunas Regional Court and acquit him because he has not committed the criminal act provided for in Article 24 §6 and Article 99 of the CC. 2.1. The appellant in cassation holds that the charges are unfounded and entirely unsubstantiated; he notes that he knows what acts are recognised as genocide under the international law and that he has not contributed to such acts. When the investigation of this case began, being convinced in his innocence, he made efforts to help the officers clarify the matters of interest for them as much as his memory allowed. He considered that his position was cooperation, however, his openness and good intentions turned out detrimental to him because he became a suspect. 2.2. According to the convicted person, there is no evidence in the case that he took part in the detention of A. R. and his wife B. M. and thereby contributed to the genocide against them. He found out about the circumstances of the detention from the conversations of his co-workers. The persons who took part in the detention have been named in official documents; his surname is not among them. Likewise, his surname is not among those who carried out searches and later were awarded for the completed operation. His presence in Kaunas had no impact on the destiny of A. R. and his wife. The appellant in cassation notes that he had been removed from the reserve group, however, there are no witnesses at present who could confirm that. On the other hand, there are no witnesses in the proceedings who could state that he was in the reserve group during the operation. The courts substantiate this circumstance by assumptions. 2.3. The convicted person also notes that he had been enlisted in the national security service as a civil conscript rather than a volunteer. According to the appellant in cassation, the 3 person who served in a security institution not necessarily fought against Lithuanian partisans. Each division had different areas of operational activities; the 3rd Division where he served in 1956 was not involved in any actions against Lithuanian partisans, their liaisons or supporters. 3. The defence counsel of the convicted person, attorney at law K. Rakauskas, requests by the cassation appeal to quash the Judgment of 12 March 2015 of the Kaunas Regional Court and the Decision of 10 July 2015 of the Court of Appeal of Lithuania and terminate the proceedings with respect to S. D. 3.1. The appellant in cassation contends that the court improperly applied the criminal law, i.e. Article 24 §6 and Article 99 of the CC, also disregarded the provisions of paragraphs 1 and 4 of Article 2 of the CC because S. D. was sentenced in the absence of all the necessary objective and subjective elements of genocide, for the acts which did not constitute a crime at the time when they were committed. 3.2. The defence counsel of the convicted person notes that S. D. has been sentenced for aiding in committing genocide acts in 1956, therefore, according to the appellant in cassation, the actions performed by the convicted person should be analysed only in the context of the rules of international law regulating liability for genocide. The appellant in cassation notes that, in accordance with Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter also – the Genocide Convention), genocide means any of the acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. Moreover, it has inter alia been held in the Judgement of the International Court of Justice (hereinafter also – the ICJ) in the case Bosnia and Herzegovina v. Serbia and Montenegro concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide that the subjective element of the crime of genocide is specific as, apart from intent, an additional element is necessary – specific intent (dolus specialis); the crime of genocide requires an intent to destroy a certain number of people who have a particular group identity; when part of the group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole. 3.3. With reference to paragraph 6.3 of the Ruling of 18 March 2014 of the Constitutional Court of the Republic of Lithuania (hereinafter – the Constitutional Court), the appellant in cassation claims that only during the period 1941-1953, the mass crimes and non-judicial executions of detained persons perpetrated by the Soviet occupation regime, in case of the proof of the existence of a special intent aimed at destroying, in whole or in part, any national, ethnic, racial or religious group, might be considered as genocide as defined according to the norms of international law. In accordance with the Law of the Republic of Lithuania on the Status of Participants in Resistance against the Occupations of 1940-90, the Lithuanian partisan war against the occupant troops of the Soviet Union and the structures of the occupant regime took place in 1944–1953, i.e. in 1956, the Lithuanian partisan movement, which should be assessed as the activities of a political group in the armed resistance to the occupation and annexation of the Republic of Lithuania, had already been suppressed, A. R. and B. M. were in hiding, therefore, their detention had no impact on any national, ethnic group of the Lithuanian population. Therefore, the appellant in cassation S. D. contends that on 11-12 October 1956 he did not aid and did not commit any of the acts referred to in Article 2 of the Genocide Convention. 3.4. Moreover, the same Ruling of 18 March 2014 of the Constitutional Court has held that Article 3 §3 of the CC, insofar as it establishes the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the CC for the genocide of persons belonging to any social or political group, is in conflict with Article 31§ 4 of the Constitution and 4 the constitutional principle of a state under the rule of law. Such constitutional approach, in view of the appellant in cassation, means that criminal liability for the genocide against persons belonging to any political group in the Republic of Lithuania is possible only for the acts committed after 6 May 1998 when the Law of the Republic of Lithuania on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof that was adopted on 21 April 1998 came into force and for the first time referred in the definition of the crime of genocide to social and political groups, i.e. the groups not provided for in the norms of international law that define the crime of genocide. In view of the appellant in cassation, the provisions of Article 15 of the International Covenant on Civil and Political Rights and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also – the Convention) were not followed in regard to the convicted person. 3.5. The appeal in cassation also notes that a person may be held guilty under Article 99 of the CC in force at present only after it has been proved that he had a special intent – aimed at physically destroying, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group when committing the act being incriminated, that, in order to achieve this aim, the person acted with direct intent and performed active acts – organised, was in charge of or participated in their killing, torturing, causing bodily harm to them, hindering their mental development, their deportation or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them. The subject-matter (victims) of this crime is the persons belonging to any national, ethnic, racial, religious, social or political group. All the above- mentioned elements of the crime must be established in the acts of a specific person, including an accessory, and the elements of the crime held by other persons (both natural persons and legal entities) may be not attributed to him. 3.5.1. According to the defence counsel, the convicted person S. D. did not participate in the detention of A. R. and B. M., he also did not incarcerate or torture them, etc. That is confirmed by written evidence in the case-file, i.e. the detention protocol, the protocol of personal search of A. R., etc. The courts unreasonably considered the inclusion of S. D. into the composition of one of the detention groups and his presence in one of the streets in Kaunas at the moment of detention of A. R. and B. M. as aiding in committing the genocide actions, although, from the perspective of international law, genocide actions against them at the moment of detention were not committed. Moreover, the detention of these persons is not related at all by causal link to the consequences resultant for A. R. and B. M. in 1957 from the decisions of the judicial institution for which the convicted person had no impact. 3.5.2. The appellant in cassation is convinced that the courts, holding that the convicted person aimed at assisting in the physical destruction of the partisan colonel A. R. and his wife partisan B. M., in their biased considerations treated the aims of the NSC (KGB), as an institution, as identical to the personal aims of the convicted person S. D. However, the true purposes of S. D. were not investigated and assessed within the course of these proceedings at all. Whereas the convicted person was not involved in genocide acts from the perspective of international law, the actions equalling genocide committed by other legal entities or natural persons may not be attributed to him. S. D. did not perform directly or indirectly any actions which did not comply with the legal acts in force in the territory of the occupied Lithuania and which were directed towards the only purpose – to destroy physically A. R. or deport B. M. S. D. was not the subject who had the right to decide on the issues of detention of A. R. and B. M., their placement in the remand detention prison, the imposition of a remand measure, i.e. in that situation he had no possibility of impacting the procedure of detention of these persons and their destiny on his own. The courts were entirely wrong to decide about the intent of S. D. only from the fact of detention of these persons. 3.5.3. The appellant in cassation also contends that the person who sought to destroy one person may not be the subject of the crime provided for in Article 99 of the CC, because namely the number of victims at whose physical destruction the offender's intent is directed is the essential criterion making genocide distinct from other crimes. There is no evidence in the case-file that the convicted person was at the crime scene at any time when at least one more Lithuanian partisan was 5 detained and later killed, i.e. no evidence that S. D. aided by his actions in the physical destruction of such members of a distinct political group, in whole or in part. Therefore, the act of S. D. (presence in Kaunas on 12 October 1956 when other persons detained A. R. and B. M.) is also lacking the objective elements of the corpus delicti of genocide – aiding in the killing of persons belonging to a political group. 3.6. According to the defence counsel, the courts also incorrectly applied the provisions of Article 24 of the CC. Following Article 24§1 of the CC, complicity is possible when a criminal act is committed by not less than two natural persons. A legal entity (the KGB or the fourth board of any sort) was not and could not be a direct subject of complicity. Thus, the appellant in cassation is convinced that the convicted person has been charged for aiding in genocide actions without establishing the mutual relation between him and others, who were the actual perpetrators of genocide actions, their agreement to act jointly, approval of each other's actions; without ascertaining whether they, as accomplices, understood that they were targeting the same object, that each of them understood the elements of the act being committed jointly and were seeking for that. In this way, the courts, according to the appellant in cassation, have also violated the rules of evidence assessment (Article 20 §5 of the CCP). The cassation appeals of convicted person S. D. and the defence counsel of the convicted person, attorney at law K. Rakauskas, are granted in part. Regarding the concept of genocide at the time of commission of the criminal act 1. One of the essential arguments of the cassation appeals is that by finding S. D. guilty under Article 24(6) and Article 99 of the CC for aiding in the commission of genocide acts, the courts incorrectly applied the criminal law because he has been convicted for the actions for which criminal liability was not provided for in 1956 either under international law or in the criminal laws of Lithuania. 2. Article 31 §4 of the Constitution of the Republic of Lithuania states: ‘Punishment may be imposed or applied only on the grounds established by law’. This provision of the Constitution establishes the principle nullum crimen, nulla poena sine lege, which means that a person may not be punished for the act which was not punishable by law at the time of its commission. In implementing this principle in the criminal law, it is established in Article 2 §1 of the CC that a person shall be held liable under this Code only when the act committed by him is forbidden by a criminal law in force at the time of commission of the criminal act. The Constitutional Court has interpreted that, in view of Article 135 §1 of the Constitution and the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, the principle of nullum crimen, nulla poena sine lege, which is consolidated in Article 31 §4 of the Constitution and stems from the constitutional principle of a state under the rule of law, is not absolute. Under the Constitution, criminal laws may provide for an exception to the said principle, which would be applicable to crimes established under the international law or the general principles of law, inter alia, the crime of genocide as defined under the universally recognised norms of international law (Ruling of 18 March 2014 of the Constitutional Court). The said exception is established in Article 3 §3 of the CC, under which a criminal law establishing the criminality of an act shall have no retroactive effect, except for certain war crimes and crimes against humanity, including for genocide. Such exception is also provided for in the international human rights instruments – Article 11 §2 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Civil and Political Rights, Article 7 of the Convention on the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights (hereinafter also – the ECHR) has held in its case-law (Vasiliauskas v. Lithuania, application No 35343/05, Grand Chamber judgment of 20 October 2015, 6 § 153-155 with further references) that the guarantee enshrined in Article 7 of the Convention, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows from these principles that an offence must be clearly defined in the law, be it national or international. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. The notion of ‘law’ under Article 7 of the Convention implies qualitative requirements of accessibility and foreseeability. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. It is stated in the judgments of the ECHR that, in the Convention States, the progressive development of the criminal law through judicial interpretation is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. The ECHR also considers that in the event of a change of State sovereignty over a territory or a change of political regime on a national territory, it is entirely legitimate for a State governed by the rule of law to bring criminal proceedings against those who have committed crimes under a former regime. The courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law (Vasiliauskas v. Lithuania, § 159; Streletz, Kessler and Krenz v. Germany, applications nos 34044/96, 35532/97, 44801/98, Grand Chamber judgment of 22 March 2001, § 81; Kononov v. Latvia, Grand Chamber judgment of 17 May 2010, § 241). Following the requirements of Article 7 of the Convention, in the absence of a national law in force applicable to the offence at the time of its commission, the person's conviction has to be based upon the international law as it stood at the relevant time (Vasiliauskas v. Lithuania, § 166). 3. At the time of commission of the criminal act of which S. D. has been convicted, i.e. in 1956, the 1926 RSFSR Criminal Code where criminal liability for genocide was not provided applied in the territory of occupied Lithuania. S. D. has been convicted of aiding in the commission of genocide under Article 24 §6 and Article 99 of the 2000 CC, i.e. under the provisions of the criminal law which were not in force in 1956. Whereas the CC provisions concerning criminal liability have retroactive effect, the question relevant in these proceedings is whether, at the time of committing the criminal act, genocide was considered a crime under the universally recognised norms of international law and whether the convicted person could have foreseen at that time that the act for which he has been convicted in this criminal case could be qualified as genocide. 4. It should be noted that the USSR was one of the parties to the London Agreement of 8 August 1945 ‘For the Prosecution and Punishment of the Major War Criminals of the European Axis’ by which the Charter of the Nuremberg International Military Tribunal was enacted. On 11 December 1946, the General Assembly of the United Nations adopted Resolution No 95 (I) and affirmed the principles of international law recognised by the Charter of the Nuremberg International Military Tribunal and the verdict of the Tribunal of 30 September 1946– 1 October 1946. These principles were set out by the International Law Commission in 1950 in the Principles of International Law, which establish that the fact that internal law does not impose a penalty for an act which constitutes a crime under the international law does not relieve the person who committed the act from responsibility under international law (Principle II); the fact that a 7 person acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under the international law, provided a moral choice was in fact possible to him (Principle IV). Paragraph (c) of Principle VI stipulates that murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds are held to be crimes against humanity. By Resolution No 96 (I) adopted on 11 December 1946, the United Nations General Assembly condemned genocide, which is ‘<...> a denial of the right of existence of entire human groups <...> when racial, religious, political, and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern’. A political group referred to in the Resolution as one of the elements of genocide was not subsequently included into the codified definition of the crime of genocide as established in binding international legal instruments. 5. On 9 December 1948, the UN Convention on the Prevention and Punishment of the Crime of Genocide was adopted and came into force on 12 January 1951. Under the Genocide Convention, the Contracting Parties confirmed that genocide, whether committed in time of peace or in time of war, is a crime under the international law which they undertake to prevent and to punish (Article I). Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group (Article II). The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide (Article III). Thus, under the universally recognised norms of international law relevant for the proceedings at issue, actions are considered to constitute genocide if they are deliberate actions aimed at destroying, in whole or in part, any national, ethnical, racial, or religious group. The list of protected groups is exhaustive. The principles underlying the Genocide Convention were recognised by civilised nations as binding on States even without any conventional obligations. Thus, these principle are part of general international law. The Genocide Convention is a universally recognised universal international treaty establishing the norms of international law. It should be noted in the context of the case at issue that the USSR signed this Convention on 16 December 1949 and ratified in 1954. 6. It means that in 1956, at the time of commission of the act by S. D., genocide was recognised as crime under the international law. In finding out whether S. D. understood the criminality of genocide at that time it should be noted that he had already had the experience of several years in the LSSR MGB-KGB structures. The courts have stated in the case at issue that it had been known to S. D. about the repressive actions of the LSSR MGB-KGB against Lithuanian partisans, as well as about one of the aims of the said repressive institution – to physically exterminate the members of the national armed resistance – Lithuanian partisans. Thus, while working in the security structures of the LSSR, S. D. actually assisted in implementing the policy pursued by the occupational power against Lithuanian residents. The circumstances described allow the conclusion that the international legal instruments prohibiting genocide (as well as complicity in committing genocide) and providing for criminal liability for that were known to S. D. in 1956 and the qualification of the extermination of Lithuanian partisans as a significant part of the Lithuanian population, protected national, ethic group, as genocide had to be sufficiently foreseeable for him. It should be noted that, according to the general principles of law, accused persons may not justify their conduct which has given rise to their conviction simply by stating that such conduct did in fact take place and therefore formed part of an accepted practice. A State practice of tolerating or encouraging certain acts that have been deemed criminal offences under national or international legal instruments and the sense of impunity which such a practice instils in the perpetrators of such acts does not prevent their being brought to justice and punished (Vasiliauskas v. Lithuania, § 158; Streletz, Kessler and Krenz v. Germany, § 74, 77–79). 8 7. It should also be emphasised that the UN General Assembly adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity on 26 November 1968 which established the principle of international criminal law that no statutory limitation shall apply to war crimes and crimes against humanity, also to genocide, irrespective of the date of their commission. Regarding the elements of genocide and the application of Article 99 of the CC 8. Article 99 of the CC provides for criminal liability for a person who, seeking to physically destroy, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group, organises, is in charge of or participates in their killing, torturing, causing bodily harm to them, hindering their mental development, their deportation or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricts the birth of the persons belonging to those groups or forcibly transfers their children to other groups. 9. The crime of genocide was established in the national law of Lithuania after the reinstatement of the Independent State of Lithuania on 11 March 1990. The Republic of Lithuania accessed the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide and the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity on 9 April 1992. On that same day, the Supreme Council of the Republic of Lithuania – the Reconstituting Seimas - adopted the Law ‘On Liability for Genocide of the Inhabitants of Lithuania’, Article 2 whereof stated that the killing and torturing and deportation of inhabitants of Lithuania committed during the occupation and annexation of Lithuania by Nazi Germany or the USSR shall be classified as the crime of genocide as defined by international law, and its Article 3 stipulated that this Law had retroactive effect for individuals who have committed the acts specified in this Law before [it] came into force and the statute of limitations shall not be applicable. Since 1998, the crime of genocide has been incorporated into the CC of 1961 (Article 71) and subsequently into the new CC of 2000 (Article 99). 10. Genocide undermines the conditions of security, existence and survival of the mankind or its part. The crime targets the life, health, freedom, safe existence conditions, development opportunities of any national, ethnic, racial, religious, social or political group of individuals. Victims of this crime are the persons belonging to any national, ethnic, racial, religious, social or political group. The crime of genocide is characterised by massive scale and highly serious consequences. Only such act, which aims at destruction of a protected group, in whole or in part, is recognised as genocide. When part of the group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole. Genocide takes the form of organising, being in charge of or participating in the commission of one or several alternative acts directed toward destroying, in whole or in part, the persons belonging to above-referred groups by killing, torturing, causing bodily harm to them, hindering their mental development, deporting them or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricting the birth of the persons belonging to those groups or forcibly transferring their children to other groups. Genocide is committed only with direct intent and that means that the perpetrator understands that he organises, is in charge of or participates (acts in complicity) in the destruction of persons belonging to any national, ethnic, racial, religious, social or political group and desires to act so. Moreover, a required element of genocide is the intent to destroy, in whole or in part, a protected group. 11. When defining the crime of genocide in Article 99 of the CC, in addition to national, ethnic, racial and religious groups, social and political groups, that is, the two groups which were not provided for when defining the crime of genocide under the universally recognised norms of international law have been included. The Constitutional Court of the Republic of Lithuania has pointed out in the Ruling of 18 March 2014 that ‘<...> the inclusion of social and political groups into the definition of genocide in Article 99 of the CC <...> was determined by a concrete legal and 9 historical context – the international crimes committed by the occupation regimes in the Republic of Lithuania’. The Constitutional Court, inter alia, concluded that the legal regulation established in Article 99 of the CC and a broader interpretation of the crime of genocide does not conflict with the Constitution. On the other hand, the Constitutional Court has held that paragraph 3 of Article 3 of the CC (wordings of 26 September 2000, 22 March 2011), insofar as this paragraph establishes the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group (i.e. the establishment of the retroactive effect of Article 99 of the CC for the actions which are classified as genocide only under the norms of national law) was in conflict with Article 31 §4 of the Constitution and the constitutional principle of a state under the rule of law. 12. In the context of the cassation case at issue, the judgment rendered by the Grand Chamber of the European Court of Human Rights on 20 October 2015, after the decisions disputed in the given proceedings, in the case Vasiliauskas v. Lithuania (application no. 35343/05) is relevant; the Court held that there has been a violation of Article 7 (nullum crimen sine lege) of the Convention for the Protection of Human Rights and Fundamental Freedoms by the conviction of the applicant under Article 99 of the CC for the genocide of a political group of the Lithuanian population – participation in the killing of two Lithuanian partisans in 1953. The ECHR, inter alia, found that in 1953 international treaty law did not include a ‘political group’ in the definition of genocide, nor could it be established with sufficient clarity that customary international law provided for a broader definition of genocide than that set out in Article II of the 1948 Genocide Convention (Vasiliauskas v. Lithuania, § 178). In examining whether the interpretation of the actions of V. Vasiliauskas provided by the Lithuanian courts in the case of the applicant V. Vasiliauskas conformed to the concept of the notion genocide as it stood in 1953, the ECHR, inter alia, noted that authorities have discretion to interpret the definition of genocide more broadly than that contained in 1948 Genocide Convention. However, such discretion does not permit domestic tribunals to convict persons accused under that broader definition retrospectively. Considering the fact that in 1953 political groups were excluded from the definition of genocide under international law, the ECHR held that the prosecutors were precluded from retroactively charging, and the domestic courts from retroactively convicting the applicant for the genocide of Lithuanian partisans, as members of a political group. It also follows from the judgment of the ECHR in the case Vasiliauskas v. Lithuania that the Grand Chamber held that the Lithuanian courts had failed to adequately substantiate their conclusions in the judgments rendered in the criminal case of the applicant V. Vasiliauskas that the Lithuanian partisans constituted a significant part of the national group, that is, a group protected under Article II of the Genocide Convention. 13. It has been mentioned that in the criminal case at issue S. D. has been convicted for aiding the representatives of the Soviet occupational power in committing genocide actions against A. R. and B. M. as ‘members of the distinct national-ethnic-political group – armed resistance to the Soviet occupation’. The appellate instance court noted that Lithuanian partisans – members of the armed resistance to the occupational power – are attributed to a ‘separate national-ethnic-political group’ and assessed the unlawful actions directed against A. R. and B. M. by the repressive structures of the occupational power as directed towards a significant ‘part of the national-ethic- political group’. Thus, the courts described partisans by the features of a national, ethnic, political group. According to the law, where at least one element of a national or ethnic, or political group (or its part) under extermination is identified, that is a sufficient basis (also in the presence of other constitutive elements of genocide) to apply Article 99 of the CC. The above-referred characteristics of a group (its part) exterminated by genocide have an autonomous alternative meaning of a constitutive element of corpus delicti. Thus, S. D. has been convicted of aiding in the commission of genocide against the persons belonging to the national, ethnic and political group. A political group is not on the list of the 10 groups protected by the Genocide Convention. However, that does not make the application of criminal liability to S. D. for genocide unjustified. Criminal actions directed at the extermination of persons belonging to any group protected under the Convention are deemed genocide. The courts have held that A. R. and B. M., as members of the resistance to the Soviet occupation who belonged to a political group, were also members of the groups of individuals protected under the Genocide Convention – a national and an ethnic group – therefore, where genocide against any of these groups is discovered, that constitutes the basis to apply criminal liability. It should be noted that the factual circumstance identified by the courts, i.e. the affiliation of A. R and B. M. to a political group – Lithuanian partisans, is relevant in disclosing the essence of the criminal offence and historically may not be assessed separately from the assessment of a national and ethnic group as a characteristic. 14. The Constitutional Court has noted in the Ruling of 18 March 2014 that, under universally recognised norms of international law, actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of a national, ethnic, racial, or religious group and the destruction of which would have an impact on the respective national, ethnic, racial, or religious group as a whole. The exception to the principle of nullum crimen, nulla poena sine lege is also applicable to the deliberate actions that are considered to constitute genocide, i.e. the deliberate actions aimed at destroying a significant part of any national, ethnic, racial, or religious group that would have an impact on the survival of the whole respective group, comprising, inter alia, certain social or political groups. The Ruling of the Constitutional Court pointed out, in consideration of the international and historical context, that in the course of the qualification of the actions against the participants of the resistance against the Soviet occupation as a political group, one should take into account the significance of this group for the entire respective national group (the Lithuanian nation) that is covered by the definition of genocide according to the universally recognised norms of international law. 15. The Constitutional Court, inter alia, pointed out in the Ruling of 18 March 2014 that the International Court of Justice (hereinafter also – the ICC), in interpreting the notion of protected groups under the Genocide Convention in the Judgment of 26 February 2007 in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (§ 193, 198–201), noted, inter alia, that when part of the group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole. In terms of that question of law, the International Court of Justice refers to certain criteria relevant to the determination of ‘part’ of the ‘group’ for the purposes of Article II of the Genocide Convention: – first, the intent must be to destroy at least a substantial part of the particular group; that is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole; – second, it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area; the area of the perpetrator’s activity and control must be considered; the opportunity available to the perpetrator is significant; the latter criterion of opportunity must, however, be weighed against the first and essential factor of substantiality; it may be that the opportunity available to the alleged perpetrator is so limited that the substantiality criterion is not met; – a third suggested criterion is qualitative rather than quantitative; the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group; in addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration; if a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial; the requirement of establishing the 'group' will not always depend on the requirement of substantiality alone although it is an essential starting point; 11 – the above list of criteria is not exhaustive, but the criterion of substantiality is critical. 16. In the context of the proceedings at issue, certain provisions of the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (hereinafter – the ICTY) are also relevant. It should be noted that the definition of the crime of genocide under Article 4 of the Statute of the ICTY and under the jurisprudence of the Tribunal in interpreting its provisions is identical to the definition of this crime as established under the Genocide Convention. It has been, inter alia, held in the judgments of the ICTY that genocidal intent may be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively’ (ICTY Trial Chamber, Judgment of 14 December 1999, Prosecutor v. Jelisić, Case IT-95-10-T, § 82). The case-law of the ICTY points out with reference to the United Nations Expert Study on Genocide that the term ‘in part’ is defined as implying a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership. This definition means that, although the complete annihilation of the group is not required, it is necessary to establish ‘the intention to destroy at least a substantial part of a particular group’. The ICTY believes that this figure should be understood as a ‘reasonably substantial’ rather than a ‘reasonably significant’. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group (Judgment on Defence Motions to Acquit of 3 September 2001, Prosecutor v. Sikirica, Case IT-95-8-T, § 65). The genocidal intent may be inferred, among other facts, from evidence of other (i.e. not necessarily classified as genocide) culpable acts systematically directed against the same group (ICTY Appeals Chamber, Judgment of 19 April 2004, Prosecutor v. Krstić, Case IT-98-33-A, § 33). 17. It should be noted that there are no definitions of protected groups in the Genocide Convention. With regard to the groups protected by Article II of the Genocide Convention, the International Tribunal for Rwanda held that the concepts of national, ethnical, racial and religious groups have been researched extensively and that, at present, there are no generally and internationally accepted precise definitions thereof; Each of these concepts must be assessed in the light of a particular political, social and cultural context (Prosecutor v. Rutaganda (ICTR-96-3-T, Judgment of 6 December 1999); Prosecutor v. Kamuhanda (ICTR-95-54A-T, Judgment of 22 January 2004, § 630). The determination on whether a group comes within the protection under the Genocide Convention must be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context and by the subjective perceptions of the perpetrators; the determination of a protected group must be made on a case-by-case basis, by consulting both objective and subjective criteria (Prosecutor v. Semanza (ICTR-97-20, Judgment of 15 May 2003, § 317). 18. It should be noted in the context of the case at issue, that the definition of a national and an ethnic group should be linked with the concept of a nation, the understanding whereof is twofold (Visuotinė lietuvių enciklopedija [The Universal Lithuanian Encyclopaedia], Vilnius: Mokslo ir enciklopedijų leidybos centras [Science and Encyclopaedia Publishing Centre], 2013, p. 576). The first meaning is related to the notion ethnicity or an ethnic group and means a historically developed community of persons – an ethnic nation with common ethnic, cultural characteristics (origin, language, self-awareness, territory, etnopsychology, traditions, etc.). Thus, an ethnic group is a community of persons with a common origin, language, culture, self-awareness. The other meaning of a nation pertains to the notion nation (Latin natio) or a modern nation to which, as a formation, the attributes of statehood, nationalism and citizenship are characteristic. Therefore, a nation may be defined as a community of people historically formed on the basis of the common language, territory, social-economic life, culture and national self-awareness, organised from the national, political and economic perspective. Thus, a national group means a historically developed community of people belonging to a certain nation, formed on the basis of the language, territory, 12 social-economic life, culture, national self-awareness and other common characteristics. The persons belonging to both a national and an ethnic group may be interrelated and a complete delimitation of such groups, as a separate formation, in the crime of genocide is not always possible. 19. The main purpose of the Genocide Convention is to protect people from massive annihilation both in the times of war and peace and genocide is not defined as a crime directed against a civilian population only. It should be noted that persons belonging to any national, ethnic, racial or religious group can at the same time be annihilated by genocide in a specific territory due to various reasons (for example, based on their specific nationality and religious faith), therefore, genocide can at the same time target a group of persons who is attributed to several protected groups under the Genocide Convention. Regarding a political group 20. In the context of the proceedings at issue, it is highly important to consider the international legal and historical circumstances of the time period between 1940 and 1956, as well as the scope (massive scale) of the national resistance to the occupational power and the scale of repressions of the Soviet occupational power against the Lithuanian population. 21. As is generally known, on 15 June 1940, an act of aggression was carried out by the USSR against the Republic of Lithuania – the invasion of the Soviet armed forces into the territory of the Republic of Lithuania and the occupation of the territory of the Republic of Lithuania. Continuing its aggression, the USSR carried out the annexation of the territory of the Republic of Lithuania on 3 August 1940. In June 1941, the Republic of Lithuania was occupied by the German Reich: the latter occupation began on 22 June 1941 when Germany attacked the Soviet Union and ended in 1944–1945 after the USSR had reoccupied the territory of the Republic of Lithuania. The second Soviet occupation continued until 11 March 1990 when the independence of the Republic of Lithuania was restored. 22. After the Soviet Union occupied Lithuania, its residents suffered mass repressions that violated fundamental human rights to life, health, freedom and dignity. It is noted in the Ruling of 18 March 2014 of the Constitutional Court that ‘<...> According to various data, due to the both occupations carried out by the USSR, the Republic of Lithuania lost almost one fifth of its population, including refugees. According to the data presented by the Genocide and Resistance Research Centre of Lithuania, during the period of the Soviet occupation (1940–1941 and 1944– 1990), in all, 85 thousand residents of the Republic of Lithuania perished or were killed, around 132 thousand residents were deported to the Soviet Union (at the time of the deportations of 1945– 1952, 32 thousand of the deportees were children). From among those perished or killed, more than 20 thousand were participants of the armed resistance against the occupation (partisans) and their supporters (data for 1944–1952), <...> around 35–37 thousand political prisoners perished in special camps and prisons, and around 28 thousand deportees perished in exile; <...> one of the biggest repressions against the civil population was carried out in 1944–1944: up to 130 thousand residents of Lithuania were detained and arrested, 32 thousand were repressed and transferred to special camps and prisons, around 108.4 thousand were recruited to the USSR troops by force in 1944– 1945; during the 1944–1953 partisan war against the occupation, all in all, 186 thousand people were arrested and imprisoned. <...> The crimes against the residents of the Republic of Lithuania were a part of the targeted and systematic totalitarian policy pursued by the USSR: the repressions against the residents of Lithuania were not in any manner coincidental and chaotic, but rather such repressions sought to exterminate the basis of the political nation of Lithuania, inter alia, the former social and political structure of the State of Lithuania. Those repressions were directed against the most active political and social groups of the residents of the Republic of Lithuania: participants of the resistance against the occupation and their supporters, civil servants and officials of the State of Lithuania, Lithuanian public figures, intellectuals and the academic community, farmers, priests, and members of the families of those groups. It should be noted that, by means of the repressions, 13 the occupation regime sought to exterminate, to cause harm and break those people: they were victims of non-judicial executions, they were imprisoned and sent to special camps for forced labour, they were deported to faraway harsh-climate sparsely populated places of the Soviet Union by purposefully creating intolerable life conditions that posed constant threat to their life and health. It should be noted that, the conclusions made by the historians that investigated the documents of the repressive interior and intelligence structures of the USSR show that Lithuanians together with their neighbours Latvians and Estonians, as well as together with some persons belonging to other nationalities that resided in the Soviet Union (e.g., Germans, Ukrainians, Crimea Tartars, Chechens, the Ingush), were treated as persons belonging to 'unreliable' nations; namely because of their nationality, the persons belonging to ‘unreliable’ nations were doomed to the extermination, inter alia, by means of unbearable living conditions in exile. 23. The occupants used the most brutal methods of fight: destroyed the farmsteads of partisan families and their supporters by mortar fire, publicly disfigured dead bodies in public squares of towns and villages, arranged provocations by agent hitmen ( Lithuanian partisans, inter alia, special ‘extermination’ squads were established and they were used in the fight against the Lithuanian partisans and their supporters’. 29. Persons of different status participated in the national armed resistance, mostly Lithuanians by nationality; they were united by the common goal – to restore the independence of Lithuania. The resistance was supported and the occupation was also resisted in other ways by a large part of the Lithuanian nation. As mentioned, according to the data available, not less than 50 thousand persons participated actively in the armed resistance that lasted for a decade, and the whole resistance movement involved around 100 thousand residents of Lithuania, as members of underground organisations and supporters; around 20,000 Lithuanian partisans and their supporters were killed in total during the resistance. It should be noted that according to the data of the Department of Statistics of Lithuania, in 1945 the population of Lithuania was 2.5 million (Lietuva 1940–1990 [Lithuania 1940–1990], Vilnius: Lietuvos gyventojų genocido ir rezistencijos tyrimo centras [Genocide and Resistance Research Centre of Lithuania], 2007, p. 395), and approximately 2.3 million residents in 1951 (ibid, p. 400). Although the numbers of the persons who participated in the resistance and suffered from the repressions are undoubtedly high, they should be considered not only according to the ‘quantitative’ criterion but also in the context of the overall scale of the repressions, including massive deportations of civilians. It has been mentioned that the repressions by the Soviet power were also directed against the family members of partisans, their liaisons and supporters, who were also incarcerated, deported or killed, it was also aimed in this way to exterminate a large part of the Lithuanian nation – a national, ethnic group. Thus, the total number of victim participants of the resistance – Lithuanian partisans, their liaisons and supporters, who were killed or suffered repressions of other nature, is significant both in absolute terms and considering the number of the total population of Lithuania of that time. 30. It has been mentioned that armed participants of the resistance – Lithuanian partisans – who had the support of Lithuanian residents implemented the right of the nation to self-defence against occupation and aggression. The armed resistance obstructed the Soviet occupational structures in carrying out the deportations, exiling and other repressive measures against Lithuanian civil residents. In this way, the participants in the resistance not only really sought to ensure the survival of the nation (by defending it) but also embodied such survival. The leadership of Lithuanian partisans was the supreme political and military power, represented abroad by the Supreme Committee for the Liberation of Lithuania (Preamble of the Law of the Republic of Lithuania on the Status of Participants in Resistance against the Occupations of 1940-90 (wording of the Law No. X–1235 of 28 June 2007)). 31. It should be noted in this context that the courts have established in the case at issue that A. R., codename ‘Vanagas’, became a participant of the armed resistance against the Soviet occupation, a Lithuanian partisan, on 25 June 1945; [he] led a partisan squad and company of Nemunaitis, later became commander of the Merkinė Battalion, commander of the Merkys Brigade; from 25 September 1947, led the Dainava Command, and, from 20 October 1948, was the commander of the South Lithuania Region. In February 1949, in the assembly of partisan commanders of the whole Lithuania, he was appointed deputy of the Chairman of the Presidium of the Lithuanian Freedom Fight Movement (LLKS), Jonas Žemaitis, codename ‘Vytautas’; he was elected chief commander of the defensive forces of the LLKS on 18 September 1949, appointed first deputy of the Presidium of the Council of the LLKS on 3 November 1949; in 1951 [he] took over from the chief commander of Lithuanian partisans, Jonas Žemaitis, codename ‘Vytautas’, the position of the chairman of the LLKS Council and the commander of the defensive forces. B M., codename ‘Vanda’, was a liaison of the Dainava Command and a partisan of the Dainava district from 1945. By orders of 22 December 1997 and 22 December 1998 of the Director of the Genocide and Resistance Research Centre of Lithuania, A. R. and B. M. have been granted the status of volunteer servicemen. The courts established in the proceedings that A. R. and B. M. were active participants of the armed resistance against the Soviet occupation and A. R. was also one of the leaders of this 16 resistance. Lithuanian partisans, as a separate political group, were significant for the survival of the entire national group (the Lithuanian nation), which is defined by ethnic features. The attention should be drawn to the fact that A. R. was persecuted and it was sought to destroy him not only because of his membership in the partisan movement but also as the chairman of the political power of the occupied state – the Presidium of the LLKS Council. The evidence in the case-file confirms that large forces of the LRRS NSC (KGB) were allocated for that purpose: a permanent operational group for the search for A. R. was formed, more than 40 agents were used, much organisational work was undertaken and the search continued for several years. It should also be noted that after the detention of A. R. and his wife B. M. it was reported to the leadership of the LSSR NSC (KGB) that the detention of A. R. completed the ‘liquidation of Lithuanian ‘bourgeois nationalist’ (bandit) leaders’. 32. In the light of the circumstances described, it should be held that the participants of the resistance to occupation – Lithuania partisans, their liaisons and supporters – were a significant part of the Lithuanian nation, as a national, ethnic group. This part of the national, ethnic group had an essential impact on the survival of the Lithuanian nation, was highly important for the protection and defence of the Lithuanian national identity, culture and national self-awareness. That conforms to the characteristics of the above-described group protected under Article II of the Genocide Convention and the extermination of the persons of this group should be assessed as genocide both under international law and the CC. Therefore, the conclusions of the courts that A. R. and B. M., as Lithuanian partisans, were members of the national, ethnic group protected under the Genocide Convention and targeted by the actions of the institutions of the occupational power that sought to exterminate part of this group, should be upheld. Regarding guilt and intent 33. The guilt of S. D. in committing genocide is disputed in the cassation appeals also noting that he had no intent – to physically destroy Lithuanian partisans, their liaisons and supporters. These statements are also supported by the claim that, according to the appellants in cassation, the partisan movement no longer took place at the time of detention of A. R and B. M. 34. It is seen from the case-file material and the factual circumstances established by the courts that S. D. started his service in the national security service (MGB) of that time in April 1952 consciously and voluntarily. Before that he had completed the Vilnius School of MGB Operational Staff Training where he had studied for two years from March 1950. It should be noted that S. D. studied in the security school and started his service in the security structure during the period when the national resistance movement against the occupational power was active. S. D. was not an ordinary officer; [he] was a member of the Communist Party of the Soviet Union (CPSU) from 1952, was granted the rank of officer-lieutenant after graduation from the MGB school. He was referred for employment in MGB 2 ‘N’ Board of the Lithuanian SSR, the main function whereof was the fight against the national resistance movement. It should be noted that Division 1 of the said Board where S. D. worked, carried out the surveillance of members and leadership of the Lithuanian national underground movement (Sovietinis saugumas Lietuvoje 1940-1953 metais [Soviet Security in Lithuania in 1940–1953], Vilnius: Lietuvos gyventojų genocido ir rezistencijos tyrimo centras [Genocide and Resistance Research Centre of Lithuania], 1999, p. 42-43). At the time of detention of A. R. and B. M. in 1956, S. D. was a senior operative officer of the 4th Board of the LSSR NSC (KGB) (which was, in principle, the successor of the functions of the MGB 2 ‘N’ Board), had the rank of senior lieutenant. It should also be noted that it is seen from the entries in the card of service of S. D., which is enclosed to the case-file, that he was directly ‘involved in the combat operations with the national underground movement (banditry)’ in November 1951 (total of 16 days). Moreover, it has been established that S. D. was aware of the actions of repressive nature against partisans; he also knew about A. R., as a leader of partisans, and about his absconding. S. D. was included into the composition of one out of two detention groups of A. R. and B. M., was 17 instructed about the purpose of the operation during the briefing – to detain Lithuanian partisans and participated in their detention operation. The above-mentioned circumstances allow stating that S. D. understood one of the essential operational goals of the LSSR MGB-KGB, as a repressive structure – to destroy physically the members of the organised movement of the Lithuanian national resistance to the Soviet regime – Lithuanian partisans, their liaisons and supporters, as a part of the national, ethnic group, approved of these goals and took part in their implementation – in the secret operation when the Lithuanian partisans A. R. and B. M. were detained, while he knew and was aware of the torturing, killing and deportation threatening them after the detention. Thus, the participation of S. D. in the detention operation is inseparable from the goal of LSSR NSC (KGB) to destroy Lithuanian partisans as part of the national, ethnic group. The attention should be drawn to the fact that, in fact, it was officers of the 4th Board of the LSSR KGB where S. D. served who participated in the detention of A. R. and B. M. and that only confirms the fact that S. D. was not the person who was accidentally in the detention group. 35. The presence of the elements of genocide in the actions of S. D. is also not ruled out by the fact that he participated in the detention of Lithuanian partisans in 1956, i.e. after the end of the period of active armed resistance to the occupational power. It has been held in the case-law of the Supreme Court of Lithuania that not only the extermination of the persons belonging to the groups specified in Article 99 of the CC genocide during the same period of time can be classified as genocide. There can be a longer or shorter periods of time between the actions, which aim at physically destroying, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group, they can be committed by different perpetrators and that is irrelevant for the qualification under Article 99 of the CC. It is most important to establish in this case that the actions of the perpetrators were linked by common intention to physically destroy, in whole or in part, the persons belonging the groups referred to in Article 99 of the CC (cassation decision in criminal case No. 2K-5-895/2016). Although active armed resistance to the occupational power and massive repressions against the Lithuanian population took place between 1944 and 1953, however, the case-file documents objectively show that the intent of the occupational powers and its repressive bodies to fully destroy the leadership and members of the national resistance also remained after the end of the active resistance period. The resistance participants were further exterminated in particular due to their affiliation with the national resistance movement, seeking the ultimate objective – ‘liquidation of Lithuanian ‘bourgeois nationalist’ (bandit) leaders’. In deciding as to the presence of the subjective elements of genocide in the actions of S. D., it is essential that his participation in the detention operation of A. R. and B. M. was part of the implementation of the joint intent to destroy part of the national, ethnic group – Lithuanian partisans. Thus, it follows from the circumstances stated above that the actions of S. D., contrary to what is maintained in the cassation appeals, also conform to the subjective elements of corpus delicti of genocide. Regarding the application of the provisions of complicity 36. The defence counsel of the convicted person maintains in the cassation appeal that the courts improperly applied the provisions of Article 24 of the CC because S. D. may not be sentenced for aiding in genocide actions because others, who were the real perpetrators of genocide actions, their interrelation and agreement to act jointly have not been identified. 37. Complicity is intentional joint participation in the commission of a criminal act of two or more conspiring legally capable persons who have attained the age specified in Article 13 of the CC. The accessory is a person who facilitates the commission of a criminal act by his acts (Article 24§§1 and 6 of the CC). 38. It has been established that S. D. participated in the secret operation in the detaining the Lithuanian partisans A. R. and B. M. in Kaunas. It is seen from the case-file that S. D., together with other members of the detention group led by N. D., was in the post assigned to him in Algirdas 18 street. The plan of the detention operation specifies what actions should be taken by each detention group depending on the route of moving by A. R. and B. M., which make it clear that the detention groups led by both J. O. and N. D. had to detain A. R. and B. M. according to the circumstances. The fact that A. R. and B. M. were detained by the detention group led by J. O. does not mean that the members of the group, which was led by N. D. and which included S. D., did not participate in the joint covert operation and that their actions were less dangerous. It has been mentioned that S. D. was aware of the aim of the Soviet power to exterminate all the participants of the resistance to the occupational power, also knew that B. M. and A. R. were Lithuanian partisans and that the latter also was one of the leaders of resistance to the Soviet occupation, realised that they would be killed or captured during the operation, tortured, brought to trial as ‘traitors of the homeland’, sentenced, including by capital punishment, or deported and was seeking for that. In these circumstances it should be held that the actions of S. D. facilitated subsequent outcomes – B. M. was deported and A. R. was severely tortured, heavily mutilated, interrogated and sentenced to death, which was executed on 29 November 1957. The actions of S. D. were inherently linked to the actions of other participants in the operation, having the common aim to detain A. R. and B. M. Hence, the scope of agreement of the accomplices have been determined with sufficient precision in these proceedings. 39. In the opinion of the Plenary Session, the direct perpetrators of genocide in this case have not been named due to objective reasons (the length of the time lapse between the commission of the crime and the institution of the investigation, the lack of archival documents, the difficulty in identifying the persons involved in the genocide, etc.). It should also be noted that the Soviet genocide has not been assessed to date by international judicial institutions. On the other hand, it is not in all cases that it is possible and necessary to identify direct organisers, leaders and other participants of genocide when sentencing a specific person for genocide. In this case, it is important to establish the accused's link with the institutions and persons that carried out the genocide and identify the elements of the act committed by him. The trial courts have established the link of S. D. with the occupational power that carried out the genocide, the scope of his actions in committing genocide and the content of intent. Therefore, the fact that the charges do not identify the specific persons who directly tortured and shot A. R. to death and deported B. M. does not mean that S. D. has been convicted unjustifiably and does not have essential relevance for the legal assessment of the criminal act of S. D. It has been established in this case that there are all required constitutive elements of genocide in the acts of S. D. 40. It should also be noted that, in accordance with Article 99 of the CC, participation in genocide by destroying the members of a protected group by killing, torturing them, causing bodily harm to them, hindering their mental development, deporting them or otherwise inflicting on them the conditions of life bringing about the death of all or a part of them, restricting the birth of the persons belonging to those groups or forcibly transferring their children to other groups, is one of the alternative objective elements of corpus delicti of this crime. Moreover, participation in genocide not only takes the form of the above-mentioned actions by which persons are killed, injured, inhuman living conditions are imposed or birth is restricted, but also in facilitating the commission of such actions. Thus, participation in genocide may take the form of aiding actions (Article 24 §6 of the CC). However, such actions of the accused should be qualified only under the provision of the special part of the CC – Article 99, without reference to Article 24 of the CC. Although the criminal act of S. D. was qualified under Article 24 §6 and Article 99 of the CC, such qualification of the criminal act, albeit being excessive, does not change and does not aggravate the legal situation of S. D. and should not be considered as incorrect application of the criminal law in the context of the case at issue. Regarding the penalty 41. According to the criminal law, a penalty is a measure of compulsion applied by the State, which is imposed by a court’s judgement upon a person who has committed a crime or 19 misdemeanour. The purpose of a penalty is to prevent persons from committing criminal acts; punish a person who has committed a criminal act; deprive the convicted person of the possibility to commit new criminal acts or restrict such a possibility; exert an influence on the persons who have served their sentence to ensure that they comply with laws and do not relapse into crime; ensure implementation of the principle of justice (paragraph 1, sub-paragraphs 1-5 of paragraph 2 of Article 41 of the CC). The purpose of a penalty is determined by all the objectives mentioned. Such requirements must be met by each penalty imposed on a specific convicted person. It is obvious from a systematic interpretation of sub-paragraphs 1-5 of paragraph 2 of Article 41 of the CC that one of the essential goals of a penalty – implementation of the requirements of the principle of justice – first of all, relates to a specific penalty for an individual, i.e. the individualisation of the penalty, and, secondly, the public interest must also be taken into consideration when determining a penalty. 42. The constitutional jurisprudence has emphasised that the constitutional right to a fair trial means, inter alia, not only that, during the judicial procedure, principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by a court must be just; the penal law must provide for all opportunities for a court to impose, while taking consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed (Ruling of 10 June 2003 of the Constitutional Court). 43. The jurisprudence of the court of cassation has held on a number of times that, while applying the provisions of Article 54 §3 of the CC, the court has to state the exceptional circumstances why the imposition of the penalty specified in the sanction of the Article on a person for the criminal act committed would clearly conflict with the principle of justice (cassation decisions in criminal cases Nos. 22K-7-371/2011, 2K-430/2012, 2K-421/2013, 2K-150/2014, 2K-P- 89/2014, 2K-186-942/2015, etc.). Thus, the court may decide to apply Article 54 §3 of the CC if it has taken into consideration all the circumstances identified in a specific case. It should be, in principle, established the whole circumstances due to which the penalty, regardless of its formal conformity to all the rules of penalty determination (that may also be the minimum of the sanction), does not achieve all its goals specified in Article 41 §2 of the CC and, on the contrary, in fact achieves only one goal – the punishment. 44. The courts of the first and appeal instances have held in these proceedings that the role of S. D. in the crime committed was secondary, that he is of old age (85 years old), poor health, has no criminal record, has not committed other criminal acts after the commission of this crime. Moreover, the appellate instance court took into consideration the long duration of the criminal proceedings and identified a violation of the right to hearing of a case within a reasonable time. The Plenary Session also turns the attention to the fact that the crime was committed almost 60 years ago; moreover, after the judgment of conviction became enforceable, S. D. has served part of the imprisonment sentence. It follows from the entirety of the circumstances identified in this case that serving the undischarged term of the sentence would, in principle, mean the achievement of only one purpose of the penalty – punishment. Meanwhile other penalty goals provided for in Article 41 §2 of the CC may not be objectively achieved in the case at issue and become meaningless. 45. Having assessed all the circumstances stated above, the Plenary Session holds that, on the basis of Article 54 § 3 of the CC, the scope of the imposed imprisonment sentence should be reduced. The Plenary Session of the Criminal Division of the Supreme Court of Lithuania, taking into consideration the arguments stated above and following Article 382 §6 of the Code of Criminal Procedure of the Republic of Lithuania, hereby decides: 20 To amend the Judgment of 12 March 2015 of the Criminal Division of the Kaunas Regional Court and the Decision of 10 July 2015 of the Criminal Division of the Court of Appeal of Lithuania. To reduce, on the basis of Article 54 §3 of the CC, the imprisonment sentence for S. D., who has been found guilty under Article 24 §6 and Article 99 of the CC, to the time of the actually served sentence – five months and six days – and hold that S. D. has served the sentence. Judges: /signature/ Jonas Prapiestis /signature/ Armanas Abramavičius /signature/ Viktoras Aidukas /signature/ Rima Ažubalytė /signature/ Dalia Bajerčiūtė /signature/ Olegas Fedosiukas /signature/ Eligijus Gladutis /signature/ Gintaras Goda /signature/ Aurelijus Gutauskas /signature/ Audronė Kartanienė /signature/ Vytautas Masiokas /signature/ Vytautas Piesliakas /signature/ Alvydas Pikelis /signature/ Aldona Rakauskienė /signature/ Vladislovas Ranonis /signature/ Tomas Šeškauskas /signature/ Artūras Pažarskis