A. Summary of the historical background

11. On 23 August 1939 the Soviet Union (hereafter at times referred to as “the USSR”), led by Josef Stalin, signed a non-aggression treaty with Germany, led by Adolph Hitler (“the Molotov-Ribbentrop Pact”). Under a secret additional protocol approved by the parties on the same date, as amended on 28 September 1939 and 10 January 1940, Lithuania and other Baltic States were attributed to the USSR's sphere of interest in the event of a future “territorial and political rearrangement” of the territories of these then independent countries. After Germany's invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the Soviet Union began exerting considerable pressure on the Governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.

12. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new Government was formed under the direction of the Communist Party of the Soviet Union, the USSR's only political party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being named the “the Lithuanian Soviet Socialist Republic” (hereinafter referred to as “the LSSR”). In 1941 the territory was occupied by Nazi German forces. In July 1944 Soviet rule was re-established in Lithuanian territory (see Kuolelis and Others v. Lithuania, nos. 74357/01, 26764/02 and 27434/02, § 8, 19 February 2008, and also Ždanoka v. Latvia [GC], no. 58278/00, §§ 12 and 13, ECHR 2006-IV).

13. A nation-wide partisan movement began in Lithuania. The goal of the entire armed and unarmed resistance was the liberation of and re-establishment of independent Lithuania. In 1949 an all-partisan organisation, the Movement of the Struggle for the Freedom of Lithuania (Lietuvos laisvės kovos sajūdis (“LKKS”)) was formed. On 16 February 1949 the organisation adopted the Declaration stating that the LKKS Council was “the highest political authority of the nation, leading the nation's political and military struggle for freedom (aukščiausias tautos politinis organas, vadovaująs politinei ir karinei tautos išsilaisvinimo kovai)”. The Soviet repressive structures, embodied in the NKVD (People's Commissariat for Internal Affairs, Narodnyy Komissariat Vnutrennikh Del), the MGB (Ministry of State Security, Ministerstvo Gosudarstvenoj Bezopastnosti) and other bodies, sought to suppress the resistance. The system of repressive organisations was reorganised on repeated occasions. Most of the leading and operative employees of those structures were non-Lithuanians sent to Lithuania from the USSR. In the 1950s the partisan movement was suppressed by the Soviet authorities, although separate partisan formations were operating for some time until after 1953, the year in which the leadership of the LKKS was captured and murdered.

14. Lithuania regained its independence on 11 March 1990; this was officially recognised by the USSR on 6 September 1991. The Russian army left Lithuania on 31 August 1993.

B. The applicant's career at the MGB and his conviction for genocide

A. The restoration of independence of Lithuania

48. On 11 March 1990, by the Law “On the Restoration of Validity of the Constitution of Lithuania of 12 May 1938”, the Supreme Council restored the validity of essential provisions of that Constitution, which was in force before the Soviet occupation in 1940, thereby discontinuing the effect of the USSR Constitution of 1977 and the LSSR Constitution of 1978. On the same date the Supreme Council adopted the provisional Constitution – the Provisional Fundamental Law of the Republic of Lithuania (Laikinasis Pagrindinis Įstatymas), setting out the constitutional principles of the re-established independent State of Lithuania. In particular, this Law referred to Lithuania as a sovereign democratic republic, power being vested in the people and exercised by the Supreme Council, the Government and the Judiciary. Moreover, it provided that all earlier laws and legal acts continued to be in force as long as they were not incompatible with the new Provisional Fundamental Law. That Law remained valid until 2 November 1992. On the basis of the plebiscite held on 9 February 1991, on 11 February 1991 the Supreme Council adopted a Constitutional Law stating that the notion that “the State of Lithuania is an independent and democratic republic” was a constitutional norm of the Republic of Lithuania and a fundamental principle of the State (see Kuolelis and Others, cited above, §§ 64, 65 and 71).

49. By the Treaty “On the Foundations for Relations Between the States”, signed by the Republic of Lithuania and the Russian Soviet Federative Socialist Republic (hereinafter referred to as “RSFSR”) on 29 July 1991, both States recognised each other as independent subjects of international law and as sovereign States. The Preamble to the Treaty noted that events in the past had prevented each of these States from freely and completely exercising its State sovereignty.

B. The crime of genocide

C. Other relevant domestic law

64. Article 31 § 4 of the Lithuanian Constitution stipulates that punishment may be imposed or applied only on grounds established by law. Article 135 states that the Republic of Lithuania shall follow the universally recognised principles and norms of international law, shall seek to ensure the citizens’ basic rights and freedoms. Article 138 § 3 provides that international treaties which have been ratified by Parliament are a constituent part of the Lithuanian legal system.

65. Pursuant to Article 11 of the Law on Treaties, if a ratified treaty establishes norms other than those established by laws, the provision contained in the treaty shall prevail. On 14 March 2006 the Constitutional Court held that it was a legal tradition and a constitutional principle for the restored independent State of Lithuania to observe international obligations undertaken of its own free will and to respect the universally recognised principles of international law, including the principle of pacta sunt servanda. On 18 March 2014 the Constitutional Court further held that, pursuant to the principle of pacta sunt servanda, obligations arising from the universally recognised norms of international law that prohibit international crimes are to be fulfilled in good faith. Thus, in the context of the constitutional justice case at issue (see paragraphs 56-63 above), it was important to clarify the content of the universally recognised norms of international law which are related to international crimes, inter alia, that of genocide.

66. On 2 May 1990, the Supreme Council adopted the Law “On Restoring the Rights of Persons Repressed for Resistance Against the Occupational Regimes”, which inter alia held that “the resistance of the inhabitants of Lithuania to aggression and occupation regimes did not contradict national and international law” and that “the Supreme Council of the Republic of Lithuania assesses the struggle of the participants in the resistance movement as the expression of the nation's right to self-defense”. According to the initial version of this Law, the latter provision could not be applied to persons who took part in committing the crimes of genocide, killings and torture of unarmed civil population. The 2008 version of this Law stipulates that this provision is not applied also to persons, who took part in committing crimes against humanity and war crimes, that the data contained in the cases of repressive structures of occupation regimes cannot be considered as evidence without additional investigation, and that the participants in the armed resistance are declared volunteer fighters of Lithuania (skelbiami Lietuvos kariais savanoriais).

67. On 23 January 1997 the Lithuanian Parliament adopted the Law on the Status of Participants in Resistance against the Occupations of 1940-90 (Pasipriešinimo 1940-1990 metų okupacijoms dalyvių teisinio statuso įstatymas). The Preamble to the Law notes that from 15 June 1940 to 11 March 1990 all the territory of Lithuania was under German and USSR occupations. It also stipulates that in 1944-53 armed “national” resistance (the Lithuanian partisan war) took place in Lithuania against the occupying army of the Soviet Union and the Soviet regime. “The partisan command was the highest lawful political and military authority”. The Preamble also stipulates that the 16 February 1949 Declaration (see paragraph 13 above) expressed the “sovereign will of the nation”.

Article 2 § 1 (4) of the Law grants “voluntary fighter” (karys savanoris) status to partisans as participants in the armed resistance. The notion of “partisans” refers to those who belonged to the organisational structures of the armed resistance, gave an oath and did not breach it, were armed, lived outside the law, and took part in battles under the command of their leadership.

The status of voluntary fighter cannot be granted to those who committed war crimes, gave orders to kill civilians or killed civilians themselves (Article 6 § 2 (1) of the Law).

68. On 6 October 1998 the Lithuanian Parliament adopted the Law on State Support to the Families of Those Who Lost Their Lives While Resisting the 1940-1990 Occupations (Valstybės paramos žuvusių pasipriešinimo 1940-1990 metų okupacijos dalyvių šeimoms įstatymas). The State was to pay a lump sum of LTL 20,000 to family members of voluntary soldiers (participants in the armed resistance), who had died in battle, during arrests, had been killed or had died during interrogation or who had been sentenced to death and executed (Article 2 § 2 (1)).

69. As to the possibility of reopening criminal proceedings, the Code of Criminal Procedure provides that criminal proceedings may be reopened if new circumstances come to light which were not known before the judgment was adopted and which could prove that the convicted person is not guilty or could have committed a less or a more serious crime (Article 444 § 1 (4)). A request for reopening may be submitted by the person convicted or by the Prosecutor General (Article 446 §§ 1-3). The final decision whether to reopen proceedings is taken by the Supreme Court, which may quash the judgment and transfer the case for fresh examination, quash the judgment and discontinue the criminal case or reject the request for reopening (Articles 448-9).

D. Relevant Soviet and Russian law

70. In 1940 the RSFSR Criminal Code became applicable on the territory of the Lithuanian SSR.

71. The RSFSR Criminal Code provided for criminal liability for a series of counter-revolutionary crimes (Article 58¹). “Counter-revolutionary” was understood as any action directed toward the overthrow, subversion, or weakening of the power of the Soviet government. Article 58^1a provided for criminal liability for treason against the motherland, which was described as acts committed by citizens of the USSR entailing harm to the military power of the USSR, its national sovereignty or the inviolability of its territory. It was punishable by death, or where mitigating circumstances existed, by deprivation of liberty for a term of ten years with confiscation of all property. Intentional homicide was punishable by deprivation of liberty of up to eight years. If intentional homicide was carried out by a member of the military, under especially aggravated circumstances, it could attract the death penalty (Articles 136 and 137).

72. On 26 June 1961 the Supreme Soviet of the Lithuanian SSR adopted the LSSR Criminal Code, replacing the RSFSR Code. It entered into force on 1 September 1961. Under Article 104 of the LSSR Criminal Code murder was punishable by deprivation of liberty from three to twelve years. Aggravated murder, for instance murder of two or more persons, was punishable by imprisonment of eight to fifteen years, with or without deportation, or by capital punishment.

73. On 24 December 1989 the Congress of People's Deputies of the USSR passed a Resolution on the Political and Juridical Appraisal of the Soviet-German Non-aggression Treaty of 1939. It denounced the Secret Additional Protocol to that Treaty, as well as other secret agreements with Germany, as having no basis in law and invalid ever since its signature. In the Resolution, it is noted that the territorial divisions into Soviet and German spheres of influence had been contrary to the sovereignty and independence of several “third” countries (among them Latvia, Lithuania and Estonia). This was followed by a Decision of the Supreme Council of the LSSR on 7 February 1990 denouncing the unlawful incorporation of Lithuania into the USSR in 1940 (see Kuolelis and Others, cited above, § 10).

74. The Preamble to the Law “On Rehabilitation of the Repressed Peoples” (Закон “О реабилитации репрессированных народов”) of the Russian Federation, enacted on 26 April 1991, provides that the “renewal of the Soviet society in the process of its democratisation and the formation of the rule of law in the country has created favourable opportunities for the rehabilitation of those peoples which were repressed during the years of the Soviet rule and were subject to genocide and slanderous attacks”. The Law also states that its aim was:

It also states:

A. Charter of the International Military Tribunal and the Nuremberg Principles

75. The Charter of the International Military Tribunal (“IMT”) Nuremberg, set up in accordance with the London Agreement signed on 8 August 1945 by the Governments of the USA, France, the United Kingdom and the USSR, contained the following definition of crimes against humanity:

76. The definition was subsequently codified as Principle VI in the Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, formulated by the International Law Commission in 1950 under the United Nations General Assembly Resolution 177 (II) and affirmed by the General Assembly.

In particular, Nuremberg Principle I held:

Principle II stipulated:

Principle IV stipulated:

Principle VI stipulated:

B. The United Nations Resolutions

77. United Nations General Assembly Resolution No. 95 (I), adopted on 11 December 1946, provided:

78. United Nations General Assembly Resolution 96 (I), adopted on 11 December 1946, provided:

C. Convention on the Prevention and Punishment of the Crime of Genocide

79. The United Nations General Assembly adopted the Genocide Convention by unanimous vote of the 56 participants at its 179th plenary meeting, on 9 December 1948 (resolution 260 (III)). The Soviet Union signed the Convention on 16 December 1949 and ratified it on 3 May 1954.Footnote ³ The Republic of Lithuania acceded to the Genocide Convention after the restoration and international recognition of its independence, on 9 April 1992, and it came into force in respect of Lithuania on 1 May 1996. The Genocide Convention provides, in so far as relevant:

80. In 1951 the International Court of Justice (“ICJ”) stated, in its Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Footnote ⁴ , that that the principles underlying the 1948 Convention were principles which were recognised by civilised nations as binding on States even without any conventional obligation, the ICJ referring to the UN General Assembly Resolution 96(I) and to “the moral and humanitarian principles” which were at the basis of the 1948 Convention.

81. In the Eichmann case in 1961Footnote ⁵ , Adolf Eichmann was convicted by the District Court of Jerusalem under section I(a) of the Nazis and Nazi Collaborators (Punishment) Law, 5710/1950, an Israeli law which punished crimes against the Jewish people and which was derived from Article II of the 1948 Convention. Having quoted from the Advisory Opinion cited in paragraph 80 above, the trial court found that there was no doubt that genocide was recognised during the Second World War as a crime under international law ex tunc, so that jurisdiction over such crimes was universal.

82. By judgment of 29 May 1962, the Supreme Court of Israel confirmed the trial court's judgment and added:

D. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

83. The United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968), ratified by the Republic of Lithuania on 1 February 1996, provides, in particular:

E. The Vienna Convention on the Law of Treaties

84. Article 31 § 1 of the Vienna Convention on the Law of Treaties, concluded on 23 May 1969 and ratified by the Republic of Lithuania on 15 January 1992, provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

F. Statute of the International Criminal Tribunal for the former Yugoslavia

85. Articles 4 and 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia (“ICTY Statute”) (1993) reads as follows:

G. Statute of the International Tribunal for Rwanda

86. The Statute of the International Tribunal for Rwanda (“ICTR Statute”) (1994) reads as follows:

H. Rome Statute of the International Criminal Court

87. The Rome Statute of the International Criminal Court (1998, “ICC Statute”), in force in respect of Lithuania as of 1 August 2003, reads as follows:

I. Resolution 1096 (1996) of the Parliamentary Assembly of the Council of Europe

88. On 27 June 1996 the Parliamentary Assembly of the Council of Europe adopted Resolution no. 1096 on measures to dismantle the heritage of former communist totalitarian systems, which provides as follows:

J. Resolution 1481 (2006) of the Parliamentary Assembly of the Council of Europe

89. On 25 January 2006 the Parliamentary Assembly of the Council of Europe adopted Resolution no. 1481 on the Need for International Condemnation of Crimes of Totalitarian Communist Regimes, which reads as follows:

K. Resolution 1723 (2010) of the Parliamentary Assembly of the Council of Europe

90. On 23 April 2010 the Parliamentary Assembly of the Council of Europe adopted a Resolution Commemorating the victims of the Great Famine (Holodomor) in the former USSR. The Resolution held that “[t]he totalitarian Stalinist regime in the former Soviet Union led to horrifying human rights violations which deprived millions of people of their right to life”.

A. Commentaries

91. The Preamble to UN Resolution 96(I) of 1946 states that many instances of genocide have taken place when “racial, religious, political or other groups have been destroyed, entirely or in part”.

Article II of the 1948 Genocide Convention reads that acts of genocide must be committed with the intent to destroy “in whole or in part” a protected group.

92. The Genocide Convention itself provides no indication of what constitutes intent to destroy “in part”. The travaux préparatoires provide little guidance as to what the drafters meant by “in part”.

93. Some early commentators on the Genocide Convention contended that the term “in part” contains a substantiality requirement. Pieter Drost remarked that any systematic destruction of a fraction of a protected group constituted genocide.Footnote ⁶ Raphael Lemkin took the views that “the Convention applies only to actions undertaken on a mass scale”.Footnote ⁷ He argued that “the destruction in part must be of a substantial nature so as to affect the entirety.” The commentators did not express the view either way on whether the destruction of political or economic groups could amount to the partial destruction of a national group within the meaning of Article II.

94. According to the International Law Commission (“the ILC”), the perpetrators of the crime must seek to destroy a quantitatively substantial part of the protected group:

95. Benjamin Whitaker's 1985 study on the prevention and punishment of the crime of genocide holds that the partial destruction of a group merits the characterisation of genocide when it concerns a large portion of the entire group or a significant section of that group:

96. The “Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992)” (to investigate violations of international humanitarian law in the former Yugoslavia, hereinafter “the Commission of Experts’ 1992 Report on YugoslaviaFootnote ⁹ ”) confirmed this interpretation. It held:

B. Case-law of the International Criminal Tribunal for the former Yugoslavia

97. The interpretation history of the words “in whole or in part” since 1948 was outlined by the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) in Prosecutor v. Krstić (case IT-98-33-T, judgment of 2 August 2001, §§ 584-587). The ICTY has further interpreted the intent requirement to destroy a group “in whole or in part” within the meaning of Article 4 (2) of its Statute, which is based on Article II of the Genocide Convention.

98. In Prosecutor v. Jelisić (Case IT-95-10-T, Judgment, 14 December 1999), the ICTY Trial Chamber, citing in support the ILC Draft Code of 1996 and the Commission of Experts’ 1992 Report on Yugoslavia, held as follows:

99. In Prosecutor v. Krstić (cited above) the ICTY Trial Chamber analysed whether Mr Krstić had committed acts of genocide in the Srebrenica massacre of 1995. As to the term “in part”, the Trial Chamber held:

100. Among other arguments, the defence had maintained that the Bosnian Serb Army had solely intended to kill all potential fighters in order to eliminate any future military threat. The Trial Chamber did not accept this argument. It analysed together the fact of the killing of military-age males and the deportation of the rest of the group, viewing the deportation as an indication that the killing of the military-age males was done with intent to destroy the Bosnian Muslims of Srebrenica (§§ 594, 595, 598 and 634 of the judgment).

101. On 19 April 2004 the ICTY Appeals Chamber in Prosecutor v. Krstić held that “part” is determined not only by numbers:

The ICTY Appeals Chamber also considered that “the elimination of the Muslim population of Srebrenica … would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims” (§ 16).

102. In the case of Prosecutor v. Sikirica (IT-95-8, Judgment on Defence Motions to Acquit, 3 September 2001) the ICTY Trial Chamber stated:

103. The prosecutor asked the Trial Chamber to view the Bosnian Muslims who were active in the resistance and defence of their villages from Bosnian Serb attacks as leaders of the group, since their elimination would have a significant impact on the survival of the group. The Trial Chamber refused, holding that “very little evidence has been adduced as to the leadership status of those [persons] … There is evidence that among those detained were taxi-drivers, schoolteachers, lawyers, pilots, butchers and café owners. But there is no specific evidence that identifies them as leaders of the community. Indeed, they do not appear to have been persons with any special significance to their community, except to the extent that some of them were of military age” (§ 80). The ICTY Trial Chamber thus rejected the submission that all those Bosnian Muslims who were active in the resistance of the take-over of their villages, should be treated as leaders. “Acceptance of that submission would necessarily involve a definition of leadership so elastic as to be meaningless” (§ 81).

104. In the case of Prosecutor v. Tolimir (IT-05-88/2-T, judgment of 12 December 2012), the majority of the ICTY Trial Chamber considered, with regard to the killing of three leaders of the Žepa Bosnian Muslim enclave (the mayor of the municipality, who was also a religious leader, the military commander and the head of the civil protection unit), that “while the individuals killed were only three in numbers, in view of the size of Žepa, they constituted the core of its civilian and military leadership”. Therefore their killing “was a case of deliberate destruction of a limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”. Moreover, the killing of one of those three persons, who at that time enjoyed a special status as the defender of the Bosnian Muslim population of Žepa, had a symbolic purpose for the survival of the Bosnian Muslims of Eastern Bosnia and Herzegovina. On that basis and taking into account also the forcible transfer of the remaining population of Žepa, the majority of the Trial Chamber was satisfied beyond reasonable doubt that Bosnian Serb Forces had killed the three leaders of the Žepa enclave with the specific genocidal intent of destroying part of the Bosnian Muslim population as such (§§ 780-782).

C. Case-law of the International Court of Justice

105. The International Court of Justice (“the ICJ”), in its 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; see §§ 198-201 of that judgment) concluded that genocide in Bosnia and Herzegovina had been committed in relation to the 1995 Srebrenica massacre. With regard to the drafting history of the Genocide Convention, the ICJ held:

106. In paragraphs 198-201 of the judgment, the ICJ considered the words “in part” in the first place to refer to a requirement of substantiality, following the approach of the ICTY and the ILC. It also referred to the criterion of opportunity, meaning the opportunity available to the perpetrators, according to their area of activity and control. As a useful consideration, the ICJ also accepted the qualitative criterion (“the prominence of certain individuals within the group”, as mentioned in paragraph 12 of the ICTY Appeals Chamber judgment in Krstić). The ICJ nevertheless held:

107. The ICJ found that acts of killings and of causing serious bodily and mental harm (both to those who were about to be executed and to the others who were separated and displaced) had been committed in Srebrenica in July 1995. Following the ICTY Appeals Chamber in Krstić, the Court considered the Bosnian Muslims of Srebrenica to form a “part” of the Bosnian Muslim group. Moreover, it endorsed the findings of the ICTY that “although this population [40,000 people] constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size” (§ 296, citing Krstić).

108. In the judgment of 3 February 2015 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the ICJ held (references omitted):

Additionally, it should be noted that in the said judgment the ICJ also dealt with the question as to whether the status of the victims – combatants or civilians – was relevant for its assessment. It found:

A. Admissibility

B. Merits

A. Damage

193. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

He also claimed 53,173 Lithuanian litai (LTL; approximately EUR 15,400) in respect of the pecuniary damage which he suffered because the Lithuanian courts had granted M.B.'s civil claim (see paragraph 45 above) and had also ordered him to pay M.B.'s legal costs. The applicant submitted invoices indicating that he had paid LTL 34,778 (approximately EUR 10,072) to M.B.

194. If the Court were to find a violation of Article 7 of the Convention, the Government considered that the sum of EUR 60,000 was excessive and unjustified. The applicant had participated in the killing of two partisans; he did not question that fact. Moreover, he was attempting to degrade the memory of those partisans and the fight for independence by submitting ill-founded accusations about the partisan brothers’ alleged crimes against humanity during the Nazi occupation.

As to pecuniary damage, the Government submitted that, taking into account that the applicant had been required to pay the awarded compensation jointly, he could ask to be awarded only LTL 26,750 (of that sum, LTL 25,000 was half the amount awarded to M.B. in respect of non-pecuniary damage and LTL 1,750 was the half of M.B.'s legal costs that he had had to bear) or EUR 7,750.

195. While finding that the applicant is entitled to claim that he has suffered non-pecuniary damage, the Court considers, having regard to the very particular circumstances of the case, that such damage is sufficiently compensated by its finding of a violation of Article 7 of the Convention.

The Court awards the applicant EUR 10,072 in respect of pecuniary damage.

B. Costs and expenses

196. The applicant also claimed the sum of LTL 8,000 (approximately EUR 2,300) in relation to legal fees for preparation of the submissions made by the applicant's lawyer to the Court. He also claimed EUR 2,000 for translation and postal expenses in connection with the Court proceedings.

197. The Government argued that the lawyer's fees were excessive. They also noted that only part of the applicant's claim for translation fees was justified by supporting documents.

198. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in the Court's possession and the above criteria, the Court considers it reasonable to award the claim in full, less the sum already paid under the Court's legal aid scheme (EUR 850). Consequently, the Court awards the final amount of EUR 2,450 in respect of the applicant's costs and expenses before the Court.

C. Default interest

199. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

The relevant facts

2. Both during the court proceedings in Lithuania and in his submissions to this Court, the applicant submitted that the partisan brothers J.A. and A.A. had been Nazi collaborators under the German occupation and had ceased being partisans once the Soviet Union had re-established its grip on Lithuania. We observe that the domestic courts came to a clear finding on this argument, having carefully considered all of the submissions. The Court of Appeal gave thorough consideration to the applicant's allegations. That court also had regard to the historical background, the special methods used by the resistance movement at the relevant time, and to the archive documents indicating that the MGB's orders were to spread misinformation about the brothers J.A. and A.A. in order to compromise their integrity or to prevent them joining other partisans. Furthermore, one of the partisan brothers was charged by the Soviet authorities with counter-revolutionary crime under Article 58^1a of the RSFSR Criminal Code (see paragraphs 37 and 71 of the judgment). Following its thorough analysis, the Court of Appeal dismissed the applicant's allegations as unfounded (see paragraph 37 of the judgment). That conclusion was fully endorsed by the Supreme Court (see paragraph 40).

3. We see no reason to depart from the domestic courts’ conclusions. In the light of its constant case-law, the Court has consistently reiterated that it is not within its province to substitute its assessment of the facts for that of the domestic courts (see among many authorities, Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000-VIII, and Donohoe v. Ireland, no. 19165/08, § 73, 12 December 2013). In view of the complexity of the task of reconstructing the facts of the case more than fifty years after the events, the national courts were in a better position to assess all of the available material and evidence. Having regard to all of the foregoing considerations, we regret that the majority did not accept, without providing any plausible explanation, the domestic courts’ conclusions as to the facts, those conclusions being based on their direct knowledge of the evidence.

4. We further observe that a number of historical events, notably with regard to the description of the Soviet Government's actions in the Baltic States, and even the very essence of the Soviet policy in occupied Lithuania, inter alia, in the 1940s and 1950s, are today disputed between the respondent Government and the third-party intervener. It is an undisputed fact that atrocities against the Lithuanian population were committed in the 1940s and 1950s on behalf of the occupying power, and that such an interpretation is not a ‘distorted historical description’, as was claimed by the third-party intervener (see paragraph 147 of the judgment).

During the criminal and civil proceedings against the applicant the Lithuanian courts analysed the relevant archival documents concerning the historical context of the partisans’ activities (see paragraphs 18, 19, 37, 41 and 44 of the judgment). The Constitutional Court set out the numbers of those affected by the Soviet authorities’ actions in Lithuania (see paragraphs 59 and 62 of the judgment). The precise factual matter now disputed by the Russian Government was therefore examined by the domestic courts.

It is also highly significant to note that in 1991 the Russian Federation itself acknowledged that during the Soviet era the peoples under its control were subjected to repression, including genocide (see paragraph 74 of the judgment). The scale of the Soviet authorities’ actions in the Baltic States has already been noted by the Court in the Penart v. Estonia (14685/04, 24 January 2006), and Kolk and Kislyiy v. Estonia (nos. 23052/04 and 24018/04, ECHR 2006-I) decisions, and, most recently, in Larionovs and Tess v. Latvia ((dec.), no. 45520/04, §§ 11-20 and 114, 25 November 2014). We do not therefore consider that the Lithuanian courts’ factual analysis or conclusions have been shown to be arbitrary.

The relevant legal framework

5. The Soviet Union was a party to the London Agreement of 8 August 1945 by which the Charter of the International Military Tribunal was enacted (see Kononov v. Latvia [GC], no. 36376/04, ECHR 2010, §§ 116 and 117). Pursuant to Article 6 (c) of the Charter, extermination, deportation and other inhuman acts against any civilian population, including persecutions on political grounds, were defined as crimes against humanity. On 11 December 1946 the General Assembly of the United Nations condemned the crime of genocide by adopting Resolution No. 96 (I). The Genocide Convention of 1948, affirming the principles of international law recognised by that Resolution, was approved unanimously by the United Nations General Assembly on 9 December 1948. The Soviet Union signed the Genocide Convention on 16 December 1949. After twenty instruments of ratification or accession had been deposited, the Convention came into force on 12 January 1951. In the Advisory Opinion of 1951 the International Court of Justice pointed out that the principles underlying the Genocide Convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation (see paragraph 80 of the judgment).

6. In view of the foregoing, we find that the crime of genocide was clearly recognised as an offence under international law in 1953. It was formally codified in the 1948 Genocide Convention and, before that date, it was acknowledged and condemned by the United Nations in 1946. In these circumstances we find that the instruments of international law criminalising genocide were sufficiently accessible to the applicant.

The applicant's conviction for genocide

7. The crime of genocide was introduced into Lithuanian domestic law in 1992, that is, soon after restoration of the country's independence (see paragraphs 48 and 51 of the judgment). It is telling that before this introduction the criminal statutes which were applicable in Lithuania during the Soviet rule (first the Russian Criminal Code, and later the Criminal Code of the “Lithuanian SSR”) did not even mention genocide as a criminal act, and no legal responsibility was provided for committing acts of genocide. In 2001 the prosecutor charged the applicant with genocide of Lithuanian partisans, as representatives of a political group, under Article 71 § 2 of the Lithuanian Criminal Code, as amended in 1998 (see paragraphs 29 and 52 of the judgment).

It is unquestionable that, given the ongoing nature of the unveiling of the atrocities committed in Lithuania by the occupying regime (which became possible only after that regime collapsed in the early 1990s), the number of victims of the repressions may only increase as new evidence comes to light. Bearing in mind that the discovery of facts concealed by the pre-independence regime and the collection of relevant evidence inevitably requires time, it is natural that alleged perpetrators were not charged in respect of their personal involvement in the said atrocities immediately after the legislative changes, but some years later.

By the time the trial court convicted the applicant of genocide in 2004, a new Lithuanian Criminal Code had entered into force and the applicant was accordingly convicted under Article 99 of that new Criminal Code. The Court of Appeal and the Supreme Court upheld the applicant's conviction on the basis of the said Article 99 (see paragraphs 33, 36, 38 and 53 of the judgment).

8. The applicant's conviction was therefore based upon legal provisions that were not in force in 1953 and, most importantly, could not have been in force at that time, given the fact of Lithuania's occupation. Such provisions were applied retroactively. It follows that this would constitute a violation of Article 7 of the Convention unless it can be established that his conviction was based upon international law as it stood at the relevant time. The applicant's conviction, in our view, must therefore be examined from that perspective.

Genocide as the destruction of a national group

9. The Lithuanian Supreme Court held that the actions committed by the applicant corresponded to the criminal act of genocide and that the relevant domestic law had been enacted to give effect to the provisions of the Genocide Convention (see paragraph 38 of the judgment). In line with the domestic courts, we agree that the 1948 Convention does not mention social or political groups. It cannot therefore serve as a legal basis for a conviction in respect of the genocide of a purely political group per se. The crime of genocide prohibited by Article II of the 1948 Convention listed four specifically protected groups: national, ethnical, racial or religious. Furthermore, the travaux préparatoires disclose a clear decision on the part of the drafters, albeit by way of political compromise, not to include political groups, as such, in the list of those protected by the 1948 Convention. The ICJ, when examining the drafting history of Article II of the 1948 Convention in the Bosnia and Herzegovina v. Serbia and Montenegro case, also observed that the drafters of the Convention “gave close attention to the positive identification of groups with specific distinguishing well-established characteristics in deciding which groups they would include and which (such as political groups) they would exclude” (see paragraph 105 of the judgment).

10. The Court of Appeal and the Supreme Court considered that the 1948 Convention list of protected groups was not intended to be exhaustive: many other domestic criminal codes had adopted broader definitions of genocide (see paragraphs 36 and 38 of the judgment). The fact that certain States decided later to criminalise within their domestic legislation genocide of a political group as such, does not change the reality that the text of the 1948 Convention did not do so. In this context, we observe that one of the most recent binding international treaties which refers to the crime of genocide – the 1998 Rome Statute of the International Criminal Court – defines it as a crime directed at destruction, in whole or in part, of a national, ethnical, racial or religious group, without mentioning political groups (see paragraph 87 of the judgment).

11. The domestic courts had regard to the fact that members of the targeted political group in the present case (the partisans) were, at the same time, members of a group that was protected under the 1948 Convention, namely, the national group (see paragraph 36 of the judgment). Whilst political groups were excluded from the 1948 Convention, it would be excessively formalistic for this Court to view the partisans exclusively through the prism of a ‘political group’ and to end its analysis at that stage, without examining the assertion that those same persons were, simultaneously, members of other groups which are mentioned in Article II of the Convention. We will, therefore, consider the claim that the core objective of the extermination of the Lithuanian partisans – as a significant part of the nation – was the impact that their destruction would have on the survival of the national group or ethnic group as a whole. If so, then their killing would amount to a crime prohibited by Article II of the 1948 Convention.

12. The respondent Government supported this approach. They argued that the targeting of the partisans as “bandits” or “bourgeois nationalists” or simply “nationalists”, and of their supporters, masked the more fundamental objective of the destruction of a national and/or ethnic group. In particular, they maintained that by eliminating the important Lithuanian element which the partisans represented, the USSR facilitated the sovietisation of Lithuania and the elimination of Lithuania as the nation it had been, which, in the eyes of USSR authorities, was an ‘untrustworthy nation’ (see paragraphs 59 and 139 of the judgment). They also submitted that the overall aim was to deal a crippling blow to the most active political and social groups and, thereby to the demography and strength of the nation itself (see paragraphs 131, 132, 135 and 139 of the judgment).

13. We note that the Russian Federation itself has acknowledged that repressed peoples experienced genocide under Soviet rule (see paragraph 74 of the judgment). Similarly, PACE Resolution 1481 (2006) noted that the crimes committed were justified by the Soviet regime in the name of the class struggle theory and the principle of dictatorship of the proletariat, the victims being thereby enemies of the USSR, and that the vast majority of victims in each country were ethnic nationals (see paragraph 89 of the judgment).

14. The ICTR was of the view in its Rutaganda judgment (see paragraph 109) that there was no internationally accepted definition of the protected groups and that those concepts had to be assessed in the light of a particular political, social and cultural context. The Lithuanian Constitutional Court was of precisely the same view. It pointed out the particular political, social and cultural context at issue. It described the ideology of the totalitarian communist regime upon which the extermination of entire groups of people was grounded and the scale of the USSR's repressions against the inhabitants of Lithuania. The Constitutional Court found that Article 2 of the 1992 Law “On Liability for Genocide of Residents of Lithuania” corresponded to the features of genocide as provided for in the norms of international law. In summing up, it noted that the inclusion of social and political groups in the definition of Article 99 of the Criminal Code was determined by “a concrete legal and historical context”, namely, the international crimes committed by the occupational regimes in the Republic of Lithuania at the material time (see paragraphs 58 and 59 of the judgment).

15. Turning to the facts of the instant case, we note that the trial court found the applicant guilty of genocide on the ground that he had taken part in an operation to capture or kill two Lithuanian partisans, as members of a political group. The Court of Appeal considered such a characterisation to be only conditional and not sufficiently precise, because the partisans were at the same time representatives of the Lithuanian nation, that is, the national group. Such a group was a protected group under Article II of the 1948 Convention. The finding of the Court of Appeal confirms that the very raison d’être of the partisans was the protection of the Lithuanian nation in the face of a regime which intended to destroy its unique and specific identity. For the appellate court, the Soviet genocide had been carried out precisely on the precise basis of the criteria of the inhabitants’ nationality-ethnicity. These three groups – “political”, “national” and “ethnic” – were intrinsically linked (see paragraph 36 of the judgment). These conclusions were not overruled by the Supreme Court (see paragraphs 38-40 of the judgment). The Supreme Court in fact considered that in the period 1944-1953 the partisans embodied the “nation's” armed resistance to the occupying regime on the Lithuanian territory (see paragraph 40 of the judgment). In this context we attach weight to the Government's argument that the partisan movement could not have survived for approximately ten years without support from the Lithuanian nation, that is, the national group (see paragraph 132 of the judgment).

16. Accordingly, and having regard to the factors outlined above, we find that there is considerable force in the argument that J.A. and A.A., as ethnic Lithuanians, were targeted specifically for their membership of the partisan movement whose members were, simultaneously, a significant and emblematic part of the national group and whose very purpose was the protection of the Lithuanian nation from destruction by the Soviet regime and that their killing was, therefore, an act of genocide.

Hence, the applicant's conviction for his wilful participation in the extermination of the partisans constituted an act of genocide on an ethno-national basis and was, thus, a crime provided for in the text of Article II of the 1948 Convention.

We cannot accept that a protected group (a nation) which defends itself against the destruction of its very fabric though the mobilisation of a resistance movement suddenly, by that act of resistance, transforms itself solely into a ‘political group’, thus placing itself outside the terms of the Genocide Convention. This would be to interpret both the Genocide Convention and Convention's provisions in an overly formalistic manner and in a spirit inconsistent with their purpose.

Genocide as the destruction in part of a group

17. Article II of the Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (emphasis added). According to the interpretation by the Court of Appeal, the Lithuanian partisans constituted “part” of the ethno-national group (see paragraph 36 of the judgment) and therefore the applicant's conviction for genocide could be justified under Article II of the Genocide Convention.

18. We acknowledge that in 1953, when the partisan brothers J.A. and A.A. were killed, there was no jurisprudence on the meaning of the phrase “in part”, as used in Article II of the Genocide Convention (see paragraphs 91 and 92 of the judgment). That, however, is understandable, given that the first case in which a conviction for the crime of genocide was pronounced did not occur until 1998 (see the International Criminal Tribunal for Rwanda, judgment of 2 September 1998 in Prosecutor v. Akayesu, case No. ICTR-96-4-T). The fact that judicial interpretation of the 1948 Genocide Convention took time to develop cannot in itself mean that genocide did not occur prior to such interpretation.

A supposition that genocides did not occur before 1998 (save the Holocaust) because no court, prior to that date, had stated that they occurred, would be not only legally inconsistent, but also offensive to numerous national, ethnic, racial or religious groups which, in various parts of the globe, fell victim to government-planned destruction, without, however, ever being able to bring their cases to international courts. We believe that this Court should not pursue this line of formalistic reasoning. The Court's title as the “conscience of Europe” obliges such a conclusion.

19. It is not surprising that international jurisprudence on the meaning of the phrase ‘in part’ only developed once prosecutions for the crime began to be brought. In the mid-1990s, international studies and reports considered that the partial destruction of a group merited the characterisation of genocide when it concerned a substantial part of the entire group or a significant section of that group (see paragraphs 94 and 95 of the judgment). It also emerged that the intent to destroy the fabric of a society through the elimination of its leadership, when accompanied by other heinous acts, such as mass deportations, could give a strong indication of genocide, regardless of the actual numbers killed. Furthermore, the extermination of the group's military personnel had to be seen in the context of the fate of what happened to the rest of the group, which became largely defenceless against other abuses (see paragraph 96 of the judgment).

20. The scope of the term “in part” has also been interpreted by the international courts. The ICTY confirmed that in order to commit genocide it was not necessary to intend to achieve the complete annihilation of a group. The intention to destroy had to target at least a substantial part of the group. Genocide could be considered as the extermination of a very large number of the members of a protected group. Alternatively, genocidal intent could 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 a group as such”. This was the “intention to destroy the group ‘selectively’” (see Prosecutor v. Jelisić, and also Prosecutor v. Tolimir, paragraphs 98 and 104 of the judgment respectively). If the quantitative criterion is not met, the intention to destroy in part may yet be established if there is evidence that the destruction is related to a significant section of the group, such as its leadership (see Prosecutor v. Sikirica, paragraph 102 of the judgment).

21. In the Prosecutor v. Krstić judgment, the ICTY Trial Chamber observed that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. The perpetrators had to view the part of the group they wished to destroy as “a distinct entity which must be eliminated as such”. The very existence of the group was the target. Moreover, when the killing of men of military age took place in combination with the forcible transfer of civilians, thus having a lasting impact upon the entire group, this could not be considered as mere elimination of military resistance (see paragraphs 99 and 100 of the judgment).

22. As the ICTY Appeals Chamber also noted in Prosecutor v. Krstić, the numerical size of the targeted part of the group was “a necessary and important starting point, though not in all cases the ending point of the inquiry”. In addition to the numerical size of the targeted portion, its “prominence within the group” was also a useful consideration. If a specific part of the group was “emblematic of the overall group” or was “essential to its survival”, then that may support a finding that the part qualifies as substantial within the meaning of the offence of genocide. Similarly, part of the group could be regarded as prominent, when its elimination could serve as a “potent example” to all other members of that group as to their “vulnerability and defencelessness”. The “fate” of part of the group would thus be “emblematic” of that of all other members of that group (see paragraph 101 of the judgment).

23. In Bosnia and Herzegovina v. Serbia and Montenegro the ICJ accepted the relevance of the qualitative criterion – the prominence of certain individuals within the group. The ICJ held, however, that the qualitative approach could not stand alone and that the first criterion – substantiality – should be given priority (see paragraph 106 of the judgment). Furthermore, in the most recent judgment of Croatia v. Serbia the ICJ held that in evaluating whether the targeted part of a protected group is substantial in relation to the overall group, the quantitative element, evidence regarding the geographic location and prominence of the targeted part of the group, including whether the specific part of the group is emblematic of the overall group or essential for its survival, are all relevant criteria that ought to be taken into account (see paragraph 108 of the judgment).

24. In the light of the foregoing considerations and on the facts of the present case, we observe that the Lithuanian courts of criminal jurisdiction did not explicitly address the specific question of whether the partisans in Lithuania constituted a substantial part of the national group. They referred to them only as ‘participants in the resistance to the Soviet occupational power’ (see paragraph 31 of the judgment). However, the Constitutional Court noted that Lithuanian law recognises the organised resistance against Soviet occupation as the self-defence of ‘the nation’ and the partisans as the leaders of the political and military national struggle for freedom. The Constitutional Court also referred to ‘the significance of this group for the entire respective national group’ (see paragraph 63 of the judgment).

In this connection, it is relevant to mention that the assessment of “the struggle of the participants in the resistance movement as the expression of the nation's right to self-defence” had made its way into the Lithuanian legislation as early as April 1990, that is, immediately after the declaration of Lithuania's restored independence (see paragraph 66 of the judgment). It is also relevant to mention that the Lithuanian legislation excludes from the category of partisans (‘freedom-fighters’) those persons who “belonged to the organisational structures of the armed resistance [and] gave an oath” but who nonetheless breached it, persons who “gave orders to kill civilians or killed civilians themselves” and persons who “took part in committing crimes against humanity and war crimes” (see paragraphs 66 and 67 of the judgment). Moreover, Lithuanian legislation recognises the partisans as the “highest political authority” in the “national” resistance and as representatives of the “sovereign will of the nation” (see paragraphs 13 and 67 of the judgment). This was confirmed by the appellate and cassation courts in criminal and civil proceedings (see paragraphs 39, 40 and 44 of the judgment).

In our view, the national authorities based their decisions on an acceptable assessment of the relevant facts, and did not reach arbitrary conclusions (see, mutatis mutandis, Chauvy and Others v. France, no. 64915/01, § 69, ECHR 2004-VI; also see Ždanoka v. Latvia [GC], no. 58278/00, § 96, ECHR 2006-IV). We therefore do not depart from the Constitutional Court's assessment of the role of the partisans, and accept that because of their “prominence” and “emblematic” character (see Prosecutor v. Krstić and Croatia v. Serbia, paragraphs 101 and 108 of the judgment respectively) the Lithuanian partisans may be considered as a significant “part of” the national group. In this regard we note the finding of the Constitutional Court to the effect that “in consideration of the international and historical context, it should be 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) which said group is covered by the definition of genocide according to the universally recognised norms of international law” (see paragraph 63 of the judgment).

25. We also have particular regard to the language in the documentary evidence relied upon by the domestic courts and, notably, to the fact that the MGB had the express intention to “exterminate” “nationalist elements” – “the bandits and nationalist underground” (see paragraph 18 of the judgment). The Supreme Court concluded that in the applicant's case the subjective element of genocide was fulfilled in that he had known the goal of the Soviet government – “to eradicate all Lithuanian partisans” (see paragraph 41 of the judgment in fine). In consequence, we further accept that the Lithuanian partisans were targeted for elimination as a distinct part of a group rather than as individuals within a group (see Prosecutor v. Krstić, paragraph 99 of the judgment).

26. We also note that some 20,000 Lithuanian partisans were killed in 1940 and 1944-1953. The Lithuanian population at that time stood at nearly 3,000,000. Whilst the number of partisans killed is considerable, it may not appear to be particularly large in terms of an overall percentage of the total population of Lithuania. However, we cannot disregard the general scale of the repressions in Lithuania, including imprisonment and mass deportations of the civilian population. We take particular account of the well-known fact that the Soviet repressions also targeted the partisans’ families, as well as other people allegedly connected with them, who were likewise subjected to imprisonment, deportation or killing. The cluster of actions taken against a protected group (in this case, the nation) must be considered in its entirety in order to interpret the provisions of the Genocide Convention in a spirit consistent with its purpose (see paragraph 96 of the judgment). The respondent Government submitted, and this has not been disputed by the applicant (see paragraphs 126 and 133 of the judgment), that in 1940 and 1944-1953 thousands of Lithuanian inhabitants were imprisoned, deported or killed. Soviet repressions in Lithuania affected one in five persons. We have already noted the ICTY judgment in Prosecutor v. Krstić and the ICJ judgment in Croatia v. Serbia to the effect that when the fate of part of the group is emblematic of that of other members of that group, this may permit a conclusion that the eliminated group was substantial, and enable the finding that it comes within the meaning of the phrase “in part” of Article II of the Genocide Convention (see paragraphs 101 and 108 of the judgment and paragraph 24 above).

27. Accordingly, and having regard to the factors outlined above, we find that the Lithuanian partisans must be considered as a substantial part of the national group, the latter being a group protected under Article II of the Genocide Convention. We therefore conclude that the Court of Appeal, whose decision was not overruled by the Supreme Court, interpreted the term “in part”, as referred to in Article II Genocide Convention, in a manner consistent with its interpretation in international law, having regard to the particular social and political context prevailing in Lithuania at the relevant time.

It remains to be examined whether such an interpretation of Article II of the Genocide Convention was foreseeable by the applicant in 1953.

The foreseeability of the conviction

28. The domestic courts established that the applicant had fulfilled the essential legal requirements of a criminal act, namely, the actus reus and the mens rea. They described the applicant as an agent of the repressive Soviet authorities, whose aim was to suppress all kinds of national resistance and to exterminate all partisans as a separate group. It transpires from the documents on which the prosecutor based the charges of genocide against the applicant that in 1950-1952 the applicant attended a special MGB school for young recruits of that organisation (see paragraph 17 of the judgment; see also K.-H.W. v. Germany, [GC], no. 37201/97, §§ 71 and 74, ECHR 2001-II (extracts)). In 1952 the applicant was an operational officer of the Šakiai district MGB. It is also relevant that, as regards the applicant's personality, he was politically aware and had good work results (see paragraphs 20 and 21 of the judgment).

29. According to the minutes of the Šakiai district MGB meetings in 1953, the MGB was following instructions from the USSR Central Committee and the USSR MGB, to the effect that “bandits and nationalist underground”, “bandits, those who help them and their contacts” were to be exterminated (see paragraph 18 of the judgment). Some of those statements about “the fight against the nationalist underground” were made by the applicant himself (see paragraph 19 of the judgment). Such statements are very similar to those that were analysed by the Court in a case against Germany, in which the orders to protect the Berlin wall and to arrest “border violators” or to “annihilate” them were examined (see K.-H.W., cited above, §§ 64 and 65). In Kamuhanda, the ICTR also expressed the opinion that it may be difficult to find explicit manifestations of intent by perpetrators. Under such circumstances, the ICTR held that the perpetrator's actions, including circumstantial evidence, may provide sufficient evidence of intent. According to the ICTR, some of the indicia of intent may be “[e]vidence such as the physical targeting of the group or of their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing.” (see ICTR judgment of 22 January 2004, in Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-95-54A-T, paragraph 625).

On the basis of the evidence submitted by the prosecutor, the appellate and cassation courts established that the applicant had a direct intent to exterminate Lithuanian partisans, as part of the Lithuanian population. As the Supreme Court noted, the applicant understood that during the operation of 2 January 1953 the partisan brothers J.A. and A.A. would be killed or arrested and then tortured, tried as “traitors to the State” and, possibly, sentenced to death, and he wished to achieve this end (see, respectively, paragraphs 29, 35 and 41 of the judgment in fine).

In other words, the domestic courts have established that the killing of the two brothers was part of a State policy to exterminate Lithuanian partisans and other social groups which were a part of the Lithuanian nation, and that there was a specific intent on the part of the applicant to kill the brothers for the purposes of this criminal plan. The domestic courts have further established that this particular killing was planned and executed by the applicant within that framework. He was not a mere low-level perpetrator; he was a high-ranking MGB and later KGB operational member who served up to the position of lieutenant-colonel. He was not a mere accomplice to the facts; rather, he was the principal offender, who carefully prepared the killing and executed it. He even gained financial and political benefit from the murder, since he was awarded a considerable amount of money for the “heroic” deed that he had committed, and was admitted to the ranks of the Communist Party of the Soviet Union immediately after the killing.

30. In assessing the issue of the reasonable foreseeability of the applicant's conviction, we are not persuaded that the applicant could not have known that he risked being charged with and found guilty of the offence of genocide. In the Jorgic case (Jorgic v. Germany, no. 74613/01, 12 July 2007), the Court was confronted with two possible interpretations of the term ‘to destroy’ in the definition of the crime of genocide and the Court examined the compatibility of the applicant's conviction, on the basis of the wider interpretation of that term, with Article 7 of the Convention. It noted that whilst various authorities (international organisations, courts, scholars) had favoured both the wider and the narrower interpretations of the crime of genocide at the time of the impugned acts, Mr Jorgic could reasonably have foreseen the adoption in his case of the wider interpretation and, therefore, that he risked being charged with and convicted of genocide. Had the applicant in this case sought independent legal advice in 1953 and stated that he was an operational agent of the MGB whose intentional goal was the extermination of members of the nationalist underground (‘the partisans’) (see paragraph 18 of the judgment), the latter being the most resistant part of the Lithuanian nation as it attempted to defy its destruction by Soviet forces, it is likely that he would have been advised that what he was doing bore the essential characteristics of the crime of genocide as it stood under international law at the time.

Given the prominence of the part played by the partisans and their emblematic and actual significance for the Lithuanian nation in the particular context of the time, we find it likely that the applicant could have foreseen that he risked being charged with and convicted of genocide for his intention to destroy a significant ‘part of’ the Lithuanian nation – the latter being a protected group under the 1948 Convention – in his pursuit of the USSR's totalitarian policy. In so finding, we confirm the principle articulated in Jorgic to the effect that an interpretation of the scope of the offence which is consistent with the essence of that offence ‘must, as a rule, be considered as foreseeable’ (see Jorgic, cited above, § 109).

31. We also note that the applicant was not prosecuted for his acts under the RSFSR Criminal Code, which was imposed in Lithuania immediately after its annexation and incorporation into the USSR, nor under the Criminal Code of the Lithuanian SSR, both of which provided criminal liability for deprivation of life (see paragraphs 71 and 72 of the judgment). The Government's argument that extermination of the Lithuanian partisans as a group was part of the USSR's State policy and practice, which was superimposed on the rules of written law at the material time, is not without weight (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §§ 67 and 68, ECHR 2001-II). Even so, the applicant cannot rely on the fact that this was the USSR's practice in order to justify his participation in the extermination of the Lithuanian partisans. According to the general principles of law, it is not open to defendants to justify the conduct which has given rise to their conviction simply by showing that such conduct did in fact take place and therefore formed part of an accepted practice (ibid, § 74). As the Court has held, even a private soldier cannot show total, blind obedience to orders which flagrantly infringed not only domestic law (see paragraph 71 of the judgment) but also internationally recognised human rights, in particular the right to life, which is the supreme value in the hierarchy of human rights (see K.-H.W., cited above, § 75).

32. In his submissions to the Court the applicant also questioned whether the brothers J.A. and A.A. could be considered to be protected by Article II of the Genocide Convention, given that they were volunteer fighters in the armed resistance, a countrywide movement with a political and military organisation.

33. On this point, we observe that under Article I of the Genocide Convention, genocide is a crime under international law, whether committed in time of peace or in time of war. It may also be noted that the presence of those actively involved in a conflict, including when the victims bore arms, has not been an obstacle for the international courts in finding their killing to be a crime against humanity (see Prosecutor v. Kupreškić and Others in paragraph 111 of the judgment; see also, mutatis mutandis, Croatia v. Serbia in paragraph 108 of the judgment). This reasoning applies with greater force where the crime of genocide is at issue. On this point we note that, under Article II of the Genocide Convention, genocide is not defined as a crime directed against a civilian population only. In our view, to interpret the Genocide Convention as not applying to those who took up arms to defend themselves would not be in conformity with the underlying purpose of that Convention.

34. We further reiterate the Constitutional Court's conclusion that the Soviet authorities regarded the Lithuanian partisans as illegal rebels. No combatant status, or that of prisoner of war, was ever granted to them during Soviet times. On the contrary, as noted by the Constitutional Court, Lithuanian partisans were portrayed by the Soviet authorities, including the MGB unit in which the applicant served, as “bandits”, “terrorists”, and “bourgeois nationalists”. Special “extermination” squads were established and these were used in the fight against the Lithuanian partisans and their supporters (see paragraphs 18, 19 and 63 of the judgment).

35. Accordingly, the fact that the brothers J.A. and A.A. were armed partisans who had been targeted on account of their membership of and significance within a protected group (the nation) does not preclude charging the applicant with genocide (see, by converse implication and mutatis mutandis, Korbely v. Hungary [GC], no. 9174/02, §§ 86-94, ECHR 2008).

Conclusion

36. In the light of the above considerations, we find that, within the general context of large-scale and systematic actions against the Lithuanian population, the applicant's participation in the 2 January 1953 operation to capture and/or kill partisan brothers J.A. and A.A., viewed within the framework of the Soviet authorities’ operations to eradicate the Lithuanian partisans as a significant part of the nation in 1944-53 with the intent of destroying the fabric of the nation of Lithuania, could reasonably be regarded as falling within the ambit of the offence of genocide under Article II of the Genocide Convention. The interpretation by the domestic courts could thus reasonably have been foreseen by the applicant at the material time. In view of the foregoing, we are satisfied that the requirements to convict the applicant for the crime of genocide have been met in the instant case. We also reiterate the ICJ conclusion that “where those requirements are satisfied… the law must not shy away from referring to the crime committed by its proper name” (see paragraph 112 of the judgment).

37. Having regard to the conclusion reached in the paragraph above, we do not therefore find it necessary to examine whether the applicant's conviction was based on customary international law, an argument raised by the respondent Government.

38. We conclude that the applicant's conviction for genocide was not in breach of Article 7 § 1 of the Convention. Lastly, these requirements of Article 7 § 1 being met, it is not therefore necessary to examine the case under Article 7 § 2 of the Convention (see Kononov, cited above, § 246).

39. Our disagreement with the majority does not pertain to the facts as these have been established – it pertains to their interpretation. The majority has likewise accepted that the acts in respect of which the applicant was charged and convicted were indeed committed by him. Having been shielded by the occupant regime for many years, the applicant could nurture an expectation that his impunity would outlive him. For a while, it seemed that the termination of Lithuania's occupation had put an end to such an expectation. Now, by the judgment of this Court, that expectation has been revived. This is a matter of regret.

Prohibition of Genocide

2. In Raphael Lemkin's words (as cited by J. Vervliet, “Raphael Lemkin (1900-1959) and the Genocide Convention of 1948. Brief Biographical and Bibliographical Notes”, in H.G. van der Wilt et al (eds.) The Genocide Convention. The Legacy of 60 Years, Martinus Nijhoff Publishers, 2012, xxvii):

3. William Schabas has pointed out that while the 1948 Convention for the Prevention and Punishment of the Crime of Genocide (hereafter, the 1948 Convention) contains a widely accepted definition of genocide, its language is subject to various interpretations. Many domestic legislatures have imposed their own views on the term. “As a result, even in law, one can speak of many definitions or interpretations of the concept of genocide” (see W. Schabas, “Genocide and Crimes against Humanity: Clarifying the Relationship”, in van der Wilt, cited above, p. 4). Indeed, the Court's own case-law, notably in the Jorgic v. Germany decision (no. 74613/01, ECHR 2007-III), reflects this reality. In that case, the German domestic courts had adopted a wider interpretation of the definition of acts of genocide. The ICTY stated in the Brdjanin case that the “groups are not clearly defined in the Genocide Convention or elsewhere” (see Prosecutor v. Brdjanin, 1 September 2004, ICTY-99-36, T Ch II, paragraph 682).

4. For the purposes of clear reasoning, it is important not to confuse different elements of the drafting process of the 1948 Convention. First of all, it should be recalled that the 1948 Convention was adopted in reaction to the proceedings at the Nuremberg Tribunal and to the limitations therein, whereby crimes against humanity were linked to wartime (see Resolution no. 96 (I) referring to genocide having been committed in the past; also K. Inkuša, “Mass Deportations of 1949 in Latvia as a Crime against Humanity”, Baltic Yearbook of International Law, volume 9, 2009, p. 83). It was therefore necessary to break out of this situation, since the most heinous crimes could also be committed in times of peace and against a State's own population. That was the purpose of the Convention prohibiting Genocide. Secondly, the entire debate about the definition of genocide is a distinct issue which continues to be examined and developed by international and domestic courts. Despite the many complexities surrounding the definition of genocide, the words of R. Lemkin cited above (see point 2) transmit the very essence of the crime. The definition of genocide as adopted in the 1948 Convention prohibiting certain acts with “intent to destroy, in whole or in part, a national… group” does not limit or contradict Lemkin's description of the essence of genocide (see point 2 above).

5. For anyone who has conducted research on the drafting of the 1948 Convention it is evident, as Matthew Lippman puts it, that “[the] superpowers shared an interest in limiting international and universal jurisdiction over genocide… Both States ([the] Soviet Union and [the]United States) also importantly opposed extending protection under the Convention to political groups” (see M. Lippman, “The Drafting and Development of the 1948 Convention on Genocide and the Politics of International Law”, in H.G. van der Wilt, cited above, pp. 19-20). Indeed, the States’ greatest reluctance concerned the issue of jurisdiction over the crime of genocide. This point is not part of the case before us. Secondly, the question of whether political groups are included within the scope of protected groups has also been much debated. The drafting history confirms that they are not, and this is a relevant but not decisive point in the present case.

6. Furthermore, the case-law regarding genocide, in so far as it has clarified the scope of the 1948 Convention, is evidently relevant to the present case. Indeed, there have been a number of important cases decided by the International Court of Justice (ICJ) as well as by the war tribunals. In the judgment on the merits in the Croatia v. Serbia case (3 February 2015), the ICJ recapitulated the relevant points of the interpretation of the 1948 Convention. The ICJ confirmed as follows (in paragraph 139 of its judgment):

7. The ICJ further explained in paragraph 142 of the Croatia v. Serbia judgment:

8. The ICJ went further and clarified that:

9. In its 2007 Judgment in Bosnia and Herzegovina v. Serbia and Montenegro (cited in I.C.J. Reports 2007 (I), pp. 196-197, paragraph 373), the ICJ had held that:

10. These judgments address events which occurred posterior to the killings of the two Lithuanian national partisans as part of the Soviet policy to destroy Lithuanian national resistance, yet the ICJ's interpretation of the 1948 Convention is not revolutionary. On the contrary, the ICJ traces very carefully the intent of the drafters of the Convention, which predates the events in Lithuania. It states that it determined certain matters of principle in 1951 which were “recalled” in 2007. The ICJ interprets Article II of the Convention as it was adopted in 1948. I take the position that the ICJ's case-law is the appropriate authority for our Court as concerns the understanding of the scope and content of the relevant concepts in Article II.

Destruction of Lithuanian national partisans

11. An understanding of the historical context within which the war between the Lithuanian national partisans and the Soviet armed forces occurred following the end of the conflict between the Soviet Union and the Nazi Germany on the territory of Lithuania and the other two Baltic States is of fundamental relevance to this case. Admittedly, this is not an episode of European history that is widely written about. However, the principle of the proper administration of justice requires that the proceedings be organised in a manner that permits the Court to be aware of all the relevant elements. This appears to be particularly pertinent in a case which requires the Court to take note of dolus specialis which, as the ICJ has explained, may depend in some instances, where no clear plan is apparent on “genocidal intent being established indirectly by inferences” (see the above-cited Croatia v. Serbia judgment, paragraph 148).

12. The destruction of the Lithuanian, Estonian and Latvian national partisans was a key priority for the Soviet occupation regime, in order to achieve what they considered a complete and final annexation of the Baltic States. For propaganda purposes the Soviet government labelled the national partisans as armed criminals or bandits, and explained the Soviet extermination activities as a response to criminals who were illegally using arms. In Soviet terminology this was not a national resistance war: it was a fight against gangs within a wider context of ideological struggle.

13. In the history of the Baltic States, the resistance war led by the national partisans was the longest-lasting conflict (approximately 1944-56), involving the highest number of fighters and supporters. Due to the international political climate after the Second World War, the Baltic resistance did not receive any foreign assistance. The purpose of resistance was to fight for the independence and survival of the nations which had just experienced the 1941 Soviet deportations, the Nazi occupation and the unlawful return of Soviet power, accompanied by another wave of mass deportations (see Nikolajs Larionovs v. Latvia and Nikolay Tess v. Latvia, nos. 45520/04 and 19363/05 (dec.), 25 November 2014). At the same time, this war had no prospects of success and was thus even more essential for upholding the national spirit. The Lithuanian Constitutional Court has correctly summed up the purpose and the nature of the resistance war (see paragraph 63 of the judgment). It is also interesting to note that the MGB – the Ministry of State Security of which the applicant was a member – referred to the fight against bandits and the “nationalist underground”. The extermination of Lithuanian nationalism was necessary to achieve the subjugation of the Lithuanian people to the Soviet regime and its ideology. According to the Respondent Government, “some 20,200 partisans were killed, 142,000 people were sent to concentration camps and 118,000 were deported”. For example, according to Latvian archive documents for the period 1944 to 1956, the Soviet repressive structures “exterminated 961 armed bandit groups and arrested or killed 10,720 bandits” (see Information Note of 8 January 1957, Latvian SSR KGB, in H. Strods (ed.) Latvijas nacionālo partizānu karš. Dokumenti un materiāli 1944-1956. Rīga, 1999, p. 587).

14. The intent to destroy this part of the Lithuanian nation is in fact well documented in the relevant archives. When one examines the numbers, it is evident that they were highly significant for small nations. When the pattern of those Lithuanians who were targeted by the Soviet regime is considered, as the Respondent Government have shown in paragraph 29 of their submissions, it transpires that they formed the backbone of the Lithuanian nation. We recall Lemkin's observation that the essence of genocide is the destruction of the national pattern of the oppressed group and the imposition of another pattern (see point 2 above). The ICJ's case-law does not interpret genocide differently.

Political groups

15. The Court spends much time in its reasoning on the issue of whether the scope of the genocide definition in the 1948 Convention included political groups. The answer it provides in paragraph 175 is, in principle, correct. The real question before the Court, however, is whether national partisans formed – in terms of their role and number – a group whose continuous existence was essential for the survival of the Lithuanian nation. In other words, the Court should have been able to distinguish between, on the one hand, a prominent part of a national group being targeted for political, social or, in any event, discriminatory reasons, and, on the other, a political group plain and simple. There is nothing in the history of outlawing genocide which would exclude from its scope an intention to destroy in part or as a whole a (national) group for political and otherwise discriminatory purposes. Regrettably, the Court has not examined this issue, which is crucial to the case.

16. I pointed out above that the ICJ, which has jurisdiction to interpret the 1948 Convention, had done so by scrutinizing the travaux preparatoires. The ICJ discloses the scope of genocide as it was accepted at the time of the Convention's adoption in 1948. It is true that it had this possibility several decades later, but this does not change the fact that we have an authoritative interpretation of the 1948 Convention as it would also have applied several decades earlier. The ICJ does not mention that it is engaged in evolutive interpretation, taking into account subsequent developments (see, a contrario, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports, p. 19, paragraph 53). On the contrary, the requirements to establish an act of genocide remain stringent. The present case, however, shows that the European Court continues to have a problem with the application of law over time (see my Concurring opinion in O'Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 (extracts)).

17. The Court's conclusion is that in 1953 it was foreseeable that genocide required the destruction or intent to destroy a substantial group, but that it had not been clarified that in addition to the numerical aspect it also concerned the qualitative aspect, that is, the prominence of the targeted group (see paragraph 177 of the judgment), which has only materialised as part of subsequent judicial practice (see the heading of the relevant part of the judgment). The Court has taken into account – among other international case-law – the ICJ's two leading judgments as concerns the interpretation of the words “in part” in the 1948 Convention (see paragraph 105 of the judgment). It is clear, however, that these judgments cannot be read separately, especially since the Croatia v. Serbia judgment refers back to the 2007 judgment and provides further clarifications (see points 6-7 above). I have serious reservations as to whether the Court's conclusions in paragraphs 176-177 are compatible with the ICJ's explanation of the words “in part”, which in the ICJ's interpretation are clearly more nuanced. As was explained above, the relevant ICJ judgments cannot be regarded as exemplifying a new interpretation of the 1948 Convention. Alternatively, the Court ought to have engaged in more scrupulous research into the legal thinking relevant at the time of the adoption of the Genocide Convention, similar to that carried out in the case of Kononov v. Latvia ([GC], no. 36376/04, ECHR 2010).

The Article 7 Standard

18. In § 198 of Kononov (cited above), the Court reiterated that:

The Court then assessed “whether there was a sufficiently clear and contemporary legal basis for the specific… crimes” (see Kononov, § 199).

19. It pointed out in the Kononov case (§ 241) that:

20. In the light of the above-cited principles as restated in Kononov, it remains unclear what the Court is stating in paragraphs 165-166 of the present judgment when it finds it clear that the applicant's conviction was based upon legal provisions which were not in force in 1953 and that such provisions were applied retroactively. It is self-evident that the Lithuanian legislation of 1992 or 2004 was not in force in the territory of Lithuania in 1953, for the simple reason that the State was occupied by foreign forces. The principle adopted by the Court in comparable cases involving Germany or Latvia is that criminal proceedings brought following a change of regime in respect of crimes committed under the previous regime are, in principle, compatible with the Convention, provided that the Article 7 standard is met. The test under Article 7 in cases involving a change of political regime or State sovereignty over a territory is not a negative one; in other words, a violation of Article 7 occurs where a State brings a prosecution on the basis of the new law because, in formal terms, the law is indeed new unless some special circumstances exclude that violation. Judges Rozakis, Tulkens, Spielmann and Jebens summed up the Court's principle very correctly in their concurring opinion in Kononov when they stated: “Hence no one can speak of retrospective application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act.” The assessment of the compliance with Article 7 begins with the question of which rules, under either domestic or international law, governed the acts under investigation at the time those acts were committed? It does not begin with the pronouncement that there is a retroactive application of the law, because the statute was evidently adopted posterior to the events.

21. Furthermore, it is important to retain that in previous cases concerning rules applicable to international crimes the Court has approved a standard requiring that offences are defined by law with sufficient accessibility and foreseeability.

22. The Court's ultimate conclusion in the present case is that the domestic courts’ reasoning was not sufficient “to enable the Court to assess on which basis the domestic courts concluded that in 1953 Lithuanian partisans constituted a significant part of the national group.” Interestingly, the Court itself raises a doubt as to its own limited approach to the interpretation of the words “in part” (see point 17 above). Furthermore, the Court accepts that “the applicant's argument is not without weight, namely 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” (see paragraph 182 of the judgment). This latter position by the Court is particularly striking. Does it mean that the Court accepts arbitrary killings of combatants, assuming that partisans were combatants, or that it accepts extrajudicial killings? In the Kononov case, with reference to its long line of case-law, the Court pointed to the due-diligence principle in Article 2 cases. Given the context and the scale of the acts of extermination of the Baltic nations by the Soviet repressive structures following the Second World War, there is no question that investigations and prosecutions could be initiated into crimes against humanity or genocide (with regard to events in Lithuania, see paragraph 62 of the judgment). In this context, it is particularly strange to find the Court giving weight to the argument that the arbitrary killing of those resisting Soviet power was, as it were, in the nature of political confrontation.

23. Let me now turn to the reasoning of the domestic courts which, in the view of the majority, did not meet the standard of Article 7. The Court of Appeal, which had final jurisdiction on the facts, stated that the trial court's attribution of the Lithuanian partisans to the political group alone was relative and not precise. The Court of Appeal established that, on account of the massive repression of the Lithuanian nation, “Lithuanian partisans could be attributed not only to political, but also to national and ethnic groups, that is to say, to the groups listed in the Genocide Convention” (see paragraph 36 of the judgment). The Supreme Court, which did not have competence to establish facts, did not overrule the interpretation of Article 99 of the Criminal Code and its application to the facts as carried out by the Court of Appeal. It explained further the legislative history of Article 99 and fine-tuned its interpretation. It held that this Article must be read in the light of the 9 April 1992 Law “On Responsibility for Genocide of Inhabitants of Lithuania”, which law had taken verbatim the definition of genocide from the 1948 Convention. Most importantly, the Supreme Court explained that the inclusion expressis verbis of social and political groups in Article 99 had not been intended to expand the definition of genocide of the 1992 Law (see paragraph 38 of the judgment). This is a perfectly understandable legislative development, given how the Soviet regime targeted the Lithuanian nation. It identified social and active political groups existing within the nation and forming its backbone. I should point out that the groups within the nation as identified by the Lithuanian legislature in Article 99 correspond to the groups identified in the Soviet regime's detailed plan to destroy the national resistance against its foreign occupation. All this was explained to the Court by the Respondent Government in their observations (pp. 9-13) and is clear from the domestic courts’ reasoning, especially that of the Constitutional Court. The latter specifically stated that: “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”.

24. It is therefore clear that limiting analysis of the present case to political groups, in isolation from the concept of a national group, is a false approach in the context of post-war events in Lithuania. The majority has chosen to see the events in Lithuania and the killing of the two partisans within a narrow ideological context. This misrepresents what the Lithuanian domestic courts have in actual fact done.

25. Could the applicant have sufficiently foreseen that he was involved in committing a grave crime in 1953? The facts at hand confirm that he was committed to fighting and eradicating the nationalist underground. The facts describe the quick extermination of all bandits. They do not describe an investigation into certain criminal activities and the bringing of suspects before the courts (see paragraphs 18-19 of the judgment). I believe that the applicant's argument before the Court of Appeal is of interest. He did not submit that the killing of the two partisans was a random act. Be that as it may, these questions of fact – and the interpretation of the domestic law – are not matters for the European Court. The Court has clearly stated that “in principle, it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or international agreements. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I).” Yet in paragraphs 181 and 184 of the present judgment the Court reinterprets the Lithuanian domestic law and the findings of the Constitutional Court.

Conclusion

26. The Court is confronted with a historically and legally complex case. It is true that some of the reasoning given by the domestic courts could have been clearer. However, the Court has given and should give a margin for the development of national case-law and for some differences in the domestic courts’ reasoning. The Court's role is not to form a different view on the scope of the provisions of the 1948 Convention from that of the primary interpreters of the Convention in the international legal system.

27. More broadly, while it is true that the Court has in recent years paid particular attention to Article 7 principles and cases, major questions remain. In the present case, the Court is not only dealing yet again with the rights of the applicant, but also finds itself at the centre of a complex social process in a society seeking to establish the truth about the past and its painful events. The United Nations has worked on the issue of mass human-rights violations, and has come up with a set of principles which are indispensable for peace in any society going through complex historical transitions (see the Report of the Independent Expert, E/CN.4/2005/102/Add.1). While maintaining the rule-of-law standard that Article 7 provides, it is particularly important that this Court, at the level of the presentation of facts and the choice of methodology and issues, is guided by these broader principles regarding the right to truth and prohibition of impunity.