Published: 12 Mar 2019 | By Harriet Bland
Drėlingas v Lithuania
Case No.: 28859/16
Judgment date: 12 March 2019
The applicant, Stanislovas Drėlingas, is a Lithuanian national who served as a senior officer in the MGB and KGB Soviet security forces while Lithuania was part of the USSR. In 1956 he participated in an operation to detain two members of the organised movement of the Lithuanian national resistance to the Soviet regime. After their arrest, one of these partisans was tortured in detention and executed in 1957, and the other was sentenced to eight years imprisonment in a Siberian prison camp. In 2014 (after Lithuania’s independence), the applicant was convicted of genocide for his role in the partisans’ arrest on the grounds that, as opponents to Soviet occupation of Lithuania, the partisans had been members of a distinct “national-ethnic-political group”. The applicant was initially sentenced to five years’ imprisonment, which was reduced to five months by the Lithuanian Supreme Court. The Supreme Court reviewed the applicant’s conviction and sentence in the light of the ECtHR’s Grand Chamber judgment in Vasiliauskas v Lithuania [GC] (No. 35343/05, 20.10.2015), which held that the applicant’s conviction for genocide in relation to the killing of Lithuanian partisans in 1953 constituted a violation of Article 7 (no punishment without law). However, in the present case, the Supreme Court defined the partisans as members of a “national” group, a category protected by the Genocide Convention. Mr Drėlingas’ conviction was therefore foreseeable, in view of his senior role in, and full understanding of, the purpose of the 1956 operation: the extermination of a national-ethnic-political group.
The applicant complained to the ECtHR that his conviction had been retroactive and therefore violated Article 7 as the domestic court’s interpretation of genocide was too broad and not based on the wording of the offence in public international law. He disputed the significance of his role in the partisans’ arrest or the fairness of holding him accountable for subsequent events, namely their imprisonment or execution.
Relying on the general principles set out in Vasiliauskas, the ECtHR, by five votes to two, held that the fact that the applicant did not personally take the decision to execute or deport the partisans did not prevent the State from charging him with genocide. The applicant would have had sufficient knowledge of MGB/KGB methods to foresee the partisans’ fate, and he did not have the right to ignore flagrant abuses of human rights when obeying orders. The ECtHR therefore held that there had been no violation of Article 7. The Supreme Court had provided a thorough explanation of why the partisans constituted a significant part of a protected national and ethnic group, because of their role in protecting the national identity, culture and self-awareness of the Lithuanian nation. In addition, the domestic law system, including the Supreme Court, had taken into account the GC’s judgment in Vasiliauskasi, remedied the defects and lack of clarity identified therein and addressed the cause of the Convention violation. Unlike in Vasiliauskas, the applicant’s prosecution and conviction for genocide was foreseeable and not in violation of Article 7.
The ECtHR reiterated that primary responsibility for protecting the rights set out in the ECHR lies with the domestic authorities rather than in Strasbourg. The ECtHR’s decision suggested that the cases of Vasiliauskas and Drėlingas were successful examples of domestic courts effectively responding to ECtHR judgments: the Lithuanian authorities had accepted the Article 7 finding in Vasiliauskas, and clarified the Criminal Code and domestic procedure to comply with the ECHR.
In their separate dissenting opinions, Judges Motoc (Romania) and Ranzoni (Liechtenstein) disagreed with the Court’s finding of no violation of Article 7. Judge Ranzoni held that there had been a violation of Article 7 as the applicant could not have foreseen in 1956 that his actions could constitute the offence of being an accessory to genocide. Describing the case as “complicated and sensitive”, Judge Motoc concluded that the Court’s judgment represented a major change in its caselaw (and expanded the scope of genocide beyond the approach of international criminal law), which should only be effected by the Grand Chamber.
Commentators have suggested that the Drėlingas decision recognises ‘ethno-political’ genocide, thus widening the ambit of genocide to include political groups. As such, it may challenge the generally accepted view that repressive policies pursued by the USSR cannot be regarded as genocide because they were imposed on social or political grounds rather than on the basis of nationality or ethnicity.
A request for referral of this case to the Grand Chamber is pending.