The following, for our readers’ interest, is a translation by Geoff Vasil of a recent article that appeared on Donatas Glodenis’s website. The translation appears here with the author’s permission.
Cases, Part IV. Vasiliauskas Convicted of Genocide without Foundation
by Donatas Glodenis
1 May 2014
I am continuing my series of webpage articles about historical justice cases in Lithuania. This time it’s about one of the cases concerning the murder of members of the post-war armed underground, and this case should soon, in early summer, attract much attention. The European Court of Human Rights webpage says Vytautas Vasiliauskas’s case from August/September of 2013 has been turned over for consideration by their Grand Collegium. Grand Collegium hearings in the case are scheduled for June 4, 2014, see http://www.echr.coe.int/Documents/CLIN_2013_09_166_ENG.pdf
Just in case the Grand Collegium beats me to it, I quickly conclude the webpage article begun back in 2013 about Vasiliauskas’s conviction for genocide.
Let’s begin with the actual story. You can get more information about the court verdict and decisions made by appellate and other courts here: http://dg.lapas.info/?page_id=1138
At the time of these events, 1953, Vytautas Vasiliauskas was a person in charge of operations at the Šakiai District department of the MGB (Ministry of State Security) of the Lithuanian Soviet Socialist Republic.
Armed resistance was winding down and some partisans, including the heroes of this story, Jonas and Antanas Aštrauskas, were still in hiding. Perhaps they hadn’t even done anything illegal from the Soviet point of view in their partisan activities and their going into hiding, but their biographies had earlier stains from the German occupation. Jonas Aštrauskas, according to documents from the Lithuanian Special Archive, participated in the arrest, imprisonment and etapavime [sic: the author’s spellcheck seems to have inserted the wrong word here] of Soviet Party activists and Jews in 1941, immediately after the Germans occupied Lithuanian territory. Antanas Aštrauskas was a police officer under the German occupation. Thus repeated offers by the Soviets after the war for amnesty for the Lithuanian partisans wouldn’t have stopped either of them from ending up in the gulag. So in 1944 they went into hiding in the forest. But the forest wasn’t all sweetness and light either. These two particular partisans, as much as we can glean from court documents and other accessible material, maintained a complicated relationship with the partisan leadership. In 1947 they withdrew from the February 16th partisan grouping and went into hiding by themselves, with no contact with other partisans. The commander of the Tauras military district even proclaimed the Aštrauskas brothers deserters. Even so, someone did testify at the Vasiliauskas trial that the two in fact did maintain ties with other partisans and provided them arms.
The Aštrauskas brothers hoped to acquire documents and to install themselves somewhere to live and work under assumed names. While they were waiting for this opportunity to “legalize” themselves, they continued to live in the forest, in a small bunker just 90 centimeters high. One of the brothers also had an affair of the heart with one Martina Aleksaitė.
Towards the end of 1952 the MGB learned that two other “bandits,” with the nicknames of Nemiras and Plutonas, were considering approaching the Aštrauskas brothers with a proposal to form a joint unit together. The MGB quickly decided then to arrest or destroy the Aštrauskas “bandits.”
The agent code-named Romutė served in implementing this goal, who was Martina Aleksaitė, the girl for whom one of the Aštrauskas brothers professed love. I heard a rumor that the brothers had behaved poorly towards her and she decided to get revenge by showing the state security forces the way to their bunker. She also got a paycheck, 2,000 rubles “to start a new life.”
Twelve MGB soldiers commanded by Vasiliauskas entered the Žalgiris Forest, where the bunker was located, in trucks on January 2, 1953. The agent Romutė rode with them. She showed them the bunker. The soldiers surrounded it. Initially the soldiers suggested the Aštrauskases surrender themselves, but the brothers opened fire. The soldiers then began to return fire. Both of the Aštrauskas brothers died. They threw their bodies on a truck and took them to the town of Šakiai.
A criminal case for the murder of the Aštrauskas brothers was initiated in April of 2001 and in September of the same year Vasiliauskas and Aleksaitė (now Aleksaitė-Žukaitienė) were charged with genocide, i.e., with the murder of the two partisans. On September 21, 2004, the Lithuanian Appellate Court issued a finding on the earlier verdict of February 4, 2004:
V. Vasiliauskas was found guilty of being a person in charge of operations at the Šakiai regional department of the MGB (Ministry of State Security) of the Lithuanian Soviet Socialist Republic from September 15, 1951, knowing the main goal of this ministry was the physical destruction of a portion of residents of Lithuania, those belong to a separate political group, i.e., of Lithuanian partisans, and on January 2, 1953, at an undetermined hour, acting in concert per earlier agreement in a group of commanders and troops of the Šakiai regional department of the Kaunas District of the MGB (Ministry of State Security) of the Lithuanian Soviet Socialist Republic, with the aid of M. Žukaitienė, who provided information about the partisans Jonas and Antanas Aštrauskas and who personally showed the way to their location, for which she received 2,000 rubles, went to the bunker indicated by M. Žukaitienė located in the Žalgiris Forest in the Šakiai Region, and together with MGB staff surrounded that bunker, and attacked, and during that attack the Lithuanian partisans Jonas and Antanas Aštrauskas were shot and killed, i.e., physically destroyed as members belonging to a separate political group resisting the Soviet occupational government.
M. Žukaitienė received a quite similar finding of guilt. In actuality, both of them were released from the punishment meted out to them by the court because of health conditions (for one thing, Vasiliauskas is blind). This verdict is a standard “genocide” verdict in which partisans are held to be a separate political group in the sense defined in article 99 of the Lithuanian criminal code, and therefore their destruction carries criminal responsibility. This verdict deserves all the criticism I have made repeatedly in earlier articles. To hold the partisans to be a political group and, at the same time, armed forces (this is the interpretation enshrined in Lithuanian law), is, to put it mildly, a misunderstanding. If genocide against armed groups such as these is possible, then every war is genocide, because the point of war is, in large part, to destroy the enemy’s armed forces. Obviously soldiers can have other important defining features (for example, political views), but I think their being an armed group is the primary and most clearly defining feature of the group, while political views are secondary (as is, for example, the fact that the majority of them might be male, residents of villages, or that they are Lithuanians). So partisans should not be considered a political group, as they are understood to be in the criminal code.
Partisans can only be considered victims of genocide in the event they are part of the larger group being destroyed (or planned for destruction), for example, Jews who died with weapons in their hands during the Warsaw Uprising should be considered genocide victims, in that death awaited them in either case.
Most recently, the Constitutional Court in their resolution of March 18, 2014, on the definition of genocide in the Lithuanian criminal code said what was already completely obvious to all people not blinded by political kowtowing and the desire for revenge. The court definitively rejected the possibility of convicting people for the genocide of a political group in operations against partisans. Recalling the first principle of criminal law–“there is no crime without a law”–the court stated the universally recognized concept of genocide only includes the extermination of national, ethnic, racial and religious groups, so that passages in Lithuanian law on the destruction of political groups being genocide are only binding in the event the act was committed after the corresponding law came into force (in this case, amendment to article 71 of the criminal code which was passed April 21, 1998, and came into force on May 6, 1998).
It was interesting as well that the Appellate Court, sensing the weakness in the arguments made by the initial court in the Vasiliauskas case, attempted to somewhat repair that verdict. I am doubtful whether it was improved even slightly, but we find an echo of this attempted repair in the resolution from the Constitutional Court. The Appellate Court said:
The collegium also points out that assigning Lithuanian partisans, i.e., members of the armed resistance to the occupational government (the resistance), to a specifically “political” group, as was done in this verdict, is in essence only provisional and not completely accurate. After all, members of this group were also of Lithuanian ethnicity and representatives of the national group. The Soviet genocide was executed to wit according to criteria concerning the nationality/ethnicity of residents. From all this the conclusion must be made that Lithuanian partisans are not merely to be assigned to a political, but also to a national and to an ethnic group, i.e., to those groups which are indicated in the very Convention on Genocide. In summary of that which was laid out, the conclusion is made that the guilty verdict arrived at in this case is legitimate and well founded. The convicted, V. Vasiliauskas, of his own volition worked as a person in charge of operations of the Šakiai Region department of the MGB, a repressive structure, and he surely knew that the goal of this agency was the physical destruction of Lithuanian partisans as a portion of [the physical extermination of] the residents [=people] of Lithuania. Understanding this, he intentionally together with other [sic] accomplices himself took part in the murder of the Aštrauskas brother partisans.
I’m not sure where the court got the statement that “Soviet genocide was executed according to criteria of the nationality/ethnicity of residents,” because it is known universally that it was not this way at all. At least not in Lithuania. Ethnic criteria sometimes played what I would call a secondary role in decisions made on the loyalty an individual held for the Soviet order, for example, say a person was the child of a deported Lithuanian and a local Russian and chose at his sixteenth birthday to have his passport record his ethnicity as Lithuanian rather than Russian; this might give rise to suspicions concerning his loyalty. Repression, however, was carried out in regard to criteria of loyalty (and as derivatives of that political and social criteria played a role). Nor is it very clear what they meant by the statement that the Soviet MGB sought to namely physically annihilate the partisans (it was usually sufficient to arrest and deport them).
In any event, the Lithuanian Supreme Court did not follow in the footsteps of the Appellate Court and did not cut-and-paste this dubious line of argument. In essence this court returned to the arguments of the initial court.
Complaint to European Court of Human Rights
Vasiliauskas is the first (and perhaps to this day the only) to have made complaint to the European Court of Human Rights over a case involving historical justice. The complaint was presented way back on July 30, 2005. The complaints dwells mainly upon the fact Vasiliauskas was convicted for acts committed which were not considered criminal at the time of their commission. You can read over a summary of the main facts in the case here: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113089
As is generally known, Section 1 of Article 7 of the Universal Human Rights Convention states:
No one may be convicted for actions or lack of action which under the laws of the state at the time of their commission or under international law were note held to be crimes…
The European Court of Human Rights accepted the case, but has been “handling” it very unwillingly. I’m not sure if this is a record or not, but the questions to the Lithuanian Government were only communicated on June 17, 2009 (for years after the complaint was received), and the case was only “prepared” last year, eight years after the complaint was received. The Lesser Collegium of the European Court of Human Rights, however, perhaps sensing the great political importance of the case, did not want to hear it, and, as I said before, the case was transferred to the Grand Collegium in September of 2013. The first hearing of the case was supposed to take place in March of 2014, but the date was then delayed until June 4, see http://www.echr.coe.int/Pages/home.aspx?p=hearings/calendar
Thus we can expect a decision this summer (when nine years will have passed from the time the complaint was made).
It is still interesting to think about how the European Court of Human Rights perceives the basis of this case. This can be traced from the questions the court posed to both parties. And there were three questions which do sort of provide the angle the court will use to approach this case:
1. Was the action for which the complainant was convicted a crime under national or international law at the time it was committed, as outlined in Article 7 of the Convention?
2. Does the action for which the complainant was convicted among the exceptions listed in Section 2 of Article 7 of the Convention?
3. Was the interpretation of the concept of genocide by the national court such that in its application Article 7 of the Convention was violated? More specifically, having in mind the concept of “genocide” in international law, did the interpretation by the Lithuanian court adhere to the principle nullum crimen sine lege (Latin: there is no crime without a law), as demanded by Article 7?
So essentially the court is asking the parties whether what Vasiliauskas did was considered criminal at the time it was committed, in January of 1953. It is to be hoped that court in hearing the case will not get bogged down in considering whether the Lithuanian courts correctly applied the “genocide” article (instead of applying the “crimes against humanity” or “war crimes” articles). At least, there is sufficient European Court of Human Rights case material already where the court acted in exactly this way (e.g., in the Kononov vs. Latvia and Korbely vs. Hungary cases, about which you can read here: http://dg.lapas.info/?p=1673).
What’s the Prognosis?
Premonitions that this situation will not end in a victory for Lithuania are not mine alone. Mykolas Romeris University professor Justinas Žilinskas writes: “with the current interpretation of genocide in our criminal cases (for example, the practice of contextual evidence: “if the person was a stribas [Soviet security organ staff], it means he’s guilty of genocide), we appear highly, highly strange.” (here: http://maumaz.livejournal.com/400851.html?thread=4428499#t4428499). He adds that “now Lithuanian stribai who have been convicted of Soviet genocide (and the argumentation in these cases was so very weak in terms of international law that it is, to put it mildly, hopeless), can confidently go to Strasbourg…” (here: http://maumaz.livejournal.com/363274.html?thread=4020746).
We don’t have long to wait for a decision from the Human Rights court. Judging from earlier cases considered by the court, e.g., Kononov vs. Latvia (for more see here: http://www.bernardinai.lt/straipsnis/2010-05-06-donatas), Korbely vs. Hungary and Penart vs. Estonia (more here: http://dg.lapas.info/?p=1673), we can hazard some guesses as to the outcome.
In Penart vs. Estonia the situation is similar, concerning Vasiliauskas’s colleague from Hungary [sic: the author means Estonia] who was convicted of the murder of a person in hiding. The situation was similar, but there is a difference. The court stated in Penart’s case the person in hiding was unarmed and that he did not resist. The court found the Estonian courts had rightfully convicted Penart.
In Korbely vs. Hungary the European Court of Human Rights found Hungary had convicted the accused without foundation. Although the person he shot had not had a gun in his hand, he hadn’t surrendered either, and he also made gestures from which it was possible to conclude he was planning to pull out a gun. Therefore the court found that Korbely, although he worked in a repressive organ at that time, did not perform actions which could be equated to crimes against humanity.
The same holds true in the cause of the Aštrauskas brothers. They were armed. In one way or another, they did belong to the armed underground. They were offered the choice of surrendering, but they responded by firing their guns. Whether we judge them to have been illegitimately armed men who refused to put down their weapons, or as (as is the usual in Lithuania) soldiers, combatants who refused to surrender, we cannot blame the other combatant (or people acting in the role of law-enforcement official) for their deaths.
It is difficult to imagine how Vasiliauskas could lose his case against Lithuania.
On the other hand, I have no doubt that after the court issues a finding on Vasiliauskas, another wave of discontent over Europe will sweep Lithuania. But the guilty need to be sought not on the other side of the border.
Someone in their own time simply had to look soberly at the situation. They only needed to comprehend a few things. First, the party responsible for post-war repressions in Lithuania was the USSR. Everything that comes as a consequence of that is a huge meat grinder, sucking in so many people. The partisans shot disloyal villagers, the MGB and stribai tried to cleanse the villages of potential partisan supporters. The one and the other are both guilty to the extent they transgressed the limits imposed by international law on conflict situations (murdering and torturing civilians, murdering armed enemies who have surrendered, deporting civilians, employing banned weapons of war and so on). But neither is it right now to convict those who with gun in hand fought those who took gun in hand.