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22 Октября 2016


The European Court is Against the Lithuanian National Myth

Author: Alexander Shamshiev

The European Court is Against the Lithuanian National Myth

27.10.2015  // Photo: news.tts.lt

One of the cornerstones of Lithuania’s historical policy has come under threat. And the blow didn’t come from Moscow or the ever-present communists, but directly from Strasbourg.

On 20 October, the Grand Chamber of the European Court of Human Rights (ECHR) ruled that the KGB actions against the Lithuanian guerilla fighters, contrary to modern Lithuania’s statements, are not genocide. By supporting the claim of the former Soviet secret service agent Vytautas Vasiliauskas, originally convicted by the Lithuanian court, the ECHR recognized that his persecution by the Lithuanian government has nothing to do with international and European law. By refusing to qualify the actions of the Soviet Union as genocide, the Strasbourg Court has dealt a blow right into the heart of Lithuanian historical policy.

The cult around the so-called Forest Brothers, the members of the Lithuanian anti-Soviet underground resistance movement in the 40s and 50s (as believed, some partisans held out for much longer), is an intrinsic part of the state ideology, which is built upon the theory of three occupations and the “double genocide” of Lithuanians, which was allegedly carried out by the Soviet Union just as much as the Nazi forces.

The image of the guerillas themselves is not devoid of controversy. Avoiding direct confrontation with the Soviet army, they preferred terror against the civilian population. The Forest Brothers targeted common Soviet party workers, members of collective farms, rural teachers, Komsomol members and engineers who were sent to restore the industry, after it was ravaged by war, as well as targeting their family members. Among those killed by the guerillas many were Lithuanians, who were accused of cooperating with the Soviet government, be it true or false. The 2011 book Book of Memories for the Victims of “Partisan” Terror by journalist Povilas Masilionis, lists the names of around 20 thousand civilians killed by the fighters, a thousands of children and teenagers among them.

Genocide of One

However, the official propaganda shows the guerillas as noble freedom fighters and true Lithuanian patriots. The process of glorifying the Forest Brothers started immediately after the restoration of independence. In the 90s, the Lithuanian government created the International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania, and the former KGB office is now home to the state Genocide and Resistance Research Centre of Lithuania. The Centre was the main supplier of materials for the criminal cases against former KGB agents who were involved with fighting Forest Brother. The guerillas themselves are now viewed as volunteers and are posthumously receiving military ranks and state decorations. In 1999, the Seimas, led by the patriarch of Lithuanian politics Vytautas Landsbergis, declared the Lithuanian Movement for Freedom’s Council as the only legal authority on Lithuanian territory after the war. And, in 2009, the head of the Lithuanian underground movement Jonas Žemaitis-Vytautas was posthumously recognized as acting president of the country. The laws were modified to fit this ideology.

Back in 1998, Lithuania specifically amended the Criminal Code to include the social and political groups into the definition of genocide. This new amendment was in direct contradiction of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which Lithuania is part of. The convention clearly defines genocide as a crime against national, ethnic, racial and religious groups. The Lithuanian extended interpretation led to people being charged with genocide for local shootouts, clashes and operations to arrest or eliminate specific fighters.

84-year-old Stanislovas Drelingas was convicted of genocide and sentenced to five years’ imprisonment because in 1956 he was a part of the group that arrested underground commander Adolfas Ramanauskas-Vanagas, who was executed by the rule of the Supreme Court of the Lithuanian SSR. The Lithuanian authorities tried to convict 84-year-old Ignas Laucius for genocide because in 1947 he gunned down four guerillas. The 75-year-old first Interior Minister of independent Lithuania (1990-1992) Marijonas Misiukonis was also brought before court. In his case, the “genocide” was his participation in the death of Antanas Kraujelis-Siaubūnas in 1965. In an arrest attempt, Karujelis was killed or, according to other sources, shot himself. Misiukonis was to get a six-year prison sentence but got acquitted. The court quite eloquently stated that “there can’t be a genocide against one person”.

With time, while hunting down ex-Chekists, the Lithuanian courts have noticed that the Lithuanian laws, to put in lightly, clash with international laws. In order to resolve this “mishap”, 34 Seimas members, including the current Prime Minister Algirdas Butkevičius, wrote an appeal to the Constitutional Court. “This retroactive use of the “genocide” term in Lithuanian law is contradictory and doesn’t alleviate the suspicion that the legislator chose the political and not the legal approach to solve this problem”, the MPs said it rather honestly. And,in 2014, the Constitutional Court came to their aid and stated that you can consider the Soviet actions against the Lithuanian underground a genocide if the prosecution can prove that the actions were a threat to the existence of the Lithuanian nation . This was exactly what ECHR struck down.

The Fabric of the Nation

…The former senior operational agent of the Ministry of State Security of the Lithuanian SSR, Vytautas Vasiliauskas had been charged with genocide twice by the Kaunas court. The first time it happened in February 2004. The Genocide and Resistance Research Centre of Lithuania provided information that Vasiliauskas on 2 January 1953 participated in an operation to apprehend two brothers, guerilla fighters in the Šakiai area. The Chekists surrounded the bunker where the brothers hid (the Strasbourg records refer to them as J.A. and A.A.). The fighters refused to surrender, opened fire and were killed in a gunfight. The court deemed this episode an act of genocide, because the guerilla war was declared a “people’s war”, an armed resistance of the Lithuanian nation.

Among the evidence of Vasiliauskas’ guilt, was a commendation note, issued by the MGB, and an award of 500 rubles. In higher courts, the ex-chekist said that he didn’t shoot at the brothers, but Lithuanian judges decided that it was not important: the deciding factor was in intent and acting as an accomplice. Vasiliauskas was sentenced to six years of prison, but due to his poor health, the sentence was suspended. Descendants of the victims sued for 150 000 litas in damages to be paid by Vasiliauskas together with a fellow ex-agent. The court agreed, later, in 2011, lowered the sum to 50 thousand litas. In Summer 2011, the same Kaunas court once again found Vasiliauskas guilty of genocide, but in another case. This time they recalled his participation in the arrest of Jonas Būrininkas on the night of 23 March 1953. Būrininkas was surrounded at his house, wounded and arrested (later sentenced to 25 years of prison and deported to Siberia).

The Lithuanian side tried to present the Forest Brothers as a “national-ethnic-political group” before the ECHR. The logic is simple: everyone who fought on the resistance side were Lithuanian, so the Soviet regime was destroying Lithuanians as a nation. Also, according to the case records, the Lithuanian court, basing on “consolations of historians”, came to a conclusion that Lithuanians in USSR were considered an “untrustworthy” nation, so any repression towards Lithuanian groups can be considered repressions against all Lithuanians. The ECHR judge from Lithuania Egidijus Kūris along with a few associates called the Forest Brothers “the fabric of the Lithuanian nation”. The judge from Latvia Ineta Ziemele as a gesture of neighborhood solidarity tried to convince her colleagues that “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.”

But the court decided not to delve deep into historical arguments and not to dig through the nuances of Lithuania’s official historical policy. Instead, the judges opened the European Convention on Human Rights along with international documents on genocide and saw Lithuania’s rather specific views. And they came to the conclusion that with its “unique approach” to genocide, the Lithuanian government broke one of the basic legal principles – nullum crimen, nulla poenasine lege – you can’t convict someone for a deed, which was not a crime at the moment. Moreover, ECHR decided that Lithuania did not provide “much historical or factual account as to how the Lithuanian partisans were representing the Lithuanian nation”. So, not without some evil irony, the court noted that in 1954 Vasiliauskas, “even with the assistance of a lawyer”, couldn’t assume that fighting the guerillas was an act of genocide towards Lithuanians.

What is next?

Lithuania will have to pay Vasiliauskas 10 000 euro in damages and 2400 euro in legal fees. Lithuania met this ECtHR decision quite coldly, without enthusiasm. “When we restored our independence, in all of the cases, all Soviet crimes were reclassified as genocide, we overdid it a bit. This is why we get this troubling result, which, I hope, will give the proper signal to our law enforcement and our courts to take a more serious look at international law” admitted Justinas Žilinskas, professor of Mykolas Romeris University’s International and European Law Institute during a Lithuanian radio show. He tied the debacle at Strasbourg with Lithuania’s youth and inexperience in such matters and the excessive fervor displayed by the Lithuanian government in their desire to attain historical justice.

Žilinskas offered consolation in the fact that the verdict was a 9-8 vote. The Head of Lithuanian Constitutional Court Dainius Žalimas wasn’t too upset: “Seeing this ruling in Strasbourg, Lithuanian judges must pay more attention in all genocide cases and evidence that the destruction of partisans as a political group is part of destroying an important part of the Lithuanian nation, so that it can be considered a genocide of the Lithuanian nation”. So the idea remains the same: persecute those who fought the guerillas, just don’t get too wrapped up in genocide. The Lithuanian Constitutional Court is not going to rethink its stance.

Just like genocide, war crimes have no statues of limitations. But accusing the Soviet Union of genocide is highly important to Lithuania’s state doctrine, because it allows to mentally and historically equate the USSR to the Third Reich. That is why the Forest Brothers are presented as not just resistance fighters, but as the honour, conscience, heart and soul of the Lithuanian people all in one can. The ECHR reasonably showed that it is determined to view them as just one of the armed factions, fighting for specific political goals. That way the judges in Strasbourg didn’t just topple the modern Lithuania’s pantheon of heroes, but debunked all claims of USSR intending to destroy Lithuanians as a nation. This would have been quite strange indeed, considering that the Lithuanian population steadily grew during the Soviet rule, which can’t be said about current reality.

The Vasiliauskas v. Lithuania case can be an important precedent for future similar cases if Lithuania will continue the practice of equating shootouts and ambushes on guerillas to genocide. Any former MGB-KGB agents or “accomplices of the Soviet regime” will have legal grounds for defense if the Genocide and Resistance Research Centre digs up some information on them arresting, trailing or shooting at some new national hero. In that sense, the ECHR will continue to give more slaps to the Lithuanian government. 

Translation by Pavel Shamshiev.

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