(CN) - A deeply divided European Court of Human Rights reversed the conviction of a former Lithuanian state security agent on charges of genocide that did not exist at the time he cracked down on anti-Soviet rebels.
Vytautus Vasiliauskas, an officer in the Lithuanian state security services from 1952 until his retirement in 1975, was convicted in 2004 for the genocide of Lithuanian partisans who resisted Soviet rule after World War II.
Lithuania became the first Soviet state to declare independence as the Soviet Union crumbled, in 1990, and has since joined the European Union.
But when Vasiliauskas took part in the purge of anti-Soviet rebels in 1953 and killed two brothers associated with a Lithuanian independence group, the only law in force at the time was the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 - and it didn't include protection for political groups.
A trial court convicted Vasiliauskas of genocide based on amendments made to Lithuanian criminal code in 2003, which included protections for political groups. An appeals court upheld the conviction, adding that the brothers had been representatives of the Lithuanian people and were targeted for death by Soviets because of their nationality and ethnicity.
The Lithuanian Supreme Court also upheld Vasiliauskas' conviction, further finding that the man knew the goal of the Soviet government was to eradicate the resistance.
Facing a 6-year prison sentence, Vasiliauskas petitioned the European Court of Human Rights for review. He argued that his conviction violated Article 7 of the human rights charter - no punishment without law - since he was found guilty on the basis of a law that didn't exist when he killed the brothers in 1953.
Ten years later, the human rights court voted 9-8 to reverse Vasiliaukas' conviction on Oct. 20, agreeing that the human rights charter prohibits retroactively applying criminal law to the accused's disadvantage.
The only way Vasiliaukas' conviction could stand is if it had been based on international laws against genocide in force at the time of the killings. But while the court noted that Vasiliaukas should have known that genocide was frowned upon by the international community as early as 1946 - and the Soviet Union had signed the genocide convention in 1949 - the convention did not expressly bar the killing of members of political groups.
Rather, the 1948 convention only offered four protections against genocide: on the bases of national origin, ethnicity, race and religious identity. The human rights court doubted that Vasiliaukas would have recognized his actions as purging the brothers on the basis of their nationality or ethnicity, but instead to quell anti-Soviet sentiment in Lithuania.
But the human rights court balked at Vasiliaukas' demand for $66,000 in damages for his pain and suffering, noting that he admitted killing the brothers and had even falsely accused them of crimes against humanity during the Nazi occupation as a way to exonerate himself during his trial.
Instead, the Strasbourg-based court found that ruling in his favor was compensation enough and awarded him just over $11,000 for actual damages.
In several dissenting opinions, the eight judges who believe Vasiliaukas' conviction should stand said regardless of whether political groups were protected from genocide at the time of the crime, the security agent should have foreseen being arrested and charged with genocide given his "intention to destroy a significant part of the Lithuanian nation."
Judge Ann Power-Forde, of Ireland, lambasted the majority for missing an opportunity to acknowledge genocide of the Soviet era.
"The court was presented with an opportunity to refer to what happened in the Soviet era - and in which the applicant was a willful participant - by its proper name," she wrote. "Through this case-law, it has shied away from so doing, preferring instead to conclude that the applicant was wronged for having been convicted of genocide by the Lithuanian courts.
"The only avenue to this conclusion was the court's excessively formalistic and rather blinkered approach of viewing the partisans solely through the lens of a 'political group' and of ending its analysis there. Its failure to engage in any meaningful way with the reasoning of the national courts on the role of the partisans in the defense of the Lithuanian nation is lamentable."
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