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On criminal liability for genocide

Case No. 31/2011-40/2011-42/2011-46/2011-9/2012-25/2012

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF CERTAIN PROVISIONS OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA THAT ARE RELATED TO CRIMINAL LIABILITY FOR GENOCIDE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

18 March 2014, No. KT11-N4/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 27 February 2014, at its sitting considered under written procedure constitutional justice case No. 31/2011-40/2011-42/2011-46/2011-9/2012-25/2012 subsequent to:

1) the petition (No. 1B-37/2011) of a group of members of the Seimas of the Republic of Lithuania, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 8 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania are not in conflict with Article 6 and Paragraphs 2 and 4 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law, as well as whether Article 99 of the same code is not in conflict with Paragraph 1 of Article 135 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania;

2) the petition (No. 1B-49/2011) of the Panevėžys Regional Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 8 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania, in view of the content and the scope of regulation, are not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

3) the petition (No. 1B-52/2011) of the Panevėžys Regional Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 8 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania, in view of the content and the scope of regulation, are not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

4) the petition (No. 1B-58/2011) of the Court of Appeal of Lithuania, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 8 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania, in view of the content and the scope of regulation, are not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

5) the petition (No. 1B-16/2012) of the Court of Appeal of Lithuania, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 5 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania, in view of the content and the scope of regulation, are not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

6) the petition (No. 1B-40/2012) of the Kaunas Regional Court, a petitioner, requesting an investigation into whether Paragraph 3 of Article 3, Item 1 of Paragraph 8 of Article 95, and Article 99 of the Criminal Code of the Republic of Lithuania, in view of the content and the scope of regulation, are not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

By the Constitutional Court’s decision of 13 February 2014, the aforesaid petitions were joined into one case and it was given reference number 31/2011-40/2011-42/2011-46/2011-9/2012-25/2012.

The Constitutional Court

has established:

I

The petitions of the group of members of the Seimas, the Panevėžys Regional Court, the Court of Appeal of Lithuania, and the Kaunas Regional Court, the petitioners, are substantiated by the following arguments.

  1. The provisions of both the law of the Republic of Lithuania and international law provide for criminal liability for the crime of genocide. Article 99 of the Criminal Code (hereinafter also referred to as the CC) consolidates a broader corpus delicti of genocide if compared to the norms of international law providing for liability for this crime, i.e. the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter also referred to as the Convention Against Genocide) as well as the Rome Statute of the International Criminal Court adopted at the United Nations Diplomatic Conference of Plenipotentiaries on 17 July 1998 (hereinafter also referred to as the Rome Statute): under the norms of international law, genocide means only the actions committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, while, under Article 99 of the CC, genocide also means the deeds committed with intent to destroy, in whole or in part, the persons belonging to any social or political group. Paragraph 3 of Article 3 of the CC provides that the legal norms establishing liability for genocide have retroactive effect, and Item 1 of Paragraph 8 of Article 95 of the CC provides that no statute of limitations applies to the crime of genocide (previously this provision was consolidated in Item 1 of Paragraph 5 of Article 95 of the CC, which is impugned by the Court of Appeal of Lithuania, a petitioner (petition No. 1B-16/2012)). Thus, the criminal law has retroactive effect on, and no statute of limitations applies to, not only the actions qualified under international law as genocide against all or part of the persons belonging to a national, ethnic, racial, or religious group, but also the actions qualified under national law as genocide against a social or political group, which from the point of view of international law have not been regarded as genocide.
  2. Under Paragraph 3 of Article 138 of the Constitution, international treaties ratified by the Seimas are a constituent part of the legal system of the Republic of Lithuania. By establishing in Article 99 of the CC the broader corpus delicti of genocide, the legislature deviated from the provisions of international treaties, which means that the provisions of Paragraph 3 of Article 138 of the Constitution were not observed. In addition, the group of members of the Seimas, a petitioner, points out that the legal regulation in question is also not in line with Paragraph 1 of Article 135 of the Constitution, under which the Republic of Lithuania is obliged to observe all the requirements of the international treaties to which it is a participant (pacta sunt servanda).

Under the provisions of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which the Republic of Lithuania is a participant, a person may be brought to trial and punished for only such an action or omission that constituted a criminal offence under universally recognised general principles of law at the time when it was committed. Actions directed against social or political groups, which under Article 99 of the CC are regarded as genocide, at the time of their commission were not recognised by international community to be a crime (the defendants in the criminal cases considered by the Court of Appeal of Lithuania, the Panevėžys Regional Court, and the Kaunas Regional Court, the petitioners, are accused of committing genocide in Lithuania in 1951–1965 that was directed against a political group—the participants of the armed resistance against the Soviet occupation). Thus, the punishment of the said persons by applying the retroactive effect of the law is not permitted.

  1. The institute of a statute of limitations is directly related to the right of a person to due and fair process of law, which is guaranteed in Paragraph 2 of Article 31 of the Constitution. If the institute of a statute of limitations were not applied to certain crimes, the right of the person concerned to a fair trial, as well as the right of such a person that his or her case, within a reasonable time and under the conditions of equality and publicity, would be heard before an independent and impartial court established by law, would not be ensured. The non-application of the institute of a statute of limitations to crimes other than grave crimes, which cause concern to the entire international community, would violate the principles of legal certainty and legal clarity. Thus, the impugned provisions, which provide that neither a statute of limitations (Item 1 of Paragraph 8 of Article 95 of the CC) nor the principle that the law has no retroactive effect (Paragraph 3 of Article 3 of the CC) is applied to the extended corpus delicti of genocide (Article 99 of the CC), are in conflict with Paragraph 2 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Under Paragraph 4 of Article 31 of the Constitution, punishment may be imposed or applied only on the grounds established by law. The laws establishing criminal liability for committed crimes must be clear and formulated in an unambiguous manner. The same is also required under the constitutional principle of a state under the rule of law. Where normative legal acts do not provide in an explicit manner for the possibility for the subjects of legal relations to clearly perceive their rights and duties, liability may not be imposed. Therefore, the legislature, by establishing in national legal acts a different (broader) corpus delicti of genocide if compared to that established in the international treaties that have the force of a law in the legal system of the Republic of Lithuania, as well as by consolidating the corresponding aspects of the application of the national provisions establishing liability for genocide (i.e. the non-application of any statute of limitations, the retroactive effect of the relevant norms), has created preconditions for the emergence of such situations where it is not clear as to when criminal liability for genocide must be applied. Thus, by doing so, the legislature did not observe Paragraph 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.
  3. The group of members of the Seimas, a petitioner, also points out that the impugned legal regulation violates Paragraph 1 of Article 6 of the Constitution, under which the Constitution is an integral act. All the provisions of the Constitution comprise a harmonious system; therefore, the normative acts of the national criminal law must also comprise a harmonious system and not be in conflict with each other. Consequently, such legal regulation as consolidated in Article 99, Paragraph 3 of Article 3, and Item 1 of Paragraph 8 of Article 95 of the CC, insofar as it differs from the legal regulation consolidated in the international treaties constituting part of the legal system of the Republic of Lithuania, are in conflict with Paragraph 1 of Article 6 of the Constitution.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Paulius Saudargas, the member of the Seimas acting as the representative of the Seimas, the party concerned, in which it is maintained that the provisions of the CC that are impugned in the case at issue are not in conflict with the Constitution. The position of the representative of the Seimas is substantiated by the following arguments.

  1. In the explanatory note to draft law No. P-759 of 21 April 1998, by means of which the Criminal Code of 1961 was amended, it is maintained that if the notion of genocide were extended by including political groups, that would resolve the question of holding criminally liable the persons who had conducted the mass repression of the Lithuanian residents following the occupation and annexation of Lithuania by Nazi Germany and the USSR. Thus, the extension of the features of the notion of genocide is justifiable and necessary, since the notion of genocide as consolidated in international law is confined to only four features of a group (national, ethnic, racial, and religious) and is hardly applicable to the mass extermination of the Lithuanian residents. The extension of the features of the notion of genocide would render it possible to solve certain complicated cases of qualifying the crime of genocide.
  2. In the literature on criminal law, it is maintained that the supplementation of the corpus delicti of genocide as established under the Convention (i.e. as consolidated in the Convention Against Genocide) with certain features of social and political groups is well-founded and reflects the reality. There were not a small number of genocide acts committed not only on national, ethnic, racial, and religious grounds, but also due to political reasons. And separate social groups may also be an object of hatred, violence, and eradication. The corpus delicti of genocide as established under the Convention Against Genocide has also been supplemented with virtually analogous features by some other European states, such as France, Latvia (it should be noted that, in 2013, political and social groups were removed from the definition of the crime of genocide formulated in the Latvian Criminal Code) and Poland, in their respective national legislation. A broader definition of genocide, if compared to that provided in the aforementioned convention, can be found in other international documents (e.g., the Statute of the International Criminal Tribunal for Rwanda (hereinafter referred to as the Statute of the Rwanda Tribunal), the Rome Statute). Historically, the definition of genocide as established under the Convention could also be a broader one; however, the feature “political groups” was removed from the text of the final draft of the Convention Against Genocide. Among other things, the International Congress “Assessment of the Crimes of Communism”, held in Vilnius in 2000, adopted the resolution containing the proposal that the concept of genocide should be extended by incorporating additional groups.
  3. Some experts of international criminal law assert that the supplementation of the definition of genocide with the additional two groups in Lithuania was determined by several reasons: 1) problems in qualifying the crimes of the Soviet regime, since in these cases it is difficult to apply the definition of genocide provided for in the Convention Against Genocide; 2) the tendencies in other states to extend the concept of genocide in the respective national legal systems; 3) insufficient definiteness in respect of crimes against humanity in international laws and their “unpopularity” in national legal systems.
  4. Even the groups indicated in the Convention Against Genocide cannot be easily distinguished among themselves. In international practice, when assessing the crimes of the Soviet regime as mostly directed against political, social, and economic groups (i.e., groups not protected under the definition of genocide as provided for in the Convention Against Genocide), an insufficient assessment is made of the peculiarities of the Soviet regime policy in the Baltic States and some other regions of the USSR (e.g., the Caucasus). Some historical sources provide evidence that, in certain cases, the Soviet system conducted repression against national groups (nations) and thus simultaneously acted against certain social or political groups. Therefore, it is possible to draw the assumption that the treatment that is given to genocide under the Lithuanian criminal laws may be construed as the consolidation of not independent separate and additional groups, but rather additional groups that specify the features of the groups indicated in the Convention Against Genocide.

The Constitutional Court

holds that:

I

  1. In the constitutional justice case at issue, the petitioners impugn the compliance of certain provisions of the CC that provide for criminal liability for genocide with the Constitution, inter alia, Paragraph 1 of Article 135 thereof. As noted by the Constitutional Court in its ruling of 24 January 2014, under Paragraph 1 of Article 135 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the said provision consolidates the constitutional principle of respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling in good faith the obligations assumed by the Republic of Lithuania under international law, inter alia, international treaties.

It should be noted that the constitutional principle of pacta sunt servanda also means the imperative of fulfilling in good faith the international obligations arising from the universally recognised norms of international law (general international law) that prohibit international crimes.

Thus, in the context of the constitutional justice case at issue, it is important to disclose the content of the universally recognised norms of international law that are related to international crimes, inter alia, the crime of genocide.

  1. It should be noted that the universally recognised international legal norms prohibiting genocide and other international crimes have a jus cogens character.

2.1. The notion of jus cogens norms was consolidated in the Vienna Convention on the Law of Treaties (hereinafter referred to as the Vienna Convention) of 1969, the obligation to respect and comply with which was assumed by the Republic of Lithuania through the Declaration “On the Obligations of the Republic of Lithuania Arising from Its International Treaties in the Areas of Diplomatic and Consular Relations” issued by the Supreme Council on 29 January 1991 (for Lithuania, this convention entered into force on 15 January 1992). Article 53 “Treaties Conflicting with a Peremptory Norm of General International Law (Jus Cogens)” of the Vienna Convention stipulates the following: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

It should be noted that, although neither the Vienna Convention of 1969 nor other acts of international law provide any list of jus cogens norms, in the commentary on Draft Article 53 of the Vienna Convention prepared in 1966, the International Law Commission of the United Nations noted that, in considering the possibility of specifying, by way of illustration, some of the most obvious and best settled rules of jus cogens norms, some members of the Commission suggested establishing that, inter alia, a treaty is void where it contemplates an unlawful use of force contrary to the principles of the Charter of the United Nations, it contemplates the performance of any other act criminal under international law, or it contemplates or connives at the commission of acts such as genocide. In the Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001, the International Law Commission of the United Nations identified aggression and genocide as instances of a serious breach of the obligations of a state arising under a peremptory norm of general international law.

2.2. The universal and peremptory character of the international legal norms prohibiting genocide and other international crimes is also emphasised in the acts of the General Assembly of the United Nations.

2.2.1. On 11 December 1946, the General Assembly of the United Nations adopted Resolution No. 95 (I) on the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal, in which it affirmed the principles of international law recognised by the Charter of the International Military Tribunal (hereinafter referred to as the Charter of the Nuremberg Tribunal) and the Judgment of the Tribunal. It should be noted that the said charter, for the first time, established international criminal liability for crimes against peace, war crimes, and crimes against humanity, and the Indictment before the International Military Tribunal (hereinafter referred to as the Nuremberg Tribunal), for the first time, mentioned the term of genocide.

In this context, it should be mentioned that, by invoking, inter alia, the aforementioned resolution of the General Assembly of the United Nations, the universal validity of the Nuremberg principles was also emphasised by the European Court of Human Rights, which noted that responsibility for crimes against humanity cannot be limited only to the nationals of certain countries and solely to acts committed within the specific time frame of the Second World War (the decision of the European Court of Human Rights of 17 January 2006 as to the admissibility of the application in the case Kolk and Kislyiy v. Estonia, as well as its decision of 24 January 2006 as to the admissibility of the application in the case Penart v. Estonia).

2.2.2. In its Resolution No. 96 (I) on the Crime of Genocide of 11 December 1946, the General Assembly of the United Nations pointed out that genocide is a denial of the right of the existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. In the same resolution, the General Assembly of the United Nations also affirmed that genocide is a crime under international law, which the civilised world condemns.

2.3. The universal and peremptory character of the norms prohibiting genocide and other international crimes is also recognised in the case law of the International Court of Justice of the United Nations. In 1951, in its Advisory Opinion on the Reservations to the Convention on Genocide (I.C.J. Reports 1951, p. 15), the International Court of Justice held that the principles underlying the Convention Against Genocide are principles recognised by civilised nations as binding on states, even without any conventional obligation. In its judgment of 3 February 2006 in the case Democratic Republic of the Congo v. Rwanda concerning armed activities on the territory of the Congo (New Application: 2002), the International Court of Justice held that the norm prohibiting genocide is unquestionably peremptory (jus cogens) (I.C.J. Reports 2006, p. 6). The same was reiterated in the judgment of 26 February 2007 in the case Bosnia and Herzegovina v. Serbia and Montenegro concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 2007, p. 43).

From the judgment of the International Court of Justice of 3 February 2012 in the case Germany v. Italy: Greece intervening concerning jurisdictional immunities of the State (I.C.J. Reports 2012, p. 99), it is clear that the norms of international law prohibiting crimes against humanity and war crimes are regarded as jus cogens norms.

2.4. It should be noted that the International Criminal Tribunal for Rwanda (hereinafter referred to as the Tribunal for Rwanda) held that the prohibition against genocide is considered part of international customary law and a jus cogens norm (The Prosecutor v. Kayishema and Ruzindana, case No. ICTR-95-1-T, judgment of 21 May 1999).

  1. In the constitutional justice case at issue, it is important as to how genocide and other international crimes are defined under universally recognised norms of international law.

3.1. In this context, it should be noted that the crime of genocide was not defined in the Charter of the Nuremberg Tribunal of 8 August 1945; as mentioned before, that charter, for the first time, established international criminal liability for crimes against peace, war crimes, and crimes against humanity. In the Charter of the Nuremberg Tribunal, crimes against peace are defined as planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; war crimes are defined as violations of the laws or customs of war and such violations include, but are not limited to, murder, ill-treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity; and crimes against humanity are defined as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Nuremberg Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

It has been mentioned that the term of genocide was, for the first time, mentioned in the Indictment brought before the Nuremberg Tribunal: inter alia, it was noted that “defendants conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others”.

3.2. It has also been mentioned that, in its Resolution No. 96 (I) on the Crime of Genocide of 11 December 1946, the General Assembly of the United Nations pointed out that genocide is a denial of the right of the existence of entire human groups and a crime under international law. In that resolution, it was also noted that many instances of such crimes of genocide had occurred when racial, religious, political, and other groups had been destroyed, entirely or in part; for the commission of the crime of genocide, principals and accomplices—whether private individuals, public officials, or statesmen, and whether the crime is committed on religious, racial, political, or any other grounds—must be punishable.

Thus, under Resolution No. 96 (I) of the General Assembly of the United Nations adopted on 11 December 1946, “genocide” was understood as the total or partial extermination of racial, religious, political, or other groups; the list of protected groups was not exhaustive, and it explicitly included political groups. It should be noted that the said resolution reflected a tendency in the development of international law, but it did not have any internationally binding legal force.

3.3. A legally binding and universally recognised definition of genocide is consolidated in the Convention on the Prevention and Punishment of the Crime of Genocide, which was unanimously adopted by the General Assembly of the United Nations on 9 December 1948. 144 states, including the Republic of Lithuania, are parties to this convention (for the Republic of Lithuania, this convention came into force on 1 May 1996). As mentioned before, the principles underlying the Convention Against Genocide have been recognised by civilised nations as binding on states, even without any conventional obligation. Thus, these principles are part of the general international law. The Convention Against Genocide is a universal international treaty consolidating universally recognised norms of law.

3.3.1. In the Convention Against Genocide, the Contracting States confirmed that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and to punish (Article 1). Under Article 2 of this convention, “<...> genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

Thus, under the definition of the crime of genocide as established in the Convention Against Genocide, differently from the aforementioned Resolution No. 96 (I) of the General Assembly of the United Nations of 11 December 1946, the list of protected groups is exhaustive (it comprises national, ethnical, racial, and religious groups) and it does not include any political groups.

3.3.2. In the context of the constitutional justice case at issue, it needs to be mentioned that the travaux préparatoires of the Convention Against Genocide make it clear that political groups were excluded from the list of the groups protected under this convention only in the final version of the draft of this convention. Political groups were included in the list of protected groups in the earlier drafts of the Convention Against Genocide, inter alia, in the draft prepared by the Secretariat of the United Nations, which included racial, national, linguistic, religious, and political groups, as well as in the draft prepared by the special Ad Hoc Committee of the United Nations, which included national, racial, religious, and political groups; the inclusion of political groups in the list of protected groups was initially also approved by the Sixth (Legal) Committee of the General Assembly of the United Nations. Nonetheless, in the course of debates in the Sixth (Legal) Committee of the General Assembly of the United Nations, the decision was made to exclude political groups from the list of protected groups; doubts were raised as to the homogeneity and stability of political groups, since membership in such groups is chosen through a conscious decision, whilst other groups included in the list of protected groups were argued to have a permanent and stable character, as membership in them was seen as frequently involuntary (not through a conscious decision).

3.3.3. It should be noted that Article 5 of the Convention Against Genocide stipulates that the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the this convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in this convention.

In the practice of the states, this provision of the Convention Against Genocide can be understood as leaving certain discretion to the states to establish, in their national law, while taking account of their historical, political, social, and cultural context, a definition of the crime of genocide of a broader scope if compared to that established under the Convention Against Genocide. In this context, it should be noted that, when defining genocide, besides the groups protected under the Convention Against Genocide, the national law of more than twenty states additionally incorporates other groups in the respective lists of protected groups (inter alia, political groups and various social groups characterised on the basis of social status, age, sex, sexual orientation, etc.).

For example, in the Republic of Estonia, actions are also identified as genocide if they are aimed at destroying, in whole or in part, inter alia, a group resisting occupation or any other social group (Article 90 of the Penal Code of the Republic of Estonia (wording of 6 June 2001 with subsequent amendments and supplements)), in the Republic of Poland—if they are aimed at destroying, in whole or in part, inter alia, any political group or a group with a definite world view (Article 118 of the Criminal Code of the Republic of Poland (wording of 6 June 1997 with subsequent amendments and supplements)), in the Republic of France—if they are aimed at destroying, in whole or in part, inter alia, a group determined by any other arbitrary criterion (Article 211‑1 of the Penal Code of the Republic of France (wording of 22 July 1992 with subsequent amendments and supplements)), in the Republic of Finland—if they are aimed at destroying, in whole or in part, inter alia, any national, ethnical, racial, or religious group, or another comparable group (Article 1 of Chapter 11 of the Criminal Code of the Republic of Finland (wording of 1889 with subsequent amendments and supplements)), in the Swiss Confederation—if they are aimed at destroying, in whole or in part, inter alia, any group of persons characterised by, inter alia, their social or political affiliation (Article 264 of the Criminal Code of the Swiss Confederation (wording of 21 December 1937 with subsequent amendments and supplements)), in the Republic of Slovenia—if they are aimed at destroying, in whole or in part, inter alia, any other group (Article 100 of the Criminal Code of the Republic of Slovenia), in the Republic of Costa Rica—if they are aimed at destroying, in whole or in part, the groups of persons due to, inter alia, political, sexual, or age reasons or reasons of a social, economic or civil status (Article 127 of the Criminal Code of the Republic of Costa Rica (wording of 14 April 1998)), and in the Republic of Ecuador—if they are aimed at destroying, in whole or in part, groups characterised by, inter alia, their political status, sex, sexual orientation, age, health, or beliefs (Article 19 of the Criminal Code of the Republic of Ecuador).

3.3.4. In the context of the constitutional justice case at issue, consideration should be given to the earlier mentioned judgment of the International Court of Justice of the United Nations in the case concerning the application of the Convention Against Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, I.C.J. Reports 2007, p. 43), in which, inter alia, the definition of the crime of genocide under the Convention Against Genocide was interpreted.

From that judgment of the International Court of Justice, it is clear that the subjective side of the crime of genocide is specific because of the fact that, in determining this crime, not only intent, but also the additional element of a special intent, is required; as it was emphasised by the Court, it is necessary to establish the “intent to destroy, in whole or in part <...> [the protected] group, as such”; the additional intent must be established and defined very precisely; it is often referred to as a special or specific intent, or dolus specialis; it is not enough that the members of a protected group are targeted because they belong to that group, i.e., because the perpetrator has a discriminatory intent; the actions listed in Article 2 of the Convention Against Genocide must be committed with intent to destroy the group as such in whole or in part; the essence of the intent is to destroy the protected group in whole or in part.

While construing the notion of the protected groups under the Convention Against Genocide, the International Court of Justice, inter alia, noted that:

– the crime of genocide requires an intent to destroy a certain number of people who have a particular group identity; it is a matter of who those people are, not who they are not; it is a group that must have particular positive characteristics—national, ethnic, racial, or religious—and not the lack of them; the concept of genocide requires a positive identification of the group; the rejection of proposals to include within the Convention political groups and cultural genocide also demonstrates that the drafters were giving close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics; a negatively defined group cannot be seen in that way;

– when part of the group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole; in terms of that question of law, the International Court of Justice refers to three matters relevant to the determination of “part” of the “group” for the purposes of Article 2 of the Convention Against Genocide:

– first, the intent must be to destroy at least a substantial part of the particular group; that is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole;

– second, it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area; the area of the perpetrator’s activity and control must be considered; the opportunity available to the perpetrator is significant; the latter criterion of opportunity must, however, be weighed against the first and essential factor of substantiality; it may be that the opportunity available to the alleged perpetrator is so limited that the substantiality criterion is not met;

– a third suggested criterion is qualitative rather than quantitative; the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group; in addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration; if a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial; the requirement of establishing the “group” will not always depend on the requirement of substantiality alone although it is an essential starting point;

– the above list of criteria is not exhaustive, but the criterion of substantiality is critical.

3.3.5. In order to sum up the definition of the crime of genocide, which is significant to the constitutional justice case at issue, it should be noted that, under the Convention Against Genocide and the jurisprudence of the International Court of Justice formulated in relation to the provisions of this convention:

– “genocide” means the deliberate actions as specified in Article 2 of the Convention Against Genocide (killing members of the protected group, causing serious bodily or mental harm to members of that group, deliberately inflicting on that group the conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within that group, forcibly transferring children of that group to another group), which are aimed at destroying, in whole or in part, any national, ethnic, racial, or religious group;

– the list of protected groups is exhaustive (i.e., it comprises national, ethnical, racial, and religious groups) and it does not include any social and political groups; such protected groups are characterised by particular positive characteristics (national, ethnic, racial, or religious) and not by the lack of them;

– the specific feature of the crime of genocide that makes this crime different from, inter alia, crimes against humanity is the special intent (dolus specialis) to destroy the protected group in whole or in part;

– when part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole; thus, in determining the significance of the targeted part of the protected group, the criterion of substantiality is critical; geographical, qualitative, and other additional criteria may also be applied.

3.4. Genocide and other international crimes are defined in the Statute of the International Criminal Tribunal for the Former Yugoslavia (hereinafter referred to as the Statute of the Tribunal for the Former Yugoslavia), as approved by Resolution No. 827 of the Security Council of the United Nations of 25 May 1993 (with subsequent amendments).

3.4.1. Paragraph 2 of Article 4 “Genocide” of the Statute of the Tribunal for the Former Yugoslavia provides:

“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.”

Article 5 “Crimes Against Humanity” of the Statute of the Tribunal for the Former Yugoslavia provides:

“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts.”

Articles 2 and 3 of the Statute of the Tribunal for the Former Yugoslavia specify the war crimes ascribed to the jurisdiction of this tribunal—grave breaches of the 1949 Geneva Conventions and the laws or customs of war.

3.4.2. In its judgment in the case The Prosecutor v. Jelisić (case No. IT-95-10) of 14 December 1999, the International Criminal Tribunal for the Former Yugoslavia (hereinafter referred to as the Tribunal for the Former Yugoslavia) noted that Article 4 of the Statute of this tribunal excludes political groups and that the travaux préparatoires of the Convention Against Genocide demonstrate that a wish was expressed to limit the field of application of the Convention to protecting stable groups that are objectively defined and to which individuals belong regardless of their own desires. In its judgment in the case The Prosecutor v. Krstić (case No. IT-98-33) of 2 August 2001, the said tribunal held that the Convention Against Genocide does not protect all types of human groups and that its application is confined to national, ethnical, racial, or religious groups.

In its judgment in the case The Prosecutor v. Kupreškić and Others (case No. IT-95-16-T) of 14 January 2000, the Tribunal for the Former Yugoslavia pointed out that persecution is only one step away from genocide—the most abhorrent crime against humanity. In the crime of genocide, the criminal intent is to destroy the group or its members; in the crime of persecution, the criminal intent is to forcibly discriminate against a group or its members by grossly and systematically violating their fundamental rights. In its judgment in the case The Prosecutor v. Limaj and Others (case No. IT-03-66-T) of 30 November 2005, the same tribunal ruled that the actions of an accused may be regarded as crimes against humanity if these actions are part of a widespread or systematic attack directed against civilian population.

In its judgment in the case The Prosecutor v. Blagojević and Jokić (case No. IT-02-60-T) of 17 January 2005, the Tribunal for the Former Yugoslavia held that the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the direct means of destroying a group, other actions or series of actions can also lead to the destruction of the group. A group is comprised of its individuals, also of its history, traditions, the relationship between its members, the relationship with other groups, and the relationship with the land. The physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself—particularly when it involves the separation of its members. In such cases, the forcible transfer of individuals could lead to the destruction of the group, since the group ceases to exist as a group or, at least, as the group it was.

3.4.3. Thus, the definition of the crime of genocide under the Statute of the Tribunal for the Former Yugoslavia and the jurisprudence of the Tribunal for the Former Yugoslavia formulated in relation to the provisions of that statute is identical to the definition of the crime of genocide as established under the Convention Against Genocide, inter alia, the respective lists of protected groups are identical as well.

3.5. Genocide and other international crimes are also defined in the Statute of the Tribunal for Rwanda, as approved by Resolution No. 955 of the Security Council of the United Nations of 8 November 1994 (with subsequent amendments).

3.5.1. Paragraph 2 of Article 2 “Genocide” of the Statute of the Tribunal for Rwanda provides:

“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

Article 3 “Crimes Against Humanity” of the Statute of the Tribunal for Rwanda provides:

“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation;

(e) Imprisonment;

(f) Torture;

(g) Rape;

(h) Persecutions on political, racial and religious grounds;

(i) Other inhumane acts.”

Article 4 of the Statute of the Tribunal for Rwanda specifies war crimes ascribed to the jurisdiction of this tribunal—violations of Article 3 common to the 1949 Geneva Conventions and of Additional Protocol II thereto.

3.5.2. In its judgment in the case The Prosecutor v. Akayesu (case No. ICTR-96-4-T) of 2 September 1998, the Tribunal for Rwanda, while taking account of the travaux préparatoires of the Convention Against Genocide, noted that the crime of genocide is perceived as targeting only stable groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more mobile groups, which one joins through voluntary commitment, such as political and economic groups. The tribunal also pointed out that the four groups protected under the Convention Against Genocide share a common criterion, namely, that membership in such groups is normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.

In its judgment in the case The Prosecutor v. Semanza (case No. ICTR-97-20) of 15 May 2003, the Tribunal for Rwanda held that the determination of whether a group comes within the protection under the Convention Against Genocide must be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context and by the subjective perceptions of the perpetrators; the determination of a protected group must be made on a case-by-case basis, by consulting both objective and subjective criteria.

In its judgment in the case The Prosecutor v. Kamuhanda (case No. ICTR-95-54A-T) of 22 January 2004, the Tribunal for Rwanda pointed out that the concept of a group enjoys no generally or internationally accepted definition, rather each group must be assessed in the light of a particular political, social, historical, and cultural context.

3.5.3. Thus, the definition of the crime of genocide under the Statute of the Tribunal for Rwanda and the jurisprudence of the Tribunal for Rwanda formulated in relation to the provisions of that statute is identical to the definition of the crime of genocide as established under the Convention Against Genocide, inter alia, the respective lists of protected groups are identical as well; the protected group is identified, where necessary, by taking account of a particular political, social, historical, and cultural context.

3.6. Genocide and other international crimes are also defined in the Rome Statute of the International Criminal Court, which was adopted on 17 July 1998 and came into force on 1 July 2002. 122 states are parties to this statute, including the Republic of Lithuania (the Seimas ratified the Rome Statute on 1 April 2003, and, for the Republic of Lithuania, this statute entered into force on 1 August 2003).

3.6.1. The International Criminal Court, as established by the Rome Statute, is a permanent institution that has the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this statute, and it is complementary to national criminal jurisdictions (Article 1 of the Rome Statute). The jurisdiction of this court is limited to the most serious crimes of concern to the international community as a whole (Paragraph 1 of Article 5 of the Rome Statute): (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression.

3.6.2. Article 6 “Genocide” of the Rome Statute provides that “<...> ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

3.6.3. Paragraph 1 of Article 7 “Crimes Against Humanity” of the Rome Statute provides that “<...> ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

3.6.4. Paragraph 2 of Article 8 “War Crimes” of the Rome Statute specifies the following war crimes:

(a) grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement, etc.;

(b) other serious violations of the laws and customs applicable in international armed conflicts within the established framework of international law, as, for instance: intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; intentionally directing attacks against civilian objects, i.e., objects which are not military objectives; intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians, or damage to civilian objects, or widespread, long-term, and severe damage to the natural environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; killing or wounding treacherously individuals belonging to the hostile nation or army; declaring that no quarter will be given, etc.;

(c) in the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, as, for instance: violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees that are generally recognised as indispensable, etc.;

(d) other serious violations of the laws and customs applicable in armed conflicts not of an international character within the established framework of international law, as, for instance: intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; killing or wounding treacherously a combatant adversary, etc.

3.6.5. Thus, the definition of the crime of genocide under the Rome Statute is identical to the definition of the crime of genocide as established under the Convention Against Genocide, inter alia, the respective lists of protected groups are identical as well. It should be noted that, similarly to the Convention Against Genocide, the Rome Statute is a universal international treaty consolidating the universally recognised norms of international law, which are invoked in describing international crimes.

3.7. In order to sum up the definition of the crime of genocide, which is significant to the constitutional justice case at issue, it should be noted that, under the universally recognised norms of international law:

– “genocide” means any of deliberate actions committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such; thus, the list of protected groups is exhaustive and it does not include any social and political groups;

– the specific feature of the crime of genocide that makes this crime different from, inter alia, crimes against humanity is the special intent (dolus specialis) to destroy the protected group in whole or in part;

– when part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole.

In this context, it should also be noted that, under universally recognised norms of international law, actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of a national, ethnical, racial, or religious group and the destruction of which would have an impact on the respective national, ethnical, racial, or religious group as a whole.

It should also be noted that, under universally recognised norms of international law, states are under the obligation to adopt national legislation establishing liability for genocide. In the practice of the states concerned, the said obligation may also be understood as certain discretion, while taking account of a concrete historical, political, social, and cultural context, to establish, in their national law, a broader definition of the crime of genocide than that established under the universally recognised norms of international law, inter alia, as the possibility of including, within the respective national law, social and political groups in the definition of genocide.

  1. In the context of the constitutional justice case at issue, consideration should also be given to the universally recognised norms of international law related to the non-applicability of statutory limitations to genocide and other international crimes.

4.1. On 26 November 1968, the General Assembly of the United Nations adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 54 states, including the Republic of Lithuania, are parties to this convention (for the Republic of Lithuania, this convention entered into force on 1 May 1996).

In the Preamble to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, inter alia, it is established: “war crimes and crimes against humanity are among the gravest crimes in international law”; “the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion on international peace and security”; “the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes”; “it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application”.

Article 1 of the said convention stipulates:

“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the ‘grave breaches’ enumerated in the Geneva Convention of 12 August 1949 for the protection of war victims;

(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 ((I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.”

Thus, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity consolidates the principle of international criminal law under which no statutory limitation, inter alia, no statute of limitations for delivering a judgment of conviction, may be applied to the crime of genocide, crimes against humanity, and war crimes as defined under international law.

4.2. The same principle is consolidated in the Rome Statute, a party to which, as mentioned before, is also the Republic of Lithuania. Article 29 of that statute provides that “[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”. It has been mentioned that the following crimes are within the jurisdiction of the International Criminal Court: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

4.3. Thus, it should be noted that, under the universally recognised norms of international law, no statutory limitation, inter alia, no statute of limitations for delivering a judgment of conviction, may be applied to the crime of genocide as defined under the Convention Against Genocide and other international legal acts (i.e. the crime of genocide aimed exclusively at national, ethnical, racial, or religious groups). On the other hand, the universally recognised norms of international law do not preclude from establishing, in national law, other crimes that would not be subject to any statute of limitations, inter alia, any statute of limitations for delivering a judgment of conviction.

  1. In the constitutional justice case at issue, importance should also be given to the universally recognised norms of international law concerning the retroactive effect of criminal laws establishing liability for genocide and other international crimes.

5.1. In this context, it should be noted that, as mentioned before, on 11 December 1946, the General Assembly of the United Nations adopted Resolution No. 95 (I) on the Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal, in which it affirmed the principles of international law recognised by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal. These principles are set forth in the Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, as approved by the International Law Commission of the United Nations in 1950. Principle II of the said principles is formulated as follows: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” Principle IV reads as follows: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

Thus, the aforesaid principles imply the possibility of establishing, in the national law of states, an exception to the principle of nullum crimen, nulla poena sine lege, by providing that the national laws establishing criminal liability for actions constituting crimes under international law may have a retroactive effect.

5.2. It should also be noted that, on 10 December 1948, the General Assembly of the United Nations adopted resolution 217 A (III), by which the Universal Declaration of Human Rights was affirmed and adopted. The Republic of Lithuania proclaimed its commitment to follow the Universal Declaration of Human Rights through Item 22 of the Declaration of 16 February 1949 as adopted by the Council of the Lithuanian Freedom Fight Movement and, subsequently, through the Resolution of the Supreme Council of the Republic of Lithuania “On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights” of 12 March 1991.

Paragraph 2 of Article 11 of the Universal Declaration of Human Rights, inter alia, stipulates that “[n]o one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.” Thus, the said provision implies the possibility of establishing, in the national law of states, an exception to the principle of nullum crimen, nulla poena sine lege, by providing that the national laws establishing criminal liability for actions constituting crimes under international law may have a retroactive effect.

5.3. It should also be noted that such an exception to the principle of nullum crimen, nulla poena sine lege is explicitly established in the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. 167 states are parties to the International Covenant on Civil and Political Rights, including the Republic of Lithuania (the Republic of Lithuania acceded to this covenant through the aforementioned Resolution of the Supreme Council of the Republic of Lithuania “On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights” of 12 March 1991 and, for the Republic of Lithuania, this covenant entered into force on 20 November 1991). All 47 states of the Council of Europe are parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, including the Republic of Lithuania (the Seimas ratified this convention on 27 April 1995 by the Law “On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Fourth, Seventh, and Eleventh Protocols Thereof”, and, for the Republic of Lithuania, this convention entered into force on 20 June 1995).

5.3.1. Article 15 of the International Covenant on Civil and Political Rights stipulates:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

  1. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

5.3.2. Article 7 “No Punishment Without Law” of the Convention for the Protection of Human Rights and Fundamental Freedoms stipulates:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

  1. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

5.3.3. As it is clear from the travaux préparatoires of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, the references to international law in Article 15 of the International Covenant on Civil and Political Rights and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms were consolidated in order to create an exception to the general rule of nullum crimen, nulla poena sine lege, by establishing that liability for an act or omission constituting a crime under international agreements and customs or the general principles of law at the time when it was committed may also be imposed in the cases where the act or omission did not constitute a crime under the national law valid at the time when it was committed. The provisions of Paragraph 2 of Article 15 of the International Covenant on Civil and Political Rights and Paragraph 2 of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms were designed to reaffirm, inter alia, the principles formulated by the Nuremberg Tribunal.

5.3.4. The European Court of Human Rights has noted that the travaux préparatoires of the Convention for the Protection of Human Rights and Fundamental Freedoms imply that Paragraph 1 of Article 7 of this convention can be considered to contain the general rule of non-retroactivity of a criminal law and that Paragraph 2 of this article is only a clarification of the liability limb of that rule, included to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war; the two paragraphs of Article 7 of the Convention are interlinked and are to be interpreted in a concordant manner (the judgment of the Grand Chamber in the case Maktouf and Damjanović v. Bosnia and Herzegovina of 18 July 2013 and its judgment in the case Kononov v. Latvia of 17 May 2010). In the cases Kolk and Kislyiy v. Estonia and Papon v. France (No. 2), the European Court of Human Rights pointed out that Paragraph 2 of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms is applicable to the crimes against humanity as specified in the Charter of the Nuremberg Tribunal (the decision as to the admissibility of the application in the case Kolk and Kislyiy v. Estonia of 17 January 2006 and the decision as to the admissibility of the application in the case Papon v. France (No. 2) of 15 November 2001).

5.3.5. In this context, it also needs to be mentioned that, on 27 June 1996, the Parliamentary Assembly of the Council of Europe adopted Resolution No. 1096 (1996) on Measures to Dismantle the Heritage of Former Communist Totalitarian Systems, Item 7 whereof, inter alia, permits the trial and punishment of any person for any act or omission that at the time when it was committed did not constitute a criminal offence according to national law, but was considered criminal according to the general principles of law recognised by civilised nations.

5.4. In order to sum up, it should be noted that the universally recognised norms of international law permit an exception to the principle of nullum crimen, nulla poena sine lege, by providing for the retroactivity of the national laws establishing criminal liability for the crimes recognised under international law or the general principles of law; this exception does not apply to the other crimes specified under national law.

It should also be noted that the aforesaid exception to the principle of nullum crimen, nulla poena sine lege is applicable to, inter alia, the crime of genocide as defined under the universally recognised norms of international law (i.e., the crime of genocide directed exclusively against national, ethnical, racial, or religious, but not social or political, groups). It has been mentioned that genocide is a denial of the right of the existence of entire human groups; such denial of the right of existence shocks the conscience of mankind; it is contrary to moral law and to the spirit and aims of the United Nations; genocide is a crime under international law, which the civilised world condemns; the norm prohibiting genocide is unquestionably peremptory (jus cogens).

5.5. On the other hand, it should also be noted that, as mentioned before, under the universally recognised norms of international law, actions are considered to constitute genocide if they are deliberate actions aimed at destroying, not only in whole but also in part, any national, ethnical, racial, or religious group; when part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole. In this context, it has also been mentioned that actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of any national, ethnical, racial, or religious group and the destruction of which would have an impact on the respective national, ethnical, racial, or religious group as a whole. Thus, under the universally recognised norms of international law, the exception to the principle of nullum crimen, nulla poena sine lege is also applicable to the deliberate actions that are considered to constitute genocide, i.e. the deliberate actions aimed at destroying a significant part of any national, ethnical, racial, or religious group that would have an impact on the survival of the whole respective group, comprising, inter alia, certain social or political groups.

5.6. It should also be noted that, under the universally recognised norms of international law, the exception to the principle of nullum crimen, nulla poena sine lege, which permits the retroactivity of the national laws establishing criminal liability for the crimes recognised under international law or the general principles of law, is also applicable to crimes against humanity and war crimes, which may be directed, inter alia, against certain social or political groups of people (i.e. groups not included in the list of protected groups in the definition of genocide as established under the universally recognised norms of international law). It has been mentioned that the norms of international law that prohibit crimes against humanity and war crimes also have a jus cogens character.

II

  1. The petitioners impugn the compliance of the provisions of the CC that provide for liability for genocide with the Constitution, inter alia, in the aspect that the CC consolidates a broader corpus delicti of genocide than that defined according to the norms of international law, i.e. the corpus delicti of genocide as defined by the CC encompasses the actions not only against national, ethnic, racial, or religious groups, but also against social and political groups; the petitioners also impugn the constitutionality of those norms insofar as, according to those norms, a statute of limitations is not applied to the actions qualified as genocide against social and political groups, and insofar as those norms have the retroactive effect on the actions against those groups.

Therefore, in the context of the constitutional justice case at issue, it is important to disclose the changes that have taken place in Lithuania’s legal regulation governing the criminal liability for genocide and other international crimes.

  1. It should be noted that, although international law defined the crime of genocide for the first time in 1948 (in the Convention Against Genocide), the law that was valid in the territory of the Republic of Lithuania until 1992 (inter alia, the Criminal Code of the Lithuanian Soviet Socialist Republic (hereinafter—the Lithuanian SSR) of 1961 that was applied in the territory of the Republic of Lithuania during the years of the Soviet occupation) did not define that crime; with the exception of some war crimes defined in the Criminal Code of the Lithuanian SSR, no criminal liability was established for other international crimes.
  2. After the restoration of the independence of the Republic of Lithuania had been restored, on 9 April 1992, the Supreme Council of the Republic of Lithuania adopted Resolution “On the Accession of the Republic of Lithuania to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968”. By the said resolution the Republic of Lithuania acceded to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968 (both conventions went into force for the Republic of Lithuania on 1 May 1996).
  3. On 9 April 1992, the Supreme Council of the Republic of Lithuania adopted the Law “On Liability for Genocide of Residents of Lithuania” that came into force on 15 April 1992. This law, inter alia, prescribed:

“The Supreme Council of the Republic of Lithuania, while acceding to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968, while recognising the Charter of the Nuremberg International Military Tribunal of 8 August 1945, while taking account of the fact that the said treaties create an obligation to adopt national laws providing for liability for genocide, crimes against humanity, crimes against peace and war crimes, while holding that the policy of genocide and of crimes against humanity which was carried out against the residents of Lithuania was accomplished at the time of the occupation and annexation by the Nazi Germany or the USSR, while following the provision, which is universally recognised by the international community, that extermination of people for any purpose is regarded as crime, has adopted this Law” (Preamble).

Article 1 of the same law defined genocide as “[t]he actions committed with intent to physically destroy, in whole or in part, residents belonging to a national, ethnical, racial or religious group, such as killing members of the group, cruel torture, severe bodily harm, disturbance of mental development; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; forcibly transferring children of the group to another group or imposing measures intended to prevent births within the group”; Article 2 of the same law established that “[k]illing or torturing of people of Lithuania, deportation of its residents, which were carried out in Lithuania during the years of the occupation and annexation by the Nazi Germany or the USSR, correspond to the features of genocide provided for in the norms of international law”; Article 3 of the same law noted that the said law would be retroactively valid, whereas as regards the criminal liability, no statutory limitation would be applied to the persons who committed the actions provided for in that law prior to its entry into force.

4.1. Thus, the Law “On Liability for Genocide of Residents of Lithuania” established criminal liability for genocide in the Republic of Lithuania for the first time. It should be noted that in the definition of genocide this law enumerated the same protected groups as did the universally recognised international legal norms, i.e. national, ethnic, racial and religious groups; the definition of the crime of genocide did not include any social and political groups.

It should also be noted that the said law established criminal liability for genocide of Lithuania’s residents only; it was also held that the killing or torturing of people of Lithuania, the deportation of its residents, which were carried out in Lithuania during the years of the occupation by the Nazi Germany or the USSR, corresponded to the features of the crime of genocide provided for in the norms of international law, i.e. those actions could be qualified as genocide.

4.2. The Law “On Liability for Genocide of Residents of Lithuania” established that it was retroactively valid, i.e. that it was applicable with regard to the persons who had committed the actions provided for in that law prior to its entry into force. In addition, it was established that no statutory limitation would be applied to such persons.

4.3. The Law “On Liability for Genocide of Residents of Lithuania” was amended, inter alia, by the Republic of Lithuania’s Law on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof that was adopted by the Seimas on 21 April 1998 and came into force on 6 May 1998. By means of Paragraph 3 of Article 11 of the latter law, Articles 1, 3, 4, and 5 of the Law “On Liability for Genocide of Residents of Lithuania” (wording of 9 April 1992) were recognised as no longer valid. Thus, as from 6 May 1998, only Article 2 of the Law “On Liability for Genocide of Residents of Lithuania” remained to be valid, which contained the aforementioned provision that the killing or torturing of people of Lithuania, the deportation of its residents, which were carried out in Lithuania during the years of the occupation by the Nazi Germany or the USSR, corresponded to the features of the crime of genocide provided for in the norms of international law; the said law no longer contained any definition of the crime of genocide.

On 9 June 2011, the Seimas adopted the Republic of Lithuania’s Law Supplementing the Law “On Liability for Genocide of Residents of Lithuania” with Article 1 (this law came into force on 18 June 2011) that supplemented the Law “On Liability for Genocide of Residents of Lithuania” with the blanket provision “[l]iability for genocide of Lithuania’s residents shall be established by means of laws of the Republic of Lithuania”.

  1. It should be noted that, as from 6 May 1998, liability for genocide, inter alia, the definition of the crime of genocide, was established in the former Criminal Code of the Lithuanian SSR, which was adopted on 7 September 1961 and, serving as the Criminal Code of the Republic of Lithuania, was in force in the territory of the Republic of Lithuania after the restoration of its independence insofar as its provisions were not in conflict with the Provisional Basic Law of the Republic of Lithuania (Article 3 of the Republic of Lithuania’s Law “On the Provisional Basic Law” of 11 March 1990) and with the Constitution (Article 2 of the Republic of Lithuania’s Law “On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania”). The said criminal code was effective in the Republic of Lithuania until 30 April 2003.

5.1. By means of Article 9 of the aforementioned Law on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof that was adopted on 21 April 1998 and came into force on 6 May 1998 the Criminal Code was supplemented with Article 71 titled “Genocide”, i.e., liability for genocide was established in the Criminal Code for the first time. The latter article, inter alia, established the following definition of genocide: “[t]he actions committed with intent to physically destroy, in whole or in part, residents belonging to a national, ethnical, racial, religious, social or political group, such as cruel torture, severe bodily harm, disturbance of mental development of members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; forcibly transferring children of the group to another group or imposing measures intended to prevent births within the group”; the killing of the people belonging to the listed protected groups, the organising of or being in charge of the actions against those groups were indicated as a qualifying factor.

The comparison of the definition of the crime of genocide established in Article 71 (wording of 21 April 1998) of the CC and that established in Article 1 of the Law “On Liability for Genocide of Residents of Lithuania” (wording of 9 April 1992) makes it clear that:

– under Article 71 of the CC (wording of 21 April 1998), genocide is not understood as an exclusive genocide against Lithuania’s residents;

– Article 71 (wording of 21 April 1998) of the CC establishes a larger number of protected groups: in addition to national, ethnic, and religious groups, for the first time a criminal law of the Republic of Lithuania specified social and political groups in the definition of the crime of genocide, i.e. the two groups that are not provided for in the universally recognised norms of international law that define the crime of genocide.

5.2. In this context it should be mentioned that, on 21 December 1998, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 22, 24, 42, 43, 49, 50, 541, 71, 75, 105, 2271, 2273 of the Criminal Code (this law came into force on 31 December 1998), by Article 8 whereof the sanction established in Paragraph 2 of Article 71 (wording of 21 April 1998) of the CC for the crime of genocide was modified. The definition of the crime of genocide, inter alia, the list of protected groups, as established in Article 71 of the CC, remained unchanged.

5.3. Article 6 of the aforementioned Law on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof supplemented Article 49 of the Criminal Code with Paragraph 5 that, inter alia, established that “no statutory limitation shall apply to genocide”.

Paragraph 5 (wording of 21 April 1998) of Article 49 of the CC was amended by the Republic of Lithuania’s Law Supplementing the Criminal Code with the Eighteenth Chapter “War Crimes” (Articles 333–344), Supplementing and Amending Articles 81, 24, 25, 26, 35, 49, 295 Thereof, and Recognising Articles 219 and 261 Thereof as No Longer Valid (this law was adopted by the Seimas on 9 June 1998 and came into force on 24 June 1998): in addition to the provision that no statutory limitation would apply to genocide, it was also established that no statutory limitation would apply to certain war crimes.

5.4. Paragraph 1 of Article 11 of the aforesaid Law on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof prescribed: “Article 9 of this Law shall have retroactive effect.” It has been mentioned that by means of Article 9 of this law, the Criminal Code was supplemented with Article 71 “Genocide”.

Thus, according to the legal regulation established in Paragraph 1 of Article 11 of the Law on Supplementing the Criminal Code with Articles 621, 71 and Amending and Supplementing Articles 81, 24, 25, 26, 35, 49, 541, and 89 Thereof, Article 71 (wordings of 21 April 1998 and 21 December 1998) of the CC, which established liability for genocide, had retroactive effect, i.e., the said article was also applicable to the persons that had perpetrated the actions (inter alia, against social and political groups) provided for in Article 71 (wordings of 21 April 1998 and 21 December 1998) of the CC prior to the entry into force of the said article (i.e., prior to 6 May 1998).

  1. In this context it should be noted that by means of the Law Supplementing the Criminal Code with the Eighteenth Chapter “War Crimes” (Articles 333–344), Supplementing and Amending Articles 81, 24, 25, 26, 35, 49, 295 Thereof, and Recognising Articles 219 and 261 Thereof as No Longer Valid that was adopted on 9 June 1998 the Criminal Code was supplemented with Chapter XVIII “War Crimes”. The said chapter established criminal liability for such crimes against humanity and war crimes as the killing of persons protected under international law (Article 333), the deportation of civilians of an occupied state (Article 334), the causing of bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law (Article 335), the violation of norms of international humanitarian law concerning protection of civilians and their rights in time of war (Article 336), a prohibited military attack (Article 337), a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 338), destruction of protected objects or plunder of national valuable properties (Article 339), the use of prohibited means of warfare (Article 340), marauding (Article 341), delay in repatriation of prisoners of war (Article 342), delay in release of interned civilians or impeding repatriation of other civilians (Article 343), unlawful use of the emblem of the Red Cross, Red Crescent, and the United Nations Organisation (Article 344).
  2. On 26 September 2000, the Seimas adopted the Republic of Lithuania’s Law on the Approval and Entry into Force of the Criminal Code, by means of Article 1 whereof, the Seimas approved a new Criminal Code. Article 2 of this law provides that the Criminal Code shall come into force only together and only harmonised with the new Code of Criminal Procedure of the Republic of Lithuania, the new Code of Execution of Punishments of the Republic of Lithuania, and the new Code of Administrative Violations of Law of the Republic of Lithuania; a concrete date of the entry into force of the said codes is established by separate law.

The Republic of Lithuania’s Law on the Procedure of Entry into Effect and Implementation of the Criminal Code as Approved by Law No. VIII-1968 of 26 September 2000, the Code of Criminal Procedure, as Approved by Law No. IX- 785 of 14 March 2002, and the Code of Execution of Punishments as Approved by Law No. IX-994 of 27 June 2002 was adopted by the Seimas on 29 October 2002. Article 1 of this law established that the Criminal Code shall become effective as of 1 May 2003, whereas Paragraph 1 of Article 47 of the same law established that, after the new Criminal Code came into effect, the Criminal Code that had been valid until then would become no longer valid.

7.1. Article 99 “Genocide” of the CC, whose compliance with the Constitution is being impugned by the petitioners, prescribes:

“A person who, seeking to physically destroy, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group, organised, was in charge of or participated in their killing, in torturing, in causing bodily harm to them, in hindering their mental development, in their deportation or otherwise inflicted on them the conditions of life bringing about the death of all or a part of them, restricted the birth of the persons belonging to those groups or forcibly transferred their children to other groups,

shall be punished by deprivation of freedom from five to twenty years, or by life imprisonment.”

The comparison of the definitions of the crime of genocide as presented in Article 99 of the CC and Article 71 (wordings of 21 April 1998 and 21 December 1998) of the CC makes it clear that:

– under Article 71 (wordings of 1998 April 21 and 21 December 1998) of the CC and under Article 99 of the CC alike, genocide is not understood as an exclusive genocide against Lithuania’s residents;

– Article 99 of the CC establishes the protected groups that are the same as those established in Article 71 (wordings of 1998 April 21 and 21 December 1998) of the CC, i.e., in addition to national, ethnic, racial, and religious groups, also social and political groups were specified, i.e., such two groups that are not provided for in the definition of the crime of genocide in accordance with the universally recognised norms of international law;

– Article 99 of the CC explicitly shows deportation of the people of the protected groups as one of the means of the creating of the conditions of life bringing about the death of all or a part of the people belonging to a particular group. It should be noted that such deportation must be qualified as genocide only in case it is carried out in order to physically destroy all or a part of the people who belong to any of the specified protected groups.

7.2. It should also be noted that Article 99 of the CC is in Chapter XV “Crimes Against Humanity and War Crimes” of the CC. This chapter also establishes criminal liability for such international crimes as the treatment of persons prohibited under international law (Article 100), the killing of persons protected under international law (Article 101), the deportation or transfer of civilians (Article 102), the causing of bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law or violation of the protection of their property (Article 103), violation of norms of international humanitarian law concerning protection of civilians and their property in time of war (Article 104), a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105), destruction of protected objects or plunder of national valuable properties (Article 106), delay in repatriation of prisoners of war (Article 107), delay in release of interned civilians or impeding repatriation of other civilians (Article 108), unlawful use of the emblem of the Red Cross, Red Crescent, Red Crystal and the United Nations Organisation or another universally recognised emblem (sign) or designation (Article 109), aggression (Article 110), a prohibited military attack (Article 111), the use of prohibited means of warfare (Article 112), marauding (Article 113), and negligence of a commanding officer (Article 1131).

7.3. Paragraph 3 of Article 3 “Term of Validity of a Criminal Law” of the CC, whose compliance with the Constitution is being impugned by the petitioners, prescribed:

“A criminal law establishing the criminality of a deed, imposing a more severe penalty upon, or otherwise aggravating the legal circumstances of a person who has committed a criminal deed shall have no retroactive effect. The provisions of this Code establishing liability for genocide (Article 99), the treatment of persons prohibited under international law (Article 100), the killing of persons protected under international humanitarian law (Article 101), deportation of the civil population of an occupied state (Article 102), the causing of bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law (Article 103), a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105), and a prohibited military attack (Article 111) shall constitute an exception.”

7.3.1. Thus, Paragraph 3 of Article 3 of the CC established a general rule, according to which, a more sever criminal law does not have retroactive effect, and an exception to this rule. The norms establishing criminal liability for certain international crimes, inter alia, for genocide (Article 99 of the CC), constitute the said exception. It should be noted that, according to Paragraph 3 of Article 3 of the CC, Article 99 of the CC that provides for the criminal liability for genocide has retroactive effect to its full extent, thus, it is applicable both to the persons who, prior to the entry into force of Article 99 of the CC, perpetrated the actions provided for in the same article, inter alia, against the persons belonging to social or political groups, i.e., the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law.

7.3.2. In this context it should be noted that, on 22 March 2011, the Seimas adopted the Republic of Lithuania’s Law Amending and Supplementing Articles 3, 7, 95, 100, 101, 102, 103, 105, 106, 109, and 111 of the Criminal Code, Recognising Article 104 Thereof as No Longer Valid and Supplementing the Code with Article 1131 that came into force on 31 March 2011. Article 1 of this law amended Paragraph 3 of Article 3 of the CC, however, the legal regulation established in the aspect that Article 99 of the CC providing for the criminal liability for genocide had retroactive effect to its full extent remained unchanged.

7.4. Paragraph 5 (the compliance of Item 1 of this paragraph with the Constitution is being impugned by the Court of Appeal of Lithuania (petition No. 1B-16/2012), a petitioner) of Article 95 “Statute of Limitations for Delivering a Judgment of Conviction” (wording of 26 September 2000) of the CC prescribed:

“5. The following crimes provided for in this Code shall have no statute of limitations:

1) genocide (Article 99);

2) the treatment of persons prohibited under international law (Article 100);

3) the killing of the persons protected under international humanitarian law (Article 101);

4) deportation of civilians of an occupied state or transfer of the civilian population of an occupying state (Article 102);

5) the causing of bodily harm to, torture or other inhuman treatment of the persons protected under international humanitarian law (Article 103);

6) the violation of norms of international humanitarian law concerning protection of civilians and their property in time of war (Article 104);

7) a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105);

8) destruction of protected objects or plunder of national valuable properties (Article 106);

9) aggression (Article 110);

10) a prohibited military attack (Article 111);

11) the use of prohibited means of warfare (Article 112).”

7.4.1. It should be noted that Article 95 regulates the statutory limitations on a judgment of conviction—a period established by a criminal law, where, after this period has been lapsed, a person who has committed a criminal act may not be subject to a judgment of conviction. Paragraph 5 of Article 95 (wording of 26 September 2000) of the CC points out concrete international crimes, inter alia, genocide, with regard to which, due to their extreme dangerousness, no statutory limitation is applied, i.e., a judgment of conviction may be delivered with regard to persons that committed those crimes regardless of how much time has passed after the commission of the crime.

It should also be noted that, under Item 1 of Paragraph 5 of Article 95 (wording of 26 September 2000) of the CC, no statutory limitation on a judgment of conviction had to be applied to the full extent of the crime of genocide as this crime is defined in Article 99 of the CC, thus, also no statutory limitation on a judgment of conviction had to be applied for the actions provided for in Article 99 of the CC committed against the persons belonging to social or political groups, i.e. the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law.

7.4.2. On 15 June 2010, the Seimas adopted the Republic of Lithuania’s Law Amending and Supplementing Article 95 of the Criminal Code, Supplementing the Code with Article 1702 and Supplementing the Annex to the Code that came into force on 29 June 2010. By means of Article 1 of the said law, Article 95 of the CC was amended and supplemented, inter alia, the crimes specified in Paragraph 8 of the same article with regard to which no statutory limitation is applicable. Item 1 of the same paragraph, whose compliance with the Constitution is being impugned by the petitioners, provides that “genocide (Article 99)” shall have no statute of limitations.

The comparison of the legal regulation established in Item 1 of Paragraph 8 of Article 95 (wording of 15 June 2010) of the CC with that established in Item 1 of Paragraph 5 of Article 95 (wording of 26 September 2000) of the CC makes it clear that in the aspect impugned by the petitioners this legal regulation did not change: no statutory limitation on a judgment of conviction is applied to the full extent of the crime of genocide as this crime is defined in Article 99 of the CC, thus, also no statutory limitation on a judgment of conviction is applied for the actions provided for in Article 99 of the CC committed against the persons belonging to social or political groups, i.e. the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law.

7.4.3. Article 3 of the aforesaid Law Amending and Supplementing Articles 3, 7, 95, 100, 101, 102, 103, 105, 106, 109, and 111 of the Criminal Code, Recognising Article 104 Thereof as No Longer Valid and Supplementing the Code with Article 1131 that was adopted on 22 March 2011 amended Paragraph 8 of Article 95 of the CC, however, the legal regulation established in this paragraph did not change in the aspect impugned by the petitioners.

  1. To summarise the legal regulation impugned in the constitutional justice case at issue, it should be noted that:

– Article 99 of the CC, when defining the crime of genocide, in addition to the protected national, ethnic, racial or religious groups, also establishes the protected social and political groups, i.e. such two groups that are not provided for in the definition of the crime of genocide within the meaning of the universally recognised norms of international law;

– according to Paragraph 3 (wording of 26 September 2000 and 22 March 2011) of Article 3 of the CC, Article 99 of the CC that establishes criminal liability for genocide has retroactive effect to its full extent, thus, it is also applicable to the persons who, prior to the entry into force of Article 99 of the CC, perpetrated the actions provided for in the same article against the persons belonging to social or political groups, i.e., the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law;

– under Item 1 of Paragraph 5 of Article 95 (wording of 26 September 2000) and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC, no statutory limitation on a judgment of conviction is applied to the full extent of the crime of genocide as this crime is defined in Article 99 of the CC, thus, also no statutory limitation on a judgment of conviction is applied for the actions provided for in Article 99 of the CC committed against the persons belonging to social or political groups, i.e. the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law.

III

  1. In the context of the constitutional justice case at issue it should be noted that, the defendants in the criminal cases considered by the Court of Appeal of Lithuania, the Panevėžys Regional Court, and the Kaunas Regional Court, petitioners, are accused of perpetrating genocide in 1951–1965 on the territory of the occupied Republic of Lithuania, i.e., as is clear from the cases considered by the petitioners, are accused of the actions committed with intent to physically destroy a part of Lithuania’s residents who belonged to a separate political group (participants of the armed resistance against the Soviet occupation), i.e. a political group that belonged to an national (ethnic) group. It has been mentioned that in the constitutional justice case at issue the petitioners impugn, inter alia, the legal regulation consolidated in Article 99 of the CC insofar as it establishes a broader concept of genocide than that defined according to the norms of international law, i.e. insofar as the actions committed with intent to physically destroy, in whole or in part, the people belonging to a social or political group are deemed to be genocide.

Thus, the international legal and historical context related to the crimes that the defendants in the criminal cases considered by the petitioners have been accused of is important to the constitutional justice case at issue.

  1. As is generally known, on 15 June 1940, an act of aggression was carried out by the USSR against the Republic of Lithuania—the invasion of the Soviet armed forces into the territory of the Republic of Lithuania, which, inter alia, corresponded to the meaning of the definition of aggression as “intrusion by means of armed forces into the territory of another state even without a declaration of war” that was laid down in Item 2 of Article II of the Convention between the Republic of Lithuania and the USSR of 5 July 1933—with subsequent occupation of the territory of the Republic of Lithuania. Those actions were a grave violation of the principle of prohibition of aggression consolidated, inter alia, in Article I of the General Treaty for Renunciation of War as an Instrument of National Policy of 27 August 1928. Continuing its aggression, the USSR carried out the annexation of the territory of the Republic of Lithuania on 3 August 1940.

In this context it should be noted that the Act of the Supreme Council of the Republic of Lithuania “On the Re-establishment of the Independent State of Lithuania” of 11 March 1990, inter alia, established that the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, was re-established, and henceforth Lithuania was again an independent state. In its ruling of 22 February 2013, the Constitutional Court emphasised that, the provisions “the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, is re-established, and henceforth Lithuania is again an independent state” of the Act of 11 March 1990 make it clear that the restoration of the independence of the State of Lithuania was grounded on the continuity of the State of Lithuania, which means that the aggression that the USSR began against the Republic of Lithuania on 15 June 1940 (inter alia, the occupation and annexation of the territory of the Republic of Lithuania) abolished neither the State of Lithuania as a subject of international law nor its sovereign powers; due to the occupation of the territory of Lithuania and demolition of its state institutions, the implementation of the sovereign powers of the State of Lithuania, inter alia, its international rights and obligations, were suspended; the annexation of the territory of the Republic of Lithuania perpetrated by the USSR on 3 August 1940, as a continuation of the aggression, was an act null and void, thus, from the viewpoint of international law, the territory of the Republic of Lithuania was occupied by another state and it was never a legal part of the USSR.

  1. It should be noted that the Republic of Lithuania and its residents have suffered from the aggression of two states. Beside the USSR, also the German Reich occupied the Republic of Lithuania: the latter occupation began on 22 June 1941 when Germany attacked the Soviet Union and ended in 1944–1945 after the USSR had reoccupied the territory of the Republic of Lithuania. The second Soviet occupation continued until 11 March 1990 when the independence of the Republic of Lithuania was restored; the armed forces of the Soviet Union (and, later, of the Russian Federation as the legal continuer of the Soviet Union) unlawfully stationed in the territory of the Republic of Lithuania were withdrawn only at the end of 1993. It should be noted that those armed forces, together with the armed units formed and sent by the USSR, had been used in January–August 1991 against the Republic of Lithuania in an attempt to destroy its restored independence.
  2. According to various estimates, due to the occupations by the USSR and the German Reich, the Republic of Lithuania lost almost one third of its population, where about half of the latter became refugees fleeing from the second Soviet occupation.
  3. According to the data presented by the Genocide and Resistance Research Centre of Lithuania, during the years of the occupation by the German Reich (1941–1945), in all, 210–215 thousand residents of the Republic of Lithuania were killed, from them 195–200 thousand being Jews (i.e., around 90–95 percent of all Jews that lived in Lithuania); in addition, during the years of this occupation around 170–190 thousand war prisoners kept by the German armed forces perished in Lithuania; persons of Jewish and other nationalities brought to Lithuania from other countries occupied by Germany also used to be killed. Thus, in the territory of the Republic of Lithuania the Nazi occupation regime undoubtedly perpetrated international crimes as defined according to the norms of international law: genocide of Lithuania’s Jewish community and other persons of Jewish nationality, crimes against humanity, and war crimes against residents of Lithuania and other persons.
  4. The criminal cases considered by the petitioners are related to international crimes perpetrated by another occupation regime—the Soviet Union—in the territory of the Republic of Lithuania.

6.1. In this context it should be noted that, on 25 January 2006, the Parliamentary Assembly of the Council of Europe adopted Resolution 1481/2006 on the need for international condemnation of crimes of totalitarian communist regimes, which not only condemned such crimes, but also gave their general definition.

The said resolution noted that the totalitarian communist regimes have been “<…> without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism”.

The same resolution also noted that the crimes of the totalitarian communist regimes “<...> were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the ‘elimination’ of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes”.

The Report of 16 December 2005 made by the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe regarding the draft of the aforesaid resolution noted that “[t]he important feature of communist crimes has been repression directed against whole categories of innocent people whose only ‘crime’ was being members of these categories. In this way, in the name of ideology, the regimes have murdered tens of millions of rich peasants (kulaks), nobles, bourgeois, Cossacks, Ukrainians and other groups.”

The same report of 16 December 2005 made by the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe also points out the following number of people killed by the communist regimes: the former Soviet Union—20 million victims; China—65 million; Vietnam—1 million; North Korea—2 million; Cambodia—2 million; Eastern Europe (excluding the former Soviet Union with the territories occupied by it)—1 million.

On 23 April 2010, while referring to its aforesaid Resolution No. 1481 (2006) of 25 January 2006 on the need for international condemnation of crimes of totalitarian communist regimes, the Parliamentary Assembly of the Council of Europe adopted Resolution No. 1723 (2010) commemorating the victims of the Great Famine (Holodomor) in the former USSR, in which it, inter alia, 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”; “[m]illions of innocent people in Belarus, Kazakhstan, Moldova, Russia and Ukraine, which were parts of the Soviet Union, lost their lives as a result of mass starvation caused by the cruel and deliberate actions and policies of the Soviet regime”; “[w]hile these events may have had particularities in various regions, the results were the same everywhere: millions of human lives were mercilessly sacrificed to the fulfilment of the policies and plans of the Stalinist regime”; the Parliamentary Assembly of the Council of Europe “strongly condemns the cruel policies pursued by the Stalinist regime, which resulted in the death of millions of innocent people, as a crime against humanity” and “[i]t resolutely rejects any attempts to justify these deadly policies, by whatever purposes, and recalls that the right to life is non-derogable <...>”.

Thus, crimes against humanity and war crimes are undoubtedly attributable to totalitarian communist regimes, inter alia, the Soviet Union, whilst the crimes committed against certain national or ethnic groups during a certain period might be considered to constitute genocide as defined according to the universally recognised norms of international law.

In this context it should be mentioned that the fact of the crimes perpetrated by the USSR totalitarian communist regime has been recognised by laws of the Russian Federation. For example, the Preamble to the Law “On Rehabilitation of the Repressed Nations” of 26 April 1991 states, among other things, that “the renewal of the Soviet society <...> has created favourable possibilities of the rehabilitation of the nations that were repressed, experienced genocide and slander during the years of the Soviet power”; Article 2 of the same law provides that the nations (nationalities or ethnical groups, other cultural and ethnical communities of people that came into being in the course of history, for example, Cossacks), with regard of whom, due to the fact that they belonged to national or other groups, the policy of slander and genocide has been carried out on the state level, where this policy has taken the form of their forced transfer, of the elimination of national state formations, of the redrawing of national territorial boundaries, of the introduction of terror and constraint in special places of settlement, shall be recognised as repressed nations.

6.2. According to various data, due to the both occupations carried out by the USSR, the Republic of Lithuania lost almost one fifth of its population, including refugees. According to the data presented by the Genocide and Resistance Research Centre of Lithuania, during the period of the Soviet occupation (1940–1941 and 1944–1990), in all, 85 thousand residents of the Republic of Lithuania perished or were killed, around 132 thousand residents were deported to the Soviet Union (at the time of the deportations of 1945–1952, 32 thousand of the deportees were children). From among those perished or killed, 20 thousand were participants of the armed resistance against the occupation (partisans) and their supporters (data for 1944–1952), around 1,100—shot or tortured to death in June 1941 when the Soviet armed forces were retreating from Lithuania, around 35–37 thousand political prisoners perished in special camps and prisons, and around 28 thousand deportees perished in exile; on 14 June 1941, the first mass deportation of citizens of the Republic of Lithuania to Siberia began (all in all, 12.5 thousand people were exiled then); one of the biggest repressions against the civil population was carried out in 1944–1944: up to 130 thousand residents of Lithuania were detained and arrested, 32 thousand were repressed and transferred to special camps and prisons, around 108.4 thousand were recruited to the USSR troops by force in 1944–1945; during the 1944–1953 guerrilla war against the occupation, all in all, 186 thousand people were arrested and imprisoned.

It is obvious from these numbers that, in the territory of the Republic of Lithuania, the Soviet occupation regime perpetrated international crimes that could be qualified, according to the universally recognised norms of international law (inter alia, the Charter of the Nuremberg Tribunal), as crimes against humanity (killing and extermination of civilians, deportation of residents, their imprisonment and persecution on political and national grounds, etc.) and war crimes (killing and deportation of persons protected under international humanitarian law, forced recruitment of residents of an occupied territory to the armed forces of an occupying state, etc.).

It needs to be emphasised that, according to the research conducted by historians, the crimes against the residents of the Republic of Lithuania were a part of the targeted and systematic totalitarian policy pursued by the USSR: the repressions against the residents of Lithuania were not in any manner coincidental and chaotic, but rather such repressions sought to exterminate the basis of the political nation of Lithuania, inter alia, the former social and political structure of the State of Lithuania. Those repressions were directed against the most active political and social groups of the residents of the Republic of Lithuania: participants of the resistance against the occupation and their supporters, civil servants and officials of the State of Lithuania, Lithuanian public figures, intellectuals and the academic community, farmers, priests, and members of the families of those groups. It should be noted that, by means of the repressions, the occupation regime sought to exterminate, to cause harm and break those people: they were victims of non-judicial executions, they were imprisoned and sent to special camps for forced labour, they were deported to faraway harsh-climate sparsely populated places of the Soviet Union by purposefully creating intolerable life conditions that posed constant threat to one’s life and health.

It should be noted that, the conclusions made by the historians that investigated the documents of the repressive interior and intelligence structures of the USSR show that Lithuanians together with their neighbours Latvians and Estonians, as well as together with some persons belonging to other nationalities that resided in the Soviet Union (e.g., Germans, Ukrainians, Crimea Tartars, Chechens, the Ingush), were treated as persons belonging to “unreliable” nations; namely because of their nationality, the persons belonging to “unreliable” nations were doomed to the extermination, inter alia, by means of unbearable living conditions in exile. For example, according to the 1953 documents of the USSR ministries of security and the interior, the children of persons that had been attributed namely to Lithuanians, Latvians, Estonians and to other “unreliable” nations were those who were prevented from avoiding the exile, inter alia, after it had been established that the children whose parents were special exiles deported for life, no matter what nationality they would subsequently choose, had to be inscribed on the record of exiles after they reached 16 years of age; no provisions regarding a possibility of being released from exile were applied to “nationalists” to whom Lithuanians, Latvians, and Estonians used to be attributed.

6.3. Thus, with consideration of such an international and historical context, inter alia, the aforesaid ideology of the totalitarian communist regime of the USSR upon which the extermination of entire groups of people was grounded, the scale of repressions of the USSR against residents of the Republic of Lithuania, which was a part of the targeted policy of the extermination of the basis of Lithuania’s political nation and of the targeted policy of the treatment of Lithuanians as an “unreliable” nation, the conclusion should be drawn that, during a certain period (in 1941, when mass deportations of Lithuanians to the Soviet Union began and non-judicial executions of detained persons were carried out, and in 1944–1953, when mass repressions were carried out during the guerrilla war against the occupation of the Republic of Lithuania), the crimes perpetrated by the Soviet occupation regime, in case of the proof of the existence of a special purpose aimed at destroying, in whole or in part, any national, ethnic, racial or religious group, might be assessed as genocide as defined according to the universally recognised norms of international law (inter alia, according to the Convention Against Genocide). As mentioned before, under the universally recognised norms of international law, actions are considered to constitute genocide if they are deliberate actions aimed at destroying, not only in whole but also in part, any national, ethnical, racial, or religious group; when a part of the protected group is targeted, that part must be significant enough for its destruction to have an impact on the group as a whole; actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of any national, ethnical, racial, or religious group and the destruction of which would have an impact on the respective national, ethnical, racial, or religious group as a whole. It has also been mentioned that the physical destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself—particularly when it involves the separation of its members; in such cases, the forcible transfer of individuals could lead to the destruction of the group, since the group ceases to exist as a group or, at least, as the group it was.

In other words, according to the universally recognised norms of international law, 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. It should be noted that, in case of the absence of any proof of such an aim, in its turn it should not mean that, for their actions against residents of Lithuania (e.g., their killing, torturing, deportation, forced recruitment to the armed forces of an occupying state, persecution for political, national, or religious reasons), respective persons should not be punished according to laws of the Republic of Lithuania and universally recognised norms of international law; in view of concrete circumstances, one should assess whether those actions entail crimes against humanity or war crimes.

6.4. In this context it should be noted that, as mentioned before, the Preamble to the Law “On Liability for Genocide of Residents of Lithuania” of 9 April 1992 held, inter alia, that the policy of genocide and of crimes against humanity which was carried out against the residents of Lithuania was accomplished at the time of the occupation and annexation by the Nazi Germany or the USSR; Article 2 of the same law established that “[k]illing or torturing of people of Lithuania, deportation of its residents, which were carried out in Lithuania during the years of the occupation and annexation by the Nazi Germany or the USSR, correspond to the features of genocide provided for in the norms of international law”.

6.5. To sum up, it should be noted that the inclusion of social and political groups into the definition of genocide in Article 99 of the CC that is being impugned by the petitioners was determined by a concrete legal and historical context—the international crimes committed by the occupation regimes in the Republic of Lithuania.

  1. As mentioned before, the defendants in the criminal cases considered by the Court of Appeal of Lithuania, the Panevėžys Regional Court, and the Kaunas Regional Court, petitioners, are accused of committing genocide in Lithuania in 1951–1965 that was directed against a political group—participants of the armed resistance against the Soviet occupation.

Thus, the international legal and historical context related to the armed resistance of citizens of the Republic of Lithuania against the Soviet occupation is important to the constitutional justice case at issue.

7.1. In this context it should be noted that the Act of the Supreme Council of the Republic of Lithuania “On the Re-establishment of the Independent State of Lithuania” of 11 March 1990, inter alia, established that the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, was re-established, and henceforth Lithuania was again an independent state; the 16 February 1918 Act of Independence of the Council of Lithuania and the 15 May 1920 Resolution of the Constituent Seimas on the Re-established Democratic State of Lithuania have never lost their legal power and comprise the constitutional foundation of the State of Lithuania; the territory of Lithuania is integral and indivisible, and the constitution of no other state is valid on it.

It has been mentioned that, in its ruling of 22 February 2013, the Constitutional Court emphasised that, the provisions “the execution of the sovereign powers of the State of Lithuania, abolished by foreign forces in 1940, is re-established, and henceforth Lithuania is again an independent state” of the Act of 11 March 1990 make it clear that the restoration of the independence of the State of Lithuania was grounded on the continuity of the State of Lithuania, which means that the aggression that the USSR began against the Republic of Lithuania on 15 June 1940 (inter alia, the occupation and annexation of the territory of the Republic of Lithuania) abolished neither the State of Lithuania as a subject of international law nor its sovereign powers; due to the occupation of the territory of Lithuania and demolition of its state institutions, the implementation of the sovereign powers of the State of Lithuania, inter alia, its international rights and obligations, were suspended; the annexation of the territory of the Republic of Lithuania perpetrated by the USSR on 3 August 1940, as a continuation of the aggression, was an act null and void, thus, from the viewpoint of international law, the territory of the Republic of Lithuania was occupied by another state and it was never a legal part of the USSR. In the same ruling, the Constitutional Court also held that, from the provisions “the 16 February 1918 Act of Independence of the Council of Lithuania and the 15 May 1920 Resolution of the Constituent Seimas on the re-established democratic State of Lithuania have never lost their legal power and comprise the constitutional foundation of the State of Lithuania” of the Act of 11 March 1990 it is obvious that not only the continuity of the State of Lithuania, but also the identity thereof is upheld: having restored its independence, the Republic of Lithuania, from the viewpoint of international and constitutional law, is a subject of law identical to the State of Lithuania against which the aggression of the USSR was perpetrated on 15 June 1940; from the provision of the Act of 11 March 1990 that the constitution of no other state is valid on the territory of the Republic of Lithuania it is obvious that the introduction of the validity of the constitution of any other state (inter alia, the USSR), inter alia, the imposition of the duties established by such a constitution to citizens of the Republic of Lithuania, was unlawful.

In its ruling of 22 February 2013, the Constitutional Court also noted that from the continuity of the State of Lithuania there stems a continuity of citizenship of the Republic of Lithuania which, inter alia, implies that, from the viewpoint of international and Lithuanian constitutional law, the imposition of USSR citizenship upon citizens of the Republic of Lithuania in 1940, as a consequence of the aggression of the USSR, was an act null and void; thus, this act was not a legal ground to lose citizenship of the Republic of Lithuania; consequently, during the years of the Soviet occupation, citizens of the Republic of Lithuania (the persons who held citizenship of the Republic of Lithuania on 15 June 1940 and their children) were also not bound by the obligations related to USSR citizenship. In addition, the Constitutional Court noted that that the imposition of citizenship of an occupying state upon the population of the occupied territory and forced conscription of this population into the military service of the occupying state is forbidden under universally recognised international legal norms, inter alia, under Article 45 of the Annex (Regulations Concerning the Laws and Customs of War on Land) of the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907, and Paragraph 1 of Article 51 of the Geneva Convention “Relative to the Protection of Civilian Persons in Time of War” of 12 August 1949.

Thus, in this context, it should also be noted that, according to the universally recognised norms of international law, citizens of the Republic of Lithuania had an inalienable right to resist the aggression of another state, inter alia, the Soviet occupation; the organised resistance of citizens of the Republic of Lithuania in 1944–1953 should be assessed as self-defence of the State of Lithuania.

7.2. Consequently, in view of the fact that the aggression of the USSR was carried out against the Republic of Lithuania, also, in view of the continuity of the State of Lithuania and of citizenship of the Republic of Lithuania, the organised armed guerrilla forces should be regarded as the armed forces of the Republic of Lithuania that resisted the occupation, i.e., as volunteer corps of a belligerent country whose members have the status of a combatant. It should be noted that, according to historical research into the resistance against the Soviet occupation, the forces of Lithuanian partisans normally adhered to the requirements stemming from the universally recognised norms of international law (inter alia, Article 1 of the Annex (Regulations Concerning the Laws and Customs of War on Land) of the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907) for volunteer corps of a belligerent country (to be commanded by a person responsible for his subordinates, to have a fixed distinctive emblem recognisable at a distance, to carry arms openly, and to conduct their operations in accordance with the laws and customs of war).

In this context, it should be noted that, in its ruling of 22 February 2013, the Constitutional Court held that the service to the State of Lithuania was possible only in the structures (inter alia, in the Lithuanian Freedom Fight Movement) of the organised armed resistance against the occupation, which took place for a certain time on the occupied territory of the Republic of Lithuania.

It should also be noted that, according to the laws of the Republic of Lithuania (inter alia, the Preamble to the Republic of Lithuania’s Law “On the Declaration of the Council of the Lithuanian Freedom Fight Movement of 16 February 1949” and Paragraph 2 of Article 1 of the Republic of Lithuania’s Law on the Restoration of the Rights of Persons Repressed for Resistance Against the Occupation Regimes), the organised armed resistance against the Soviet occupation is regarded as self-defence of the State of Lithuania, the participants of the armed resistance are declared volunteer servicemen and their military ranks and awards are recognised; Paragraph 2 of Article 2 of the Law “On the Declaration of the Council of the Lithuanian Freedom Fight Movement of 16 February 1949” states that the Council of the Lithuanian Freedom Fight Movement constituted the supreme political and military structure and was the sole legal authority within the territory of occupied Lithuania (inter alia, on the grounds of Item 1 of the Declaration of the Council of the Lithuanian Freedom Fight Movement of 16 February 1949 that provided that “[d]uring the occupation period, the LFFM Council shall be the supreme political body of the Nation, in charge of the political and military fight for the liberation of the Nation”).

7.3. Thus, 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) that is covered by the definition of genocide according to the universally recognised norms of international law.

It has been mentioned that, according to the universally recognised norms of international law, 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. It has also been mentioned that in case of the absence of any proof of such an aim, in its turn it should not mean that, for their actions against residents of Lithuania (e.g., their killing, torturing, deportation, forced recruitment to the armed forces of an occupying state, persecution for political, national, or religious reasons), respective persons should not be punished according to universally recognised norms of international law and laws of the Republic of Lithuania; in view of concrete circumstances, one should assess whether those actions also entail crimes against humanity or war crimes. As regards the participants (partisans) of the armed resistance of the Republic of Lithuania against the Soviet occupation, account must also be taken of the fact that the Soviet Union, while ignoring the universally recognised norms of international law, neither recognised their status of combatants and prisoners of war nor provided them with the corresponding international guarantees related to such a status; from the conclusions of the historians that investigated documents of the repressive structures of the interior and security of the USSR it is clear that those structures pursued the targeted policy of the extermination of “bandits”, “terrorists”, and “bourgeois nationalists” to which they also ascribed the Lithuanian partisans, inter alia, special “extermination” squads were established and they were used in the fight against the Lithuanian partisans and their supporters.

IV

On the compliance of Article 99 of the Criminal Code (wording of 26 September 2000) with the Constitution

  1. It has been mentioned that, in the constitutional justice case at issue, the Court of Appeal of Lithuania, the Panevėžys Regional Court, and the Kaunas Regional Court, petitioners, request an investigation into whether Article 99 of the CC is not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law, and the group of members of the Seimas, a petitioner, requests an investigation into whether Article 99 of the CC is not in conflict with Article 6, Paragraphs 2 and 4 of Article 31, Paragraph 1 of Article 135, and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law.
  2. From the arguments in the petitions of the petitioners, it is clear that they impugn not the whole legal regulation consolidated in Article 99 of the CC, but only insofar as it establishes a broader concept of the crime of genocide than that established under the universally recognised norms of international law, i.e. insofar as actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group are also considered to constitute the crime of genocide.

Although the group of members of the Seimas, a petitioner, impugns the compliance of Article 99 of the CC with Article 6 of the Constitution, from the arguments in the petition, it is clear that the related doubts of the petitioner (regarding the deviation of the legal regulation established in Article 99 of the CC from the provisions of the relevant international treaties) should be treated as the doubts regarding the compliance of Article 99 of the CC with Paragraph 1 of Article 135 and Paragraph 3 of Article 138 of the Constitution.

Thus, taking account of the petitions of the petitioners, in the constitutional justice case at issue, the Constitutional Court will investigate whether Article 99 of the CC, insofar as it establishes the broader concept of the crime of genocide than that established under the universally recognised norms of international law, i.e. insofar as actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group are also considered to constitute the crime of genocide, is not in conflict with Paragraphs 2 and 4 of Article 31, Paragraph 1 of Article 135, and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law.

  1. According to the petitioners, the establishment of a broader corpus delicti of genocide in Article 99 of the CC than that established under international law deviates from the provisions of international treaties, which means that the legislature did not comply with the provisions of Paragraph 3 of Article 138 of the Constitution. According to the group of members of the Seimas, a petitioner, the legal regulation in question also does not comply with Paragraph 1 of Article 135 of the Constitution, under which the Republic of Lithuania is bound to observe the requirements of all the international treaties a party to which it is (pacta sunt servanda).

The petitioners also doubt regarding the compliance of Article 99 of the CC with Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, insofar as the norm of the broader corpus delicti of genocide is not subject to any statute of limitations and has retroactive effect.

  1. As mentioned before, Article 99 “Genocide” of the CC prescribes:

“A person who, seeking to physically destroy, in whole or in part, the persons belonging to any national, ethnic, racial, religious, social or political group, organised, was in charge of or participated in their killing, in torturing, in causing bodily harm to them, in hindering their mental development, in their deportation or otherwise inflicted on them the conditions of life bringing about the death of all or a part of them, restricted the birth of the persons belonging to those groups or forcibly transferred their children to other groups,

shall be punished by deprivation of freedom from five to twenty years, or by life imprisonment.”

It has also been mentioned that, when defining the crime of genocide, in addition to the protected national, ethnical, racial, and religious groups, Article 99 of the CC also includes social and political groups as protected ones, i.e. such two groups that are not included in the definition of the crime of genocide under the universally recognised norms of international law.

  1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petitions of the petitioners, the Constitutional Court is investigating whether Article 99 of the CC, insofar as it establishes the broader concept of the crime of genocide than that established under the universally recognised norms of international law, i.e. insofar as any actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group are also considered to constitute the crime of genocide, is not in conflict with, inter alia, Paragraph 1 of Article 135 and Paragraph 3 of Article 138 of the Constitution.

5.1. It has been mentioned that, under Paragraph 1 of Article 135 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the said provision consolidates the constitutional principle of respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling, in good faith, the obligations assumed by the Republic of Lithuania under international law, inter alia, international treaties; the constitutional principle of pacta sunt servanda also means the imperative of fulfilling, in good faith, the international obligations arising from the universally recognised norms of international law (general international law), inter alia, jus cogens norms, prohibiting international crimes. It should be noted that respect for international law is an inseparable part of the constitutional principle of a state under the rule of law, whose essence is the rule of law (the Constitutional Court’s ruling of 24 January 2014).

In the context of the constitutional justice case at issue, it should be noted that, under Paragraph 1 of Article 135 of the Constitution and the constitutional principle of a state under the rule of law, the Republic of Lithuania is obliged to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law), inter alia, jus cogens norms, that prohibit international crimes and are consolidated, inter alia, in the international treaties of the Republic of Lithuania ratified by the Seimas, which, as stipulated in Paragraph 3 of Article 138 of the Constitution, are a constituent part of the legal system of the Republic of Lithuania.

As mentioned before, the Convention Against Genocide and the Rome Statute, to which the Republic of Lithuania is a party, are universal international treaties consolidating the universally recognised norms of international law that are invoked in defining international crimes.

5.2. In this context it should be noted that, in its ruling of 9 December 1998, while construing Paragraph 1 of Article 135 of the Constitution, under which, in implementing its foreign policy, the Republic of Lithuania follows the universally recognised principles and norms of international law, seeks to ensure national security and independence, the welfare of the citizens and their basic rights and freedoms, and contributes to the creation of the international order based on law and justice, as well as Paragraph 3 of Article 138, which stipulates that international treaties ratified by the Seimas of the Republic of Lithuania are a constituent part of the legal system of the Republic of Lithuania, the Constitutional Court held that the State of Lithuania, recognising the principles and norms of international law, may not apply substantially different standards to the people of this country; holding that it is a member of the international community possessing equal rights, the State of Lithuania, of its own free will, adopts and recognises these principles and norms, the customs of the international community, and naturally integrates itself into the world culture and becomes its natural part.

It has been mentioned that respect for international law is an inseparable part of the constitutional principle of a state under the rule of law, whose essence is the rule of law. As the Constitutional Court has mentioned on more than one occasion, this constitutional principle also embodies the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution (the Constitutional Court’s rulings of 19 September 2002, 17 November 2003, and 13 December 2004). In the context of the constitutional justice case at issue, it should be noted that respect for international law is also linked to the striving for an open, just, and harmonious civil society, which is expressed through the constitutional principle of a state under the rule of law and implies, inter alia, the openness for universal democratic values and integration into the international community founded on these values.

Thus, in the context of the constitutional justice case at issue, it should also be noted that, in order to be in line with the commitment of the Republic of Lithuania, as prescribed in Paragraph 1 of Article 135 of the Constitution, to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law), inter alia, jus cogens norms, that prohibit international crimes, the criminal laws of the Republic of Lithuania that are related to liability for international crimes, inter alia, genocide, may not establish any such standards that would be lower than those established under the universally recognised norms of international law. Disregard for the said requirement would be incompatible with the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution and expressed through the constitutional principle of a state under the rule of law.

5.3. It has been mentioned that, under Paragraph 3 of Article 138 of the Constitution, international treaties ratified by the Seimas are a constituent part of the legal system of the Republic of Lithuania. In this context, it should be noted that the said provision should be construed in the light of the principle of the supremacy of the Constitution. As the Constitutional Court emphasised in its rulings of 25 May 2004 and 24 January 2014, the Constitution is the supreme law.

As held by the Constitutional Court on more than one occasion, international treaties ratified by the Seimas acquire the force of a law. It should also be noted that the doctrinal provision that international treaties ratified by the Seimas acquire the force of a law may not be construed as meaning that, purportedly, it is permitted for the Republic of Lithuania not to observe its international treaties where its laws or constitutional laws establish a different legal regulation if compared to that established under international treaties (the Constitutional Court’s rulings of 14 March 2006 and 5 September 2012). The Constitution also consolidates the principle that, in the cases where a national legal act (obviously, with the exception of the Constitution itself) establishes such legal regulation that competes with the one established in an international treaty, the international treaty must be applied (the Constitutional Court’s rulings of 14 March 2006, 21 December 2006, and 5 September 2012). Thus, in those cases where the legal regulation consolidated in an international treaty that has been ratified by the Seimas and has entered into force competes with the legal regulation established in the Constitution, the provisions of such an international treaty have no priority in terms of application (the Constitutional Court’s ruling of 5 September 2012).

As the Constitutional Court noted in its ruling of 5 September 2012, in the course of implementing, in domestic law, the international obligations of the Republic of Lithuania, it is necessary to take account of the principle of the supremacy of the Constitution as consolidated in Paragraph 1 of Article 7 of the Constitution; a fact underlying the legal system of the Republic of Lithuania is that any law or other legal act as well as any international treaty of the Republic of Lithuania may not be in conflict with the Constitution, since Paragraph 1 of Article 7 of the Constitution prescribes: “Any law or other act which contradicts the Constitution shall be invalid”; this constitutional provision cannot in itself render any law or international treaty invalid, but it requires that the provisions of laws and international treaties be not in conflict with the provisions of the Constitution; otherwise the Republic of Lithuania would not be able to ensure the legal defence of the rights of the parties to international treaties arising under these treaties, and this, in its turn, would impede the implementation of its obligations under the concluded international treaties.

On the other hand, as mentioned before, under Paragraph 1 of Article 135 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the constitutional principle of pacta sunt servanda, which is consolidated in the said provision, means the imperative of fulfilling, in good faith, the obligations assumed by the Republic of Lithuania under international law, inter alia, international treaties. In view of this fact, it should be noted that, in the event of the incompatibility between an international treaty of the Republic of Lithuania and the provisions of the Constitution, the duty arises, under Paragraph 1 of Article 135 of the Constitution, for the Republic of Lithuania to remove the said incompatibility, inter alia, either by renouncing the international obligations established under the international treaty in the manner prescribed by the norms of international law or by making the appropriate amendments to the Constitution.

5.4. As mentioned before, the provision of Paragraph 3 of Article 138 of the Constitution should be construed in the light of the principle of the supremacy of the Constitution; the doctrinal provision that international treaties ratified by the Seimas acquire the force of a law may not be construed as meaning that, purportedly, it is permitted for the Republic of Lithuania not to observe its international treaties where its laws or constitutional laws establish a different legal regulation if compared to that established under the international treaties; the Constitution consolidates the principle that in those cases where a national legal act (obviously, with the exception of the Constitution itself) establishes such legal regulation that competes with the one established in an international treaty, the international treaty must be applied.

  1. In order to decide whether Article 99 of the CC, insofar as it establishes the broader concept of the crime of genocide than that established under the universally recognised norms of international law, is not in conflict with Paragraph 1 of Article 135 of the Constitution, it should be noted that, as mentioned before:

– under Paragraph 1 of Article 135 of the Constitution and the constitutional principle of a state under the rule of law, the Republic of Lithuania is obliged to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law), inter alia, jus cogens norms, that prohibit international crimes and are consolidated, inter alia, in the international treaties of the Republic of Lithuania ratified by the Seimas, which, as stipulated in Paragraph 3 of Article 138 of the Constitution, are a constituent part of the legal system of the Republic of Lithuania;

– in order to be in line with the commitment of the Republic of Lithuania, as prescribed in Paragraph 1 of Article 135 of the Constitution, to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law), inter alia, jus cogens norms, that prohibit international crimes, the criminal laws of the Republic of Lithuania that are related to liability for international crimes, inter alia, genocide, may not establish any such standards that would be lower than those established under the universally recognised norms of international law; disregard for the said requirement would be incompatible with the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution and expressed through the constitutional principle of a state under the rule of law.

6.1. It has been mentioned that, under the universally recognised norms of international law:

– “genocide” means any of deliberate actions committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such; thus, the list of protected groups is exhaustive and it does not include any social and political groups;

– states are under the obligation to adopt the respective national legislation establishing liability for genocide; in the practice of the states concerned, the said obligation may also be understood as certain discretion, while taking account of a concrete historical, political, social, and cultural context, to establish, in their national law, a broader definition of the crime of genocide than that established under the universally recognised norms of international law, inter alia, as the possibility of including social and political groups in the definition of genocide within the respective national law.

It should be noted that the aforesaid possibility is not prohibited under the Convention Against Genocide and the Rome Statute, to which the Republic of Lithuania is a party and which are universal international treaties consolidating the universally recognised norms of international law that are invoked in defining international crimes.

6.2. As mentioned before, when defining the crime of genocide, in addition to the protected national, ethnical, racial, and religious groups, Article 99 of the CC also includes social and political groups as protected ones, i.e. such two groups that are not included in the definition of the crime of genocide under the universally recognised norms of international law. It has also been mentioned that the inclusion of social and political groups in the definition of genocide as formulated in Article 99 of the CC was determined by the concrete international legal, historical, and political context—the international crimes committed by occupational totalitarian regimes in the Republic of Lithuania.

6.3. Thus, it should be held that there is no ground to maintain that the legal regulation established in Article 99 of the CC, insofar as the established definition of genocide is broader than that established under the universally recognised norms of international law, is not in line with the aforementioned requirement, which stems from Paragraph 1 of Article 135 of the Constitution and is linked to the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, that the criminal laws of the Republic of Lithuania related to liability for international crimes would not establish any such standards that would be lower than those established under the universally recognised norms of international law.

  1. It has been mentioned that, according to the petitioners, by having established in Article 99 of the CC the broader corpus delicti of genocide, the legislature deviated from the provisions of international treaties, which, according to the petitioners, means that the provisions of Paragraph 3 of Article 138 of the Constitution were not observed.

In order to decide whether Article 99 of the CC, insofar as it establishes the broader definition of the crime of genocide than that established under the universally recognised norms of international law, is not in conflict with Paragraph 3 of Article 138 of the Constitution, it should be noted that, as mentioned before, the Constitution consolidates the principle that in the cases where a national legal act (obviously, with the exception of the Constitution itself) establishes such legal regulation that competes with the one established in an international treaty, the international treaty must be applied.

In the context of the constitutional justice case at issue, it should also be noted that the fact of determining that a certain provision of a law of the Republic of Lithuania is not aligned with a certain provision of an international treaty would not in itself mean that the provision of the law in question is in conflict with Paragraph 3 of Article 138 of the Constitution.

Thus, it should be held that there is no ground to maintain that the impugned legal regulation as established in Article 99 of the CC is in conflict with Paragraph 3 of Article 138 of the Constitution.

  1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petitions of the petitioners, the Constitutional Court is investigating whether Article 99 of the CC, insofar as it establishes the broader definition of the crime of genocide than that established under the universally recognised norms of international law, is not in conflict with, inter alia, Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

8.1. As mentioned before, the petitioners doubt regarding the compliance of Article 99 of the CC with Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law insofar as the norm of the broader corpus delicti of genocide is not subject to any statute of limitations and has retroactive effect.

8.2. Paragraph 2 of Article 31 of the Constitution prescribes: “A person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court.”

Paragraph 4 of Article 31 of the Constitution prescribes: “Punishment may be imposed or applied only on the grounds established by law.”

8.3. In assessing whether Article 99 of the CC, to the extent specified by the petitioners, is not in conflict with Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, consideration should be given to the fact that Article 99 of the CC defines the crime of genocide and provides for criminal liability for the commission of this crime, i.e. the impugned provision regulates questions other than the application of a statute of limitations to the crime of genocide or the retroactive application of criminal liability for genocide. As mentioned before, the retroactive effect of Article 99 of the CC, which provides for criminal liability for genocide, is established in Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC; and the non-applicability of any statute of limitations for delivering a judgment of conviction for genocide is established in Item 1 of Paragraph 5 of Article 95 (wording of 26 September 2000) and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC.

8.4. Thus, it should be held that Article 99 of the CC, from the aspect indicated by the petitioner, cannot in itself be in conflict with Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

  1. In the context of the constitutional justice case at issue, it should be noted that the protected groups, other than social and political groups, referred to in Article 99 of the CC (national, ethnical, racial, and religious groups) coincide with the protected groups as established in defining the crime of genocide under the universally recognised norms of international law.

Thus, it should be held that, by establishing, in Article 99 of the CC, the list of protected groups, the legislature has, inter alia, implemented the aforementioned requirement, which stems from Paragraph 1 of Article 135 of the Constitution and is linked to the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, that the criminal laws of the Republic of Lithuania related to liability for international crimes would not establish any such standards that would be lower than those established under the universally recognised norms of international law.

Consequently, there is no ground to maintain that Article 99 of the CC, insofar as it establishes that actions aimed at physically destroying, in whole or in part, the persons belonging to any national, ethnical, racial, or religious group are also considered to constitute genocide, is in conflict with Paragraphs 2 and 4 of Article 31, Paragraph 1 of Article 135, and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law, as indicated by the petitioner.

  1. In the light of the foregoing arguments, the conclusion should be drawn that Article 99 of the CC, insofar as it establishes that actions aimed at physically destroying, in whole or in part, the persons belonging to any national, ethnical, racial, religious, social, or political group are considered to constitute genocide, is not in conflict with the indicated Paragraphs 2 and 4 of Article 31, Paragraph 1 of Article 135, and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law.

V

On the compliance of Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the Criminal Code with the Constitution

  1. It has been mentioned that, in the constitutional justice case at issue, the Court of Appeal of Lithuania, the Panevėžys Regional Court, and the Kaunas Regional Court, petitioners, request an investigation into whether Paragraph 3 of Article 3 of the CC is not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law, and the group of members of the Seimas, a petitioner, requests an investigation into whether Paragraph 3 of Article 3 of the CC is not in conflict with Article 6 and Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.
  2. From the arguments of the petitioners, it is clear that they impugn not the whole legal regulation established in Paragraph 3 of Article 3 of the CC, but only insofar as the said paragraph establishes that Article 99 of the CC, which provides for criminal liability for genocide, has a retroactive effect in its full scope and, thus, is also applicable to persons who had, prior to the time when Article 99 of the CC entered into force, committed the actions specified in this article against the persons who belonged to certain social or political groups, i.e. groups not included in defining the crime of genocide under the universally recognised norms of international law.

In their petitions, the petitioners do not specify any wording of Paragraph 3 of Article 3 of the CC the investigation of the compliance of which with the Constitution is requested. But from the petitions of the petitioners, it is clear that they have had doubts as to whether Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC is (was) not in conflict with the Constitution.

Although the group of members of the Seimas, a petitioner, impugns the compliance of Paragraph 3 of Article 3 of the CC with Article 6 of the Constitution, from the arguments in the petition it is clear that the related doubts of the petitioner (regarding the deviation of the legal regulation established in Paragraph 3 of Article 3 of the CC from the provisions of the relevant international treaties) should be treated as doubts regarding the compliance of Paragraph 3 of Article 3 of the CC with Paragraph 3 of Article 138 of the Constitution.

Thus, in the constitutional justice case at issue, taking account of the arguments in the petitions of the petitioners, the Constitutional Court will investigate whether Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, insofar as, under the legal regulation established in this paragraph, Article 99 of the CC has a retroactive effect on persons who committed the crimes specified in this article against the persons who belonged to certain social or political groups, is (was) not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The petitioners maintain that, by having established, in Paragraph 3 of Article 3 of the CC, the retroactive validity of the legal regulation consolidating a broader corpus delicti of genocide, the legislature deviated from the provisions of international treaties, which means that the provisions of Paragraph 3 of Article 138 of the Constitution were not observed. Under the provisions of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to which the Republic of Lithuania is a party, a person may be brought to trial and punished for only such an action or omission that constituted a criminal offence under national law, international law, or the universally recognised general principles of law at the time when it was committed. The actions against social or political groups that are considered to constitute genocide under Article 99 of the CC were not recognised as genocide by international community at the time when they were committed; thus, in the opinion of the petitioners, no person may be punished for such actions by imposing a retroactive effect under Paragraph 3 of Article 3 of the CC. According to the petitioners, the impugned legal regulation does not ensure the right of the person concerned to a fair trial, nor the right that that his or her case would, within a reasonable time and under the conditions of equality and publicity, be heard before an independent and impartial court established by law, and it obscures as to when criminal liability must be imposed for genocide; thus, such legal regulation violates Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.
  2. As mentioned before, Paragraph 3 (wording of 26 September 2000) of Article 3 “The Term of the Validity of a Criminal Law” prescribed:

“A criminal law establishing the criminality of a deed, imposing a more severe penalty upon, or otherwise aggravating the legal circumstances of a person who has committed a criminal deed shall have no retroactive effect. The provisions of this Code establishing liability for genocide (Article 99), the treatment of persons prohibited under international law (Article 100), the killing of persons protected under international humanitarian law (Article 101), deportation of the civil population of an occupied state (Article 102), the causing of bodily harm to, torture or other inhuman treatment of persons protected under international humanitarian law (Article 103), a forcible use of civilians or prisoners of war in the armed forces of the enemy (Article 105), and a prohibited military attack (Article 111) shall constitute an exception.”

It has also been mentioned that, on 22 March 2011, the Seimas adopted the Law Amending and Supplementing Articles 3, 7, 95, 100, 101, 102, 103, 105, 106, 109, and 111 of the Criminal Code, Recognising Article 104 Thereof as No Longer Valid, and Supplementing the Code with Article 1131; by Article 1 of that law, Paragraph 3 of Article 3 of the CC was amended, however, the legal regulation established in this paragraph from the aspect that Article 99 of the CC, which provides for criminal liability for genocide, has a retroactive effect in its full scope, remained unchanged.

It has also been mentioned that Paragraph 3 of Article 3 of the CC provides for an exception to the general rule prescribing that a law imposing a more severe penalty has no retroactive effect; this exception comprises the norms establishing criminal liability for certain international crimes, inter alia, genocide (Article 99 of the CC); Paragraph 3 of Article 3 of the CC prescribes that Article 99 of the CC, which provides for criminal liability for genocide, has a retroactive effect in its full scope and, thus, is also applicable to persons who had committed, prior to the time when Article 99 of the CC entered into force, the actions specified in this article against the persons who belonged to certain social or political groups, i.e. groups not included in defining the crime of genocide under the universally recognised norms of international law.

It has also been mentioned that Article 99 of the CC establishes the same protected groups as Article 71 (wordings of 21 April 1998 and 21 December 1998) of the previously valid CC, i.e., in addition to the national, ethnical, racial, and religious groups, Article 99 of the CC also includes social and political groups—such two groups that are not included in defining the crime of genocide under the universally recognised norms of international law; under the established legal regulation, Article 71 (wordings of 21 April 1998 and 21 December 1998) of the CC, which prescribed criminal liability for genocide, had a retroactive effect, i.e. it also applied to persons who had, prior to the entry into force of Article 71 (wordings of 21 April 1998 and 21 December 1998) of the CC, committed the actions (inter alia, against social and political groups) specified in that article; Article 71 (wording of 21 April 1998), for the first time in the Criminal Code, established criminal liability for genocide and, for the first time in defining the crime of genocide in the Criminal Code of the Republic of Lithuania, indicated social and political groups, i.e. such two groups that are not included in defining the crime of genocide under the universally recognised norms of international law.

Consequently, under the legal regulation established in Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, a person may also be brought to trial under Article 99 of the CC for the actions that had been aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group (prior to the entry into force of Article 71 (in the wording of 21 April 1998) of the CC of 1961).

  1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petitions of the petitioners, the Constitutional Court is investigating whether Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, insofar as, under the legal regulation established in this paragraph, Article 99 of the CC has a retroactive effect on persons who committed the crimes specified in this article against the persons who belonged to certain social or political groups, is (was) not in conflict with Paragraph 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

5.1. Paragraph 4 of Article 31 of the Constitution prescribes: “Punishment may be imposed or applied only on the grounds established by law.” Thus, the principle of nulla poena sine lege, which is consolidated in the said provision of the Constitution, means that no person may be punished for a deed that was not punishable by law at the time when it was committed.

It should be noted that the said principle also stems from the constitutional principle of a state under the rule of law. As the Constitutional Court noted in its rulings of 13 December 2004 and 16 January 2006, when law is applied, inter alia, it is necessary to observe the following requirements arising under the constitutional principle of a state under the rule of law: liability (sanction, punishment) for any violations of law must be established in advance (nulla poena sine lege); no deed is criminal unless it is defined as such by law (nullum crimen sine lege).

Thus, it should be noted that the constitutional principle of a state under the rule of law integrates the following two interrelated principles, which are of significance in the constitutional justice case at issue: nulla poena sine lege and nullum crimen sine lege.

5.2. In this context it should be noted that the constitutional principle of a state under the rule of law also integrates other principles that are of significance in the constitutional justice case at issue. As mentioned before, respect for international law is an inseparable part of the constitutional principle of a state under the rule of law, whose essence is the rule of law.

It has been mentioned that, under Paragraph 1 of Article 135 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the said provision consolidates the constitutional principle of respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling, in good faith, the obligations assumed by the Republic of Lithuania under international law, inter alia, international treaties; the constitutional principle of pacta sunt servanda also means the imperative of fulfilling, in good faith, international obligations arising from the universally recognised norms of international law (general international law) that prohibit international crimes.

It has also been mentioned that, in order to be in line with the commitment of the Republic of Lithuania, as prescribed in Paragraph 1 of Article 135 of the Constitution, to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law) that prohibit international crimes, the criminal laws of the Republic of Lithuania that are related to liability for international crimes, inter alia, genocide, may not establish any such standards that would be lower than those established under the universally recognised norms of international law; disregard for the said requirement would be incompatible with the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution and expressed through the constitutional principle of a state under the rule of law.

It has also been mentioned that the universally recognised norms of international law permit an exception to the principle of nullum crimen, nulla poena sine lege, by providing that national laws establishing criminal liability for crimes recognised under international law or the general principles of law may have a retroactive effect; this exception does not apply to the other crimes specified under national law; the said exception to the principle of nullum crimen, nulla poena sine lege, under which national laws establishing criminal liability for crimes recognised under international law or the general principles of law may have a retroactive effect, is applicable, inter alia, to the crime of genocide as defined under the universally recognised norms of international law (i.e., the crime of genocide directed exclusively against national, ethnical, racial, or religious, but not social or political, groups).

5.3. In the context of the constitutional justice case at issue, it should be noted that, in view of Paragraph 1 of Article 135 of the Constitution and the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, the principle of nullum crimen, nulla poena sine lege, which is consolidated in Paragraph 4 of Article 31 of the Constitution and stems from the constitutional principle of a state under the rule of law, is not absolute. Under the Constitution, criminal laws may provide for an exception to the said principle, which would be applicable to crimes established under international law or the general principles of law, inter alia, the crime of genocide as defined under the universally recognised norms of international law (i.e., the crime of genocide directed exclusively against national, ethnical, racial, or religious groups); only in that way, regard would be paid to the requirement, which stems from Paragraph 1 of Article 135 of the Constitution and is linked to the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, that the criminal laws of the Republic of Lithuania related to liability for international crimes would not establish any such standards that would be lower than those established under the universally recognised norms of international law. This requirement and thus also the principle of nullum crimen, nulla poena sine lege, which is consolidated in Paragraph 4 of Article 31 of the Constitution and stems from the constitutional principle of a state under the rule of law, would be disregarded if criminal laws provided that they have a retroactive effect on the crimes as defined exclusively under national law.

  1. In order to decide whether Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC is (was) not in conflict with Paragraph 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

– under the legal regulation established in Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, a person may also be brought to trial under Article 99 of the CC for the actions that had been aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group; thus, Article 99 of the CC equally has a retroactive effect on actions directed against the persons belonging to social or political groups, i.e. groups not included in defining the crime of genocide under the universally recognised norms of international law;

– under the Constitution, criminal laws may provide for an exception to the principle of nullum crimen, nulla poena sine lege, which would be applicable, inter alia, to the crime of genocide as defined under the universally recognised norms of international law (i.e., the crime of genocide directed exclusively against national, ethnical, racial, or religious groups); only in that way, regard would be paid to the aforementioned requirement, which stems from Paragraph 1 of Article 135 of the Constitution and is linked to the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, that the criminal laws of the Republic of Lithuania related to liability for international crimes would not establish any such standards that would be lower than those established under the universally recognised norms of international law; the said requirement and, thus, also the principle of nullum crimen, nulla poena sine lege, which is consolidated in Paragraph 4 of Article 31 of the Constitution and stems from the constitutional principle of a state under the rule of law, would be disregarded if criminal laws provided that they have a retroactive effect on the crimes as defined exclusively under national law.

Thus, it needs to be held that, by establishing, in Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions that had been aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, the legislature established the retroactive effect of Article 99 of the CC for such actions that are considered to constitute the crime of genocide only under the norms of national law; by establishing such legal regulation, no regard was paid to Paragraph 4 of Article 31 and Paragraph 1 of Article 135 of the Constitution and the constitutional principle of a state under the rule of law.

  1. In this context it should be noted that, as mentioned before, in view of, inter alia, Paragraph 1 of Article 135 of the Constitution, the principle of nullum crimen, nulla poena sine lege, which is consolidated in Paragraph 4 of Article 31 of the Constitution and stems from the constitutional principle of a state under the rule of law, is not absolute; under the Constitution, criminal laws may provide for an exception to the said principle, which would be applicable to crimes established under international law or the general principles of law, inter alia, to the crime of genocide.

As mentioned before, under the universally recognised norms of international law, actions may also be recognised as genocide if they are deliberate actions aimed at destroying certain social or political groups that constitute a significant part of a national, ethnical, racial, or religious group and the destruction of which would have an impact on the respective national, ethnical, racial, or religious group as a whole. Thus, under the Constitution, as well as under the universally recognised norms of international law, the exception to the principle of nullum crimen, nulla poena sine lege is also applicable to deliberate actions that are considered to constitute genocide, i.e. deliberate actions aimed at destroying a significant part of any national, ethnical, racial, or religious group that has an impact on the survival of the whole corresponding protected group, comprising certain social or political groups.

It should also be noted that, under the Constitution, as well as under the universally recognised norms of international law, the exception to the principle of nullum crimen, nulla poena sine lege, which permits the retroactivity of the criminal laws establishing criminal liability for crimes recognised under international law or the general principles of law, is also applicable to crimes against humanity and war crimes, which may be directed, inter alia, against certain social or political groups of people.

  1. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC, insofar as it establishes the legal regulation under which a person may be brought to trial under Article 99 of the CC for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, is (was) in conflict with Paragraph 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Having held the foregoing, the Constitutional Court will not further investigate whether the impugned legal regulation established in Paragraph 3 (wordings of 26 September 2000 and 22 March 2011) of Article 3 of the CC is (was) not in conflict with Paragraph 2 of Article 31 and Paragraph 3 of Article 138 of the Constitution.

VI

On the compliance of Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the Criminal Code (wording of 26 September 2000) with the Constitution

  1. It has been mentioned that in the constitutional justice case at issue the Court of Appeal of Lithuania (petition No. 1B-58/2011), the Panevėžys Regional Court, and the Kaunas Regional Court, petitioners, request an investigation into whether Item 1 of Paragraph 8 of Article 95 of the CC is not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and with the constitutional principle of a state under the rule of law, whilst the group of members of the Seimas, a petitioner, requests an investigation into whether Item 1 of Paragraph 8 of Article 95 of the CC is not in conflict with Article 6 and Paragraphs 2 and 4 of Article 31 of the Constitution and with the constitutional principle of a state under the rule of law.

It has also been mentioned that the Court of Appeal of Lithuania (petition No. 1B-16/2012), a petitioner, requests an investigation into whether Item 1 of Paragraph 5 of Article 95 of the CC is (was) not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution.

  1. In their petitions the petitioners have not indicated the wordings of Item 1 of Paragraph 5 of Article 95 and of Item 1 of Paragraph 8 of Article 95 of the CC the investigation into the compliance of which with the Constitution is being requested.

It is clear from the petitions of the petitioners that they have doubts about whether Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000) are not in conflict with the Constitution.

Although the group of members of the Seimas, a petitioner, impugns the compliance of Item 1 of Paragraph 8 of Article 95 of the CC with Article 6 of the Constitution, from the arguments in the petitioner it is clear that the related doubts of the petitioner (regarding the deviation of the legal regulation established in Item 1 of Paragraph 8 of Article 95 of the CC from the provisions of the relevant international treaties) should be treated as doubts regarding the compliance of Item 1 of Paragraph 8 of Article 95 of the CC with Paragraph 3 of Article 138 of the Constitution.

Thus, taking into account the petitions of the petitioners, in the constitutional justice case at issue, the Constitutional Court will investigate whether Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000) are (were) not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and with the constitutional principle of a state under the rule of law.

  1. According to the petitioners, by establishing in Article 95 of the CC the legal regulation under which no statute of limitations is applied to the corpus delicti of genocide, the legislature deviated from the provisions of international treaties, which means that the provisions of Paragraph 3 of Article 138 of the Constitution were not observed. According to the petitioners, such legal regulation does not ensure a person’s right to a fair trial, also, the right of such a person that his or her case, within a reasonable time and under the conditions of equality and publicity, would be heard before an independent and impartial court established by law is not ensured, and it obscures as to when criminal liability should be applied, therefore, Paragraphs 2 and 4 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law are violated.
  2. It has been mentioned that Item 1 of Paragraph 5 of Article 95 “Statute of Limitations for Delivering a Judgment of Conviction” of the CC (wording of 26 September 2000) prescribed:

“The following crimes provided for in this Code shall have no statute of limitations:

1) genocide (Article 99);”.

It has also been mentioned that, on 15 June 2010, the Seimas adopted the Law Amending and Supplementing Article 95 of the Criminal Code, Supplementing the Code with Article 1702 and Supplementing the Annex to the Code; by means of Article 1 of the said law, Article 95 of the CC was amended and supplemented, inter alia, the crimes specified in Paragraph 8 of the same article with regard to which no statutory limitation is applicable; according to Item 1 of the same paragraph, whose compliance with the Constitution is being impugned by the petitioners, “genocide (Article 99)” shall have no statute of limitations.

It has also been mentioned that Article 3 of the aforesaid Law Amending and Supplementing Articles 3, 7, 95, 100, 101, 102, 103, 105, 106, 109, and 111 of the Criminal Code, Recognising Article 104 Thereof as No Longer Valid and Supplementing the Code with Article 1131 that was adopted on 22 March 2011 amended Paragraph 8 of Article 95 of the CC, however, the legal regulation established in this paragraph did not change in the aspect impugned by the petitioners.

  1. As mentioned before, under Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), no statute of limitations for delivering a judgment of conviction is applied to the full extent of the crime of genocide as this crime is defined in Article 99 of the CC, thus, also no statute of limitations for delivering a judgment of conviction is applied for the actions provided for in Article 99 of the CC committed against the persons belonging to social or political groups, i.e. the groups that are not provided for when the crime of genocide is defined according to the universally recognised norms of international law.
  2. It has been mentioned that in the constitutional justice case at issue, the Constitutional Court is investigating whether Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000) are (were) not in conflict with, inter alia, Paragraphs 2 and 4 of Article 31 of the Constitution.

6.1. Paragraph 2 of Article 31 of the Constitution prescribes: “A person charged with the commission of a crime shall have the right to a public and fair hearing of his case by an independent and impartial court.” Thus, this provision of the Constitution consolidates the right of a person to a fair, impartial, and independent court.

It has been mentioned that Paragraph 4 of Article 31 of the Constitution prescribes: “Punishment may be imposed or applied only on the grounds established by law”; the principle of nulla poena sine lege, which is consolidated in the said provision of the Constitution, means that no person may be punished for a deed that was not punishable by law at the time when it was committed.

6.2. When Paragraph 2 of Article 31 of the Constitution is construed in conjunction with Paragraph 4 of the same article, according to which, punishment may be imposed or applied only on the grounds established by law, it should be noted that, under the Constitution, a fair, impartial, and independent court cannot impose any punishment on the grounds other than those established by law; the constitutional right to a fair trial, inter alia, means not only that, during the judicial procedure, principles and norms of law of criminal procedure must be observed, but also that the punishment established in the penal law and imposed by a court must be just; the penal law must provide for all opportunities for the court to impose, in consideration of all circumstances of the case, a just punishment on the person who committed a criminal deed (the Constitutional Court’s rulings of 10 June 2003 and 8 June 2009).

6.3. It has been mentioned that the principle of nulla poena sine lege stems from the constitutional principle of a state under the rule of law: the application of law includes, inter alia, the requirement that liability (sanction, punishment) for any violations of law must be established in advance (nulla poena sine lege);

6.4. It should be noted that, as held by the Constitutional Court, the legislature, when regulating the relations related to the establishment of criminal liability for criminal deeds, enjoys broad discretion; in view of the nature, danger (gravity), scale and other features of criminal deeds, as well as in view of other circumstances of significance, it may, inter alia, consolidate differentiated legal regulation and establish different legal liability for corresponding criminal deeds; however, this discretion of the legislature is not absolute: the legislator must pay heed to the norms and principles of the Constitution, inter alia, the imperatives of the regularity and inner consistency of the legal system that stem from the Constitution (the Constitutional Court’s ruling of 16 January 2006).

In the context of the constitutional justice case at issue, it should be noted that the legislature, in order to implement its obligation that stems from the Constitution to ensure the security of every person and the entire society against criminal attempts, has a duty to define, by means of laws, criminal deeds and to establish criminal liability for them. When doing so, the legislature also enjoys discretion to establish the time limits during which criminal liability could be applied to persons who committed criminal deeds. Establishing such time limits, the legislature must take into account, inter alia, the character and dangerousness (gravity) of a criminal deed. These criteria may also determine such a legal regulation to the effect that no time limits are applied as regards criminal liability for the gravest crimes.

6.5. In the context of the constitutional justice case at issue, it should be noted that, in themselves, the providing of a statute of limitations for delivering of a judgment of conviction in criminal laws, and the provisions of criminal laws providing for the non-application of a statute of limitations for crimes of certain gravity, do not violate the right to a fair, impartial, and independent court as consolidated in Paragraph 2 of Article 31 of the Constitution, the principle of nulla poena sine lege as consolidated in Paragraph 4 of the same article, and the constitutional principle of a state under the rule of law.

6.6. In view of this fact, it needs to be held that there is no ground for stating that Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), which are being impugned by the petitioner, are (were) in conflict with Paragraphs 2 and 4 of Article 31 of the Constitution.

  1. It has been mentioned that, according to the petitioners, by establishing, in Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), the legal regulation under which no statute of limitations applies to the established broader corpus delicti of genocide, the legislature deviated from the provisions of international treaties, which, in the opinion of the petitioners, means that the legislature did not observe the provisions of Paragraph 3 of Article 138 of the Constitution.

While deciding whether Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), insofar as, under the legal regulation established in these items, no statute of limitations applies for delivering a judgment of conviction for the actions committed, as specified in Article 99 of the CC, against, inter alia, the persons belonging to social or political groups, are (were) not in conflict with Paragraph 3 of Article 138 of the Constitution, it should be noted that, as mentioned before, the Constitution consolidates the principle that in the cases where a national legal act (obviously, with the exception of the Constitution itself) establishes such a legal regulation that competes with the one established in an international treaty, the international treaty must be applied; it has also been mentioned that the fact of determining that a certain provision of a law of the Republic of Lithuania is not aligned with a certain provision of an international treaty would not in itself mean that the provision of the law in question is in conflict with Paragraph 3 of Article 138 of the Constitution.

In view of the foregoing, it should be held that there is no ground to maintain that the impugned legal regulation established in Item 1 of Paragraph 5 of Article 95 (wording of 26 September 2000) and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC is (was) in conflict with Paragraph 3 of Article 138 of the Constitution.

  1. It has been mentioned that, in the constitutional justice case at issue, the petitioners doubt regarding the compliance of Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000) with, inter alia, the constitutional principle of a state under the rule of law.

8.1. As mentioned before, the constitutional principle of a state under the rule of law integrates certain principles that are of significance in the constitutional justice case at issue; respect for international law is an inseparable part of the constitutional principle of a state under the rule of law, whose essence is the rule of law.

8.2. It has also been mentioned that, under Paragraph 1 of Article 135 of the Constitution, the Republic of Lithuania is obliged to follow the universally recognised principles and norms of international law; the said provision consolidates the constitutional principle of respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling, in good faith, the obligations assumed by the Republic of Lithuania under international law, inter alia, international treaties; the constitutional principle of pacta sunt servanda also means the imperative of fulfilling, in good faith, international obligations arising from the universally recognised norms of international law (general international law) that prohibit international crimes.

It has also been mentioned that, in order to be in line with the commitment of the Republic of Lithuania, as prescribed in Paragraph 1 of Article 135 of the Constitution, to fulfil, in good faith, its international obligations arising under the universally recognised norms of international law (general international law) that prohibit international crimes, the criminal laws of the Republic of Lithuania that are related to liability for international crimes, inter alia, genocide, may not establish any such standards that would be lower than those established under the universally recognised norms of international law; disregard for the said requirement would be incompatible with the striving for an open, just, and harmonious civil society and a state under the rule of law, as consolidated in the Preamble to the Constitution and expressed through the constitutional principle of a state under the rule of law.

8.3. It has been mentioned that, under the universally recognised norms of international law, no statutory limitation, inter alia, no statute of limitations for delivering a judgment of conviction, applies to the crime of genocide as defined under the Convention Against Genocide and other international legal acts (i.e. the crime of genocide aimed exclusively at national, ethnical, racial, or religious groups); on the other hand, the universally recognised norms of international law do not preclude from establishing, in national law, other crimes that would not be subject to any statute of limitations, inter alia, any statute of limitations for delivering a judgment of conviction.

In the context of the constitutional justice case at issue, it should be noted that the universally recognised norms of international law do not preclude from establishing, in national law, that no statute of limitations, inter alia, no statute of limitations for delivering a judgment of conviction, applies to the crime of genocide aimed, as defined under national law, against social or political groups, i.e. groups not included in defining genocide under the universally recognised norms of international law. It should be emphasised that the crime of genocide constitutes particularly grave criminal actions committed against certain groups of people (killing members of certain groups, causing serious bodily or mental harm to members of these groups, deliberately inflicting on these groups the conditions of life calculated to bring about their physical destruction in whole or in part, etc.).

8.4. It has been mentioned that, under Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), no statute of limitations for delivering a judgment of conviction applies to the full extent of the crime of genocide as this crime is defined in Article 99 of the CC; thus, neither does any statute of limitations for a judgment of conviction apply to the actions committed, as provided for in Article 99 of the CC, against the persons belonging to social or political groups, i.e. groups that are not provided for in defining the crime of genocide under the universally recognised norms of international law.

8.5. Thus, it should be held that there is no ground to maintain that the legal regulation established in Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000), inter alia, insofar as no statute of limitations for delivering a judgment of conviction applies to the actions committed, as specified in Article 99 of the CC, against the persons belonging to social or political groups, is not in line with the aforementioned requirement, which stems from Paragraph 1 of Article 135 of the Constitution and is linked to the striving for an open, just, and harmonious civil society and a state under the rule of law as expressed through the constitutional principle of a state under the rule of law, that the criminal laws of the Republic of Lithuania that are related to liability for international crimes may not establish any such standards that would be lower than those established under the universally recognised norms of international law; there is also no ground to maintain that the impugned legal regulation has created preconditions for violating the constitutional principle of a state under the rule of law.

  1. In the light of the foregoing arguments, the conclusion should be drawn that Item 1 of Paragraph 5 of Article 95 and Item 1 of Paragraph 8 (wordings of 15 June 2010 and 22 March 2011) of Article 95 of the CC (wording of 26 September 2000) are (were) not in conflict with Paragraphs 2 and 4 of Article 31 and Paragraph 3 of Article 138 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

  1. To recognise that Paragraph 3 of Article 3 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000; Official Gazette Valstybės žinios, 2000, No. 89-2741), insofar as this paragraph establishes the legal regulation under which a person may be brought to trial under Article 99 of the Criminal Code for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, was in conflict with Paragraph 4 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  2. To recognise that Paragraph 3 (wording of 22 March 2011; Official Gazette Valstybės žinios, 2011, No. 38-1805) of Article 3 of the Criminal Code of the Republic of Lithuania, insofar as this paragraph establishes the legal regulation under which a person may be brought to trial under Article 99 of the Criminal Code for the actions aimed at physically destroying, in whole or in part, the persons belonging to any social or political group, where such actions had been committed prior to the time when liability was established in the Criminal Code for the genocide of persons belonging to any social or political group, is in conflict with Paragraph 4 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  3. To recognise that Item 1 of Paragraph 5 of Article 95 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000; Official Gazette Valstybės žinios, 2000, No. 89-2741) was not in conflict with the Constitution of the Republic of Lithuania.
  4. To recognise that Item 1 of Paragraph 8 of Article 95 (wording of 15 June 2010; Official Gazette Valstybės žinios, 2010, No. 75-3792) of the Criminal Code of the Republic of Lithuania was not in conflict with the Constitution of the Republic of Lithuania.
  5. To recognise that Item 1 of Paragraph 8 (wording of 22 March 2011; Official Gazette Valstybės žinios, 2011, No. 38-1805) of Article 95 of the Criminal Code of the Republic of Lithuania is not in conflict with the Constitution of the Republic of Lithuania.
  6. To recognise that Article 99 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000; Official Gazette Valstybės žinios, 2000, No. 89-2741), insofar as this article provides that actions are considered to constitute genocide if they are aimed at physically destroying, in whole or in part, persons belonging to any national, ethnical, racial, religious, social, or political group, is not in conflict with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                              Toma Birmontienė

                                                                                                   Pranas Kuconis

                                                                                                   Gediminas Mesonis

                                                                                                   Vytas Milius

                                                                                                   Egidijus Šileikis

                                                                                                   Algirdas Taminskas

                                                                                                   Romualdas Kęstutis Urbaitis

                                                                                                   Dainius Žalimas