EUROPEAN COURT OF HUMAN RIGHTS

54524.7.2008

Press release issued by the Registrar

CHAMBER JUDGMENTKONONOV v. LATVIA

The European Court of Human Rights has today notified in writing its Chamber judgment 1 in the case of Kononov v. Latvia (application no. 36376/04).

The Court held, by four votes to three, that there had been a violation of Article 7 (no punishment without law) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant, by four votes to three, 30,000 euros (EUR) in respect of non-pecuniary damage. (The judgment, done in French, is also available in English.)

1.  Principal facts

Vasiliy Kononov was born in 1923. He was a Latvian national until 12 April 2000, when he was granted Russian nationality.

The case concerned Mr Kononov’s prosecution for war crimes he allegedly committed in 1944. At the time the territory of Latvia was under German occupation.

In 1942 the applicant was called up as a soldier in the Soviet Army. In 1943 he was parachuted into Belarus territory (also under German occupation at the time) near the Latvian border, where he joined a Soviet commando unit composed of members of the “Red Partisans”.

According to the facts as definitively established by the competent Latvian courts, on 27 May 1944 the applicant led a unit of armed Red Partisans wearing German uniforms to avoid arousing suspicion in a punitive expedition on the village of Mazie Bati, certain of whose inhabitants were suspected of having betrayed and turned into the Germans another group of Red Partisans. The applicant’s men burst into and searched six houses. After finding rifles and grenades supplied by the German military administration in each of the houses, the Partisans executed the six heads of family concerned. They also wounded two women. They then set fire to two houses and four people perished in the flames. In all, nine villagers were killed: six men and three women, one in the final stages of pregnancy.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

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According to the applicant, the victims of the attack were collaborators who had delivered a group of 12 Partisans (including two women and a small child) into the hands of the Germans some three months earlier. The applicant said that his unit had been instructed to capture those responsible so that they could be brought to trial. He had not personally led the operation or entered the village.

In January 1998 the Centre for the Documentation of the Consequences of Totalitarianism (Totalitārisma seku dokumentēšanas centrs) launched a criminal investigation into the events of 27 May 1944. It considered that the applicant could have committed war crimes under Article 68-3 of the former Latvian Criminal Code. Article 68-3 stipulated that those found guilty of war crimes were liable to between three and fifteen years’ imprisonment or life imprisonment. Article 6-1 permitted the retrospective application of the criminal law with respect to war crimes and Article 45-1 provided that the prosecution of such crimes was not subject to statutory limitation.

On 2 August 1998 the applicant was charged with war crimes and on 10 October 1998 placed in pre-trial detention. He entered a not guilty plea.

The Riga Regional Court found him guilty and imposed an immediate six-year custodial sentence.

That judgment was quashed, however, on 25 April 2000 on the ground that various issues remained unresolved, including whether Mazie Bati had in fact been within “occupied territory” and whether the applicant and his victims could be classified as “combatants” and “non-combatants” respectively. The applicant was released from detention.

On 17 May 2001, following a fresh preliminary investigation, the applicant was again charged with an offence under Article 68-3.

On 3 October 2003 the Latgale Regional Court acquitted him of the war-crimes charges, but found him guilty of banditry. It accepted that the deaths of the men from Mazie Bati could be regarded as necessary and justified in military terms, but found that there was no justification for the killing of the three women or the burning down of the village buildings. The applicant and his men had committed an act of banditry and the applicant, as the commanding officer, was responsible for the actions of his unit. However, since banditry did not fall into the category of offences exempt from statutory limitation, the Regional Court relieved the applicant of criminal liability.

On 30 April 2004, the Criminal Affairs Division of the Supreme Court allowed an appeal from the prosecution and quashed that judgment, again finding the applicant guilty of war crimes under Article 68-3. Noting that he was aged, infirm and harmless, it imposed an immediate custodial sentence of one year and eight months. The applicant lodged an unsuccessful appeal on points of law.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 27 August 2004.

The President of the Court gave the Russian Government leave to intervene as a third party.

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A public hearing took place in the Human Rights building, Strasbourg, on 20 September 2007 and the Chamber declared it partly admissible.

Judgment was given by a Chamber of seven judges, composed as follows:

Boštjan M. Zupančič (Slovenian), President,Corneliu Bîrsan (Romanian),Elisabet Fura-Sandström (Swedish),Alvina Gyulumyan (Armenian),Egbert Myjer (Dutch),David Thór Björgvinsson (Icelandic),Ineta Ziemele (Latvian), judges,

and also Santiago Quesada, Section Registrar.

3.  Summary of the judgment1

Complaint

The applicant complained under Article 7 § 1 that the acts of which he had been accused did not, at the time of their commission, constitute an offence under either domestic or international law.

Decision of the Court

Article 7

It was not the Court’s task to rule on the applicant’s individual criminal responsibility, but to consider, from the standpoint of Article 7 § 1, whether on 27 May 1944 his acts constituted offences that were defined with sufficient accessibility and foreseeability by domestic law or international law.

The Criminal Affairs Division of the Supreme Court had characterised the applicant’s acts by reference to three international instruments. However, two of these had come into existence after 1944 and did not contain any provisions affording them retrospective effect and in any event Article 7 § 1 precluded the retrospective application of an international treaty to characterise an act or omission as criminal. Only the Hague Convention of 1907 concerning the law and customs of war on land (or, more precisely, the appended Regulations) existed and was in force at the time the alleged offences were committed. Neither the USSR nor Latvia had signed that Convention, which was not, therefore, formally applicable to the armed conflict in question. However, the text of that Convention merely reproduced the fundamental customary rules that were firmly recognised by the community of nations at the time. The Court therefore presumed that the applicant, as a “combatant” within the meaning of international law, must have been aware of the rules.

The Court noted that the decisions of the domestic courts were almost completely silent on the question whether the applicant was personally and directly implicated in the events of Mazie Bati. The only genuine accusation made against him by the Latvian courts was that he had led the unit which carried out the punitive expedition on 27 May 1944. The Court

1 This summary by the Registry does not bind the Court.

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therefore had to determine whether that operation could, in itself, reasonably be regarded as having contravened the laws and customs of war as codified by the Hague Convention of 1907.

In that connection, the Court noted that even though the operation had not been carried out in a combat situation, it had nevertheless taken place in a war zone near the front in a village that had seen skirmishes between the Red Partisans and the German army and in a region occupied by Nazi Germany and its army, where a Latvian auxiliary police in the service of the Germans, armed “trustworthy men” and others employed to denounce members of the Red Partisans were all active.

While there was nothing to indicate that the six men killed on 27 May 1944 were members of the Latvian auxiliary police, they had received rifles and grenades from the Germans. Following, in particular, the killing by the Wehrmacht of a group of Red Partisans who had been betrayed by the Mazie Bati villagers after taking refuge on their territory, the applicant and the other Red Partisans had legitimate grounds for considering the villagers concerned as collaborators of the German Army. Accordingly, the Court was not satisfied that the six men killed could reasonably be regarded as “civilians” and noted that that notion was not defined by the Hague Convention of 1907. In characterising the victims as “civilians”, the Criminal Affairs Division had relied on a provision in another instrument which provided that any person not belonging to one of the predefined categories of combatants or in respect of whom there was a doubt on that point was presumed a “civilian”. However, that instrument, which was adopted more than 30 years after the events in question, could not be applied retrospectively and there was no reason to consider that such a presumption was already recognised in customary law in 1944.

The Court noted, further, that the operation of 27 May 1944 had been selective in character, as it was carried out against six specific, identified men who were strongly suspected of having collaborated with the Nazi occupier. The Partisans had searched their homes, and it was only after finding rifles and grenades supplied by the Germans – tangible evidence of their collaboration – that they had carried out the executions. Conversely, all the villagers were spared.

The Court noted that the Latvian courts had omitted in their decisions to carry out a detailed and sufficiently thorough analysis of the Regulations appended to the Hague Convention of 1907, but had simply referred to certain of its articles without explaining how they came into play in the applicant’s case. In particular, the Criminal Affairs Division had cited three articles of the Regulations in question which made it illegal “to kill or wound treacherously individuals belonging to the hostile nation or army”, prohibited attacks on “towns, villages, dwellings, or buildings which are undefended” and required certain fundamental rights to be respected. The instant case concerned a targeted military operation consisting in the selective execution of armed collaborators of the Nazi enemy who were suspected on legitimate grounds of constituting a threat to the Red Partisans and whose acts had already caused the deaths of their comrades. That operation was scarcely any different from those carried out at the same period by the armed forces of the Allied powers or by local Resistance members in many European countries occupied by Nazi Germany.

Finally, the Court considered that it had not been adequately demonstrated that the attack on 27 May 1944 was per se contrary to the laws and customs of war as codified by the Regulations appended to the Hague Convention of 1907. Accordingly, in view of the

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summary nature of the reasoning of the Latvian courts, it concluded that there was no plausible legal basis in international law on which to convict the applicant for leading the unit responsible for the operation.

As regards the three women killed at Mazie Bati, the Court could only regret the overly general and summary nature of the domestic courts’ reasoning, which did not allow any definite answers to be given to two fundamental questions, namely whether and to what extent the women had participated in the betrayal of the group of Red Partisans, and whether their execution had been planned by the Red Partisans from the start or whether the members of the unit had acted beyond their authority.

The Court considered that there were two possible explanations for what happened.  The first was that the three women concerned had played a role in the betrayal and that their execution had been planned from the start. The Government had not refuted the applicant’s assertion that the three women had kept watch while the men had gone to the neighbouring village to alert the German garrison to the Partisans’ presence. If that account was true, the Court was bound to conclude that the three women were also guilty of abusing their status of “civilians” by providing genuine, concrete assistance to the six men from Mazie Bati who collaborated with the Nazi occupier. In such circumstances, the Court’s finding with respect to the men who were executed during the operation on 27 May 1944 was in general equally applicable to the three women.

The second explanation was that the women’s deaths had not initially been planned by the applicant’s men and their commanding officers and that their deaths resulted from an abuse of authority. The Court considered that neither such abuse of authority nor the military operation in which it took place could reasonably be regarded as a violation of the laws and customs of war as codified in the Hague Regulations. Under this scenario, the Court accepted that the acts committed by the members of the unit against the three women concerned could prima facie constitute offences under the general law, which, as such, had to be examined by reference to the domestic law applicable at the material time.

On the assumption that the deaths of the three women from Mazie Bati were the result of an abuse of authority by the Red Partisans, the Court notes that, as with the six men, the decisions of the Latvian courts contained no indication of the exact degree of implication of the applicant in their execution. Thus, it had never been alleged that he himself had killed the women or that he had ordered or incited his comrades to do so.

In any event, the Court considered that even if the applicant’s conviction was based on domestic law, it was manifestly contrary to the requirements of Article 7 as, even supposing that he had committed one or more offences under the general law in 1944, their prosecution had been definitively statute barred since 1954 and it would be contrary to the principle of foreseeability to punish him for these offences almost half a century after the expiry of the limitation period.

Consequently, the Court considered that the applicant could not reasonably have foreseen on 27 May 1944 that his acts amounted to a war crime under the international rules governing conduct in war applicable at the time. There was, therefore, no plausible legal basis in international law on which to convict him of such an offence and even supposing that the applicant had committed one or more offences under domestic law, by 2004 domestic law could no longer serve as a basis for his conviction either, in violation of Article 7.

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Judge Myjer expressed a concurring opinion. Judges Fura-Sandström, David Thor Björgvinsson and Ziemele expressed a joint dissenting opinion and Judge David Thor Björgvinsson a dissenting opinion. These are annexed to the judgment.

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