28.05.2010 21:11 : Решение Европейского суда по правам человека по делу Василия ...

The advance of the German forces obliged the USSR forces to leave the Baltic region and withdraw towards Russia. 17 мая 2010г. вынесено постановление по делу "Кононов против Латвии", пересматривающее решение Палаты ЕСПЧ, принятое в 2008г. в пользу ветерана Великой Отечественной войны В.Кононова

17 мая 2010г. вынесено постановление по делу "Кононов против Латвии", пересматривающее решение Палаты ЕСПЧ, принятое в 2008г. в пользу ветерана Великой Отечественной войны В.Кононова


Press release issued by the Registrar
Grand Chamber Judgment1
Kononov v. Latvia (Application n° 36376/04)
VASILIY KONONOV’S CONVICTION OF WAR CRIMES DURING SECOND WORLD WAR FOUND NOT TO HAVE VIOLATED ARTICLE 7 (NO PUNISHMENT WITHOUT LAW) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Principal facts
Vasiliy Kononov was born in Latvia in 1923. He was a Latvian national until 12 April 2000, when he was granted Russian nationality. In 1942 he was called up as a soldier in the Soviet Army. In 1943 he was dropped into Belarus territory (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 established by the competent Latvian courts, on 27 May 1944 the applicant led a unit of Red Partisans wearing German uniforms on an expedition on the village of Mazie Bati, certain of whose inhabitants were suspected of having betrayed to the Germans another group of Red Partisans. The applicant’s unit searched six farm buildings in the village. After finding rifles and grenades supplied by the Germans in each of the houses, the Partisans shot the six heads of family concerned. They also wounded two women. They then set fire to two houses and four people (three of whom were women) perished in the flames. In all, nine villagers were killed: six men – five executed and one killed in the burning buildings – and three women – one in the final stages of pregnancy. The villagers killed were unarmed; none attempted to escape or offered any form of resistance.
According to the applicant, the victims of the attack were collaborators who had delivered a group of 12 Partisans 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 further claimed that he had not personally led the operation or entered the village.

In July 1998 the Centre for the Documentation of the Consequences of Totalitarianism (Totalitrisma seku dokumentanas centrs), based in Latvia, forwarded an investigation file concerning the events of 27 May 1944 to the Latvian Principal Public Prosecutor. Subsequently, Mr Kononov was charged with war crimes.
On 30 April 2004 the Criminal Affairs Division of the Supreme Court ultimately found the applicant guilty of war crimes under Article 68-3 of the 1961 Criminal Code of the Soviet Socialist Republic of Latvia (the “1961 Latvian Criminal Code”)2. Relying mainly on the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (“Geneva Convention (IV) 1949”), it convicted the applicant for the ill-treatment, wounding and killing of the villagers, finding in particular that burning a pregnant woman to death violated the special protection afforded to women during war. Furthermore, the applicant and his unit had violated Article 25 of the Hague Regulations 1907 which forbade attacks against undefended localities, such as the villagers’ farm buildings. Under Article 23(b) of the same Regulations, the applicant was also convicted separately of treacherous wounding and killing, as he and his unit had worn German uniforms during the Mazie Bati operation. Noting that he was aged, infirm and harmless, the Latvian courts imposed an immediate custodial sentence of one year and eight months.

The applicant lodged an unsuccessful appeal on points of law.

Complaints, procedure and composition of the Court

The applicant complained, in particular, that the acts of which he had been accused had not, at the time of their commission, constituted an offence under either domestic or international law. He maintained that, in 1944 as a young soldier in a combat situation behind enemy lines, he could not have foreseen that those acts could have constituted war crimes, or have anticipated that he would subsequently be prosecuted. He also argued that his conviction following the independence of Latvia in 1991 had been a political exercise by the Latvian State rather than any real wish to fulfil international obligations to prosecute war criminals. He relied on Article 7 § 1 (no punishment without law) of the European Convention.

The application was lodged with the European Court of Human Rights on 27 August 2004.
In a judgment of 24 July 2008 the Court held, by four votes to three, that there had been a violation of Article 7 and, under Article 41 (just satisfaction), awarded the applicant 30,000 euros (EUR) in respect of non-pecuniary damage.

On 6 January 2009 the case was referred to the Grand Chamber under Article 43 at the Government’s request.

Third-party comments were received from the Government of the Russian Federation and from the Lithuanian Government.
On 20 May 2009 a hearing was held in public in the Human Rights Building in Strasbourg.

Judgment was given by the Grand Chamber of 17, composed as follows:
Jean-Paul Costa (France), President,
Christos Rozakis (Greece),
Nicolas Bratza (the United Kingdom),
Peer Lorenzen (Denmark),
Franoise Tulkens (Belgium),
Josep Casadevall (Andorra),
Ireneu Cabral Barreto (Portugal)
Dean Spielmann (Luxembourg),
Renate Jaeger (Germany),
Sverre Erik Jebens (Norway),
Dragoljub Popovi (Serbia),
Pivi Hirvel (Finland),
Ledi Bianku (Albania),
Zdravka Kalaydjieva (Bulgaria),
Mihai Poalelungi (Moldova),
Neboja Vuini (Montenegro), judges,
Alan Vaughan Lowe (Latvia), ad hoc judge,

and also Michael O’Boyle, Deputy Registrar
Decision of the Court
Had there been a sufficiently clear legal basis in 1944 for the crimes of which the applicant had been convicted?

Mr Kononov had been convicted under Article 68-3 of the 1961 Latvian Criminal Code, a provision introduced by the Supreme Council on 6 April 1993, which used the “relevant legal conventions” (such as the Geneva Convention (IV) 1949) as the basis for a precise definition of war crimes. The Latvian courts’ conviction of the applicant had, therefore, been based on international rather than domestic law.

By May 1944 the prevailing definition of a war crime had been an act contrary to the laws and customs of war; and international law had defined the basic principles underlying those crimes. States had been permitted (if not required) to take steps to punish individuals for such crimes, including on the basis of command responsibility. Consequently, during and after the Second World War, international and national tribunals had prosecuted soldiers for war crimes committed during the Second World War.

As to whether there had been a sufficiently clear and contemporary legal basis for the specific war crimes for which the applicant had been convicted, the Court began its assessment on the basis of a hypothesis that the deceased villagers could be considered to be “combatants” or “civilians who had participated in hostilities” (rather than “civilians”). The Court also recalled the “two cardinal principles” relied on by the International Court of Justice as applicable to armed conflict which constituted “the fabric of humanitarian law”, namely “protection of the civilian population and objects” and “the obligation to avoid unnecessary suffering to combatants”.

In that connection, and having regard notably to Article 23(c) of the Hague Regulations 1907, the villagers’ murder and ill-treatment had violated a fundamental rule of the laws and customs of war by which an enemy rendered hors combat – in this case not carrying arms – was protected. Nor was a person required to have a particular legal status or to formally surrender. As combatants, the villagers would also have been entitled to protection as prisoners of war under the control of the applicant and his unit and their subsequent ill-treatment and summary execution would have been contrary to the numerous rules and customs of war protecting prisoners of war. Therefore, like the Latvian courts, the Court considered that the ill-treatment, wounding and killing of the villagers had constituted a war crime.

Furthermore, the domestic courts had reasonably relied on Article 23(b) of the Hague Regulations 1907 to separately convict Mr Kononov of treacherous wounding and killing. At the relevant time wounding or killing had been considered treacherous if it had been carried out while unlawfully inducing the enemy to believe they had not been under threat of attack by, for example, making improper use of an enemy uniform, which the applicant and his unit indeed had done. Equally, there was a plausible legal basis for convicting Mr Kononov of a separate war crime as regards the burning to death of the expectant mother, given the special protection for women during war established well before 1944 (ie Lieber Code 1863) in the laws and customs of war and confirmed immediately after the Second World War by numerous specific and special protections in the Geneva Conventions. Nor had there been evidence domestically, and it had not been argued before the Court, that it had been “imperatively demanded by the necessities of war” to burn down the farm buildings in Mazie Bati, the only exception under the Hague Regulations 1907 for the destruction of private property.

Indeed, the applicant had himself described in his version of events what he ought to have done namely, to have arrested the villagers for trial. Even if a partisan trial had taken place, it would not qualify as fair if it had been carried out without the knowledge or participation of the accused villagers, followed by their execution. Mr Kononov, having organised and been in control of the partisan unit which had been intent on killing the villagers and destroying their farms, had command responsibility for those acts.

In conclusion, even assuming as the applicant maintained that the deceased villagers could be considered to have been “civilians who had participated in hostilities” or “combatants”, there had been a sufficiently clear legal basis, having regard to the state of international law in 1944, for the applicant’s conviction and punishment for war crimes as the commander of the unit responsible for the attack on Mazie Bati on 27 May 1944. The Court added that, if the villagers were to be considered “civilians”, it followed that they would have been entitled to even greater protection.

Had the crimes been statute-barred?
The Court noted that the prescription provisions in domestic law were not applicable: the applicant’s prosecution required reference to international law both as regards the definition of such crimes and determination of any limitation period. The essential question was therefore whether, at any point prior to Mr Kononov’s prosecution, such action had become statute-barred by international law. The Court found that the charges had never been prescribed under international law either in 1944 or in developments in international law since. It therefore concluded that the prosecution of the applicant had not become statute-barred.

Could the applicant have foreseen that the relevant acts had constituted war crimes and that he would be prosecuted?
As to whether the qualification of the acts as war crimes, based as it was on international law only, could be considered to be sufficiently accessible and foreseeable to the applicant in 1944, the Court recalled that it had previously found that the individual criminal responsibility of a private soldier (a border guard) was defined with sufficient accessibility and foreseeability by a requirement to comply with international fundamental human rights instruments, which instruments did not, of themselves, give rise to individual criminal responsibility. While the 1926 Criminal Code did not contain a reference to the international laws and customs of war, this was not decisive since international laws and customs of war were in 1944 sufficient, of themselves, to found individual criminal responsibility.

The Court found that the laws and customs of war constituted particular and detailed regulations fixing the parameters of criminal conduct in a time of war, primarily addressed to armed forces and, especially, commanders. Given his position as a commanding military officer, the Court was of the view that Mr Kononov could have been reasonably expected to take special care in assessing the risks that the operation in Mazie Bati had entailed. Even the most cursory reflection by Mr Kononov, would have indicated that the acts, flagrantly unlawful ill-treatment and killing, had risked not only being counter to the laws and customs of war as understood at that time but also constituting war crimes for which, as commander, he could be held individually and criminally accountable.

As to the applicant’s submission that it had been politically unforeseeable that he would be prosecuted, the Court recalled its prior jurisprudence to the effect that it was legitimate and foreseeable for a successor State to bring criminal proceedings against persons who had committed crimes under a former regime. Successor courts could not be criticised for applying and interpreting the legal provisions in force at the relevant time during the former regime, in the light of the principles governing a State subject to the rule of law and having regard to the core principles (such as the right to life) on which the European Convention system is built. Those principles were found to be applicable to a change of regime of the nature which took place in Latvia following the Declarations of Independence of 1990 and 1991.

Accordingly, the Latvian courts’ prosecution and conviction of Mr Kononov, based on international law in force at the time of the acts he stood accused of, could not be considered unforeseeable. In conclusion, at the time when they were committed, the applicant’s acts had constituted offences defined with sufficient accessibility and foreseeability by the laws and customs of war.

The Court therefore concluded, by 14 votes to three, that there had been no violation of Article 7.

Judge Rozakis expressed a concurring opinion, joined by Judges Tulkens, Spielmann and Jebens. Judge Costa expressed a dissenting opinion, joined by Judges Kalaydjieva and Poalelungi. The texts of these separate opinions are annexed to the judgment.

***
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1Grand Chamber judgments are final (Article 44 of the Convention).
All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monito>ringexecution.

2 The 1961 Criminal Code replaced the existing 1926 Criminal Code of Soviet Russia which had been introduced by decree in 1940 when Latvia became part of the Union of Soviet Socialist Republics (“USSR”).

Оригинал

GRAND CHAMBER
CASE OF KONONOV v. LATVIA
(Application no. 36376/04)
JUDGMENT
STRASBOURG
17 May 2010
This judgment is final but may be subject to editorial revision.

In the case of Kononov v. Latvia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa, President, Christos Rozakis,
Nicolas Bratza,
Peer Lorenzen,
Franoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Dean Spielmann,
Renate Jaeger,
Sverre Erik Jebens,
Dragoljub Popovi,
Pivi Hirvel,
Ledi Bianku,
Zdravka Kalaydjieva,
Mihai Poalelungi,
Neboja Vuini, judges,
Alan Vaughan Lowe, ad hoc judge,
and Michael O'Boyle, Deputy Registrar,


Having deliberated in private on 20 May 2009 and on 24 February 2010,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 36376/04) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the Russian Federation, Mr Vasiliy Kononov (“the applicant”), on 27 August 2004.

2. The applicant was represented by Mr M. Ioffe, a lawyer practising in Rga. The Latvian Government (“the respondent Government”) were represented by their Agent, Ms I. Reine. The Government of the Russian Federation exercised its right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the representative of the Russian Federation at the Court, Mr G. Matyushkin.

3. The applicant alleged, in particular, that his conviction for war crimes as a result of his participation in a military expedition on 27 May 1944 violated Article 7 of the Convention.

4. The application was allocated to the former Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 20 September 2007, following a hearing on admissibility and the merits of the case (Rule 54 § 3), the application was declared partly admissible by a Chamber of that Section composed of the following judges: Botjan M. Zupani, President, Corneliu Brsan, Elisabet Fura-Sandstrm, Alvina Gyulumyan, Egbert Myjer, David Thr Bjrgvinsson and Ineta Ziemele and also of Santiago Quesada, Section Registrar.

5. On 24 July 2008 that Chamber composed as above delivered a judgment in which it found, by four votes to three, that there had been a violation of Article 7 of the Convention and that just satisfaction should be awarded to the applicant.

6. By letter dated 24 October 2008 the respondent Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6 January 2009 a panel of the Grand Chamber granted the request (Rule 73 of the Rules of Court).

7. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Judge Ineta Ziemele, the judge elected in respect of Latvia, withdrew from sitting in the Grand Chamber (Rule 28) and the respondent Government appointed Mr. Vaughan Lowe, Professor of Public International Law at the University of Oxford, to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Judge Botjan M. Zupani, President of the former Third Section, also withdrew and Judge Neboja Vuini, substitute judge, replaced him.

8. By letter dated 6 April 2009 the President of the Grand Chamber granted leave to the Lithuanian Government to make written submissions in the case (Rule 44 § 3(a) of the Rules of Court). The Government of the Russian Federation also exercised its right (rule 44 of the Rules of Court) to intervene before the Grand Chamber

9. The applicant and the respondent Government each filed a memorial on the merits and third-party comments were received from the Governments of the Russian Federation and Lithuania.

10. A hearing took place in public in the Human Rights Building, Strasbourg, on 20 May 2009 (Rule 59 § 3).

There appeared before the Court:

(a) for the respondent Government Mrs I. Reine, Agent, Ms K. Inkua, W. Schabas, Counsel,

(b) for the applicant Mr M. Ioffe, Counsel, Mrs M. Zakarina, Mr Y. Larine Advisers,

(c) for the Government of the Russian Federation Mr G. Matyushin, Representative of the Government, Mr N. Mikhaylov, Mr P. Smirnov, Advisers.

The Court heard addresses by Mr Ioffe, Ms Reine, Mr Schabas and Mr Matyushin.

11. The President of the Grand Chamber accepted to the file on the day of the hearing additional submissions of the applicant and the respondent Government subsequently responded, as did the Government of the Russian Federation.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

12. The applicant was born in 1923 in the district of Ludza, Latvia. He held Latvian nationality until 2000, when he was granted Russian nationality by special decree.

A. Events prior to 27 May 1944

13. In August 1940 Latvia became part of the Union of Soviet Socialist Republics (“USSR”) under the name “Soviet Socialist Republic of Latvia” (“Latvian SSR”). On 22 June 1941 Germany attacked the USSR. The advance of the German forces obliged the USSR forces to leave the Baltic region and withdraw towards Russia.

14. The applicant, who was living near the border at the time, followed. By 5 July 1941 all of Latvia had been overrun by the German forces. Following his arrival in USSR, the applicant was called up as a soldier in the Soviet Army in 1942. He was assigned to the reserve regiment of the Latvian Division. From 1942 to 1943 he received special training in sabotage operations, during which he learnt how to organise and lead commando raids behind enemy lines. On completion of training, he was promoted to the rank of sergeant. In June 1943 he and some twenty soldiers were parachuted into Belarus territory, then under German occupation, near the Latvian border and thus to the area where he was born. The applicant joined a Soviet commando unit composed of members of the “Red Partisans” (a Soviet force which fought a guerrilla war against the German forces). In March 1944 he was put in command of a platoon by his two immediate superiors, whose primary objectives were, according to the applicant, to sabotage military installations, communication lines and German supply points, to derail trains and to spread political propaganda among the local population. He claimed to have derailed 16 military trains and caused 42 German military targets to be blown up.

B. Events of 27 May 1944, as established by the domestic courts

15. In February 1944 the German army had discovered and wiped out a group of Red Partisans led by Major Chugunov who were hiding in the barn of Meikuls Krupniks in the village of Mazie Bati. The German military administration had provided some men in Mazie Bati with a rifle and two grenades each. The applicant and his unit suspected the villagers of having spied for the Germans and of having turned in Chugunov's men to the enemy. They decided to take reprisals against the villagers.

16. On 27 May 1944 the applicant and his unit, armed and wearing wehrmacht uniforms to avoid arousing suspicion, entered the village of Mazie Bati. The inhabitants were preparing to celebrate Pentecost. The unit split up into a number of small groups each of which attacked a house on the applicant's orders.

17. Several of the partisans burst into the home of a farmer, Modests Krupniks, seized weapons they found there and ordered him out into the yard. When he pleaded with them not to kill him in front of his children, they ordered him to run towards the forest before opening fire when he did so. Krupniks was left, seriously wounded, on the edge of the forest, where he died the following morning.

18. Two other groups of Red Partisans attacked the homes of two other farmers, Meikuls Krupniks and Ambrozs Bus. Meikuls Krupniks was seized in his bath and severely beaten. The partisans took the weapons they had found in the two villagers' homes to Meikuls Krupniks' house. There they fired several rounds of bullets at Ambrozs Bus, Meikuls Krupniks and Krupniks' mother. Meikuls Krupniks and his mother were seriously injured. The partisans then doused the house and all the farm buildings with petrol and set them alight. Krupniks' wife, who was nine months pregnant, managed to escape, but was seized by the partisans and pushed through a window of the house into the flames. The following morning the surviving villagers found the charred remains of the four victims. Mrs Krupniks' body was identified by the burnt skeleton of a baby next to her.

19. A fourth group of partisans burst into Vladislavs irmants' home, where they found him on his bed with his one year-old son. After finding a rifle and two grenades hidden in a cupboard, they ordered irmants to go out into the yard. They then bolted the door from the outside to prevent his wife following him, took him to a remote corner of the yard and shot him dead. A fifth group attacked the home of Julins irmants. After finding and seizing a rifle and two grenades, the partisans took him out to the barn, where they killed him. A sixth group attacked Bernards irmants' home, seizing the weapons they found there. They then proceeded to kill Mr irmants, wound his wife and set all the farm buildings on fire. Mr irmants' wife burnt to death in the fire with her dead husband.

20. While the prosecution also claimed that the partisans pillaged the village (stealing clothes and food), the Criminal Affairs Division of the Supreme Court (“the Criminal Affairs Division”) and the Supreme Court Senate made specific findings as regards the seizure of weapons but not as regards the stealing of any other items.

C. The applicant's version of events

21. Before the Chamber, the applicant contested the factual findings of the domestic courts and submitted as follows.

22. He considered that all the deceased villagers were collaborators and traitors who had delivered Major Chugunov's platoon (which included women and a small child) to the Germans in February 1944: three women (Meikuls Krupniks' mother and wife and Bernards irmants' wife) assured Chugunov's platoon that the wehrmacht was some distance away, but irmants sent Krupniks to alert the German forces. The German soldiers arrived and machine-gunned the barn (in which Chugunov's platoon was hiding) with incendiary bullets, causing it to catch fire. Any member of Chugunov's group who tried to escape was shot dead. Krupniks' mother removed the coats from the bodies. The German military command rewarded the villagers concerned with firewood, sugar, alcohol and a sum of money. Meikuls Krupniks and Bernards irmants were Schutzmnner (German auxiliary police).

23. Approximately a week before the events of 27 May 1944, the applicant and all the men in his platoon had received a summons from their commanding officer. He had informed them that an ad hoc military court had delivered judgment against the inhabitants of Mazie Bati implicated in the betrayal of Chugunov's men and that their platoon was required to execute the order. More specifically, they were required to “bring the six Schutzmnner from Mazie Bati to stand trial”. The applicant maintained that he had refused to lead the operation (the villagers had known him since childhood so he feared for the safety of his parents who lived in the neighbouring village). The commanding officer therefore assigned the mission to another partisan and it was that other partisan who had given the orders during the Mazie Bati operation.

24. On 27 May 1944 the applicant had followed the men from his unit. He did not enter the village, but hid behind a bush from which he could see Modests Krupniks' house. Soon thereafter, he had heard cries and gunfire, and had seen smoke. A quarter of an hour later, the partisans returned alone. One had been wounded in the arm. Another was carrying six rifles, ten grenades and a large quantity of cartridges, all of which had been seized in the villagers' homes. His unit later told him that they had not been able to carry out their mission as the villagers had “fled while firing at them and the Germans had arrived”. He denied that his unit had pillaged Mazie Bati. On returning to base, the partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons.

D. Subsequent events

25. In July 1944 the Red Army entered Latvia and on 8 May 1945 Latvian territory passed into the control of the USSR forces.

26. The applicant remained in Latvia after the war ended. He was decorated for his military activities with the Order of Lenin, the highest distinction awarded in the USSR. In November 1946 he joined the Communist Party of the Soviet Union. In 1957 he graduated from the USSR Interior Ministry Academy. Subsequently, and until his retirement in 1988, he worked as an officer in various branches of the Soviet police force.

27. On 4 May 1990 the Supreme Council of the Latvian SSR adopted the “Declaration of the Restoration of Independence of the Republic of Latvia”, which declared Latvia's incorporation into the USSR in 1940 unlawful, null and void and restored force of law to the fundamental provisions of the 1922 Constitution. On the same day, the Supreme Council adopted the “Declaration on the Accession of the Republic of Latvia to Human Rights Instruments”. By “accession” was meant a solemn, unilateral acceptance of the values embodied in the instruments concerned: most of the Conventions referred to in the declaration were subsequently signed and ratified by Latvia in accordance with the established procedure.

28. After two unsuccessful coups d'tat, on 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia proclaiming full independence with immediate effect.

29. On 22 August 1996 the Latvian Parliament adopted the “Declaration on the Occupation of Latvia”. The Declaration described the annexation of Latvian territory by the USSR in 1940 as a “military occupation” and an “illegal incorporation”. The Soviet repossession of the territory at the end of the Second World War was referred to as the “re-establishment of an occupying regime”.

E. The applicant's conviction

1. The first preliminary investigation and trial

30. In July 1998 the Centre for the Documentation of the Consequences of Totalitarianism, based in Latvia, forwarded an investigation file (on the events of 27 May 1944) to the Latvian Principal Public Prosecutor's Office. In August 1998 the applicant was charged with war crimes. In October 1998 he was brought before the Riga Central Court of First Instance and his pre-trial detention was ordered. In December 1998 a final bill of indictment was drawn up and the case file was forwarded to the Riga Regional Court.

31. The trial took place before the Riga Regional Court on 21 January 2000. The applicant pleaded not guilty. He repeated his account of the events of 27 May 1944, underlining that all the victims of the attack had been armed Schutzmnner. He denied any personal involvement in the events: as to the various documents (including press articles) which attested to the contrary, he explained that he had knowingly allowed the historical facts to be distorted for his own personal glory and benefit at that time.

32. The Regional Court found that the file contained ample evidence of his guilt and that the applicant had perpetrated acts in violation of the rules set out in the Charter of the International Military Tribunal (“IMT”) Nuremberg, the Hague Convention (IV) 1907 and the Geneva Convention (IV) 1949. He was found guilty of offences contrary to Article 68-3 of the 1961 Criminal Code and an immediate six-year custodial sentence was imposed. Both the applicant and the prosecution appealed.

33. By judgment of 25 April 2000 the Criminal Affairs Division quashed the latter judgment and returned the case file to the Principal Public Prosecutor's Office with instructions to make additional inquiries. It considered there were lacunae in the Regional Court's reasoning and, in particular, that the Regional Court had failed to resolve decisive questions including whether Mazie Bati was in an “occupied territory”, whether the applicant and his victims could be considered “combatants” and “non-combatants”, respectively and whether the fact that the German military administration had armed the villagers would make them “prisoners of war” in the event of their arrest. In addition, the prosecution should have consulted specialists on history and international criminal law. It ordered the applicant's immediate release.

34. The Supreme Court Senate dismissed the prosecution's appeal by judgment of 27 June 2000, although it struck out the requirement to obtain specialist advice since questions of law were solely for the courts to decide.

2. The second preliminary investigation and trial

35. Following a fresh investigation, on 17 May 2001 the applicant was again charged under Article 68-3 of the 1961 Criminal Code.

36. The Latgale Regional Court heard the case and delivered judgment on 3 October 2003 acquitting the applicant of war crimes, but finding him guilty of banditry (contrary to Article 72 of the 1961 Criminal Code) carrying a sentence of between three and fifteen years' imprisonment.

Having analysed the situation in which Latvia had found itself as a result of the events in 1940 and the German invasion, the Regional Court concluded that the applicant could not be considered a “representative of the occupying forces”. On the contrary, he had fought for the liberation of the country against the occupying forces of Nazi Germany. As Latvia had been incorporated into the USSR, the applicant's conduct had to be considered in the light of Soviet law. In addition, he could not reasonably have foreseen that he would one day be classified as a “representative of the Soviet occupation forces”. With regard to the Mazie Bati operation, the Regional Court accepted that the villagers had collaborated with the German military administration and handed over Chugunov's group of Red Partisans to the wehrmacht and that the attack on the village had been carried out pursuant to the judgment of the ad hoc military court set up within the detachment of Red Partisans. The Regional Court also accepted that the deaths of the six men from Mazie Bati could be regarded as having been necessary and justified by considerations of a military order. However, it found that such justification did not extend to the killing of the three women or the burning down of the village buildings, for which acts as commanding officer, the applicant was responsible. Consequently, as they had acted beyond the authority of the ad hoc military court's judgment both the applicant and his men had committed an act of banditry for which they bore full responsibility but which was, however, statute barred.

37. Both parties appealed to the Criminal Affairs Division. Relying, inter alia, on Article 7 § 1 of the Convention, the applicant sought a full acquittal, arguing that the law had been applied against him retrospectively. The prosecution submitted that the Regional Court had made a number of serious errors of fact and law: it had neglected the fact that Latvia's incorporation into the USSR was contrary to the Latvian Constitution of 1922 and to international law and was therefore unlawful and that the Republic of Latvia had continued to exist de jure. Accordingly, the applicant's conduct in 1944 could and should have been analysed under Latvian and international law, rather than Soviet law. Further, the prosecution criticised the Regional Court's assessment of the evidence in the case. In its view, the court had relied on a series of assertions by the applicant that were not only unsupported by any evidence, but contrary to the tenor of the evidence notably, the applicant's claims that the villagers from Mazie Bati were armed collaborators of the German military administration who had helped the wehrmacht to wipe out Chugunov's partisans; that an ad hoc Partisan Tribunal had been set up within the applicant's detachment; and that the purpose of the Mazie Bati operation was not summary execution but the arrest of the villagers.

38. By judgment of 30 April 2004 the Criminal Affairs Division allowed the prosecution's appeal, quashed the judgment of the Latgale Regional Court and found the applicant guilty of offences contrary to Article 68-3 of the 1961 Criminal Code. Having reviewed the evidence, it noted:

“... Thus, V. Kononov and the Partisans from the special group he commanded stole the weapons that had been delivered to enable the villagers to defend themselves and killed nine civilians from the village, burning six of them – including three women, one in the final stages of pregnancy – alive in the process. They also burnt down two farms.

By attacking those nine civilians from the village of Mazie Bati, who had not taken part in the fighting, by stealing their weapons and killing them, V. Kononov and the Partisans under his command ... committed an appalling violation of the laws and customs of war as set out in:

– point (b) of the first paragraph of Article 23 of the Hague Convention of [18] October 1907 concerning the laws and customs of war on land, which is binding on all civilised nations and forbids the treacherous killing or wounding of members of the civil population; Article 25 [of the Hague Convention (IV) 1907], which prohibits attacks by whatever means of villages, dwellings or buildings which are undefended; and the first paragraph of Article 46 [of the Hague (IV) Convention 1907], which lays down that family honour and rights, and the lives of persons and private property must be respected.

– Article 3 § 1, point (a), of the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War ..., which lays down that persons taking no active part in the hostilities must not be subjected to violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; point (d) [of the same paragraph], which provides ... that the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples is prohibited; Article 32, which prohibits murder, torture and all other brutality against protected persons; and Article 33, which provides that no protected person may be punished for an offence he or she has not personally committed and prohibits collective penalties, and all measures of intimidation, pillage and reprisals against protected persons and their property.

– Article 51 § 2 of the Protocol Additional to the [aforementioned] Convention and relating to the Protection of Victims of International Armed Conflicts adopted on 8 June 1977 ..., which lays down that the civilian population as such, as well as individual civilians, shall not be the object of attack and prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population; § 4, point (a), [of the same Article], which prohibits indiscriminate attacks not directed at a specific military objective; § 6 [of the same Article], which prohibits attacks against the civilian population or civilians by way of reprisals; Article 75 § 2, point (a) ..., which prohibits violence to the life, health, or physical or mental well-being of persons, in particular, murder, torture of all kinds, whether physical or mental, and mutilation; and point (d) [of the same paragraph], which prohibits collective punishments.

By acting with particular cruelty and brutality and burning a pregnant villager alive ..., V. Kononov and his Partisans openly flouted the laws and customs of war set out in the first paragraph of Article 16 of the Geneva Convention ..., which lays down that expectant mothers shall be the object of particular protection and respect.

Likewise, by burning down the [dwelling] houses and other buildings belonging to the villagers ... Meikuls Krupniks and Bernards irmants, V. Kononov and his Partisans contravened the provisions of Article 53 of that Convention, which prohibits the destruction of real property except where such destruction is rendered absolutely necessary by military operations and Article 52 of the first Protocol Additional ... which lays down that civilian property must not be the object of attack or reprisals. ...

In the light of the foregoing, the acts perpetrated by V. Kononov and his men must be classified as war crimes within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that the murder or torture of civilians in occupied territory, the plunder of private property, the wanton destruction of villages, or devastation that is not justified by military necessity constitute violations of the laws or customs of war, that is to say war crimes.

The acts perpetrated by V. Kononov and his Partisans must also be classified as 'grave breaches' within the meaning of Article 147 of the ... Geneva Convention...

Consequently ..., V. Kononov is guilty of the offence under Article 68-3 of the Criminal Code...

The material in the case file shows that after the war, the surviving members of the families of the [people] killed were ruthlessly persecuted and subjected to reprisals. Following the restoration of Latvian independence, all those killed were rehabilitated. It was stated in their rehabilitation certificates that they [had] not committed 'crimes against peace [or] humanity, criminal offences ... or taken part ... in political repression ... by the Nazi regime'...

V. Kononov must be regarded as being subject [to the provision governing] the war crime [in question], in accordance with Article 43 of the First Protocol Additional to the Geneva Convention ..., which provides that combatants, that is to say, those who have the right to participate directly in hostilities, are the members of the armed forces of a Party to a conflict.

During the Second World War, V. Kononov was a member of the armed forces of a belligerent party, [namely] the USSR, and played an active part in military operations it had organised.

V. Kononov was sent on a special mission to Latvia with clear orders to fight behind enemy lines [and] to organise explosions there.

The platoon led by V. Kononov cannot be regarded as a group of volunteers because it was organised and led by the armed forces of one of the belligerent parties (the USSR); this is confirmed by the material in the case file. Similarly, at the time the crime of which he is accused was committed, V. Kononov was also acting as a combatant, leading an armed group which had the right to take part in military operations as an integral part of the armed forces of a belligerent party. ...

V. Kononov fought on Latvian territory occupied by the USSR and neither the fact that there was at that time dual occupation (Germany being the other occupying power), nor the fact that the USSR was part of the anti-Hitler coalition, affects his status as a war criminal...

The Criminal Affairs Division considers that all the villagers killed at Mazie Bati must be regarded as civilians within the meaning of Article 68-3 of the Criminal Code ... and the provisions of international law.

By virtue of Article 50 of the first Protocol Additional to the Geneva Convention ..., a civilian is defined as any person who does not belong to one of the categories of persons referred to in Article 43 of that Protocol or Article 4(A) of the Convention.

The attributes described in the aforementioned Articles, which are specific to [certain] categories of people and exclude them from the definition of civilians, did not apply to the villagers who were killed.

The fact that they had obtained weapons and munitions did not make them combatants and does not attest to any intention on their part to carry out any military operation. ...

It has been established ... that Chugunov's group of Partisans was wiped out by a German military detachment, this is also confirmed by reconnaissance headquarters' records ...

The case file does not contain any evidence to show that the villagers took part in that operation.

The fact that Meikuls Krupniks had informed the Germans of the presence of Partisans in his barn did not exclude him from the category of 'civilians'.

Mr Krupniks lived on territory occupied by Germany and there is no doubt that the presence of Partisans on his farm in wartime constituted a danger to both him and his family. ...

The fact that the villagers had weapons in their homes and [regularly] kept watch at night does not signify that they were taking part in military operations, but attests to a genuine fear of attack.

All citizens, whether in wartime or peacetime, have the right to defend themselves and their families if their lives are in danger.

The case file shows that the Red Partisans, Chugunov's group included, used violence against civilians; thus causing the civilian population to fear for its safety.

The victim [K.] gave evidence that the Red Partisans pillaged houses and often took food supplies.

The criminal conduct of the Partisans was noted in the reports of commanding officers [S.] and [.], which indicate that the Red Partisans pillaged and murdered and committed other crimes against the local population. Many people had the impression that they were not really engaged in combat but in foraying. ...

The case file shows that of the villagers who were killed at Mazie Bati in 1943 and 1944 [only] Bernards irmants and [his wife] were members of the Latvian National Guard (aizsargi). The archives do not contain any information to show that any of the other victims had participated in the activities of that or any other organisation...

The Criminal Affairs Division considers that the fact that the aforementioned persons participated in the activities of the Latvian National Guard does not enable them to be classified as combatants, as they have not been found ... to have taken part in military operations organised by the armed forces of a belligerent party.

It has been established ... that no German military formation was in the village of Mazie Bati and that the villagers were not performing any military duty, but, [on the contrary], were farmers.

At the time of the events [in issue], they were at home and preparing to celebrate Pentecost. Among the dead were not only men (who were armed) but also women, one of whom was in the final stages of pregnancy and thus entitled to special ... protection under the Geneva Convention.

In classifying those who were killed as civilians, the Criminal Affairs Division is in no doubt about their status; however, even supposing it were, the First Protocol Additional to the Geneva Convention states that in case of doubt everyone shall be considered to be a civilian. ...

Since Latvia has not acceded to the Hague Convention of 1907, the provisions of that instrument cannot serve as a basis for [finding] a violation.

War crimes are prohibited and all countries are required to convict anyone guilty of them because such crimes are an integral part of international law, irrespective of whether the parties to the conflict were parties to international treaties. ...”

39. The Criminal Affairs Division excluded two allegations that had not been proved to the requisite standard namely, alleged murders and torture by the applicant himself. Given the finding of guilt of a serious offence and since he was by then aged, infirm and harmless, the Criminal Affairs Division imposed an immediate custodial sentence of one year and eight months which he was deemed to have served given his pre-trial detention.

40. By judgment of 28 September 2004 the Supreme Court Senate dismissed the applicant's appeal:

“... In finding that V. Kononov was a combatant and had committed the offence in question on the territory occupied by the USSR, the Criminal Affairs Division based its judgment on the decisions of the higher representative bodies of the Republic of Latvia, on the relevant international conventions and on other evidence, taken as a whole, which had been verified and assessed in accordance with the rules of criminal procedure.

In the declaration by the Supreme Council ... on 4 May 1990 on the restoration of the independence of the Republic of Latvia, it was acknowledged that the ultimatum delivered on 16 June 1940 to the Government of the Republic of Latvia by the former Stalinist USSR should be regarded as an international crime, as Latvia was occupied and its sovereign power abolished as a result. [However] the Republic of Latvia continued to exist as a subject of international law, as was recognised by more than fifty States worldwide...

After analysing the merits of the judgment, the Senate ... considers that, to the extent that the Criminal Affairs Division found that V. Kononov came within the scope of Article 68-3 of the Criminal Code, ... his acts were correctly characterised, as, in his capacity as a belligerent and combatant on Latvian territory occupied by the USSR, he has violated the laws and customs of war, in that he planned and directed a military operation aimed at taking reprisals against civilians, namely peaceable inhabitants of the village of Mazie Bati, nine of whom were killed ... [and] whose property was stolen [or] burnt.

As the court of appeal (rightly) noted, neither the fact that Latvian territory was subjected to two successive occupations in the Second World War by two States (one of which was Germany; a 'dual occupation' in the words of the court of appeal), nor the fact that the USSR was a member of an anti-Hitler coalition, changed V. Kononov's status as a person guilty of a war crime.

As regards the allegation ... that, by finding V. Kononov guilty of the war crime in question the court [of appeal] violated the provisions of Article 6 of the Criminal Code ... concerning the temporal applicability of the criminal law, the [Senate] considers that it must be rejected for the following reasons.

The judgment shows that the court of appeal applied the Conventions, namely the Geneva Convention of 12 August 1949 .., and [its] Protocol Additional of 8 June 1977 ..., to the war crime which V. Kononov was accused of, irrespective of when they entered into force. [This is consistent] with the United Nations Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. [The court of appeal stated] that the Republic of Latvia, which had been occupied by the USSR, had not been able to take a decision [to that end] earlier. By referring to the principle of the non-applicability of statutory limitation, the court of appeal complied with the obligations arising under the international treaties and held the persons guilty of committing the offences concerned criminally liable irrespective of the date they were perpetrated.

Since the judgment characterised the violation of the laws and customs of war of which V. Kononov was accused as a war crime within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg ..., and, ... by virtue of the aforesaid United Nations Convention of 26 November 1968 ..., war crimes ... are not subject to statutory limitation, ... the Senate finds that his acts were correctly found to come within Article 68-3 of the Criminal Code...

There is no basis to the argument ... that ... the Declaration by the Supreme Council on 4 May 1990 on the Restoration of Independence of the Republic of Latvia and the Declaration by Parliament on 22 August 1996 on the Occupation of Latvia were mere political pronouncements which the court was precluded from using as a basis for its judgment and which could not be given binding force retrospectively.

The [Senate] finds that both declarations constitute State constitutional acts of indisputable legality.

In its judgment, [delivered after] assessing the evidence examined at the hearing, [the court of appeal] found that, in his capacity as a combatant, V. Kononov organised, commanded and led a Partisan military operation intent on taking reprisals through the massacre of the civilian population of the village of Mazie Bati and the pillage and destruction of the villagers' farms. That being so, the court of appeal rightly found that the acts of individual members of his group ... could not be seen as [mere] excesses on the part of those concerned.

In accordance with the criminal-law principles governing the responsibility of organised groups, members [of a group] are accomplices to the offence, independently of the role they play in its commission.

This principle of responsibility of the members of an organised group is recognised in the third paragraph of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that leaders, organisers, instigators and accomplices participating in the execution of a common plan are responsible for all acts performed by any persons in the execution of that plan.

Consequently, the argument that the court of appeal had used an 'objective responsibility' test to find, in the absence of any evidence, V. Kononov guilty of acts perpetrated by members of the special group of Partisans he led, without examining his subjective attitude to the consequences, is unfounded. ...”

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