Information Note on the Court’s case-law No. 110
July 2008
Kononov v. Latvia - 36376/04
Judgment 24.7.2008 [Section III]
Article 7
Article 7-1
Nullum crimen sine lege
Retrospective application of law through the applicant’s conviction of war crimes for his part in a punitive military expedition on villagers during the Second World War: violation
[This case was referred to the Grand Chamber on 26 January 2009]
Facts: During the daytime on 27 May 1944 an armed unit of Red Partisans in German uniform led by the applicant entered the village of Mazie Bati, some of whose inhabitants were suspected of having betrayed another group of Red Partisans and turned them over to the Germans. The applicant’s men burst into six homes and searched them. Having found rifles and grenades issued by the German military administration in each of the houses, the partisans executed the heads of the six households concerned. They then set fire to two houses and their outbuildings and three more people perished in the flames. In all, nine villagers were killed: six men and three women. In 2004 the applicant was convicted of a war crime and sentenced to one year and eight months’ imprisonment. The Supreme Court’s Cassation Division, or Senate, rejected his appeal.
Law: The Court had to examine whether, on 27 May 1944, the applicant’s actions had amounted to offences defined with sufficient accessibility and foreseeability in national or international law. The applicant had been sentenced to imprisonment under the provisions of the former Latvian Criminal Code concerning war crimes. Although the code contained a summary list of the offences covered, it referred directly to the relevant conventions for a detailed definition of the acts concerned. The impugned conviction had thus been based on international rather than national law.In its judgment, upheld on appeal, the Criminal Affairs Division of the Supreme Court classified the applicant’s actions from the standpoint of three international conventions of which only the Hague Convention existed and was in force at the time of the events at issue. The other two were drafted subsequent to the events concerned and contained no provisions giving them any retroactive effect.Moreover, when domestic criminal law referred to international law to define an offence, the domestic and international legal provisions formed a single criminal law standard for the purposes of Article 7 § 1 of the Convention. That being so, Article 7 § 1 prevented an international treaty from being applied retroactively to qualify an act or omission as criminal.Neither the USSR nor Latvia had been signatories to the Hague Convention of 1907. Consequently, in accordance with the “general participation” clause contained in Article 2, that Convention was not formally applicable to the armed conflict in question. However, those principles were already widely recognised at the end of the nineteenth century and there was no reason to doubt their universal character by the middle of the twentieth century, during the Second World War. Furthermore, the Court had already stated that, for the purposes of Article 7 § 1 of the Convention, the notion of “law” included, in principle, written law as well as unwritten law. It followed that the substantive rules contained in the Regulations appended to the Hague Convention of 1907 were applicable to the impugned events.The Court therefore presumed that the applicant, as a serviceman, must have been aware of these rules. It thus had to determine whether a plausible legal basis existed on which to convict the applicant of a war crime and whether at the material time the applicant could reasonably have foreseen that his conduct would make him guilty of such an offence. On 27 May 1944 an armed unit of Red Partisans in German uniform led by the applicant had entered the village of Mazie Batiet and killed nine villagers: six men and three women. The decisions of the domestic courts were virtually silent concerning the applicant’s direct personal involvement in what happened in Mazie Bati. Although he had initially been charged with murdering and torturing the villagers, he was subsequently acquitted in respect of the events concerned, which were removed from the charges against him. Having regard to the principle of the presumption of innocence enshrined in Article 6 § 2 of the Convention, the Court accepted that the applicant had not committed the offences in question. Therefore, the only offence he really stood accused of was that of having led the unit that carried out the punitive expedition of 27 May 1944. That being so, it was necessary to establish whether that expedition could, as such, reasonably be considered contrary to the laws and customs of war codified in the Hague Convention of 1907. The Court had first to take into consideration the conditions reigning in the Mazie Bati region in 1944 and, secondly, the conduct of the villagers killed by the applicant’s unit. As far as the general context was concerned, the events had not taken place in a combat situation. However, the local area concerned and the entire surrounding region had been prey to the hostilities of war. As for the nine victims of the unit, the situation of the six men was to be examined separately from that of the three women who had perished in the incident. The men had received rifles and grenades from the German military administration in February 1944, about three months before the events at issue, as a reward for informing them that a group of Red Partisans had taken refuge in a barn. Furthermore, the villagers of Mazie Bati regularly mounted guard at night. The applicant and the other Red Partisans could thus legitimately have considered the villagers as collaborators of the German army. That being so, the six men killed on 27 May 1944 could not reasonably be considered as civilians. The Regulations appended to the Hague Convention of 1907 did not define the notions of civilian or civil population. There was no evidence that under the jus in bello as it existed in 1944 a person who did not satisfy the formal conditions to qualify as a “combatant” had automatically to be assigned to the category of “civilians” with all its attendant guarantees. Moreover, the expedition of 27 May 1944 had been selective. It was clear from the case file that it had never been the intention of the Red Partisans to attack the village of Mazie Bati as such. The expedition had specifically targeted six well-identified men who were strongly suspected of having collaborated with the Nazi occupier. The exact provisions of the Regulations appended to the Hague Convention of 1907 had to be analysed in order to determine whether a plausible legal basis had existed for convicting the applicant of at least one prohibited act. In their decisions the Latvian courts had omitted to carry out a detailed and sufficiently thorough analysis of the aforementioned text, so the literal and universally accepted meaning of the wording used in it had to be applied. 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. There had therefore been no plausible legal basis in international law on which to convict the applicant for leading the unit responsible for the operation. However, there remained the issue of the three women killed at Mazie Bati. The reasoning given by the domestic courts had been overly general and summary and did not allow any definite answers to be given to the question whether and to what extent their execution had been planned by the Red Partisans from the start or whether the members of the unit had in fact acted beyond their authority. Nor had it given any indication of the exact degree of implication of the applicant in their execution. It had never been alleged that he himself had killed the women or had ordered or incited his comrades to do so. Even assuming that the applicant’s conviction had had a basis in domestic law, the corresponding statutory limitation period under the legislation applicable to the events of 27 May 1944 had expired in 1954.
In the light of the above, on 27 May 1944 the applicant could not reasonably have foreseen that his acts constituted a war crime within the meaning of the jus in bello at the material time; there had been no plausible legal basis in international law for convicting him of such a crime. Even supposing, however, that the applicant had committed one or more offences punishable under the general domestic law, their prosecution had long since become statute barred; accordingly, domestic law could not serve as the basis for his conviction either.
Conclusion: violation (four votes to three).
Article 41 – 30,000 EUR in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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