Information Note on the Court’s case-law No. 103
December 2007
Kononov v. Latvia (dec.) - 36376/04
Decision 20.9.2007 [Section III]
Article 7
Article 7-1
Nullum crimen sine lege
Conviction of war crimes in relation to acts committed in 1944: admissible
Article 7-2
General principles of law recognised by civilised nations
Conviction of war crimes in relation to acts committed in 1944: admissible
The case concerns the criminal conviction in 2004 of a former NCO in the Soviet army for a war crime (the massacre of nine villagers) committed during the Second World War, on Latvian soil, when the country was under occupation. The applicant was born in 1923 and was a Latvian national until 12 April 2000, when he was granted Russian citizenship. In 1942 he was mobilised as a soldier in the Soviet army. In 1943 he was parachuted into what is now Belarus (then occupied by Germany), near the border with Latvia, where he joined a Soviet commando of “red partisans”. According to the Latvian prosecuting authorities and courts, the applicant was in command of a group responsible for an attack on the village of Mazie Bati (Ludza district) on 27 May 1944 in the course of which nine civilians, including three women, were slaughtered.
In January 1998 the Latvian information centre on the consequences of totalitarianism opened a criminal investigation into the events of 27 May 1944. The centre found that the applicant could have committed the war crime covered by provisions of the former criminal code as amended by a law of 6 April 1993. Article 68-3 of the code stated that war crimes were punishable by life imprisonment or a prison sentence of three to fifteen years. Article 6-1 authorised the retroactive application of the law to war crimes and Article 45-1 stipulated that war crimes were not subject to statutory limitations.
In August 1998 the applicant was charged with war crimes. He was taken into custody in October. He appealed, but to no avail. He also pleaded not guilty. The Riga Regional Court found the applicant guilty of the crime covered by Article 68-3 and sentenced him to six years’ imprisonment. It noted, in particular, that the applicant had been a member of the Soviet army and therefore a “combatant” within the meaning of the relevant instruments of international humanitarian law. It found that the applicant had committed deeds prohibited by the Charter of the Nuremberg International Military Tribunal, The Hague Convention of 1907 respecting the Laws and Customs of War on Land and the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War.
That judgment was set aside because certain questions remained unanswered, particularly whether Mazie Bati had actually been in “occupied territory” and whether the applicant and his victims could be qualified, respectively, as “combatants” or “non-combatants”. The applicant was released. After the file had been sent back for further information the prosecutor’s office once again charged the applicant under Article 68-3 of the Criminal Code. The Court acquitted the applicant of the war crime charges but found him guilty of banditry. It accepted that the deaths of six men in Mazie Bati could be regarded as necessary and justified for military reasons, but not the murder of the three women or the burning down of the buildings in the village. The applicant, as commander of the combat group, was responsible for the group’s actions. However, banditry did not belong to the category of crimes which were not subject to statutory limitations.
In a judgment delivered in April 2004 the Criminal Division of the Supreme Court granted the prosecution’s request and set the judgment aside. It found that attacking non-combatant civilians, killing them and stealing their weapons, with particular brutality, burning a pregnant villager alive and burning down buildings violated the laws and customs of war enshrined in the Hague Convention of 1907 respecting the Laws and Customs of War on Land, the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War and the 1977 first Protocol additional thereto relating to the Protection of Victims of International Armed Conflicts. The deeds at issue were qualified as war crimes within the meaning of the Charter of the Nuremberg International Military Tribunal and as grave breaches within the meaning of Article 147 of the Geneva Convention. The court affirmed that at the time of the crime the applicant was acting as a combatant and that the victims should be considered civilians under domestic and international law. The court found that the applicant had committed the offence criminalised by Article 68-3.
Noting that the applicant was old, infirm and not dangerous, the court sentenced him to one year and eight months’ imprisonment. The applicant appealed on points of law, but to no avail.
In his application the applicant complained that criminal law had been applied to him retroactively. He alleged in particular that the acts on account of which he had been prosecuted had not been crimes under domestic or international law at the time when they had been committed. As to the exception provided for in Article 7 § 2, he argued that it did not apply in the instant case as the acts concerned were clearly outside its scope. He further submitted that the Hague and Geneva conventions applied only to “combatants” and that he had not been a combatant at the material time.
Admissible in respect of the complaint under Article 7.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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