grand chamber judgment kononov v. latvia

8/13/2019 Grand Chamber Judgment Kononov v. Latvia

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39017.05.2010

Press release issued by the Registrar

Grand Chamber Judgment1

Kononov v. Latvia(Application n36376/04)

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P/'"!,-') +")&/) #+ &* )- -/R&P-' C&'V-')"&' &'/,' R"G)!

Prinial 4ats

Vasiliy Kononov was born in Latvia in 1923. He was a Latvian national until 12 April 2000,

when he was granted ussian nationality. !n 19"2 he was #alled up as a soldier in the $oviet

Ar%y. !n 19"3 he was dropped into &elarus territory 'under (er%an o##upation at the ti%e)

near the Latvian border, where he *oined a $oviet #o%%ando unit #o%posed o+ %e%bers o+

the ed -artisans.

A##ording to the +a#ts as established by the #o%petent Latvian #ourts, on 2/ ay 19"" theappli#ant led a unit o+ ed -artisans wearing (er%an uni+or%s on an epedition on the

village o+ aie &ati, #ertain o+ whose inhabitants were suspe#ted o+ having betrayed to the

(er%ans another group o+ ed -artisans. he appli#ant4s unit sear#hed si +ar% buildings in

the village. A+ter +inding ri+les and grenades supplied by the (er%ans in ea#h o+ the houses,

the -artisans shot the si heads o+ +a%ily #on#erned. hey also wounded two wo%en. hey

then set +ire to two houses and +our people 'three o+ who% were wo%en) perished in the

+la%es. !n all, nine villagers were 5illed6 si %en 7 +ive ee#uted and one 5illed in the

burning buildings 7 and three wo%en 7 one in the +inal stages o+ pregnan#y. he villagers

5illed were unar%ed8 none atte%pted to es#ape or o++ered any +or% o+ resistan#e.

A##ording to the appli#ant, the vi#ti%s o+ the atta#5 were #ollaborators who had delivered agroup o+ 12 -artisans into the hands o+ the (er%ans so%e three %onths earlier. he appli#ant

said that his unit had been instru#ted to #apture those responsible so that they #ould be

brought to trial. He +urther #lai%ed that he had not personally led the operation or entered the

village.

!n uly 199: the ;entre +or the


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#on#erning the events o+ 2/ ay 19"" to the Latvian -rin#ipal -ubli# -rose#utor.

$ubse=uently, r Kononov was #harged with war #ri%es.

?n 30 April 200" the ;ri%inal A++airs 3 o+ the 19@1 ;ri%inal ;ode o+ the $oviet$o#ialist epubli# o+ Latvia 'the 19@1 Latvian ;ri%inal ;ode)2. elying %ainly on the

provisions o+ the (eneva ;onvention relative to the -rote#tion o+ ;ivilian -ersons in i%e o+

ar '(eneva ;onvention '!V) 19"9), it #onvi#ted the appli#ant +or the ill>treat%ent,

wounding and 5illing o+ the villagers, +inding in parti#ular that burning a pregnant wo%an to

death violated the spe#ial prote#tion a++orded to wo%en during war. Burther%ore, the

appli#ant and his unit had violated Arti#le 2C o+ the Hague egulations 190/ whi#h +orbade

atta#5s against unde+ended lo#alities, su#h as the villagers4 +ar% buildings. Dnder Arti#le

23'b) o+ the sa%e egulations, the appli#ant was also #onvi#ted separately o+ trea#herous

wounding and 5illing, as he and his unit had worn (er%an uni+or%s during the aie &ati

operation. Eoting that he was aged, in+ir% and har%less, the Latvian #ourts i%posed an

i%%ediate #ustodial senten#e o+ one year and eight %onths.

he appli#ant lodged an unsu##ess+ul appeal on points o+ law.

Cmlaints6 redure and msitin 4 the Curt

he appli#ant #o%plained, in parti#ular, that the a#ts o+ whi#h he had been a##used had not,

at the ti%e o+ their #o%%ission, #onstituted an o++en#e under either do%esti# or international

law. He %aintained that, in 19"" as a young soldier in a #o%bat situation behind ene%y lines,

he #ould not have +oreseen that those a#ts #ould have #onstituted war #ri%es, or have

anti#ipated that he would subse=uently be prose#uted. He also argued that his #onvi#tion

+ollowing the independen#e o+ Latvia in 1991 had been a politi#al eer#ise by the Latvian

$tate rather than any real wish to +ul+il international obligations to prose#ute war #ri%inals.

He relied on Arti#le / F 1 'no punish%ent without law) o+ the Guropean ;onvention.

he appli#ation was lodged with the Guropean ;ourt o+ Hu%an ights on 2/ August 200".

!n a *udg%ent o+ 2" uly 200: the ;ourt held, by +our votes to three, that there had been a

violation o+ Arti#le / and, under Arti#le "1 '*ust satis+a#tion), awarded the appli#ant

30,000 euros 'GD) in respe#t o+ non>pe#uniary da%age.

?n @ anuary 2009 the #ase was re+erred to the (rand ;ha%ber under Arti#le "3 at the

(overn%ent4s re=uest.

hird>party #o%%ents were re#eived +ro% the (overn%ent o+ the ussian Bederation and

+ro% the Lithuanian (overn%ent.

?n 20 ay 2009 a hearing was held in publi# in the Hu%an ights &uilding in $trasbourg.

udg%ent was given by the (rand ;ha%ber o+ 1/, #o%posed as +ollows6

ean>-aul Csta'Bran#e),President,;hristos Ra8is'(ree#e),

2$he %&'% Criminal Code replaced the existing %&' Criminal Code of oviet *ussia "hich had been introducedb+ decree in %&4, "hen -atvia became part of the nion of oviet ocialist *epublics (/*0).


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Ei#olas rata'the Dnited Kingdo%),

-eer #renen'3 o+ the 19@1 Latvian ;ri%inal ;ode, a

provision introdu#ed by the $upre%e ;oun#il on @ April 1993, whi#h used the relevant legal

#onventions 'su#h as the (eneva ;onvention '!V) 19"9) as the basis +or a pre#ise de+inition

o+ war #ri%es. he Latvian #ourts4 #onvi#tion o+ the appli#ant had, there+ore, been based on

international rather than do%esti# law.

&y ay 19"" the prevailing de+inition o+ a war #ri%e had been an a#t #ontrary to the laws

and #usto%s o+ war8 and international law had de+ined the basi# prin#iples underlying those

#ri%es. $tates had been per%itted 'i+ not re=uired) to ta5e steps to punish individuals +or su#h

#ri%es, in#luding on the basis o+ #o%%and responsibility. ;onse=uently, during and a+ter the

$e#ond orld ar, international and national tribunals had prose#uted soldiers +or war

#ri%es #o%%itted during the $e#ond orld ar.

As to whether there had been a su++i#iently #lear and #onte%porary legal basis +or the spe#i+i#

war #ri%es +or whi#h the appli#ant had been #onvi#ted, the ;ourt began its assess%ent on thebasis o+ a hypothesis that the de#eased villagers #ould be #onsidered to be #o%batants or

#ivilians who had parti#ipated in hostilities 'rather than #ivilians). he ;ourt also

re#alled the two #ardinal prin#iples relied on by the !nternational ;ourt o+ usti#e as

appli#able to ar%ed #on+li#t whi#h #onstituted the +abri# o+ hu%anitarian law, na%ely

prote#tion o+ the #ivilian population and ob*e#ts and the obligation to avoid unne#essary

su++ering to #o%batants.

!n that #onne#tion, and having regard notably to Arti#le 23'#) o+ the Hague egulations 190/,

the villagers4 %urder and ill>treat%ent had violated a +unda%ental rule o+ the laws and

#usto%s o+ war by whi#h an ene%y rendered hors comat7 in this #ase not #arrying ar%s 7

was prote#ted. Eor was a person re=uired to have a parti#ular legal status or to +or%allysurrender. As #o%batants, the villagers would also have been entitled to prote#tion as


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prisoners o+ war under the #ontrol o+ the appli#ant and his unit and their subse=uent ill>

treat%ent and su%%ary ee#ution would have been #ontrary to the nu%erous rules and

#usto%s o+ war prote#ting prisoners o+ war. here+ore, li5e the Latvian #ourts, the ;ourt

#onsidered that the ill>treat%ent, wounding and 5illing o+ the villagers had #onstituted a war

#ri%e.

Burther%ore, the do%esti# #ourts had reasonably relied on Arti#le 23'b) o+ the Hague

egulations 190/ to separately #onvi#t r Kononov o+ trea#herous wounding and 5illing. At

the relevant ti%e wounding or 5illing had been #onsidered trea#herous i+ it had been #arried

out while unlaw+ully indu#ing the ene%y to believe they had not been under threat o+ atta#5

by, +or ea%ple, %a5ing i%proper use o+ an ene%y uni+or%, whi#h the appli#ant and his unit

indeed had done. G=ually, there was a plausible legal basis +or #onvi#ting r Kononov o+ a

separate war #ri%e as regards the burning to death o+ the epe#tant %other, given the spe#ial

prote#tion +or wo%en during war established well be+ore 19"" 'ie Lieber ;ode 1:@3) in the

laws and #usto%s o+ war and #on+ir%ed i%%ediately a+ter the $e#ond orld ar by

nu%erous spe#i+i# and spe#ial prote#tions in the (eneva ;onventions. Eor had there been

eviden#e do%esti#ally, and it had not been argued be+ore the ;ourt, that it had beeni%peratively de%anded by the ne#essities o+ war to burn down the +ar% buildings in aie

&ati, the only e#eption under the Hague egulations 190/ +or the destru#tion o+ private

property.

!ndeed, the appli#ant had hi%sel+ des#ribed in his version o+ events what he ought to have

done na%ely, to have arrested the villagers +or trial. Gven i+ a partisan trial had ta5en pla#e, it

would not =uali+y as +air i+ it had been #arried out without the 5nowledge or parti#ipation o+

the a##used villagers, +ollowed by their ee#ution. r Kononov, having organised and been

in #ontrol o+ the partisan unit whi#h had been intent on 5illing the villagers and destroying

their +ar%s, had #o%%and responsibility +or those a#ts.

!n #on#lusion, even assu%ing as the appli#ant %aintained that the de#eased villagers #ould be

#onsidered to have been #ivilians who had parti#ipated in hostilities or #o%batants, there

had been a su++i#iently #lear legal basis, having regard to the state o+ international law in

19"", +or the appli#ant4s #onvi#tion and punish%ent +or war #ri%es as the #o%%ander o+ the

unit responsible +or the atta#5 on aie &ati on 2/ ay 19"". he ;ourt added that, i+ the

villagers were to be #onsidered #ivilians, it +ollowed that they would have been entitled to

even greater prote#tion.

Had the crimes een statutearred(

he ;ourt noted that the pres#ription provisions in do%esti# law were not appli#able6 the

appli#ant4s prose#ution re=uired re+eren#e to international law both as regards the de+inition

o+ su#h #ri%es and deter%ination o+ any li%itation period. he essential =uestion was

there+ore whether, at any point prior to r Kononov4s prose#ution, su#h a#tion had be#o%e

statute>barred by international law. he ;ourt +ound that the #harges had never been

pres#ribed under international law either in 19"" or in develop%ents in international law

sin#e. !t there+ore #on#luded that the prose#ution o+ the appli#ant had not be#o%e statute>

barred.

*ould the applicant ha'e !oreseen that the rele'ant acts had constituted &ar crimes and that

he &ould e prosecuted(


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As to whether the =uali+i#ation o+ the a#ts as war #ri%es, based as it was on international law

only, #ould be #onsidered to be su++i#iently a##essible and +oreseeable to the appli#ant in

19"", the ;ourt re#alled that it had previously +ound that the individual #ri%inal

responsibility o+ a private soldier 'a border guard) was de+ined with su++i#ient a##essibility

and +oreseeability by a re=uire%ent to #o%ply with international +unda%ental hu%an rights

instru%ents, whi#h instru%ents did not, o+ the%selves, give rise to individual #ri%inalresponsibility. hile the 192@ ;ri%inal ;ode did not #ontain a re+eren#e to the international

laws and #usto%s o+ war, this was not de#isive sin#e international laws and #usto%s o+ war

were in 19"" su++i#ient, o+ the%selves, to +ound individual #ri%inal responsibility.

he ;ourt +ound that the laws and #usto%s o+ war #onstituted parti#ular and detailed

regulations +iing the para%eters o+ #ri%inal #ondu#t in a ti%e o+ war, pri%arily addressed to

ar%ed +or#es and, espe#ially, #o%%anders. (iven his position as a #o%%anding %ilitary

o++i#er, the ;ourt was o+ the view that r Kononov #ould have been reasonably epe#ted to

ta5e spe#ial #are in assessing the ris5s that the operation in aie &ati had entailed. Gven the

%ost #ursory re+le#tion by r Kononov, would have indi#ated that the a#ts, +lagrantly

unlaw+ul ill>treat%ent and 5illing, had ris5ed not only being #ounter to the laws and #usto%so+ war as understood at that ti%e but also #onstituting war #ri%es +or whi#h, as #o%%ander,

he #ould be held individually and #ri%inally a##ountable.

As to the appli#ant4s sub%ission that it had been politi#ally un+oreseeable that he would be

prose#uted, the ;ourt re#alled its prior *urispruden#e to the e++e#t that it was legiti%ate and

+oreseeable +or a su##essor $tate to bring #ri%inal pro#eedings against persons who had

#o%%itted #ri%es under a +or%er regi%e. $u##essor #ourts #ould not be #riti#ised +or

applying and interpreting the legal provisions in +or#e at the relevant ti%e during the +or%er

regi%e, in the light o+ the prin#iples governing a $tate sub*e#t to the rule o+ law and having

regard to the #ore prin#iples 'su#h as the right to li+e) on whi#h the Guropean ;onvention

syste% is built. hose prin#iples were +ound to be appli#able to a #hange o+ regi%e o+ the

nature whi#h too5 pla#e in Latvia +ollowing the

grand chamber judgment kononov v. latvia

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