390 17.05.2010 Press release issued by the Registrar Grand Chamber Judgment1 Kononov v. Latvia (Application n 36376/04) V !

"#"$ %&'&'&V(! C&'V"C)"&' &* + R CR",-! ./R"'G !-C&'. +&R#. + R *&/'. '&) )& 0 V- V"&# )-. R)"C#- 7 ('& P/'"!0,-') +")0&/) # +1 &* )0- -/R&P- ' C&'V-')"&' &' 0/, ' R"G0)! Prin2i3al 4a2ts 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/ 0ay 19"" the appli#ant led a unit o+ ed -artisans wearing (er%an uni+or%s on an e1pedition on the village o+ 0a2ie &ati, #ertain o+ whose inhabitants were suspe#ted o+ having betrayed to the (er%ans another group o+ ed -artisans. 3he appli#ant4s unit sear#hed si1 +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 si1 heads o+ +a%ily #on#erned. 3hey also wounded two wo%en. 3hey 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 si1 %en 7 +ive e1e#uted and one 5illed in the burning buildings 7 and three wo%en 7 one in the +inal stages o+ pregnan#y. 3he 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 a group o+ 12 -artisans into the hands o+ the (er%ans so%e three %onths earlier. 3he 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 9uly 199: the ;entre +or the <o#u%entation o+ the ;onse=uen#es o+ 3otalitarianis% 'Totalitrisma seku dokumentanas centrs), based in Latvia, +orwarded an investigation +ile
1

Grand 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. urther information about the execution process can be found here! """.coe.int#t#dghl#monitoring#execution.

>2> #on#erning the events o+ 2/ 0ay 19"" to the Latvian -rin#ipal -ubli# -rose#utor. $ubse=uently, 0r Kononov was #harged with war #ri%es. ?n 30 April 200" the ;ri%inal A++airs <ivision o+ the $upre%e ;ourt ulti%ately +ound the appli#ant guilty o+ war #ri%es under Arti#le @:>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 3i%e o+ Aar ',(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 0a2ie &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. 3he appli#ant lodged an unsu##ess+ul appeal on points o+ law. C5m3laints6 3r52edure and 25m35siti5n 54 the C5urt 3he 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 e1er#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. 3he appli#ation was lodged with the Guropean ;ourt o+ Hu%an ights on 2/ August 200". !n a *udg%ent o+ 2" 9uly 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 @ 9anuary 2009 the #ase was re+erred to the (rand ;ha%ber under Arti#le "3 at the (overn%ent4s re=uest. 3hird>party #o%%ents were re#eived +ro% the (overn%ent o+ the ussian Bederation and +ro% the Lithuanian (overn%ent. ?n 20 0ay 2009 a hearing was held in publi# in the Hu%an ights &uilding in $trasbourg. 9udg%ent was given by the (rand ;ha%ber o+ 1/, #o%posed as +ollows6 9ean>-aul C5sta 'Bran#e), President, ;hristos R57a8is '(ree#e),
2

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

>3> Ei#olas 9rat7a 'the Dnited Kingdo%), -eer #5ren7en '<en%ar5), BranHoise )ul8ens '&elgiu%), 9osep Casade:all 'Andorra), !reneu Cabral 9arret5 '-ortugal) <ean !3ielmann 'Lu1e%bourg), enate Jaeger '(er%any), $verre Gri5 Jebens 'Eorway), <ragol*ub P535:i; '$erbia), -Iivi 0ir:el< 'Binland), Ledi 9ian8u 'Albania), Jdrav5a %alayd=ie:a '&ulgaria), 0ihai P5alelungi '0oldova), Eebo*Ka Vu>ini; '0ontenegro), judges, Alan Vaughan #5?e 'Latvia), ad h52 judge, and also 0i#hael &(95yle, Deputy Registrar .e2isi5n 54 the C5urt Had there een a su!!icientl" clear le#al asis in $%44 !or the crimes o! &hich the applicant had een con'icted( 0r Kononov had been #onvi#ted under Arti#le @:>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. 3he Latvian #ourts4 #onvi#tion o+ the appli#ant had, there+ore, been based on international rather than do%esti# law. &y 0ay 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 Aorld Aar, international and national tribunals had prose#uted soldiers +or war #ri%es #o%%itted during the $e#ond Aorld Aar. 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 the basis 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.). 3he ;ourt also re#alled the ,two #ardinal prin#iples. relied on by the !nternational ;ourt o+ 9usti#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 com at 7 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%ally surrender. As #o%batants, the villagers would also have been entitled to prote#tion as

>"> prisoners o+ war under the #ontrol o+ the appli#ant and his unit and their subse=uent ill> treat%ent and su%%ary e1e#ution would have been #ontrary to the nu%erous rules and #usto%s o+ war prote#ting prisoners o+ war. 3here+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 0r 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 e1a%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 0r Kononov o+ a separate war #ri%e as regards the burning to death o+ the e1pe#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 Aorld Aar 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 been ,i%peratively de%anded by the ne#essities o+ war. to burn down the +ar% buildings in 0a2ie &ati, the only e1#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 e1e#ution. 0r 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 0a2ie &ati on 2/ 0ay 19"". 3he ;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 statute) arred( 3he ;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. 3he essential =uestion was there+ore whether, at any point prior to 0r Kononov4s prose#ution, su#h a#tion had be#o%e statute>barred by international law. 3he ;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(

>C> 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%inal responsibility. Ahile 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. 3he ;ourt +ound that the laws and #usto%s o+ war #onstituted parti#ular and detailed regulations +i1ing 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 0r Kononov #ould have been reasonably e1pe#ted to ta5e spe#ial #are in assessing the ris5s that the operation in 0a2ie &ati had entailed. Gven the %ost #ursory re+le#tion by 0r 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%s o+ 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. 3hose 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 <e#larations o+ !ndependen#e o+ 1990 and 1991. A##ordingly, the Latvian #ourts4 prose#ution and #onvi#tion o+ 0r Kononov, based on international law in +or#e at the ti%e o+ the a#ts he stood a##used o+, #ould not be #onsidered un+oreseeable. !n #on#lusion, at the ti%e when they were #o%%itted, the appli#ant4s a#ts had #onstituted o++en#es de+ined with su++i#ient a##essibility and +oreseeability by the laws and #usto%s o+ war. 3he ;ourt there+ore #on#luded, by 1" votes to three, that there had been no violation o+ Arti#le /. 9udge o2a5is e1pressed a #on#urring opinion, *oined by 9udges 3ul5ens, $piel%ann and 9ebens. 9udge ;osta e1pressed a dissenting opinion, *oined by 9udges Kalayd*ieva and -oalelungi. 3he te1ts o+ these separate opinions are anne1ed to the *udg%ent.