Kononovs case opens

STRASBOURG 's the European Court of Human Rights has strted proceedings in the case of Kononov vs Latvia, the outcome of which could have implications for how Baltic history is viewed - at least in legal terms.

During World War II, Vasiljs Kononovs was called up as a soldier in the Red Army. In 1943 he was parachuted into Belarus territory (then under German occupation) near the Latvian border, where he joined a Soviet commando unit, composed of members of the so-called "Red Partisans".

According to the public prosecutor's office and the Latvian courts, Kononovs led a platoon responsible for an attack on the village of Mazie Bati (in Ludza district) on 27 May 1944 which led to the deaths of five men and three women. Another man was seriously wounded and the women concerned - one heavily pregnant - were burnt alive.

According to Kononovs, the victims of the attack were collaborators who had delivered a group of partisans (including two women and a small child) into the hands of the Germans. He maintains that he did not personally lead the mission or go into the village.

On 2 August 1998 Kononovs was charged with war crimes. Riga Regional Court found him guilty and imposed a six-year custodial sentence. The court decided Kononovs was a member of the Soviet Army and therefore a "combatant" within international law. The court concluded that he had perpetrated acts that were prohibited by the Charter of the International Military Tribunal for Nuremberg, the Hague Convention and the Geneva Convention.

That judgment was quashed on 25 April 2000, on the ground that various points were undecided, including whether Mazie Bati had in fact been within "occupied territory" and whether Kononovs and his supposed victims could be classified as "combatants" and "non-combatants" respectively.

On 3 October 2003 Kononovs was acquitted of war crimes, but found guilty of banditry. The court accepted that the deaths of the men from Mazie Bati could be regarded as necessary and justified in military terms, but that there was no justification for the killing of the women or the burning down of buildings. As the commanding officer, the applicant was responsible for the acts committed. However, the time limit for a prosecution for banditry had expired.

The Criminal Affairs Division allowed an appeal from the prosecution and quashed that judgment, again finding him guilty. Noting that he was aged, infirm and harmless, it imposed an immediate custodial sentence of one year and eight months. Since the applicant had already spent that entire period in pre-trial detention, he was deemed to have served his sentence. He appealed unsuccessfully on points of law.

Determined to clear his name, Kononovs complained about the retrospective application of a criminal statute against him. He further argued that the characterisation of his acts by the Latvian courts was based on an erroneous assumption that Latvia was at the time occupied by the USSR and that he was a representative of the occupation forces. The Hague and Geneva Conventions applied only to "combatants", and he did not come within that definition at the material time, he argued. He also complained about the length and unfairness of his trial and that his detention pending trial from 10 October 1998 to 25 April 2000 amounted to "inhuman and degrading treatment", given his state of health.

The 84-year-old still resides in Riga, even though he renounced his Latvian citizenship in favor of Russian citizenship in 2000.

It looked as if Kononovs'  case could meet with a similar fate as two similar cases in which the appellants died before their appeals to Strasbourg could be heard, but when Russia officially backed Kononovs in May 2006 as a third party, his case was transformed into a cause celebre. That, and the fact that his health has recently deteriorated, has led to the Kononovs case being fast-tracked.

Kononovs' appeal is based on several alleged breaches of articles of the European Convention on Human Rights and Fundamental Freedoms. In his submission, Kononovs claims that he had been convicted of actions which, at the time they were committed, were not subject to criminal liability in either international or national law.

However, the court has only sought comments from the Latvian government in respect of one alleged breach of Article 7 of the convention [No Punishment without Law].

It seems certain that as the case proceeds, the central question will be a familiar one, namely: was Latvia (and by extension all three Batic states) occupied illegally by the Soviet Union, or did it join voluntarily? On this perpetual bone of contention rests the likely fate of another elderly, bit-part player in the course of Baltic history.