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Latvian war crime case overturned on technicality

  • 2008-07-25
  • In cooperation with Latvian Foreign Ministry and BNS

EU Court of Human Rights

STRASBOURG- In the caseof Kononov v. Latvia, theEuropean Court of Human Rights delivered judgment favorable to the defendant, VassiliMakarovich Kononov.

Kononov complained that at the time of his alleged war crime activities, underArticle 7 of the Conventionfor the Protection of Human Rights and Fundamental Freedoms, his crimes did notamount to war criminal activities either under international or local law.  

 According to a press release by theLatvian Ministry of Foreign Affairs, theCourt came to a decision of four votes to three, that there had been aviolation of Article 7 of the Convention.

The Court carried out adetailed analysis of the facts established and the conclusions made in thejudgments by Latvian courts, criticizing the Latvian courts' judgments fortheir overly generalized nature in the application of the provisions ofinternational law, as well as implying the specific facts and evidence had notbeen sufficiently thoroughly analyzed at the national level.

The Court expressed itsastonishment that, in the evaluation of the events of 1944, the Latvian courtshad applied retrospectively international conventions adopted in 1949 and 1977.

In the view of the Court,at the time of the events, Kononov did not know that the killings and theburning of buildings at Mazie Bati village amounted to a war crime under thedomestic and international law in force in 1944.

The villagers of MazieBati, in their turn, siding with one of the warring sides (that is, acceptingweapons for protection) should have been aware that this will attract revengeon the part of representatives of the other warring side.

According to the Court,even supposing Kononov's actions could qualify as murder, banditry, etc., underthe provisions of the law then in force, the term for prosecution had lapsed in1954 and Latviatherefore has acted contrary to the principle of forsight by trying Kononovalmost half a century after the expiration of the limitation period.

The dissenting judgesfrom Latvia, Sweden and Icelandmade the point that Latviacould not have brought this case to court before their independence in 1991,without serious repercussions.

 

 The judges implied that there may have been adouble standard in the conclusions of the majority, saying that only thosefighting on the side of the Nazi Germany could be convicted for war crimescommitted during World War II.

The Court awarded the Kovonov30,000 euros (EUR) in respect of non-pecuniary damage, instead of the5 million he had previously asked for.  

 

The ministry of ForeignAffairs in Latvia alsoreleased a timeline of facts in the case of "Kovonovs versus Latvia".

 

In 1942 the applicant wasmobilized into the Red Army, where he was trained to organize sabotage andpartisan action behind the enemy. After completing training, the applicant wasawarded the rank of sergeant and he was sent into the territory ofGerman-occupied Belarus,close to the border of Latvia.There the applicant joined a unit of Soviet partisans and in March 1944 he wasappointed the leader of a sabotage group. 

In February 1944, in theterritory of the village of Mazie Bati, the Germanarmy eliminated a unit of Red Partisans. Considering that the villagers hadtracked down the partisans and informed on them to the Germans, the applicant'spartisan unit decided to perform a 'reprisal action'.

On 27 May 1944 the RedPartisans wearing German uniforms entered the village of Mazie Batiand retaliated against the villagers. As a result of the 'reprisal action',nine villagers were killed, including two women (one in the last month ofpregnancy). Five villagers were shot, but four, including the women, wereburned alive in village houses set on fire.    

After the end of the war,the applicant remained in Latviaand, until retirement in 1988, held various posts in the structures ofmilitsiya (Soviet police).

In January 1998, theCentre for the Documentation of the Consequences of Totalitarianism (Totalitārisma seku dokumentÄ"Å¡anas centrs) of the Constitution ProtectionBureau brought a criminal charge against the applicant in relation to theevents of 27 May 1944, considering that the applicant could be guilty ofcommitting war crimes. On 28 July 1998 the criminal case of the applicant was submittedto the Prosecutor General's Office, which, by a decision of 21 August 1998,brought a charge of war crimes against the applicant. The pre-trialinvestigation was concluded on 19 November 1998. On 18 December 1998 the casewas sent for adjudication to the Riga Regional Court.     

On 21 January 2000 the Riga Regional Court foundthe applicant guilty of the charge of war crimes brought against him andsentenced the applicant to six years in prison. Both the applicant and theProsecutor General's Office appealed against this judgement in the CriminalChamber of the Supreme Court.

On 25 April 2005 theCriminal Chamber of the Supreme Court sent the applicant's case to theProsecutor General's Office for further investigation, considering that thefile of the case does not contain answers to several questions of majorimportance to the case. During the additional investigation, the Senate of theSupreme Court altered the territorial jurisdiction of the criminal case,appointing the Latgale Regional Court as the court responsible for theadjudication of the case.   

On 27 June 2002 the Latgale Regional Courtordered the applicant to undergo a medical, psychiatric and psychologicalexamination, after which it was established that the general health conditionof the applicant was worsening, and that a punishment related to imprisonmentwas under no circumstances advisable for the applicant.    

On 3 October 2003 the Latgale Regional Courtacquitted the applicant of the war crimes charges, but found him guilty ofbanditry, at the same time relieving the applicant of criminal liability due tostatutory limitation. The applicant lodged an appeal against this judgment,demanding his full acquittal, whereas the Prosecutor General's Office submitteda protest against the appeal.

On 30 April 204, theCriminal Chamber of the Supreme Court quashed the judgment of the Latgale Regional Court,finding the applicant guilty of war crimes and sentenced him to one year andeight months in prison 's the period which the applicant had already served inpre-trial detention.  

The applicant filed acassation appeal to the Senate of the Supreme Court, which dismissed it by adecision of 28 September 2004.