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Latvian war crime case overturned on technicality

Jul 25, 2008
In cooperation with Latvian Foreign Ministry and BNS

Latvian war crime case overturned on technicality
EU Court of Human Rights

STRASBOURG- In the case of Kononov v. Latvia, the European Court of Human Rights delivered judgment favorable to the defendant, Vassili Makarovich Kononov.

Kononov complained that at the time of his alleged war crime activities, under Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, his crimes did not amount to war criminal activities either under international or local law.  

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

The Court carried out a detailed analysis of the facts established and the conclusions made in the judgments by Latvian courts, criticizing the Latvian courts' judgments for their overly generalized nature in the application of the provisions of international law, as well as implying the specific facts and evidence had not been sufficiently thoroughly analyzed at the national level.

The Court expressed its astonishment that, in the evaluation of the events of 1944, the Latvian courts had 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 the burning of buildings at Mazie Bati village amounted to a war crime under the domestic and international law in force in 1944.

The villagers of Mazie Bati, in their turn, siding with one of the warring sides (that is, accepting weapons for protection) should have been aware that this will attract revenge on the part of representatives of the other warring side.

According to the Court, even supposing Kononov's actions could qualify as murder, banditry, etc., under the provisions of the law then in force, the term for prosecution had lapsed in 1954 and Latvia therefore has acted contrary to the principle of forsight by trying Kononov almost half a century after the expiration of the limitation period.

The dissenting judges from Latvia, Sweden and Iceland made the point that Latvia could not have brought this case to court before their independence in 1991, without serious repercussions.

 

 The judges implied that there may have been a double standard in the conclusions of the majority, saying that only those fighting on the side of the Nazi Germany could be convicted for war crimes committed during World War II.

The Court awarded the Kovonov 30,000 euros (EUR) in respect of non-pecuniary damage, instead of the 5 million he had previously asked for.  

 

The ministry of Foreign Affairs in Latvia also released a timeline of facts in the case of "Kovonovs versus Latvia".

 

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

In February 1944, in the territory of the village of Mazie Bati, the German army eliminated a unit of Red Partisans. Considering that the villagers had tracked down the partisans and informed on them to the Germans, the applicant's partisan unit decided to perform a 'reprisal action'.

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

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

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

On 21 January 2000 the Riga Regional Court found the applicant guilty of the charge of war crimes brought against him and sentenced the applicant to six years in prison. Both the applicant and the Prosecutor General's Office appealed against this judgement in the Criminal Chamber of the Supreme Court.

On 25 April 2005 the Criminal Chamber of the Supreme Court sent the applicant's case to the Prosecutor General's Office for further investigation, considering that the file of the case does not contain answers to several questions of major importance to the case. During the additional investigation, the Senate of the Supreme Court altered the territorial jurisdiction of the criminal case, appointing the Latgale Regional Court as the court responsible for the adjudication of the case.   

On 27 June 2002 the Latgale Regional Court ordered the applicant to undergo a medical, psychiatric and psychological examination, after which it was established that the general health condition of the applicant was worsening, and that a punishment related to imprisonment was under no circumstances advisable for the applicant.    

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

On 30 April 204, the Criminal 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 and eight months in prison 's the period which the applicant had already served in pre-trial detention.  

The applicant filed a cassation appeal to the Senate of the Supreme Court, which dismissed it by a decision of 28 September 2004.

 

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