Webcast News Service, 18 May 2010

Europe's highest human rights court has upheld the war crimes conviction of a Latvian man who was found guilty of ordering the killing of nine civilians while fighting for Soviet forces in Nazi-occupied Latvia in 1944.

Vasily Kononov had been convicted by a Latvian court in 1998 of crimes against humanity in the killings. Kononev appealed his conviction to the European Court of Human Rights.

Vasiliy Kononov was born in Latvia in 1923, at the time an independent country. Latvia came under the Soviet sphere of influence in 1939 under the Molotov-Ribbentrop Pact between Communist Russia and Nazi Germany. Fifty thousand German-speaking Latvians were subsequently expelled. Soviet dictator Josef Stalin forced Latvia to accept a "mutual assistance" pact with the Soviet Union, granting the Soviets the right to station between 25,000 and 30,000 troops on Latvian territory. In 1940, Latvian state administrators were murdered and replaced by Soviet cadres, an action that resulted in the deportation or murder of 34,250 Latvians. Latvia was incorporated into the Soviet Union on August 5, 1940. In the following year, at least 27,586 persons were arrested; most were deported, and about 945 were shot.

Nazi dictator Adolf Hitler later doubled-crossed Stalin and invaded Latvia and the Soviet Union in June 1941. Many Latvians, who viewed Stalin's Red Army as occupiers, welcomed the German army as liberators.

In 1942, Kononov was called up as a soldier in the Soviet Army. In 1943 he was dropped into Belarus territory (under German occupation at the time) near the Latvian border, where he joined a Soviet commando unit composed of members of the "Red Partisans."

On 27 May 1944, Kononov led a unit of Red Partisans wearing German uniforms on an expedition in the Latvian village of Mazie Bati, whose inhabitants were suspected of having betrayed to the Germans another group of Red Partisans. Kononov’s unit searched six farm buildings in the village. After finding rifles and grenades supplied by the Germans in each of the houses, the Partisans shot the six heads of family concerned. They also wounded two women. They then set fire to two houses, and four people, three of whom were women, perished in the flames. In all, nine villagers were killed: six men -- five executed and one killed in the burning buildings -- and three women, one in the final stages of pregnancy. The villagers killed were unarmed; none attempted to escape or offered any form of resistance.

According Kononov, the victims of the attack were collaborators who had delivered a group of 12 Partisans into the hands of the Germans some three months earlier. The applicant said that his unit had been instructed to capture those responsible so that they could be brought to trial. He further claimed that he had not personally led the operation or entered the village.

Latvia regained its independence in 1991. In July 1998 the Centre for the Documentation of the Consequences of Totalitarianism, based in Latvia, forwarded an investigation file concerning the events of 27 May 1944 to the Latvian Principal Public Prosecutor. Subsequently,Kononov was charged with war crimes.

In April 2000, Kononov renounced his Latvian citizenship and was granted Russian nationality.

On 30 April 2004, the Latvian Supreme Court found Kononov guilty of war crimes. Relying mainly on the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Latvian court convicted Kononov for the ill-treatment, wounding and killing of the villagers, finding in particular that burning a pregnant woman to death violated the special protection afforded to women during war. Furthermore, Kononov and his unit had violated Article 25 of the Hague Regulations 1907 which forbade attacks against undefended localities, such as the villagers’ farm buildings. Under Article 23(b) of the same Regulations, Kononov was also convicted separately of treacherous wounding and killing, as he and his unit had worn German uniforms during the Mazie Bati operation. Noting that he was aged, infirm and harmless, the Latvian courts imposed an immediate custodial sentence of one year and eight months.

Kononov's appeal to the European Court of Human Rights complained, in particular, that the acts of which he had been accused had not, at the time of their commission, constituted an offence under either domestic or international law. He maintained that, in 1944 as a young soldier in a combat situation behind enemy lines, he could not have foreseen that those acts could have constituted war crimes, or have anticipated that he would subsequently be prosecuted. He also argued that his conviction following the independence of Latvia in 1991 had been a political exercise by the Latvian State rather than any real wish to fulfil international obligations to prosecute war criminals.

The appeal was lodged with the European Court of Human Rights on 27 August 2004.

In a judgment of 24 July 2008, the Court held, by four votes to three, that there had been a violation of the European Convention on Human Rights, Article 7 and, under Article 41 (just satisfaction), awarded the applicant 30,000 euros in damages.

On 6 January 2009, the case was referred to the Grand Chamber European Court of Human Rights at Latvia’s request.

On 20 May 2009, a public hearing was held in the Human Rights Building in Strasbourg.

The court's decision, released a year later, upheld the Latvian conviction of Kononov.

Decision of the Court

The European Court of Human Rights determined that by May 1944, the prevailing definition of a war crime had been an act contrary to the laws and customs of war; and international law had defined the basic principles underlying those crimes. States had been permitted, if not required, to take steps to punish individuals for such crimes, including on the basis of command responsibility. Consequently, during and after the Second World War, international and national tribunals had prosecuted soldiers for war crimes committed during the Second World War.

The European Court of Human Rights declared that the villagers’ murder and ill-treatment had violated a fundamental rule of the laws and customs of war by which an enemy rendered hors combat -- in this case not carrying arms -- was protected. Nor was a person required to have a particular legal status or to formally surrender. Even if the villagers were considered combatants, they would also have been entitled to protection as prisoners of war under the control of Kononov and his unit, and their subsequent ill-treatment and summary execution would have been contrary to numerous rules and customs of war protecting prisoners of war. Therefore, like the Latvian courts, the European Court of Human Rights considered that the ill-treatment, wounding, and killing of the villagers had constituted a war crime.

Further, the European Court of Human Rights found that the Latvian court had reasonably relied on the Hague Regulations of 1907 to separately convict Kononov of treacherous wounding and killing. At the time, wounding or killing had been considered treacherous if it had been carried out while unlawfully inducing the enemy to believe they had not been under threat of attack by, for example, making improper use of an enemy uniform, which the applicant and his unit indeed had done. Equally, the European Court of Human Rights determined there was a plausible legal basis for convicting Kononov of a separate war crime as regards the burning to death of the expectant mother, given the special protection for women during war established well before 1944 (ie Lieber Code 1863) in the laws and customs of war and confirmed immediately after the Second World War by numerous specific and special protections in the Geneva Conventions.

Kononov had himself described in his version of events what he ought to have done namely, to have arrested the villagers for trial. The European Court of Human Rights declared that even if a partisan trial had taken place, it would not qualify as fair if it had been carried out without the knowledge or participation of the accused villagers, followed by their execution. Kononov, having organized and been in control of the partisan unit which had been intent on killing the villagers and destroying their farms, had command responsibility for those acts.

The Court therefore concluded, by 14 votes to three, that there had been no violation of the European Convention on Human Rights.

Kononov had been sentenced by Latvian court to 20 months in prison but was freed because he already had served that amount of time in pretrial detention.

At various times throughout the period of Kononov's prosecution for war crimes, he received official support from the Russian government. In April 2000, immediately before judgement was to be handed down in his appeal with the Supreme Court of Latvia, Kononov was offered Russian by Russian dicator Vladimir Putin. On the event of his 80th birthday in 2003, Kononov received personal greetings from the Russian dicator, delivered at a ceremony held in the Russian Embassy in the Latvian capitol of Riga.