Eesti Elu
European Court of Human Rights: Latvia did not violate European Convention
Arvamus 25 Jun 2010  Eesti Elu
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The case of Vassili Kononov (b. 1923) has taken many twists and turns. A Latvian national until 2000 when he was granted Russian citizenship. Kononov was charged by Latvia with war crimes in 1998, after Latvia’s Centre for the Documentation of the Consequences of Totalitarianism forwarded information concerning some events of May 27, 1944 to the public prosecutor.

The final conviction notice recently of the European court states: In May of 1944 Kononov lead a unit of Red Partisans wearing German uniforms into the village of Mazie Bati, whose inhabitants were suspected of betraying another group of Red Partisans to the Germans. After searching and finding German arms in six of the farmhouses, the Partisans shot the heads of the six families concerned. They also wounded two women. They set fire to two houses and four people, including three women (one pregnant) who perished. All villagers killed were unarmed and no one attempted to escape or offer resistance.

According to the appellant (Kononov was appealing a Latvian court decision), the victims were collaborators who had delivered a group of 12 Partisans to the Germans. Kononov said that the Partisans were ordered to capture those responsible and bring them in for trial. He denied leading the operation or entering the village.

In 2004 the Criminal Affairs Division of the Latvian Supreme Court found Kononov guilty of war crimes under Article 68-3 of the 1961 Criminal Code of Soviet Latvia. Basing their decision mainly on the Geneva Convention (IV) 1949 relative to the Protection of Civilian Persons in Time of War, the court convicted Kononov of wounding and killing villagers, finding in particular that burning an obviously pregnant woman to death violated the special protection afforded to women during war. The Latvian court found that Kononov had also violated Article 25 of the Hague Regulations, which forbade attacks against undefended localities and violated Article 23(b) which forbade treacherous wounding and killing as he and his unit had worn German uniforms. Noting that he was infirm, aged and harmless, the Latvian courts imposed an immediate custodial sentence of one year, eight months. Kononov lost an appeal on points of law.

He stated that the acts with which he had been accused had not been offences at the time under domestic or international law. Therefore, he could not have foreseen that they would constitute war crimes. He also argued that his conviction had been a political exercise by the recently freed Latvian state, not an obligation to prosecute war criminals. Kononov’s appeal was then filed with the European Court of Human Rights in 2004. In a judgment in 2008 the Court held, by four votes to three, that there had been a violation of Article 7 (no punishment without law) of the European Convention. And under Article 41 Kononov was awarded 30,000 Euros in respect of non-pecuniary damage.

As a final stage in 2009 the case was referred to the Grand Chamber of the European Court at Latvia’s request. Russia and Lithuania submitted third party comments. The Grand Chamber, in its decision answered the following questions:

The Grand Chamber decision was accompanied by a very detailed analysis of the principles of law argued before the court. Was there clear legal basis in 1944 for the crimes of Kononov for which he had been convicted? Yes. Had the crimes been statue barred? No. Could Kononov have foreseen that the relevant acts had constituted war crimes and that he would be prosecuted? The Latvian court’s conviction of Kononov, based on international law of the time, could not be considered unforeseeable and Kononov’s acts had constituted crimes with sufficient accessibility and foreseeability
by the laws and customs of war. It was legitimate for a successor state to bring criminal proceedings against persons who had committed crimes under a former regime. The Court concluded by 14 votes to three that there had been no violation of Article 7 by Latvia.

In the grand scale of Soviet complicity in war crimes Vassili Kononov is a very minor player. No prominent Soviet figures have ever been charged, much less convicted of war crimes. Russia has always provided safe haven for them. As predicted, Moscow condemned the decision immediately.
Laas Leivat
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