EUROPEAN COURT OF HUMAN RIGHTS

545
24.7.2008
Press release issued by the Registrar
CHAMBER JUDGMENT
KONONOV v. LATVIA
The European Court of Human Rights has today notified in writing its Chamber judgment 1 in
the case of Kononov v. Latvia (application no. 36376/04).
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 on Human Rights.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant, by
four votes to three, 30,000 euros (EUR) in respect of non-pecuniary damage. (The judgment,
done in French, is also available in English.)
1. Principal facts
Vasiliy Kononov was born in 1923. He was a Latvian national until 12 April 2000, when he
was granted Russian nationality.
The case concerned Mr Kononovs prosecution for war crimes he allegedly committed in
1944. At the time the territory of Latvia was under German occupation.
In 1942 the applicant was called up as a soldier in the Soviet Army. In 1943 he was
parachuted into Belarus territory (also under German occupation at the time) near the Latvian
border, where he joined a Soviet commando unit composed of members of the Red
Partisans.
According to the facts as definitively established by the competent Latvian courts, on 27 May
1944 the applicant led a unit of armed Red Partisans wearing German uniforms to avoid
arousing suspicion in a punitive expedition on the village of Mazie Bati, certain of whose
inhabitants were suspected of having betrayed and turned into the Germans another group of
Red Partisans. The applicants men burst into and searched six houses. After finding rifles
and grenades supplied by the German military administration in each of the houses, the
Partisans executed the six heads of family concerned. They also wounded two women. They
then set fire to two houses and four people perished in the flames. In all, nine villagers were
killed: six men and three women, one in the final stages of pregnancy.
1

Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to
the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the
Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the
interpretation or application of the Convention or its protocols, or a serious issue of general importance, in
which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will
reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on
the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to
refer.

-2According to the applicant, the victims of the attack were collaborators who had delivered a
group of 12 Partisans (including two women and a small child) 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 had not personally led the
operation or entered the village.
In January 1998 the Centre for the Documentation of the Consequences of Totalitarianism
(Totalitrisma seku dokumentanas centrs) launched a criminal investigation into the events
of 27 May 1944. It considered that the applicant could have committed war crimes under
Article 68-3 of the former Latvian Criminal Code. Article 68-3 stipulated that those found
guilty of war crimes were liable to between three and fifteen years imprisonment or life
imprisonment. Article 6-1 permitted the retrospective application of the criminal law with
respect to war crimes and Article 45-1 provided that the prosecution of such crimes was not
subject to statutory limitation.
On 2 August 1998 the applicant was charged with war crimes and on 10 October 1998 placed
in pre-trial detention. He entered a not guilty plea.
The Riga Regional Court found him guilty and imposed an immediate six-year custodial
sentence.
That judgment was quashed, however, on 25 April 2000 on the ground that various issues
remained unresolved, including whether Mazie Bati had in fact been within occupied
territory and whether the applicant and his victims could be classified as combatants and
non-combatants respectively. The applicant was released from detention.
On 17 May 2001, following a fresh preliminary investigation, the applicant was again
charged with an offence under Article 68-3.
On 3 October 2003 the Latgale Regional Court acquitted him of the war-crimes charges, but
found him guilty of banditry. It accepted that the deaths of the men from Mazie Bati could be
regarded as necessary and justified in military terms, but found that there was no justification
for the killing of the three women or the burning down of the village buildings. The applicant
and his men had committed an act of banditry and the applicant, as the commanding officer,
was responsible for the actions of his unit. However, since banditry did not fall into the
category of offences exempt from statutory limitation, the Regional Court relieved the
applicant of criminal liability.
On 30 April 2004, the Criminal Affairs Division of the Supreme Court allowed an appeal
from the prosecution and quashed that judgment, again finding the applicant guilty of war
crimes under Article 68-3. Noting that he was aged, infirm and harmless, it imposed an
immediate custodial sentence of one year and eight months. The applicant lodged an
unsuccessful appeal on points of law.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 27 August 2004.
The President of the Court gave the Russian Government leave to intervene as a third party.

-3A public hearing took place in the Human Rights building, Strasbourg, on 20 September 2007
and the Chamber declared it partly admissible.
Judgment was given by a Chamber of seven judges, composed as follows:
Botjan M. Zupani (Slovenian), President,
Corneliu Brsan (Romanian),
Elisabet Fura-Sandstrm (Swedish),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch),
David Thr Bjrgvinsson (Icelandic),
Ineta Ziemele (Latvian), judges,
and also Santiago Quesada, Section Registrar.
3. Summary of the judgment1
Complaint
The applicant complained under Article 7 1 that the acts of which he had been accused did
not, at the time of their commission, constitute an offence under either domestic or
international law.
Decision of the Court
Article 7
It was not the Courts task to rule on the applicants individual criminal responsibility, but to
consider, from the standpoint of Article 7 1, whether on 27 May 1944 his acts constituted
offences that were defined with sufficient accessibility and foreseeability by domestic law or
international law.
The Criminal Affairs Division of the Supreme Court had characterised the applicants acts by
reference to three international instruments. However, two of these had come into existence
after 1944 and did not contain any provisions affording them retrospective effect and in any
event Article 7 1 precluded the retrospective application of an international treaty to
characterise an act or omission as criminal. Only the Hague Convention of 1907 concerning
the law and customs of war on land (or, more precisely, the appended Regulations) existed
and was in force at the time the alleged offences were committed. Neither the USSR nor
Latvia had signed that Convention, which was not, therefore, formally applicable to the
armed conflict in question. However, the text of that Convention merely reproduced the
fundamental customary rules that were firmly recognised by the community of nations at the
time. The Court therefore presumed that the applicant, as a combatant within the meaning
of international law, must have been aware of the rules.
The Court noted that the decisions of the domestic courts were almost completely silent on
the question whether the applicant was personally and directly implicated in the events of
Mazie Bati. The only genuine accusation made against him by the Latvian courts was that he
had led the unit which carried out the punitive expedition on 27 May 1944. The Court
1

This summary by the Registry does not bind the Court.

-4therefore had to determine whether that operation could, in itself, reasonably be regarded as
having contravened the laws and customs of war as codified by the Hague Convention of
1907.
In that connection, the Court noted that even though the operation had not been carried out in
a combat situation, it had nevertheless taken place in a war zone near the front in a village
that had seen skirmishes between the Red Partisans and the German army and in a region
occupied by Nazi Germany and its army, where a Latvian auxiliary police in the service of
the Germans, armed trustworthy men and others employed to denounce members of the
Red Partisans were all active.
While there was nothing to indicate that the six men killed on 27 May 1944 were members of
the Latvian auxiliary police, they had received rifles and grenades from the Germans.
Following, in particular, the killing by the Wehrmacht of a group of Red Partisans who had
been betrayed by the Mazie Bati villagers after taking refuge on their territory, the applicant
and the other Red Partisans had legitimate grounds for considering the villagers concerned as
collaborators of the German Army. Accordingly, the Court was not satisfied that the six men
killed could reasonably be regarded as civilians and noted that that notion was not defined
by the Hague Convention of 1907. In characterising the victims as civilians, the Criminal
Affairs Division had relied on a provision in another instrument which provided that any
person not belonging to one of the predefined categories of combatants or in respect of whom
there was a doubt on that point was presumed a civilian. However, that instrument, which
was adopted more than 30 years after the events in question, could not be applied
retrospectively and there was no reason to consider that such a presumption was already
recognised in customary law in 1944.
The Court noted, further, that the operation of 27 May 1944 had been selective in character,
as it was carried out against six specific, identified men who were strongly suspected of
having collaborated with the Nazi occupier. The Partisans had searched their homes, and it
was only after finding rifles and grenades supplied by the Germans tangible evidence of
their collaboration that they had carried out the executions. Conversely, all the villagers
were spared.
The Court noted that the Latvian courts had omitted in their decisions to carry out a detailed
and sufficiently thorough analysis of the Regulations appended to the Hague Convention of
1907, but had simply referred to certain of its articles without explaining how they came into
play in the applicants case. In particular, the Criminal Affairs Division had cited three
articles of the Regulations in question which made it illegal to kill or wound treacherously
individuals belonging to the hostile nation or army, prohibited attacks on towns, villages,
dwellings, or buildings which are undefended and required certain fundamental rights to be
respected. The instant case concerned a targeted military operation consisting in the selective
execution of armed collaborators of the Nazi enemy who were suspected on legitimate
grounds of constituting a threat to the Red Partisans and whose acts had already caused the
deaths of their comrades. That operation was scarcely any different from those carried out at
the same period by the armed forces of the Allied powers or by local Resistance members in
many European countries occupied by Nazi Germany.
Finally, the Court considered that it had not been adequately demonstrated that the attack on
27 May 1944 was per se contrary to the laws and customs of war as codified by the
Regulations appended to the Hague Convention of 1907. Accordingly, in view of the

-5summary nature of the reasoning of the Latvian courts, it concluded that there was no
plausible legal basis in international law on which to convict the applicant for leading the unit
responsible for the operation.
As regards the three women killed at Mazie Bati, the Court could only regret the overly
general and summary nature of the domestic courts reasoning, which did not allow any
definite answers to be given to two fundamental questions, namely whether and to what
extent the women had participated in the betrayal of the group of Red Partisans, and whether
their execution had been planned by the Red Partisans from the start or whether the members
of the unit had acted beyond their authority.
The Court considered that there were two possible explanations for what happened. The first
was that the three women concerned had played a role in the betrayal and that their execution
had been planned from the start. The Government had not refuted the applicants assertion
that the three women had kept watch while the men had gone to the neighbouring village to
alert the German garrison to the Partisans presence. If that account was true, the Court was
bound to conclude that the three women were also guilty of abusing their status of civilians
by providing genuine, concrete assistance to the six men from Mazie Bati who collaborated
with the Nazi occupier. In such circumstances, the Courts finding with respect to the men
who were executed during the operation on 27 May 1944 was in general equally applicable to
the three women.
The second explanation was that the womens deaths had not initially been planned by the
applicants men and their commanding officers and that their deaths resulted from an abuse of
authority. The Court considered that neither such abuse of authority nor the military operation
in which it took place could reasonably be regarded as a violation of the laws and customs of
war as codified in the Hague Regulations. Under this scenario, the Court accepted that the
acts committed by the members of the unit against the three women concerned could prima
facie constitute offences under the general law, which, as such, had to be examined by
reference to the domestic law applicable at the material time.
On the assumption that the deaths of the three women from Mazie Bati were the result of an
abuse of authority by the Red Partisans, the Court notes that, as with the six men, the
decisions of the Latvian courts contained no indication of the exact degree of implication of
the applicant in their execution. Thus, it had never been alleged that he himself had killed the
women or that he had ordered or incited his comrades to do so.
In any event, the Court considered that even if the applicants conviction was based on
domestic law, it was manifestly contrary to the requirements of Article 7 as, even supposing
that he had committed one or more offences under the general law in 1944, their prosecution
had been definitively statute barred since 1954 and it would be contrary to the principle of
foreseeability to punish him for these offences almost half a century after the expiry of the
limitation period.
Consequently, the Court considered that the applicant could not reasonably have foreseen on
27 May 1944 that his acts amounted to a war crime under the international rules governing
conduct in war applicable at the time. There was, therefore, no plausible legal basis in
international law on which to convict him of such an offence and even supposing that the
applicant had committed one or more offences under domestic law, by 2004 domestic law
could no longer serve as a basis for his conviction either, in violation of Article 7.

-6-

Judge Myjer expressed a concurring opinion. Judges Fura-Sandstrm, David Thor

Bjrgvinsson and Ziemele expressed a joint dissenting opinion and Judge David Thor
Bjrgvinsson a dissenting opinion. These are annexed to the judgment.
***