CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2008

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s2637CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s5AE3DA4A { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sAAD5D99A { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sC441C5F { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s4987EB1B { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s55EB19EF { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; page-break-inside:avoid; font-size:12pt } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s5B37368D { width:246.13pt; text-indent:0pt; display:inline-block } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s10989983 { width:218.8pt; text-indent:0pt; display:inline-block } .s4319FE7D { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; page-break-inside:avoid; font-size:12pt } .s815D4579 { width:238.14pt; text-indent:0pt; display:inline-block } .s5D5DC104 { width:5.51pt; text-indent:0pt; display:inline-block } .sC0E27F52 { width:228.14pt; text-indent:0pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB756B14D { margin-top:0pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; page-break-inside:avoid; font-size:12pt } .sFD41DAEB { width:46.34pt; text-indent:0pt; display:inline-block } .sDE7EAA20 { width:59.32pt; text-indent:0pt; display:inline-block } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s5CD64447 { width:5.65pt; text-indent:0pt; display:inline-block } .sAC9CE5D8 { width:39.7pt; text-indent:0pt; display:inline-block } .s53D85A97 { width:0.84pt; text-indent:0pt; display:inline-block } .s86216AB7 { width:33pt; text-indent:0pt; display:inline-block } .s8561845B { width:22.17pt; text-indent:0pt; display:inline-block } .s8CE0427 { width:0pt; text-indent:0pt; display:inline-block } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2A2418D0 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s9E658AED { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s657E5B8F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s836E1A5 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sFD98DDDA { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sAEAF2508 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s23D77467 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sA182E63D { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s2ACD795E { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sF069A914 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify } .sD382041 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s5DB1B6FE { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s11E8214C { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s9566224B { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sD11A1898 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.15pt; text-align:justify; font-size:12pt } .sAEAA8BC4 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sA9B2F559 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify } .sADF187B0 { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify } .s9FF04F21 { margin-top:24pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sEA7ACA49 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sF7C185A2 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s544B5CD { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify } .sB317A4DF { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sDF033B5A { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; page-break-after:avoid } .s309AFA01 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:center } .s30E6C8F4 { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; widows:0; orphans:0 } .sF235705A { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; widows:0; orphans:0 } .sFC086497 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s8FB1507D { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-after:avoid } .s820EE5D4 { margin-top:24pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s286D21C3 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s7ACBD94A { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s5B7C1CAD { margin-top:12pt; margin-left:28.35pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify } .s35C08A72 { margin-top:12pt; margin-left:28.35pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify } .sF4278248 { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sD49BFE95 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify } .sB4DDF43A { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sC2354B74 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .sFCF18EF8 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s5AE04A1 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s141F584E { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; font-size:12pt } .s61A5E261 { width:17pt; text-indent:0pt; display:inline-block } .s6C9D9F1A { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; font-size:12pt } .sF30AC5D1 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sCD69D36A { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFB221F48 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF559FC96 { margin-top:0pt; margin-bottom:0pt; text-indent:14.4pt; text-align:justify; font-size:12pt } .s901FFE96 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3F88E4B3 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3BB46B81 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .sBC955E8B { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB0336B7E { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; font-size:12pt } .s18493772 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify; font-size:12pt } .sB5581368 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .sAEAEF8F3 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s5FAF523 { margin-top:36pt; margin-bottom:12pt; font-size:12pt } .sF43307A6 { width:17.2pt; display:inline-block } .s6029E5EE { width:173.73pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s5DB9CAE6 { margin-top:0pt; margin-left:17.3pt; margin-bottom:24pt; text-align:justify; font-size:12pt } .sF644BAA3 { margin-top:24pt; margin-bottom:5pt; text-indent:324pt; text-align:right; font-size:12pt } .s978AA059 { margin-top:5pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s82B4DA5F { page-break-before:right; clear:both; mso-break-type:section-break } .s44D84940 { page-break-before:left; clear:both; mso-break-type:section-break } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7BE5FA7B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:12pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCD1649A8 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:-1.3pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sF74FAE64 { font-family:Arial; font-size:8.5pt }       FORMER THIRD SECTION             CASE OF KONONOV v. LATVIA   (Application no. 36376/04)         JUDGMENT             STRASBOURG   24 July 2008     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 17/05/2010   This judgment may be subject to editorial revision . In the case of Kononov v. Latvia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Boštjan M. Zupančič, President ,   Corneliu Bîrsan,   Elisabet Fura-Sandström,   Alvina Gyulumyan,   Egbert Myjer,   David Thór Björgvinsson,   Ineta Ziemele, judges , and Santiago Quesada, Section Registrar , Having deliberated in private on 19 June 2008, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 36376/04) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental freedoms (“the Convention”) by a Russian National, Mr Vassili Makarovich Kononov (“ the applicant”), on 27 August 2004. 2.     Before the Court, the applicant was represented by Mr M.   Ioffé, a lawyer practising in Riga. The respondent Government (“the Government”) were represented by the Agent Ms I.   Reine. The Russian Government exercised its right of third-party intervention in accordance with Article   36   §   1 of the Convention and were represented by the representative of the Russian Federation at the Court, Ms V.   Milinchuk. 3.     The applicant alleged, in particular, that his conviction for “war crimes” as a result of his participation in a punitive military expedition in the Second World War had violated Article 7 of the Convention. 4.     A hearing took place in public in the Human Rights Building, Strasbourg, on 20 September 2007 (Rule 59 § 3 of the Rules of Court).   There appeared before the Court: (a)     for the Government Ms   I. Reine ,   Agent, Mr   E. Plaksins ,   Counsel ;   (b)     for the applicant Mr   M. Ioffé ,   Counsel , Mrs   M. Zakharina , Mr   Y. Larine ,   Advisors;   (c)     for the Russian Government Mrs   V. Milinchuk ,   representative of the Russian Federation at the Court , Mr   A. Kovalev ,   Professor at the Diplomatic Academy,       Ministry of Foreign Affairs,   Miss   M. Molodtsova ,   Second Secretary, Permanent       Representation of the Russian Federation       to the Council of Europe .   The Court heard addresses by Mrs Reine, Mr Ioffé and Mrs Milinchuk. 5.     By a decision of 20 September 2007, the Chamber declared the application partly admissible following a hearing on the admissibility and merits of the case (Rule 54 § 3). 6.     On 1 February 2008 the Court changed the composition of its Sections (Rule 25 § 1). The application in the present case nevertheless continued to be examined by the Chamber of the Former Third Section as previously composed. 7.     The applicant and the Government each lodged additional written observations (Rule   59   §   1). Observations were also received from the Russian Government (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1923 in the municipality of Mērdzene (district of Ludza, Latvia). He held Latvian nationality until 12 April 2000, when he was granted Russian nationality by a special decree issued by the President of the Russian Federation, Mr V. Putin. A.     Events prior to 27 May 1944 9.     On 22 June 1941 Nazi Germany attacked the Soviet Union, of which Latvian territory formed a part. The lightning advance of the German Army ( Wehrmacht ) forced the Red Army to leave the Baltic region and withdraw towards Russia. The applicant, who was living near the border at the time, followed. By 5 July 1941 the whole of Latvia had been overrun by the Wehrmacht . The three Baltic States and part of Belarus were joined to form a vast territory administered by the Reich Commissariat for the Eastern Territories ( Reichskomissariat Ostland ), which took orders directly from Berlin. 10.     After arriving in Russia the applicant initially found work on a collective farm ( kolkhoze ). He was subsequently employed as a metal turner in a factory that manufactured military equipment. In 1942 he was called up as a soldier in the Soviet Army and assigned to the reserve regiment of the Latvian Division. From 1942 to 1943 he received special training in sabotage operations ( подрывники in Russian), during which he learnt how to organise and lead commando raids behind enemy lines. After completing his training he was immediately promoted to the rank of sergeant. Shortly afterwards, on the night of 23 June 1943 he and some twenty fellow combatants were parachuted into Belarus territory, which was then under German occupation, near the Latvian border and thus to the area where he was born. 11.     After landing, the applicant joined a Soviet commando unit (composed of members of the “Red Partisans”) called the “ Vilis Laiviņš ” after its leader. In March 1944 he was put in command of a platoon by his two immediate superiors, whose primary objectives according to the applicant were as follows: to sabotage military installations, communication lines and German supply points, to derail trains and to spread political propaganda among the local population. The applicant claimed to have derailed 16 military trains and caused 42 German military targets to be blown up. B.     Events of 27 May 1944 12.     On 27 May 1944 the Red Partisans attacked the village of Mazie Bati (municipality of Mērdzene, district of Ludza), which at the time was approximately 80 kilometres from the front. 1.     The facts as established by the domestic courts and acknowledged by the Government 13.     The events of 27 May 1944, as established by the public prosecutor's office and the Latvian courts, and acknowledged by the respondent Government may be summarised as follows. 14.     In February 1944 the German Army discovered and wiped out a group of Red Partisans led by Major Chugunov who were hiding in a barn in the village of Mazie Bati. The applicant and his unit immediately suspected the villagers of having spied for the Germans and of having turned Chugunov's men in to the enemy. It was then decided to take reprisals against the inhabitants of Mazie Bati. 15.     Meanwhile, in constant fear of an attack by the Red Partisans, the male inhabitants of Mazie Bati – who up to then had not carried weapons – sought assistance from the German military administration, which ultimately provided every man with a rifle and two grenades “for his own protection”. 16.     On 27 May 1944 the applicant and his men, who were armed and wearing Wehrmacht uniforms to avoid arousing suspicion, entered the village where the inhabitants were preparing to celebrate Pentecost. The commando unit split up into a number of small groups each of which attacked a house on the applicant's orders. Several Partisans burst into the home of a farmer, Modests Krupniks, seized weapons they found there and ordered him out into the yard. When he pleaded with them not to kill him in front of his children, they ordered him to run towards the forest before opening fire when he did so. Krupniks was left, seriously wounded, on the edge of the forest, where he died the following morning from a massive haemorrhage. Although the surviving villagers heard his screams and groans, they were too afraid to go to his aid. 17.     Two other groups of Red Partisans attacked the homes of two other farmers, Meikuls Krupniks and Ambrozs Buļs. Meikuls Krupniks was seized in his bath and savagely beaten. The Partisans took the weapons they had found in the two villagers' homes to Meikuls Krupniks' house. There they fired several rounds of bullets at Buļs, Meikuls Krupniks and Krupniks' mother. According to the initial findings of fact by the prosecutor's office and the first-instance court, it was the applicant himself who killed Buļs. However, he was subsequently acquitted in relation to that incident (see paragraph 45 below). Meikuls Krupniks and his mother were seriously injured. The Partisans then doused the house and all the farm buildings (including the barn and stable) with petrol and set them alight. Krupniks' wife, who was nine months pregnant, managed to escape, but was seized by the Partisans and pushed through a window of the house into the flames. The following morning the surviving villagers found the charred remains of the four victims. Mrs Krupniks' body was identified by the badly burnt skeleton of the baby lying next to her. 18.     A fourth group of Partisans burst into Vladislavs Šķirmants' home, where they found him on his bed with his one year-old son. After finding a rifle and two grenades hidden in a cupboard, they ordered Šķirmants – who was still in his underwear – to go out into the yard. They then bolted the door from the outside to prevent his wife following him, took him to a remote corner of the yard and shot him dead. 19.     A fifth group attacked the home of Juliāns Šķirmants. After finding and seizing a rifle and two grenades, the Partisans took him out to the barn, where they executed him. 20.     Lastly, a sixth group attacked Bernards Šķirmants' home, seizing the weapons they found there. They then proceeded to kill Mr Šķirmants, wound his wife and set all the farm buildings on fire. Mr Šķirmants' wife burnt to death in the fire with her dead husband lying beside her. According to the initial domestic decisions, it was the applicant himself who killed Šķirmants. However, he was later acquitted of that charge (see paragraph 45 below). 21.     According to the prosecution's initial findings of fact, the Partisans pillaged the village before leaving and made off with clothes and food, in addition to the weapons. In particular, before leaving Juliāns Šķirmants' house they stole a tub of butter and a roll of material. This factual finding did not, however, appear in either the final judgment on the merits or the final judgment on the appeal on points of law, both of which refer only to the seizure of the weapons found in the villagers' homes. 2.     The applicant's version of events 22.     The applicant contests the factual findings of the domestic courts. In his estimation, all the victims of the attack were collaborators and traitors who had delivered Major Chugunov's platoon into the hands of the Germans in February 1944 by ruse, while Meikuls Krupniks and Bernards Šķirmants were Schutzmänner (members of the German auxiliary police force). In February 1944 Chugunov's group of Partisans – comprising nine men, two women and a small child – had taken refuge in Krupniks' barn. Three women (Krupniks' mother and wife and Bernards Šķirmants' wife) brought them provisions and assured them that the Wehrmacht was some distance away. However, while the women kept watch, Šķirmants sent Krupniks to alert a German garrison stationed in the neighbouring village. On arriving in Mazie Bati, the German soldiers had machine-gunned the barn with incendiary bullets causing it to catch fire. Any member of Chugunov's group, including the women and the child, who tried to escape was shot dead. After the carnage, Krupniks' mother had removed the coats from the bodies. For its part, the German military command had rewarded the villagers concerned with firewood, sugar, alcohol and a sum of money. 23.     Approximately a week before the events of 27 May 1944, the applicant and all the men in his platoon had received a summons from their commanding officer. He had informed them that an ad hoc military court composed of members of the detachment had delivered judgment against the inhabitants of Mazie Bati allegedly implicated in the betrayal of Chugunov's men and that their platoon was required to execute the order. More specifically, they were required to “bring the six Schutzmänner from Mazie Bati to stand trial”. The applicant had refused to lead the operation as the villagers had known him since childhood and he feared for the safety of his parents, who lived in the neighbouring village. The commanding officer had bowed to his wishes and assigned the mission to another Partisan. In the events that had followed, it was that other Partisan – not the applicant – who had given the orders. 24.     On 27 May 1944 the applicant had followed the men from his unit, but had not entered the village. He had hidden behind a bush from which he could see Modests Krupniks' house. Shortly afterwards he had heard cries and gunfire and seen plumes of smoke. A quarter of an hour later, the Partisans had returned alone. One had been wounded in the arm; another was carrying six rifles, ten grenades and a large quantity of cartridges. All the weapons and munitions had been seized in the villagers' homes. The applicant's men told him that they had not been able to carry out their mission as the villagers had “fled while firing at them and the Germans had arrived”. In his submissions to the Court, the applicant denied that his comrades had pillaged Mazie Bati. On returning to base, the Partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons. C.     Materials from the historical archives 25.     Documents furnished by the Government from the Latvian Historical National Archives ( Latvijas Valsts vēstures arhīvs ) provides the following information on the regime set up by the occupying German administration during the relevant period. 26.     By a notice published in the newspapers on 24 July 1941, the Reichskomissar for the Eastern Territories, Hinrich Lohse, ordered all citizens to surrender any firearms and munitions in their possession to the authorities within 24 hours. The notice reappeared on 1 October 1941 and 12 August 1942. Members of the Latvian auxiliary police were, however, permitted to carry firearms. 27.     Subsequently, as the front drew closer to Latvian territory and the number of Red Partisans in the border regions increased, the rules concerning the possession and carrying of firearms were relaxed. In a letter of 22   October 1998 to the Principal Public Prosecutor's Office, the Director of the Archives stated that the village of Mazie Bati was within the jurisdiction of police station no. 2 in the district of Ludza at the relevant time. Since the records from that police station had been lost or destroyed, there was no documentary evidence available to give a precise explanation for the Germans' decision to arm the villagers of Mazie Bati. However, the archives did contain a written order from the local commanding officer of the Latvian auxiliary police to the officer in charge at police station no. 1 in the same district concerning the village of Čeverova (which was approximately 20 kilometres from Mazie Bati). This document, dated 25   February 1944, reads as follows: “In order to protect the population from attacks by pillaging bandits, I order you to set up a defence unit in the village of Čeverova (in the municipality of Cibla) composed of ten to fifteen trustworthy local men. Those selected will receive rifles and the necessary quantity of munitions. A local aizsargs [member of the National Guard] will take command of the defence unit. The selected men will be required to gather every night to mount guard and keep watch. Report to me by 28 February on the execution of [this order].” 28.     Further, in a letter dated 27 April 1944 the same commanding officer instructed the mayors of three municipalities (including Cibla) to select a person of trust from the inhabitants of each village who would be responsible for the surveillance of strangers or suspicious individuals and informing the mayor or police where necessary. The letter stated that these measures were intended to counteract the acts of “bandits” (by which was meant the Red Partisans). D.     Subsequent events 29.     In July 1944 the Red Army entered Latvia. On 13 October 1944 it laid siege to and took Riga. On 8 May 1945 the last German divisions surrendered and the entire Latvian territory passed into the control of the Red Army. 30.     The applicant remained in Latvia after the war ended. He was decorated for his military exploits with the Order of Lenin, the highest distinction awarded in the USSR. In November 1946 he joined the Communist Party of the Soviet Union. In 1957 he graduated from the USSR Interior Ministry Academy. Subsequently, and until his retirement in 1988, he worked as an officer in various branches of the Soviet police force. 31.     On 4 May 1990 the Supreme Council of the Soviet Socialist Republic of Latvia adopted the Declaration on the Restoration of Independence, which declared Latvia's incorporation into the USSR unlawful and null and void and restored force of law to the fundamental provisions of the 1922 Constitution. After two unsuccessful coups d'état, on 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia proclaiming full independence with immediate effect. 32.     By a law passed on 6 April 1993, the Supreme Council inserted into the special section of the former Criminal Code then in force a new Chapter 1-a, which contained provisions criminalising acts such as genocide, crimes against humanity or peace, war crimes and racial discrimination. A new Article 68-3 dealt with war crimes, which carried sentences of between three and fifteen years' imprisonment or life imprisonment. The same law also inserted an Article 6-1 into the Code permitting the retrospective application of the criminal law with respect to crimes against humanity and war crimes and an Article 45-1, which exempted such offences from statutory limitation. E.     The criminal proceedings against the applicant and his conviction 1.     The first preliminary investigation and trial 33.     In January 1998 the Centre for the Documentation of the Consequences of Totalitarianism ( Totalitārisma seku dokumentēšanas centrs ), an affiliate of the Constitution Protection Bureau ( Satversmes aizsardzības birojs ), launched a criminal investigation into the events of 27   May 1944. It considered that the applicant could have committed an offence under Article 68-3 of the former Criminal Code. On 28 July 1998 the investigation file was sent to the Principal Public Prosecutor's Office ( Ģenerālprokuratūra ). 34.     In a decision of 2 August 1998, the Principal Public Prosecutor's Office charged the applicant with war crimes. On 10 October 1998 the applicant was brought before the Riga Central Court of First Instance, which ordered his detention pending trial. 35.     On 19 November 1998 the prosecution announced that it had completed its investigation and served the papers on the applicant and his lawyer. On 17 December 1998 the applicant completed his examination of the documents in the investigation file. The following day the prosecution drew up the final bill of indictment ( apsūdzības raksts ) and forwarded the file to the Riga Regional Court, which would sit as the court of trial. According to the bill of indictment, the prosecution had also identified most of the other former Partisans who had taken part in the Mazie Bati operation. However, they had all died in the interim. 36.     The substance of the charges was examined by the Riga Regional Court at a hearing on 21 January 2000 at which the applicant pleaded not guilty. He repeated his account of the events of 27 May 1944, stressing in particular that all the victims of the attack, including Meikuls Krupniks' pregnant wife, had been armed Schutzmänner . He denied any personal involvement in the events. As to the various documents, press articles and post-war works that attested to the contrary, he maintained that he had knowingly allowed the historical facts to be distorted for his own personal glory and in order to gain certain benefits. However, the Regional Court found that the file contained ample evidence of his guilt, namely: (a)     The depositions of eight children of the villagers killed by the Red Partisans on 27 May 1944. Three of these children were direct eye witnesses who had seen their parents killed. The other five had been in the neighbouring village at the time or too young to understand what was happening. However, they recalled accounts of the events related by members of their families. (b)     The depositions of 19 witnesses, including four direct eye witnesses. (c)     Various post-war records drawn up and signed by the applicant in person in which his account of the events in Mazie Bati exactly matched the facts as reconstructed by the prosecution. In particular, he had expressly admitted shooting Ambrozs Buļs dead and burning six people alive. (d)     Various records signed by the applicant's commanding officers, which gave a like account. (e)     A handwritten exercise book seized at the applicant's home containing the outline of an autobiographical work he had planned to write. The description it contained of the attack on 27 May 1944 was generally consistent with the facts as established by the prosecution. (f)     Various historical and encyclopaedic works, together with press articles and verbal accounts by the applicant which had been published in Soviet newspapers in the 1960s and 1970s. (g)     Depositions by the author of one of the aforementioned articles attesting to the fact that the description given in his article was based on the applicant's own account. (h)     Various documents from the Latvian National Archives containing information on the villagers from Mazie Bati, and on the actions and decisions of the German military administration at the material time. (i)     Depositions by a woman who had worked as a radio operator for the applicant's unit during the war. 37.     On the basis of all this evidence, the Regional Court concluded that the applicant had perpetrated acts that were prohibited by the Charter of the International Military Tribunal for Nuremberg of 8 August 1945, the Hague Convention of 18 October 1907 concerning the laws and customs of war on land, and the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War. Consequently, it found him guilty of the offence set out in Article 68-3 of the former Criminal Code and imposed an immediate six-year custodial sentence. Both the applicant and the prosecution appealed against that judgment to the Criminal Affairs Division of the Supreme Court.. 38.     In a judgment of 25 April 2000, the Criminal Affairs Division quashed the impugned judgment and returned the case file to the Principal Public Prosecutor's Office with instructions to make additional inquiries. It stated in its judgment that there were lacunae in the Regional Court's reasoning. In particular, the Regional Court had failed to deal clearly with questions that were decisive to the outcome of the case. Thus, issues such as whether Mazie Bati had in fact been within an “occupied territory”, whether the applicant and his victims could be classified as “combatants” and “non-combatants” respectively and whether the fact that the German military administration had armed the villagers would make them “prisoners of war” in the event of their arrest remained unresolved. In addition, the Criminal Affairs Division stated that in the special circumstances of the case, the prosecution should have consulted specialists on history and international criminal law. It also decided to vary the preventive measure that had been imposed on the applicant and ordered his immediate release. 39.     The prosecution appealed on points of law against the judgment of the Criminal Affairs Division. In a judgment of 27 June 2000, the Supreme Court Senate dismissed that appeal, although it amended the reasons that had been given by the Criminal Affairs Division for referring the case for further investigation. In particular, it ruled that the Criminal Affairs Division's direction that specialist advice should have been taken on international law was unfounded as expert evidence could not be sought on questions of pure law, which were solely for the courts to decide. 2.     The second preliminary investigation and trial 40.     On 17 May 2001 the applicant was again charged with an offence under Article 68-3 of the former Criminal Code after a fresh preliminary investigation by the Principal Public Prosecutor's Office. The Supreme Court Senate designated the Latgale Regional Court as the court of first instance. 41.     The substance of the charge against the applicant was examined by the Latgale Regional Court on 3 October 2003. In a judgment delivered at the end of that hearing, the Regional Court acquitted the applicant of war crimes, but found him guilty of banditry, an offence under Article 72 of the former Criminal Code carrying a sentence of between three and fifteen years' imprisonment. 42.     After analysing the situation in which Latvia had found itself as a result of the events in 1940 and the German invasion, the Regional Court concluded that the applicant could under no circumstances be equated to a “representative of the occupying forces”. On the contrary, he had fought for the liberation of the country against the occupying forces of Nazi Germany. As Latvia had been incorporated into the USSR, the applicant's conduct had to be considered in the light of Soviet law. In addition, he could not reasonably have foreseen that he would one day be classified as a “representative of the Soviet occupation forces”. With regard to the Mazie Bati operation, the Regional Court accepted that the villagers had collaborated with the German military administration and handed over Chugunov's group of Red Partisans to the Wehrmacht and that the attack on the village had been carried out pursuant to the judgment of the ad hoc military court set up within the detachment. The Regional Court also accepted that the deaths of the six men from Mazie Bati could be regarded as having been necessary and justified by considerations of a military order. However, it found that such justification did not extend to the killing of the three women or the burning down of the village buildings. Consequently, as they had not confined themselves to executing the ad hoc military court's judgment, but had acted beyond their authority, both the applicant and his men had committed an act of banditry for which they bore full responsibility. Furthermore, as the commanding officer, the applicant was responsible for acts committed by 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 the ground that the prosecution of the offence was statute barred. 43.     Both parties appealed against that judgment to the Criminal Affairs Division of the Supreme Court. Relying, inter alia , on Article 7 § 1 of the Convention, the applicant sought a full acquittal, arguing that the law had been applied against him retrospectively. The prosecution submitted that the Regional Court had made a number of serious errors of fact and law. In its view, the Regional Court had completely neglected the fact that Latvia's incorporation into the USSR was contrary to the Latvian Constitution of 1922 and to international law and therefore unlawful and that the Republic of Latvia had continued to exist de jure . Accordingly, the applicant's conduct in 1944 could and should have been analysed under Latvian and international law, rather than Soviet law. Further, the prosecution criticised the Regional Court's assessment of the evidence in the case. In its view, the court had relied on a series of assertions by the applicant that were unsupported by any evidence. This was true of the claims that the villagers from Mazie Bati were armed collaborators of the German administration who had helped the Wehrmacht to wipe out Chugunov's Partisans; that a “court” had been set up within the applicant's detachment; and that the real purpose of the Mazie Bati operation was not the summary execution of the villagers, but their arrest so they could be brought to trial. In the prosecution's submission, the evidence it had assembled tended to indicate the opposite. The prosecution complained that the Regional Court had accepted the applicant's depositions blindly without analysing the file as a whole. 44.     In a judgment of 30 April 2004, the Criminal Affairs Division allowed the prosecution's appeal, quashed the impugned judgment and found the applicant guilty of the offence under Article 68-3 of the former Criminal Code. After reviewing the evidence referred to in the judgment of 21 January 2000 (see paragraph 36 above), it noted: “... Thus, V. Kononov and the Partisans from the special group he commanded stole the weapons that had been delivered to enable the villagers to defend themselves and killed nine civilians from the village, burning six of them – including three women, one in the final stages of pregnancy – alive in the process. They also burnt down two farms. By attacking those nine civilians from the village of Mazie Bati, who had not taken part in the fighting, by stealing their weapons and killing them, V. Kononov and the Partisans under his command ... committed an appalling violation of the laws and customs of war as set out in: – point (b) of the first paragraph of Article 23 of the Hague Convention of [18] October 1907 concerning the laws and customs of war on land, which is binding on all civilised nations and forbids the treacherous killing or wounding of members of the civil population; Article 25 [of the Hague Convention], which prohibits attacks by whatever means of villages, dwellings or buildings which are undefended; and the first paragraph of Article 46 [of the Hague Convention], which lays down that family honour and rights, and the lives of persons and private property must be respected. – Article 3 § 1, point (a), of the Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War ..., which lays down that persons taking no active part in the hostilities must not be subjected to violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; point   (d) [of the same paragraph], which provides ... that the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples is prohibited; Article 32, which prohibits murder, torture and all other brutality against protected persons; and Article   33, which provides that no protected person may be punished for an offence he or she has not personally committed and prohibits collective penalties, and all measures of intimidation, pillage and reprisals against protected persons and their property. – Article 51 § 2 of the Protocol Additional to the [aforementioned] Convention and relating to the Protection of Victims of International Armed Conflicts adopted on 8   June 1977 ..., which lays down that the civilian population as such, as well as individual civilians, shall not be the object of attack and prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population; § 4, point (a), [of the same Article], which prohibits indiscriminate attacks not directed at a specific military objective; § 6 [of the same Article], which prohibits attacks against the civilian population or civilians by way of reprisals; Article 75 § 2, point (a) ..., which prohibits violence to the life, health, or physical or mental well-being of persons, in particular, murder, torture of all kinds, whether physical or mental, and mutilation; and point (d) [of the same paragraph], which prohibits collective punishments. By acting with particular cruelty and brutality and burning a pregnant villager alive ..., V. Kononov and his Partisans openly flouted the laws and customs of war set out in the first paragraph of Article 16 of the Geneva Convention ..., which lays down that expectant mothers shall be the object of particular protection and respect. Likewise, by burning down the [dwelling] houses and other buildings belonging to the villagers ... Meikuls Krupniks and Bernards Šķirmants, V. Kononov and his Partisans contravened the provisions of Article 53 of that Convention, which prohibits the destruction of real property except where such destruction is rendered absolutely necessary by military operations and Article 52 of the first Protocol Additional ... which lays down that civilian property must not be the object of attack or reprisals. ... In the light of the foregoing, the acts perpetrated by V. Kononov and his men must be classified as war crimes within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that the murder or torture of civilians in occupied territory, the plunder of private property, the wanton destruction of villages, or devastation that is not justified by military necessity constitute violations of the laws or customs of war, that is to say war crimes. The acts perpetrated by V. Kononov and his Partisans must also be classified as 'grave breaches' within the meaning of Article 147 of the ... Geneva Convention... Consequently ..., V. Kononov is guilty of the offence under Article 68-3 of the Criminal Code... ... The material in the case file shows that after the war, the surviving members of the families of the [people] killed were ruthlessly persecuted and subjected to reprisals. Following the restoration of Latvian independence, all those killed were rehabilitated. It was stated in their rehabilitation certificates that they [had] not committed 'crimes against peace [or] humanity, criminal offences ... or taken part ... in political repression ... by the Nazi regime'... ... V. Kononov must be regarded as being subject [to the provision governing] the war crime [in question], in accordance with Article 43 of the First Protocol Additional to the Geneva Convention ..., which provides that combatants, that is to say, those who have the right to participate directly in hostilities, are the members of the armed forces of a Party to a conflict. During the Second World War, V. Kononov was a member of the armed forces of a belligerent party, [namely] the USSR, and played an active part in military operations it had organised. V. Kononov was sent on a special mission to Latvia with clear orders to fight behind enemy lines [and] to organise explosions there. The platoon led by V. Kononov cannot be regarded as a group of volunteers because it was organised and led by the armed forces of one of the belligerent parties (the USSR); this is confirmed by the material in the case file. Similarly, at the time the crime of which he is accused was committed, V. Kononov was also acting as a combatant, leading an armed group which had the right to take part in military operations as an integral part of the armed forces of a belligerent party. ... ... V. Kononov fought on Latvian territory occupied by the USSR and neither the fact that there was at that time dual occupation (Germany being the other occupying power), nor the fact that the USSR was part of the anti-Hitler coalition, affects his status as a war criminal... ... The Criminal Affairs Division considers that all the villagers killed at Mazie Bati must be regarded as civilians within the meaning of Article 68-3 of the Criminal Code ... and the provisions of international law. By virtue of Article 50 of the first Protocol Additional to the Geneva Convention ..., a civilian is defined as any person who does not belong to one of the categories of persons referred to in Article 43 of that Protocol or Article 4(A) of the Convention. The attributes described in the aforementioned Articles, which are specific to [certain] categories of people and exclude them from the definition of civilians, did not apply to the villagers who were killed. The fact that they had obtained weapons and munitions did not make them combatants a