CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 17 mai 2010

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LATVIA   (Application no. 36376/04)                     JUDGMENT     STRASBOURG   17 May 2010     In the case of Kononov v. Latvia , The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Christos Rozakis,   Nicolas Bratza,   Peer Lorenzen,   Françoise Tulkens,   Josep Casadevall,   Ireneu Cabral Barreto,   Dean Spielmann,   Renate Jaeger,   Sverre Erik Jebens,   Dragoljub Popović,   Päivi Hirvelä,   Ledi Bianku,   Zdravka Kalaydjieva,   Mihai Poalelungi,   Nebojša Vučinić, judges ,   Alan Vaughan Lowe, ad hoc judge , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 20 May 2009 and on 24 February 2010, 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 national of the Russian Federation, Mr Vasiliy Kononov (“the applicant”), on 27 August 2004. 2.     The applicant was represented by Mr M. Ioffe, a lawyer practising in Riga. The Latvian Government (“the respondent Government”) were represented by their Agent, Ms I. Reine. The Government of the Russian Federation exercised their 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, Mr G. Matyushkin. 3.     The applicant alleged, in particular, that his conviction for war crimes as a result of his participation in a military expedition on 27 May 1944 violated Article 7 of the Convention. 4.     The application was allocated to the former Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 20 September 2007, following a hearing on the admissibility and merits of the case (Rule 54 § 3), the application was declared partly admissible by a Chamber of that Section, composed of Boštjan M. Zupančič, President, Corneliu Bîrsan, Elisabet Fura-Sandström, Alvina Gyulumyan, Egbert Myjer, Davíd Thór Björgvinsson and Ineta Ziemele, judges, and Santiago Quesada, Section Registrar. 5.     On 24 July 2008 the Chamber delivered a judgment in which it found, by four votes to three, that there had been a violation of Article 7 of the Convention and that just satisfaction should be awarded to the applicant. 6.     By letter dated 24 October 2008, the respondent Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6 January 2009 a panel of the Grand Chamber granted that request (Rule 73). 7.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. Ineta Ziemele, the judge elected in respect of Latvia, withdrew from sitting in the Grand Chamber (Rule 28) and the respondent Government appointed Mr   Alan Vaughan Lowe, Professor of Public International Law at the University of Oxford, to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Boštjan M. Zupančič, President of the former Third Section, also withdrew and was replaced by Nebojša Vučinić, substitute judge. 8.     By letter dated 6 April 2009, the President of the Grand Chamber granted leave to the Lithuanian Government to intervene in the written procedure (Rule 44 § 3 (a)). The Government of the Russian Federation also exercised its right to intervene before the Grand Chamber (Rule 44). 9.     The applicant and the respondent Government each filed a memorial on the merits and third-party comments were received from the Governments of the Russian Federation and Lithuania. 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 20 May 2009 (Rule 59 § 3).   There appeared before the Court: (a)     for the respondent Government Ms   I. Reine ,   Agent , Ms   K. Inkuša , Mr   W. Schabas ,   Counsel ; (b)     for the applicant Mr   M. Ioffe ,   Counsel , Ms   M. Zakarina , Mr   Y. Larine,   Advisers ; (c)     for the Government of the Russian Federation Mr   G. Matyushkin ,   Representative of the Government , Mr   N. Mikhaylov , Mr   P. Smirnov ,   Advisers .   The Court heard addresses by Mr Ioffe, Ms Reine, Mr Schabas and Mr   Matyushkin. 11.     On the day of the hearing, the President of the Grand Chamber accepted to the file additional submissions of the applicant. In response, the respondent Government submitted additional observations, as did the Government of the Russian Federation. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicant was born in 1923 in the district of Ludza, Latvia. He held Latvian nationality until 2000, when he was granted Russian nationality by special decree. A.     Events prior to 27 May 1944 13.     In August 1940 Latvia became part of the Union of Soviet Socialist Republics (USSR) under the name “Soviet Socialist Republic of Latvia” (“Latvian SSR”). On 22 June 1941 Germany attacked the USSR. The advance of the German forces obliged the USSR forces to leave the Baltic region and withdraw towards Russia. 14.     The applicant, who was living near the border at the time, followed. By 5 July 1941 all of Latvia had been overrun by the German forces. Following his arrival in the USSR, the applicant was called up as a soldier in the Soviet Army in 1942. He was assigned to the reserve regiment of the Latvian Division. From 1942 to 1943 he received special training in sabotage operations, during which he learnt how to organise and lead commando raids behind enemy lines. On completion of his training, he was promoted to the rank of sergeant. In June 1943 he and some twenty soldiers were parachuted into Belarus territory, then under German occupation, near the Latvian border and thus to the area where he was born. The applicant joined a Soviet commando unit composed of members of the “Red Partisans” (a Soviet force which fought a guerrilla war against the German forces). In March 1944 he was put in command of a platoon by his two immediate superiors, whose primary objectives were, according to the applicant, to sabotage military installations, communication lines and German supply points, to derail trains and to spread political propaganda among the local population. He claimed to have derailed sixteen military trains and caused forty-two German military targets to be blown up. B.     Events of 27 May 1944, as established by the domestic courts 15.     In February 1944 the German army had discovered and wiped out a group of Red Partisans led by Major Chugunov who were hiding in the barn of Meikuls Krupniks in the village of Mazie Bati. The German military administration had provided some men in Mazie Bati with a rifle and two grenades each. The applicant and his unit suspected the villagers of having spied for the Germans and of having turned in Major Chugunov’s men to the enemy. They decided to take reprisals against the villagers. 16.     On 27 May 1944 the applicant and his unit, armed and wearing Wehrmacht (former German army) uniforms to avoid arousing suspicion, entered the village of Mazie Bati. The inhabitants were preparing to celebrate Pentecost. The unit split up into a number of small groups, each of which attacked a house on the applicant’s orders. 17.     Several of the Red 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. Modests Krupniks was left, seriously wounded, on the edge of the forest, where he died the following morning. 18.     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 severely 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 Ambrozs Buļs, Meikuls Krupniks and Meikuls Krupniks’ mother. Meikuls Krupniks and his mother were seriously injured. The Partisans then doused the house and all the farm buildings with petrol and set them alight. Meikuls 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 burnt skeleton of a baby next to her. 19.     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 Vladislavs Šķirmants 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. 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 killed him. 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. Bernards Šķirmants’ wife burnt to death in the fire with her dead husband. 20.     While the prosecution also claimed that the Partisans pillaged the village (stealing clothes and food), the Criminal Affairs Division of the Supreme Court (“the Criminal Affairs Division”) and the Supreme Court Senate made specific findings as regards the seizure of weapons but not as regards the stealing of any other items. C.     The applicant’s version of events 21.     Before the Chamber, the applicant contested the factual findings of the domestic courts and submitted as follows. 22.     He considered that all the deceased villagers were collaborators and traitors who had delivered Major Chugunov’s platoon (which included women and a small child) to the Germans in February 1944: three women (Meikuls Krupniks’ mother and wife and Bernards Šķirmants’ wife) assured Major Chugunov’s platoon that the Wehrmacht was some distance away, but Bernards Šķirmants sent Meikuls Krupniks to alert the German forces. The German soldiers arrived and machine-gunned the barn (in which Major Chugunov’s platoon was hiding) with incendiary bullets, causing it to catch fire. Any member of Major Chugunov’s group who tried to escape was shot dead. Meikuls Krupniks’ mother removed the coats from the bodies. The German military command rewarded the villagers concerned with firewood, sugar, alcohol and a sum of money. Meikuls Krupniks and Bernards Šķirmants were Schutzmänner (German auxiliary police). 23.     Approximately one week prior to 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 had delivered judgment against the inhabitants of Mazie Bati implicated in the betrayal of Major 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 maintained that he had refused to lead the operation (the villagers had known him since childhood so he feared for the safety of his parents who lived in the neighbouring village). The commanding officer therefore assigned the mission to another Partisan and it was that other Partisan who had given the orders during the Mazie Bati operation. 24.     On 27 May 1944 the applicant had followed the men from his unit. He did not enter the village, but hid behind a bush from which he could see Modests Krupniks’ house. Soon thereafter, he had heard cries and gunfire, and had seen smoke. A quarter of an hour later, the Partisans returned alone. One had been wounded in the arm. Another was carrying six rifles, ten grenades and a large quantity of cartridges, all of which had been seized in the villagers’ homes. His unit later 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”. He denied that his unit had pillaged Mazie Bati. On returning to the base, the Partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons. D.     Subsequent events 25.     In July 1944 the Red Army entered Latvia and on 8 May 1945 Latvian territory passed into the control of the USSR forces. 26.     The applicant remained in Latvia after the war ended. He was decorated for his military activities 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. 27.     On 4 May 1990 the Supreme Council of the Latvian SSR adopted the Declaration on the Restoration of Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR in 1940 unlawful, null and void and restored force of law to the fundamental provisions of the Latvian Constitution of 1922. On the same day, the Supreme Council adopted the Declaration on the Accession of the Republic of Latvia to Human Rights Instruments. The term “accession” meant a solemn, unilateral acceptance of the values embodied in the instruments concerned: most of the conventions referred to in the declaration were subsequently signed and ratified by Latvia in accordance with the established procedure. 28.     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. 29.     On 22 August 1996 the Latvian Parliament adopted the Declaration on the Occupation of Latvia. The declaration described the annexation of Latvian territory by the USSR in 1940 as a “military occupation” and an “illegal incorporation”. The Soviet repossession of the territory at the end of the Second World War was referred to as the “re-establishment of an occupying regime”. E.     The applicant’s conviction 1.     The first preliminary investigation and trial 30.     In July 1998 the Centre for the Documentation of the Consequences of Totalitarianism, based in Latvia, forwarded an investigation file (on the events of 27 May 1944) to the Latvian Principal Public Prosecutor’s Office. In August 1998 the applicant was charged with war crimes. In October 1998 he was brought before the Riga Central Court of First Instance and his pre ‑ trial detention was ordered. In December 1998 a final bill of indictment was drawn up and the case file was forwarded to the Riga Regional Court. 31.     The trial took place before the Riga Regional Court on 21 January 2000. The applicant pleaded not guilty. He repeated his account of the events of 27 May 1944, underlining that all the victims of the attack had been armed Schutzmänner . He denied any personal involvement in the events: as to the various documents (including press articles) which attested to the contrary, he explained that he had knowingly allowed the historical facts to be distorted for his own personal glory and benefit at that time. 32.     The Regional Court found that the case file contained ample evidence of his guilt and that the applicant had perpetrated acts in violation of the rules set out in the Charter of the International Military Tribunal for Nuremberg, the Fourth Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (“the 1907 Hague Convention (IV)”) and the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the 1949 Geneva Convention (IV)”). He was found guilty of offences contrary to section 68-3 of the 1961 Criminal Code and an immediate six-year custodial sentence was imposed. Both the applicant and the prosecution appealed. 33.     By a judgment of 25 April 2000, the Criminal Affairs Division quashed the latter judgment and returned the case file to the Principal Public Prosecutor’s Office with instructions to make additional inquiries. It considered there were lacunae in the Regional Court’s reasoning and, in particular, that the Regional Court had failed to resolve decisive questions including whether Mazie Bati was in an “occupied territory”, whether the applicant and his victims could be considered “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. In addition, the prosecution should have consulted specialists on history and international criminal law. It ordered the applicant’s immediate release. 34.     The Supreme Court Senate dismissed the prosecution’s appeal by a judgment of 27 June 2000, although it struck out the requirement to obtain specialist advice since questions of law were solely for the courts to decide. 2.     The second preliminary investigation and trial 35.     Following a fresh investigation, on 17 May 2001 the applicant was again charged under section 68-3 of the 1961 Criminal Code. 36.     The Latgale Regional Court heard the case and delivered judgment on 3 October 2003 acquitting the applicant of war crimes, but finding him guilty of banditry (contrary to section 72 of the 1961 Criminal Code) carrying a sentence of between three and fifteen years’ imprisonment. Having analysed 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 not be considered 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 occupying forces”. With regard to the Mazie Bati operation, the Regional Court accepted that the villagers had collaborated with the German military administration and had handed over Major 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 of Red Partisans. 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, for which acts, as commanding officer, the applicant was responsible. Consequently, as they had acted beyond the authority of the ad hoc military court’s judgment both the applicant and his men had committed an act of banditry for which they bore full responsibility but which was, however, statute-barred. 37.     Both parties appealed to the Criminal Affairs Division. 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: it had neglected the fact that Latvia’s incorporation into the USSR was contrary to the Latvian Constitution of 1922 and to international law, and was 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 not only unsupported by any evidence, but also contrary to the tenor of the evidence, notably the applicant’s claims that the villagers from Mazie Bati were armed collaborators of the German military administration who had helped the Wehrmacht to wipe out Major Chugunov’s Red Partisans; that an ad hoc Partisan tribunal had been set up within the applicant’s detachment of Red Partisans; and that the purpose of the Mazie Bati operation was not summary execution but the arrest of the villagers. 38.     By a judgment of 30 April 2004, the Criminal Affairs Division allowed the prosecution’s appeal, quashed the judgment of the Latgale Regional Court and found the applicant guilty of offences contrary to section 68-3 of the 1961 Criminal Code. Having reviewed the evidence, 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 [(IV)] of [18] October 1907 respecting 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 1907 Hague Convention (IV)], which prohibits attacks by whatever means of villages, dwellings or buildings which are undefended; and the first paragraph of Article 46 [of the 1907 Hague Convention (IV)], 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 [(IV)] 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 recognised as indispensable by civilised 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 [First] Protocol Additional to the [Geneva] Conventions 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; [Article 51] § 4, point (a), which prohibits indiscriminate attacks not directed at a specific military objective; [Article 51] § 6, 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 [Article 75 § 2] point (d), 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 [1949] Geneva Convention [(IV)] ..., 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 [to the Geneva Conventions] ... 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 ... [1949] Geneva Convention [(IV)] ... Consequently ..., V. Kononov is guilty of the offence under section 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 Conventions ..., 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 section 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 Conventions ..., 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 and does not attest to any intention on their part to carry out any military operation. ... It has been established ... that [Major] Chugunov’s group of Partisans was wiped out by a German military detachment; this is also confirmed by reconnaissance headquarters’ records ... The case file does not contain any evidence to show that the villagers took part in that operation. The fact that Meikuls Krupniks had informed the Germans of the presence of Partisans in his barn did not exclude him from the category of ‘civilians’. Mr Krupniks lived on territory occupied by Germany and there is no doubt that the presence of Partisans on his farm in wartime constituted a danger to both him and his family. ... The fact that the villagers had weapons in their homes and [regularly] kept watch at night does not signify that they were taking part in military operations, but attests to a genuine fear of attack. All citizens, whether in wartime or peacetime, have the right to defend themselves and their families if their lives are in danger. The case file shows that the Red Partisans, [Major] Chugunov’s group included, used violence against civilians; thus causing the civilian population to fear for its safety. The victim [K.] gave evidence that the Red Partisans pillaged houses and often took food supplies. The criminal conduct of the Partisans was noted in the reports of commanding officers [S.] and [Č.], which indicate that the Red Partisans pillaged and murdered and committed other crimes against the local population. Many people had the impression that they were not really engaged in combat but in foraying. ... The case file shows that of the villagers who were killed at Mazie Bati in 1943 and 1944 [only] Bernards Šķirmants and [his wife] were members of the Latvian National Guard [ aizsargi ]. The archives do not contain any information to show that any of the other victims had participated in the activities of that or any other organisation ... The Criminal Affairs Division considers that the fact that the aforementioned persons participated in the activities of the Latvian National Guard does not enable them to be classified as combatants, as they have not been found ... to have taken part in military operations organised by the armed forces of a belligerent party. It has been established ... that no German military formation was in the village of Mazie Bati and that the villagers were not performing any military duty, but, [on the contrary], were farmers. At the time of the events [in issue], they were at home and preparing to celebrate Pentecost. Among the dead were not only men (who were armed) but also women, one of whom was in the final stages of pregnancy and thus entitled to special ... protection under the [1949] Geneva Convention [(IV)]. In classifying those who were killed as civilians, the Criminal Affairs Division is in no doubt about their status; however, even supposing it were, the First Protocol Additional to the Geneva Conventions states that in case of doubt everyone shall be considered to be a civilian. ... Since Latvia has not acceded to the Hague Convention [(IV)] of 1907, the provisions of that instrument cannot serve as a basis for [finding] a violation. War crimes are prohibited and all countries are required to convict anyone guilty of them because such crimes are an integral part of international law, irrespective of whether the parties to the conflict were parties to international treaties. ...” 39.     The Criminal Affairs Division excluded two allegations that had not been proved to the requisite standard, namely alleged murders and torture by the applicant himself. Given the finding of guilt of a serious offence and since he was by then aged, infirm and harmless, the Criminal Affairs Division imposed an immediate custodial sentence of one year and eight months which he was deemed to have served given his pre-trial detention. 40.     By a judgment of 28 September 2004, the Supreme Court Senate dismissed the applicant’s appeal: “... In finding that V. Kononov was a combatant and had committed the offence in question on the territory occupied by the USSR, the Criminal Affairs Division based its judgment on the decisions of the higher representative bodies of the Republic of Latvia, on the relevant international conventions and on other evidence, taken as a whole, which had been verified and assessed in accordance with the rules of criminal procedure. In the Declaration by the Supreme Council ... of 4 May 1990 on the Restoration of Independence of the Republic of Latvia, it was acknowledged that the ultimatum delivered on 16 June 1940 to the government of the Republic of Latvia by the former Stalinist USSR should be regarded as an international crime, as Latvia was occupied and its sovereign power abolished as a result. [However,] the Republic of Latvia continued to exist as a subject of international law, as was recognised by more than fifty States worldwide ... ... After analysing the merits of the judgment, the Senate ... considers that, to the extent that the Criminal Affairs Division found that V. Kononov came within the scope of section 68-3 of the Criminal Code, ... his acts were correctly characterised, as, in his capacity as a belligerent and combatant on Latvian territory occupied by the USSR, he has violated the laws and customs of war, in that he planned and directed a military operation aimed at taking reprisals against civilians, namely peaceable inhabitants of the village of Mazie Bati, nine of whom were killed ... [and] whose property was stolen [or] burnt. As the Court of Appeal (rightly) noted, neither the fact that Latvian territory was subjected to two successive occupations in the Second World War by two States (one of which was Germany; a ‘dual occupation’ in the words of the Court of Appeal), nor the fact that the USSR was a member of an anti-Hitler coalition, changed V.   Kononov’s status as a person guilty of a war crime. As regards the allegation ... that, by finding V. Kononov guilty of the war crime in question the Court [of Appeal] violated the provisions of section 6 of the Criminal Code ... concerning the temporal applicability of the criminal law, the [Senate] considers that it must be rejected for the following reasons. The judgment shows that the Court of Appeal applied the conventions, namely the Geneva Convention [(IV)] of 12 August 1949 .., and [the First] Protocol Additional [to the Geneva Conventions] of 8 June 1977 ..., to the war crime which V. Kononov was accused of, irrespective of when they came into force. [This is consistent] with the United Nations Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. [The Court of Appeal stated] that the Republic of Latvia, which had been occupied by the USSR, had not been able to take a decision [to that end] earlier. By referring to the principle of the non-applicability of statutory limitation, the Court of Appeal complied with the obligations arising under the international treaties and held the persons guilty of committing the offences concerned criminally liable irrespective of the date they were perpetrated. Since the judgment characterised the violation of the laws and customs of war of which V. Kononov was accused as a war crime within the meaning of the second paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg ..., and, ... by virtue of the aforesaid United Nations Convention of 26   November 1968 ..., war crimes ... are not subject to statutory limitation, ... the Senate finds that his acts were correctly found to come within section 68-3 of the Criminal Code ... There is no basis to the argument ... that ... the Declaration by the Supreme Council of 4 May 1990 on the Restoration of Independence of the Republic of Latvia and the Declaration by Parliament of 22 August 1996 on the Occupation of Latvia were mere political pronouncements which the court was precluded from using as a basis for its judgment and which could not be given binding force retrospectively. The [Senate] finds that both declarations constitute State constitutional acts of indisputable legality. In its judgment, [delivered after] assessing the evidence examined at the hearing, [the Court of Appeal] found that, in his capacity as a combatant, V. Kononov organised, commanded and led a Partisan military operation intent on taking reprisals through the massacre of the civilian population of the village of Mazie Bati and the pillage and destruction of the villagers’ farms. That being so, the Court of Appeal rightly found that the acts of individual members of his group ... could not be seen as [mere] excesses on the part of those concerned. In accordance with the criminal-law principles governing the responsibility of organised groups, members [of a group] are accomplices to the offence, independently of the role they play in its commission. This principle of responsibility of the members of an organised group is recognised in the third paragraph of Article 6 of the Charter of the International Military Tribunal for Nuremberg, which lays down that leaders, organisers, instigators and accomplices participating in the execution of a common plan are responsible for all acts performed by any persons in the execution of that plan. Consequently, the argument that the Court of Appeal had used an ‘objective responsibility’ test to find, in the absence of any evidence, V. Kononov guilty of acts perpetrated by members of the special group of Partisans he led, without examining his subjective attitude to the consequences, is unfounded. ...” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The 1926 Criminal Code 41.     By a decree of 6 November 1940, the Supreme Council of the Latvian SSR replaced the existing Latvian Criminal Code with the 1926 Criminal Code of Soviet Russia, which code thereby became applicable in Latvia (“the 1926 Criminal Code”). The relevant provisions of that code during the Second World War were as follows: Section 2 “This Code shall apply to all citizens of the RSFSR [Russian Soviet Federative Socialist Republic] who commit socially dangerous acts on the territory of the RSFSR, or outside the territory of the USSR if they are apprehended on the territory of the RSFSR.” Section 3 “The liability of citizens from the other Soviet Federative Socialist Republics shall be determined in accordance with the laws of the RSFSR if they have committed offences either on the territory of the RSFSR or outside the territory of the USSR if they have been apprehended and handed over to a court or investigating authority on the territory of the RSFSR. The liability of citizens of the Federative Socialist Republics for offences committed on the territory of the Union shall be determined in accordance with the laws of the place where the offence was committed.” Section 4 “The liability of aliens for offences committed on the territory of the USSR shall be determined in accordance with the laws of the place where the offence was committed.” 42.     Chapter IX of the 1926 Criminal Code was entitled “Military crimes” and included the following relevant provisions: Section 193-1 “Military crimes are offences committed by military personnel in the service of the Red Army of Workers and Peasants or the Red Navy of Workers and Peasants, or by persons assigned to maintenance teams or periodically conscripted into territorial detachments, [when such offences] are against the established order of military service and, owing to their nature and meaning, cannot be committed by citizens not serving in the army or navy. ...” Section 193-3 “Any failure by a serviceman to execute a legitimate order issued in combat shall entail the application of measures for the protection of society in the form of at least three years’ imprisonment. Where such a failure has a deleterious effect on combat operations, the ultimate measure for the protection of society [that is, the death penalty] shall apply. ...” Section 193-17 “Foraying, that is to say divesting civilians of their belongings during combat by threatening them with weapons or on the pretext of requisitioning for military purposes, and removing personal belongings from the dead or injured for personal gain shall entail the application of the ultimate measure for the protection of society accompanied by confiscation of all the offender’s belongings. In the event of mitigating circumstances, [the sentence shall be reduced to] at least three years’ imprisonment with strict solitary confinement.” Section 193-18 “Unlawful acts of violence by servicemen in wartime or during combat shall entail the application of measures for the protection of society in the form of at least three years’ imprisonment with strict solitary confinement. In the event of aggravating circumstances, the ultimate measure for the protection of society [shall be applied].” 43.     Section 14 (and the Official Notes thereto) of the 1926 Criminal Code provided as follows: “Criminal proceedings may not be instituted where: (a)     ten years have elapsed since the offence was committed, in the case of offences punishable by more than five years’ imprisonment and those for which the law prescribes a minimum term of one year’s imprisonment; (b)     five years have elapsed since the offence was committed, in the case of offences punishable by between one and five years’ imprisonment and those for which the law prescribes a minimum term of six months’ imprisonment; (c)     three years have elapsed since the offence was committed, in the case of all other offences. The statute of limitations shall apply where no procedural steps or investigative measures have been taken in the case during the entire period and the perpetrator has not, during the period stipulated by this section, committed any other offence falling into the same category or of at least equivalent seriousness. Note 1     – In the case of prosecution for counter-revolutionary crimes, application of the statute of limitations in a given case is at the court’s discretion. However, if the court finds that the statute of limitations cannot be applied, the sentence of execution by shooting must be commuted either to a declaration that the person concerned is an enemy of the workers, accompanied by withdrawal of his or her citizenship of the USSR and lifelong banishment from the territory of the USSR, or to a term of imprisonment of not less than two years. Note 2     – In the case of persons prosecuted for actively campaigning against the working class and the revolutionary movement in the exercise of high-level or secret duties under the Tsarist regime or in the service of the counter-revolutionary governments during the [Russian] Civil War, both the application of the statute of limitations and the commuting of the sentence of execution by shooting are at the discretion of the court. Note 3     – The limitation periods laid down by this section do not apply to acts prosecuted under the present Code by means of administrative proceedings. Coercive measures in respect of such acts may only be imposed within one month of the acts being committed.” B.     The 1961 Criminal Code 44.     On 6 January 1961 the Supreme Council of the Latvian SSR replaced the 1926 Criminal Code with the 1961 Criminal Code, which came into force on 1 April 1961. The relevant provisions thereof read as follows: Section 72 [amended by the Law of 15 January 1998] “