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On 24 July the European Court of Human Rights delivered a judgment in the case Kononov v. Latvia.
The applicant complained under Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), that the acts of which he had been accused did not, at the time of being committed, constitute an offence under either domestic or international law.
The Court held, by four votes to three, that there had been a violation of Article 7 of the Convention. The Court carried out a detailed analysis of the facts established and the conclusions made in the judgments by Latvian courts, criticizing the Latvian courts' judgments for their overly general and summary nature in the application of the provisions of international law, as well as indicated at the specific facts and evidence that had not been sufficiently thoroughly analysed at national level. The Court expressed its astonishment that, in the evaluation of the events of 1944, the Latvian courts had applied retrospectively international conventions adopted in 1949 and 1977. The Court considered that, at the time of the events, Kononov could not have foreseen that the killings and the burning of buildings at Mazie Bati village amounted to a war crime under the domestic and international law in force in 1944.
The villagers of Mazie Bati, in their turn, siding with one of the warring sides (that is, accepting weapons for protection) should have been aware that this will attract reprisals on the part of representatives of the other warring side. According to the Court, even supposing Kononov's actions could qualify as murder, banditry, etc., under the provisions of the law then in force, the term for prosecution had lapsed in 1954 and Latvia therefore has acted contrary to the principle of foreseeability by trying Kononovs almost half a century after the expiry of the limitation period.
The dissenting opinion of judges from Latvia, Sweden and Iceland has been attached to the judgment. In it the judges have indicated that, by reassessing the facts in Kononov's criminal case, the Chamber has gone beyond the limits of its competence, which does not allow the Court to act as an appelate instance, including the assessment of the applicant's criminal intent. The judges also pointed out that the opinion of the majority in this case was in conflict with not only the current case law of the European Court of Human Rights, but also with basic principles as established in wider international public law. The judges indicated at a possible application of double standards in the conclusions of the majority, and criticised the thesis that only those fighting on the side of the Nazi Germany could be convicted for war crimes committed during World War II.
In addition, the judge from Iceland drew attention to the historic situation in Latvia in 1940, and the fact that it was only since the restoration of Latvian independence that Latvia was able to bring criminal proceedings against those suspected of having committed offences during World War II.
The Court awarded the applicant 30,000 euros (EUR) in respect of non-pecuniary damage. The applicant himself had claimed 5,000,000 euros (EUR) in costs and expenses, and non-pecuniary damage.
Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. The panel may refer the case to the Grand Chamber or reject the request.
Full text of the Court judgment in English is available on the ECHR website: http://echr.coe.int
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Facts in the case "Kononovs v. Latvia"
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