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Latvia: European Court Goes Against Riga

Who has the right to pass judgment on what a man does in the service of his country during wartime and what should the legal grounds for such a verdict be? These are some of the key issues surrounding a legal process on WWII war crimes against a soviet veteran, Vasily Kononov, that has been dragged through the Latvian legal system since 1998. However, earlier this week, the European Court of Human Rights found that Latvia lacked legal grounds for prosecuting Kononov. Following the verdict, the Russian blogosphere has generally reacted with joy and relief, although there have also been some opposing voices.

In May 1944, in the final year of World War II, Kononov commanded a unit of Red Partisans in a retaliatory action against a Latvian village, which had previously given away another group of partisans to the Germans. In the process, nine Latvian alleged collaborators were killed, among whom were three women, including one in the final stages of pregnancy.

The positive voices on the European Court verdict in the Russian blogosphere have generally taken aim at criticising Latvia as a nation, and not at the case itself.

LJ user gealex considers the verdict a moral victory and argues that Europe has too long looked through the fingers when Latvia has allowed SS-veterans to march the streets of Riga.

Oleg Motkov sees the verdict as a warning to Latvia not to try rewriting history.

Iz bloknota zhurnalista believes that the European Court, by its verdict, recognises that Latvia in 1944 was a soviet republic and that the Red Army was an army of liberators and not occupants as Latvia claims.

Adding to this theme, Sokol iz Narnii thinks that Latvia has now been brought to its knees, and that there might be an analogy also with Estonia.

However, there are also opposing voices.

LJ user gibaldi urges people to first read the verdict and then think for themselves. His own position is that Kononov is “a war criminal and a sadistic murderer.”

Also, in an anonymous LJ comment, fellow bloggers are reminded that “our troops – sent crowds [of Latvians to Siberia] together with their families, arrested and executed [people]. So why are you now accusing them [Latvians] of anti-russianness?”

Finally, a comment by an olgakuchina aims at the moral aspects of the event itself:

They dressed up in German uniforms, went into the village and destroyed it, and burnt people alive in their houses, among them a nine months’ pregnant woman. And all this ugliness and filth you call an act of justice and you pride yourselves of this man.

So, who is right – Kononov's supporters or his opponents? Actually, the European Court of Human Rights founded its verdict on quite different grounds than those addressed by the bloggers. The core issue of the ruling is whether or not Kononov committed a war crime according to existing international law in 1944. However, Latvia failed both to apply the law applicable at that time and to produce material evidence to that fact. Instead, Kononov was prosecuted under laws adopted only after 1944 or by domestic legislation no longer relevant to the case. Thus, the Court points to a failure of the Latvian legal system, which in effect will also make it impossible to ever correctly try Kononov's guilt or innocence. Latvia lost and Kononov won, but the question whether the old soviet veteran was a hero or a hoodlum at war will probably never be resolved.

  • http://lettonica.blogspot.com/ Pēteris Cedriņš

    I hope that the verdict will be appealed to the Grand Chamber, which is what Latvia’s Ministry of Foreign Affairs has recommended –

    http://www.am.gov.lv/en/news/press-releases/2008/July/25-1/

    The ECHR decision seems incompatible with the Charter of the International Military Tribunal at Nuremberg, by the way:

    “[6 (c)] Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, ***whether or not in violation of the domestic law of the country where perpetrated.***”

    http://www.yale.edu/lawweb/avalon/imt/proc/judlawre.htm

    (My emphasis.)

    As to whether he was a hero or a hoodlum — whatever the legal rationale, the burning to death of a woman in the last stages of pregnancy to death is hardly heroic.

  • http://lettonica.blogspot.com/ Pēteris Cedriņš

    Erratum: strike the second “to death.”

  • http://vilhelmkonnander.blogspot.com/ Vilhelm Konnander

    Thank you for an interesting comment!

    First of all, it should be pointed ot that the verdict of the European Court of Human Rights does in no way determine Kononov’s guilt or innocence. Instead, it is a question of whether Latvia has prosecuted the soviet veteran correctly according to law or not. It finds that the Latvian legal system has failed to apply the correct legal grounds for prosecution.

    In this context, it should also be noted that Latvian courts have themselves repeatedly acquitted Kononov from charges, as the case for the prosecution has not been sufficiently based on solid legal and evidential grounds.

    As you correctly point out, the Foreign Ministry of Latvia has recommended that the ruling of the European Court should be appealed to the Court’s Grand Chamber. In this context, it should be stated that the ruling by the European Court was four votes to three in favour of the ruling. The verdict was thus not anonymous.

    As for the Nuremberg trials, they were directed at prosecuting war crimes committed by Nazi Germany during the war. No representative of the Allies – including the Soviets – was tried.

    The international law emanating from Nuremberg subsequently formed the basis of legal development as concerns e.g. the laws of war. However, the legal validity of Nuremberg to this day is a controversial issue as concerns the interpretation of what should be considered international customary law, as it expanded the application of the 1907 Hague Convention. Still, departing from “de lege ferenda” at Nuremberg, international law was developed from the Universal Declaration of Human Rights, the Genocide Convention (both 1948), the Geneva Convention on the Laws and Customs of War (1949), to the Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity (1968).

    As for the legal aspects of the case, none of the above laws, except the Hague Convention, were in force in 1944, when Kononov’s partisans perpetrated their act against the Latvian village. What the European Court points out in its ruling is that Latvia tried Kononov according to international law that was still not in place at the time of his alleged crime, thus violating the fundamental principle of law that laws do not apply retroactively, viz. “no punishment without law.” The analogy to the Nuremberg trials in the Kononov case is nullified by the fact that the verdicts passed in Nuremberg were based on existing law – though in its very widest interpretation – namely the 1907 Hague Convention.

    Thus, the Court notes that Latvia did not prosecute Kononov on grounds of “de lege lata” at the time, i.e. the 1907 Hague Convention. If Latvia had done so, this might have been in analogy to the application of the Hague Convention at e.g. the Nuremberg trials, which might have formed a more solid basis for a conviction of Kononov.

    In addition to Latvia applying the wrong legal grounds for prosecution, an interesting aspect of the European Court’s ruling is that it implicitly criticises the Latvian legal system for departing from an “assumption of guilt” on the part of Kononov. It thus seems that Latvian prosecutors have failed to sufficiently present evidence and testimony of relevance to the the legal grounds on which they have charged Kononov.

    Judging from the split decision of the Court in its ruling, which in its legal reasoning seems clear, one may speculate on whether sentiments of some jurists was indignation over the Latvian juduciary’s failure to convict Kononov for war crimes. Otherwise, it is difficult to explain why three out of seven judges obviously were willing to accept retroactive application of law.

    Following the principle of “innocent until proven guilty” one must conclude that Kononov should be considered legally innocent of the crimes for which he has been charged. To the contrary, Latvians who assume Kononov’s guilt and thus are critical to the European Court verdict might ask themselves why their contry’s legal system has so manifestly failed to convict him for war crimes.

    Most remarkably, concerning the soviet raid on the Latvian village, the Court points out that Latvian prosecutors have failed to demonstrate that the three women killed, among them one in the final stages of pregnancy, were in fact civilians and not combatants in some sense. Failing to sufficiently differentiate the women from the remaining six male casualties, the latter in possession of German arms, does not facilitate matters when it comes to trying crimes of war.

    From an ethical point of view, one might ask if there are heroes in any war. One of the arguments met in the Russian blogosphere goes along the line that “war is a dirty business” and during wartime people do things that they would otherwise never dream of doing. Still, the soviet veterans should be considered heroes. Following this logic, would it be reasonable to surmise that heroism at war postulates nihilism of the normal norms and values of peacetime? Perhaps, this logical paradox illustrates some ethical difficulties in the relation between justice and warfare.

    It is profoundly difficult to ethically condone the alleged actions by Kononov, not least killing a nine months’ pregnant woman, but then the question arises where to draw the line, especially as it has not been demonstrated beyond doubt that even the pregnant woman was not a combatant. Also, it is true that some legal systems have applied excemption from capitol punishment on the grounds of pregnancy. Applying such a norm would in this case hypothetically have saved the pregnant woman from being killed even if she were a combatant and the soviet action thus motivated by and in accordance to existing laws of war at the time.

    As some of the above examples illustrate, the entire reasoning becomes absurd when reviewing it from various ethical perspectives, and comparing it to “the facts of the matter”. This is also exactly why it is so important with a working legal system where laws are universally and not selectively applied, where legal process is open, and judgement is passed on the basis of existing laws and supported by unequivocal evidence and testimony to legally sanction rulings made by the system of the courts. The alternative would be to apply implicit norms, values, and rules of society, which would result in legal anarchy and the profoundest ethical dilemma.

    What the European Court finds, is that in the Kononov case, the Latvian legal system has not worked in accordance with basic principles of rule of law. Still, as is hopefully demonstrated by the above reasoning, this case contains such legally and ethically interesting components, that it should really have deserved a more sound and solid penetration by Latvian prosecutors, instead of the legal shamble that the verdict of the European Court of Human Rights makes it out to be. Therefore, even if Latvia is granted appeal to the European Court Grand Chamber, it is far from obvious that another ruling will produce a different result. As the case now stands, the real legal and ethical issues of the Kononov case have been marginalised, and instead the case now at hand is one of higher principles justice.

  • http://lettonica.blogspot.com/ Pēteris Cedriņš

    Thank you for the response, Vilhelm.

    I realize that the Nuremberg tribunal was directed solely against Axis war criminals. This is a double standard. As Ineta Ziemele wrote in her dissent:

    Judge Myjer in his concurring opinion argues that the Court is justified in its approach in applying Article 7 § 2 in cases in which the applicants had links with Nazi crimes and thus fell within the scope of the Nuremberg principles. This case is allegedly different since the applicant belonged to the Allied powers fighting against the Nazis. The legal basis for such an approach is unclear. Why should criminal responsibility depend on which side those guilty of war crimes were fighting on? There is certainly nothing in the Convention itself to limit the application of Article 7 to Nazi crimes alone. On the contrary the Article is drafted broadly and with a specific purpose as the travaux préparatoires amply show. True enough, today the Convention covers many more States then at the time of its drafting. However, now that this expansion has taken place, does that mean that more recent States Parties have different rights and obligations under Article 7? Or, in other words, that the Convention should operate with double standards? We do not think so. In the case of Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 I, the Court clearly ruled that the Nuremberg principles had universal validity despite the limited scope of the Tribunal’s jurisdiction ratione personae at the time (pp. 8-9).

    Ziemele, in the joint dissent, answers the points you make at length and in detail on behalf of the three dissenting judges, noting that “we are not persuaded that the national courts, in convicting the applicant, went beyond the essence of the definition of a war crime as it existed in 1944, we are firmly convinced that the national courts were better placed than this Court to decide the Kononov case. Our conclusion is that there has been no violation of Article 7.”

    David Thór Björgvinsson, in his dissent, goes further:

    In this regard it should be stressed that it has been established by the national courts that the applicant was, as a commander and member of the armed forces of the Soviet Union, involved in the killings in Mazie Bati on 27 May 1944. The national courts have also, on the basis of extensive and thorough investigation into the facts of the case, found that the people killed were civilians protected under the relevant international law. Furthermore, they found that the acts of the applicant constituted war crimes under the applicable international and domestic law. This Court is in no position to refute that finding or to override the conclusions of the national courts as regards the facts of the case and the applicable law. By doing so the majority has gone beyond a mere re-characterisation in law of the evidence before it (see Streletz, Kessler and Krenz v. Germany (GC), judgment of 22 March 2001, § 111). What the majority has in fact done should rather be seen as a reassessment of the crucial factual findings of the national courts, contrary to the well established case-law of this Court, which holds that it is primarily for the national authorities, notably the courts, to establish the facts and interpret national legislation, including legislation referring to international law.

    The text of the judgment and dissents is available here (.doc file) –

    http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=72153&sessionId=4507150&skin=hudoc-en&attachment=true

  • http://www.russophobe.blogspot.com/ La Russophobe

    This is hilariously funny stuff. When the ECHR convicts Russia, then in Russian eyes it is an evil conspiracy of russophobes out to destroy Russia. But let the court make a ruling in Russia’s favor, and suddenly Russians are ready to exalt the forum from the rooftops!

    What a wacky country. For those who think the story about the “Emperor’s New Clothes” was just a fairytale one visit to Russia, even a brief virtual one, is more than sufficient to prove the contrary.

  • http://vilhelmkonnander.blogspot.com/ Vilhelm Konnander

    The very nature of this case leads one to expect that views, sentiments, and opionions on it are destined to be coloured by national affiliation – either Russian or Latvian. However, as the above article demonstrates, so is not necessarily the case, as some voices from the Russian blogosphere demonstrate.

    However, what is more interesting is really the legal ramifications of the case itself, and how the European Court of Human Rights has reasoned in its verdict, includeing dissenting opinions. Would Latvia appeal the verdict to the Court’s Grand Chamber, I for one will at least follow it with interest.

    As for alleged Russian praise to the European Court – as opposed to a frequently critical stance – I believe it is the verdict per se, which is welcomed and not the Court as such. It is the execution of law (the verdict) and not the institution of law (the Court) that is the focus of attention, which is in line with the legal tradition of open societies.

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