EIT: Latvialaisen henkilön tuomitseminen toisen maailmansodan aikaisista sotarikoksista ei 7 artiklan vastaista

Euroopan ihmisoikeustuomioistuimen (EIT) suuri jaosto on tänään äänin 14-3 katsonut, että Latvia ei rikkonut Euroopan ihmisoikeussopimuksen 7 artiklaa (ei rangaistusta ilman lakia), kun latvialainen tuomioistuin tuomiossaan vuonna 2004 perusti tuomionsa henkilön vuonna 1944 Neuvostoliiton armeijassa tekemistä sotarikoksista ennen kaikkea Geneven vuoden 1947 ja Haagin vuoden 1907 sopimukseen.

By May 1944 the prevailing definition of a war crime had been an act contrary to the laws and customs of war; and international law had defined the basic principles underlying those crimes. States had been permitted (if not required) to take steps to punish individuals for such crimes, including on the basis of command responsibility. Consequently, during and after the Second World War, international and national tribunals had prosecuted soldiers for war crimes committed during the Second World War.

As to whether there had been a sufficiently clear and contemporary legal basis for the specific war crimes for which the applicant had been convicted, the Court began its assessment on the basis of a hypothesis that the deceased villagers could be considered to be “combatants” or “civilians who had participated in hostilities” (rather than “civilians”). The Court also recalled the “two cardinal principles” relied on by the International Court of Justice as applicable to armed conflict which constituted “the fabric of humanitarian law”, namely “protection of the civilian population and objects” and “the obligation to avoid unnecessary suffering to combatants”.

Furthermore, the domestic courts had reasonably relied on Article 23(b) of the Hague Regulations 1907 to separately convict Mr Kononov of treacherous wounding and killing. At the relevant time wounding or killing had been considered treacherous if it had been carried out while unlawfully inducing the enemy to believe they had not been under threat of attack by, for example, making improper use of an enemy uniform, which the applicant and his unit indeed had done. Equally, there was a plausible legal basis for convicting Mr Kononov of a separate war crime as regards the burning to death of the expectant mother, given the special protection for women during war established well before 1944 (ie Lieber Code 1863) in the laws and customs of war and confirmed immediately after the Second World War by numerous specific and special protections in the Geneva Conventions. Nor had there been evidence domestically, and it had not been argued before the Court, that it had been “imperatively demanded by the necessities of war” to burn down the farm buildings in Mazie Bati, the only exception under the Hague Regulations 1907 for the destruction of private property.

EIT:n lehdistötiedote: Press Release

Tuomio kokonaisuudessaan: Kononov v. Latvia

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