EHRM, 17-05-2010, nr. 36376/04

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.

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.

The Regional Court found that the 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 (‘IMT’) Nuremberg, the Hague Convention (IV) 1907 and the Geneva Convention (IV) 1949. He was found guilty of offences contrary to Article 68-3 of the 1961 Criminal Code and an immediate six-year custodial sentence was imposed. Both the applicant and the prosecution appealed.

By 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.

The Supreme Court Senate dismissed the prosecution's appeal by 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.

Following a fresh investigation, on 17 May 2001 the applicant was again charged under Article 68-3 of the 1961 Criminal Code.

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 Article 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 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 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.

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 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 Chugunov's partisans; that an ad hoc Partisan Tribunal had been set up within the applicant's detachment; and that the purpose of the Mazie Bati operation was not summary execution but the arrest of the villagers.

By 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 Article 68-3 of the 1961 Criminal Code. Having reviewed the evidence, it noted:

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.

By judgment of 28 September 2004 the Supreme Court Senate dismissed the applicant's appeal:

The first Geneva Convention (later superseded) provided for minimum standards for ‘wounded or sick combatants’ so that ‘to whatever nation they may belong’ they had to be ‘collected and cared for’.

This Convention conferred protection and prisoner of war status on wounded and sick combatants in the power of the enemy.

The Convention (replaced by the Geneva Convention (I) 1949) responded to the experience of the First World War. It did not include a general participation clause:

This Convention provided a comprehensive set of rules for the treatment of prisoners of war. The First World War revealed deficiencies in the relevant provisions of the Hague Convention and Regulations 1907 (see paragraphs 85–91 below) which were to be supplemented by this Convention. It recognised that the entitlement to prisoner of war status was derived from holding the status of legal combatant under the Hague Regulations 1907. It introduced protections for prisoners of war and ensured that they were treated humanely. Women were the subject of special protection.

This draft Convention set out to improve the standards of protection of enemy civilians living in occupied territory and on belligerent territory. It was due for discussion at a conference in 1940, but the Second World War intervened. The draft was later influential in the discussions on the Geneva Convention (IV) 1949 and it is notable for its negative definition of civilians (consistent with the Oxford Manual 1880) and for its distinction between combatants and civilians:

Articles 9 and 10 required protection of ‘enemy civilians’ against violence and prohibited measures of reprisals against them.

This Convention provided, in so far as relevant as follows:

Special protection was offered to expectant mothers in Article 16:

Article 32 includes specific protections from ill-treatment for persons in the power of the enemy and Article 33 recognises a prohibition on collective penalties, pillage and reprisals against protected persons.

Article 53 recognises that real or personal private property should not be destroyed unless absolutely necessary.

The Lieber code is regarded as the first attempt to codify the laws and customs of war. Although only applicable to American forces, it represented a summary of the laws and customs of war existing at the time and was influential in later codifications.

Articles 15 and 38 included the rule that life or property could be seized or destroyed when required by military necessity (see also Article 16 of the same Code below):

Article 16 contained a general standard of behaviour in armed conflict and a prohibition on perfidy:

Articles 19 and 37 contained measures of special protection for women in the context of armed conflict:

Article 22 contained the principle of distinction between combatants and civilians:

Article 44 contained a catalogue of offences and of severe punishments for a guilty soldier:

Article 47 referred to punishment under domestic penal codes:

The Code illustrated the two main rights of a ‘combatant’: prisoner of war status (Article 49) and protection from prosecution for certain acts which would be criminal for a civilian (Article 57):

The notion of levée en masse was covered in Article 51:

Article 59 indicated individual criminal responsibility for violations of the laws and customs of war:

Articles 63–65 asserted that the use of enemy uniforms was outlawed as an act of perfidy, removing the protections of the laws and customs of war from persons who engaged in such conduct:

Together with Article 49, Article 71 described a particular status later referred to as hors de combat under international law:

Articles 76 and 77 created obligations to treat prisoners of war with humanity and proportionately in the event of an escape attempt.

Article 101 contained a prohibition of treacherous wounding (at the time understood to be the same as perfidious wounding):

Articles 88 and 104 contained provisions for punishing spies:

This Declaration was the first formal agreement prohibiting the use of certain weapons in war. The Preamble recalled three principles of the laws and customs of war: the only legitimate object during war is to weaken the military forces of the enemy; there is a limit to the means which can be employed against enemy forces; and the laws and customs of war do not condone violence against those hors de combat.

This Declaration was never adopted at the Diplomatic Conference in Brussels in 1874, although it was another influential codification exercise. The relevant Articles of the Declaration read as follows:

The Oxford Manual 1880, influenced by the draft Brussels Declaration 1874 and drafted by the Institute of International Law, was designed to assist Governments in formulating national legislation on the laws and customs of war. The relevant Articles read as follows:

The section containing Articles 23–26 was entitled ‘Spies’ and dealt with their treatment:

Article 32(b) prohibited, inter alia, the destruction of public or private property, if this destruction was ‘not demanded by an imperative necessity of war’.

Chapter III outlined the rules for captivity of prisoners of war. It described the legal basis for their detention (it was not a punishment or vengeance), it provided that they must be treated humanely (Article 63) and that arms could be used only if the prisoner attempted to flee (Article 68).

Part III of the Manual provided for punishments for violations of the rules in the Manual and, in the event that the alleged offender could not be detained, the Manual outlined the limited circumstances for legitimate belligerent reprisals:

The international peace conference in the Hague in 1899 resulted in the adoption of four Conventions including the Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annexed Regulations. These instruments were replaced, following the second Hague International Peace Conference in 1907, by the Hague Convention (IV) respecting the Laws and Customs of War on Land 1907 and the annexed Regulations (‘The Hague Convention and Regulations 1907’). They were based on the Draft Brussels Declaration 1874 and the Oxford Manual 1880.

The Preamble to the Hague Convention 1907 reads as follows:

The eighth paragraph of the Preamble cited above, is known as the ‘Martens Clause’. An almost identical clause had already been included in the preamble to the Hague Convention (II) of 1899 and it was in substance repeated in each of the Geneva Conventions (I-IV) 1949 as well as in the Protocol Additional 1977 (paragraph 134–142 below).

Article 2 of the Hague Convention 1907 contained a ‘si omnes’ solidarity clause to the effect that the Hague Convention and Regulations 1907 only applied between the Contracting States and then only if all the belligerents were Contracting States. However, the IMT Nuremberg judgment later confirmed that by 1939 the Hague Convention and Regulations 1907 were regarded as being declaratory of the laws and customs of war (paragraphs 118 and 207 below).

The other relevant provisions of the Hague Convention 1907 are as follows:

Articles 1 and 2 of the Hague Regulations 1907 read as follows:

Chapter II (Articles 4–20) of the Hague Regulations 1907 included the rules identifying prisoners of war, the requirement to treat prisoners of war humanely (Article 4) and the limitation of any measures taken for insubordination to those necessary (Article 8). The Regulations continued:

This Commission was charged by the Paris Peace Conference to prepare a Report, inter alia, on facts concerning breaches of the laws and customs of war by the forces of the German Empire and allies (including Turkish officials), on the degree of responsibility for such offences attaching to members of the enemy forces as well as on the constitution and procedure of a tribunal appropriate for the trial of such offences. The Report was completed in 1919 and it drew up a list of approximately 900 alleged war criminals and proposed charges against Turkish officials and others for ‘crimes against the laws of humanity’, relying on the Martens Clause of the Hague Convention 1907. It also drew up a non-exhaustive list of 32 offences committed during the war regarded as contrary to existing conventions and customs including: murders and massacres; torture of civilians; the imposition of collective penalties; wanton devastation and destruction of property; as well as the ill-treatment of wounded and prisoners of war.

As regards individual criminal liability, the Commission stated:

The Treaty of Versailles 1919 contained a number of provisions providing for the international trial and punishment of war criminals including the German Emperor. The prosecution provisions were never applied: the Emperor's extradition was refused and an international trial of other alleged war criminals was dropped in favour of a trial by Germany itself. Article 229 also retained the possibility of bringing persons guilty of criminal acts, against the nationals of one of the allied and associated Powers, before the military tribunals of that power.

The Treaty of Sèvres (the peace agreement between the Allied Powers and Turkey following the First World War), contains similar provisions (Articles 226–230) to those outlined in the Treaty of Versailles as regards the pursuit before military tribunals by the Allied Powers of Turkish officials accused of acts violating the laws and customs of war. This treaty was never ratified and it was superseded by a Declaration of Amnesty (signed on the same date as the Treaty of Lausanne 1923) by France, the United Kingdom (‘UK’), Greece, Italy, Japan, Romania and Turkey. The Declaration provided that Greece and Turkey granted ‘full and complete amnesty … for all crimes or offences committed during the same period which were evidently connected with the political events which have taken place during that period’ (the relevant period being 1 August 1914 to the 20 November 1922).

This Convention was prepared by the International Law Association but never adopted by States. Its negative definition of a civilian population was consistent with the definition in the Oxford Manual 1880:

In 1901 and 1902 US courts-martial tried a number of US military personnel accused of, inter alia, violations of the laws of war during the US counter-insurgency campaign in the Philippines and, notably, of extra-judicial executions. Few in number, the submissions of the Judges-Advocate General and the reviewing authorities contained comments on the laws and customs of war on matters including the responsibility of commanding officers and the treatment of prisoners of war. These comments were influential in later codifications. These trials constituted an early example of prosecutions at a national level of national military personnel accused of crimes against the enemy contrary to the laws of war.

In the trial of Major Waller, the reviewing authority observed:

In Major Glenn's case, the Judge Advocate pointed out that, even if US soldiers were operating in a difficult situation against isolated bands of insurgents acting as guerrillas in flagrant disregard of the rules of civilised war, they were not relieved of ‘their obligation to adhere to the rules of war in the efforts put forth by them … to suppress the insurrection and restore public order.’

At the trial of Lieutenant Brown for the murder of a prisoner of war, the Judge Advocate noted that there existed a ‘state of public war’ in the Philippines and that the culpability of the accused should therefore have been determined not by the lex loci but from the standpoint of international law which, in that case, meant the rules and customs of war.

Further to the Treaty of Versailles, Germany brought proceedings against persons before the Supreme Court in Leipzig. The Allies presented 45 cases (out of the almost 900 files included in the International Commission Report 1919) concerning the treatment of prisoners of war and the wounded as well as an order to torpedo a British hospital ship. The trials took place in 1921. Twelve trials took place in 1921 resulting in 6 acquittals and six convictions (the sentences imposed being symbolic). The Allies decided to refer no more cases to the German courts.

The convictions relied mainly on German military law but there were some express references to international law notably, in the Llandovery Castle decision:

The UK made considerable efforts to prosecute Turkish officers for ill-treating prisoners of war and for other crimes during the First World War. The UK was in favour of the crimes being prosecuted by British courts-martial in the occupied territories since the crimes were not ‘within the sphere of municipal law’ but were governed by ‘the customs of war and rules of international law’4.. A number of courts-martial were launched in 1919, but intervening domestic considerations in Turkey prevented them being pursued. Turkish courts-martial were also held and, while they were charged on the basis of the Turkish Criminal Code, certain convictions were based on ‘humanity and civilisation’. As noted above, the Treaty of Lausanne 1923 put an end to these prosecutions.

In November 1940 the representatives of the exiled Governments of Poland and Czechoslovakia made allegations of violations of the laws of war against German troops. For the British Prime Minister, the prosecution of war crimes was part of the war effort: indeed, it was so for all States occupied by Germany and for China as regards Japanese occupying troops5.. In London in 1942 representatives from territories occupied by Axis forces adopted the St James' Declaration on war crimes and punishment. Its Preamble recalled that international law and, in particular the Hague Convention 1907, did not permit belligerents in occupied countries to perpetrate acts of violence against civilians, to bring into disrepute laws in force or to overthrow national institutions. The Declaration went on:

Following this Declaration, the United Nations (‘UN’) War Crimes Commission (‘UNWCC’) was established (1943). It was to compile evidence of war crimes which files served as warrants for prosecution by military authorities of those accused6.. By the end of its mandate it had succeeded in compiling 8178 files concerning persons suspected of war crimes. The Commission adopted in full the list of offences in the International Commission Report of 1919 (paragraph 92 above) to be adapted where appropriate to the conditions of the Second World War.

As early as November 1941 the USSR informed all countries with which it had maintained diplomatic relations of the war crimes committed by, in particular, Nazi Germany in the occupied territories7.. In order to record the crimes allegedly committed by the German forces and to establish the identity of those guilty so as to bring them to justice, a Decree dated 2 November 1942 established the ‘Extraordinary State Commission for ascertaining and investigating crimes perpetrated by the Germano-Fascist invaders and their accomplices, and the damage inflicted by them on citizens, collective farms, social organizations, State enterprises and institutions of the USSR’. The Commission's work was used in the later ‘Krasnodar’ and ‘Kharkov’ trials (below).

The first trials of USSR citizens (accomplices and active assistants of the German forces) took place at Krasnodar in July 1943. The accused were charged and convicted by USSR criminal courts of murder and treason under the Soviet criminal code.8.

The later Moscow Declaration 1943 of the UK, US and USSR was one of the most significant declarations of the Second World War concerning the prosecution of war criminals. It confirmed the legitimate role of national courts in punishing war criminals and the intention to pursue such prosecutions after the war. It read, in so far as relevant, as follows:

This latter provision envisaged the prosecution of German war criminals by the USSR and the first trial took place at Kharkov in December 19439.. The Presidium of the Supreme Soviet had issued a Decree in 1943 laying down the punishments to be applied. The indictment alleged that they were responsible for having gassed thousands of inhabitants of Kharkov and its region, of committing brutal atrocities against civilians, of having burnt villages and exterminated women, old people and children as well as of having executed, burnt alive and tortured the wounded and prisoners of war. The prosecution relied on the rules of war laid down by international conventions (Hague Convention and Regulations 1907 and Geneva Convention 1929, noting that Germany had ratified both) and universally accepted provisions of international law. The indictment not only referred to the responsibility of the German Government and Command, but to the individual responsibility of the accused (referring to the Leipzig trials). After admitting their own and their hierarchical superiors' guilt, the three accused were sentenced to death by hanging. The fairness of the trials may have been called into question later, but they were widely reported. The USSR awaited the end of the war before resuming such trials: trials were also held in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev10..

As soon as the territories of Bulgaria were liberated from German forces, the Bulgarian People's Court in December 1944 convicted 11 Bulgarians of war crimes in application of the Moscow Declaration 194311..

The Potsdam Agreement concerned the occupation and reconstruction of Germany and other nations following the German surrender of May 1945. It was drafted and adopted by the USSR, US and UK at the Potsdam Conference between 17 July and 2 August 1945. As regards the pursuit of war criminals, the Agreement provided as follows:

Following the unconditional surrender of Germany, the Allied Powers signed the London Agreement 1945:

The Charter was annexed to the London Agreement 1945. It provided, inter alia, a non-exhaustive list of violations of the laws and customs of war for which ‘Leaders, organizers, instigators and accomplices’ were liable and it prescribed the penalties:

The judgment, referred extensively to the customary nature of the Hague Convention and Regulations 1907:

In the section dealing with ‘the Law of the Charter’ and in dealing with the crime against peace, the judgment noted:

This Charter was approved by unilateral declaration of the Supreme Commander of the Allied Forces on 19 January 1946. The relevant part of Article 5 of the Charter provides as follows:

As to the status of the Hague Convention 1907, the judgment of the Tokyo War Crimes Tribunal of 12 November 1948 stated as follows:

In mid-1950 the International Law Commission adopted the seven ‘Nuremberg Principles’ summarising the ‘principles of international law recognized’ in the Charter and judgment of the IMT Nuremberg:

The Control Council Law No.10 was issued in December 1945 by the Allied Council in control of Germany to establish a uniform legal basis for the prosecution in Germany of war criminals (other than those on trial at the IMT Nuremberg). Article 1 made the Moscow Declaration 1943 and the London Agreement 1945 integral parts of the law. Article II (5) provided:

This Law also recognised acts, almost identical to Articles 6(b) of the Charter of the IMT Nuremberg, as constituting war crimes and provided that any person committed a war crime whether he was a principal, an accessory, if he ordered or abetted or took a consenting part in the crime or was connected with plans or enterprises concerning the commission of the crime or was a member of any organization or group connected with its commission. Punishments were also specified.

In the Hostages (Wilhelm List) case13., the accused were charged with war crimes and crimes against humanity committed during the Second World War relating mainly to the institution of a scheme of reprisal killings in occupied territory and to the summary execution of Italian troops after they surrendered. The judgment noted that the crimes in the Charter of the IMT Nuremberg and in the Control Council Law No. 10 were declaratory of the existing laws and customs of war.

The judgment noted that List was:

As regards military necessity, the judgment noted as follows:

While the tribunal had to admit that the absence of a formal declaration of war between Germany and Italy created grave doubts as to whether the executed Italian officers would have been entitled to prisoners of war status, it looked beyond this fact to find that their summary execution was ‘unlawful and wholly unjustified’.

Following the Second World War various national tribunals pursued war crimes prosecutions for acts committed during the Second World War. These included prosecutions before Australian, British, Canadian, Chinese, French, and Norwegian military and civilian courts14.. All concerned breaches of the laws and customs of war and many concerned the necessity of fair trials prior to the punishment of those suspected of war crimes. Certain judgments stressed the legitimate referral of a domestic tribunal to the international laws and customs of war and referred to rules concerning the unnecessary destruction of civilian property, the unlawful wearing of an enemy uniform and individual command responsibility.

In November 1968 the UN General Assembly adopted this Convention in response to fears expressed that alleged war criminals (Second World War) not yet apprehended might escape prosecution with the passage of time.

The 1968 Convention entered into force on 11 November 1970. It was ratified by the Soviet Union in 1969 and by Latvia on 14 April 1992. It reads, in so far as relevant, as follows:

Article 1 of the 1968 Convention provides:

This Convention applies to crimes committed prior to its adoption only if the relevant crimes have not already been prescribed. Only two States signed the 1974 Convention at its depository stage (France and the Netherlands) and it came into force in 2003 upon its third ratification (by Belgium). Neither the USSR nor Latvia ratified this Convention.

This Protocol to the Geneva Conventions was intended to develop and reaffirm many of the laws and customs of war in light of the age of many of the laws on which they were based (notably, the Hague Convention 1907). Many of its provisions are restatements of existing laws and customs of war, while others are provisions constitutive in nature.

The first two ‘Basic Rules’ of warfare are described in Article 35:

Article 39 provides as follows:

Article 41 confirms the protection of those combatants who were hors de combat:

Article 48 recognises the principle of distinction:

Article 50 recognises civilians as being defined by non-membership of the armed forces.

Article 51 concerned the protection to be accorded to civilians:

Article 52 reiterated the customary norm that a civilian object (no military objectives) should not be the subject of attack. Article 52(3) notes:

Article 75 offers protection to persons in the power of a belligerent party who do not qualify for superior protections (such as prisoner of war status) under the laws and customs of war.

The respondent Government disagreed with the Chamber's reasoning and conclusion.

They considered that the case fell to be examined under Article 7 § 1 of the Convention, since the applicant's acts were criminal under international and national law at the time of their commission. The Court's role under that provision was to establish whether there was a legal provision defining certain acts as a crime formulated with sufficient clarity and accessibility and, in particular, whether the Latvian courts had the right to rely on Article 68-3 of the 1961 Criminal Code and, in doing so, to rely on the relevant elements of international law. In this respect, the offence could be defined in written and unwritten, domestic or international law and Article 7 did not outlaw gradual clarification of the rules of criminal liability through judicial interpretation so long as the resultant development was consistent with the essence of the offence. Such development of the criminal law was all the more important when a democratic State governed by the rule of law succeeded a totalitarian regime and pursued obligations to bring criminal proceedings against members of the former regime.

However, the respondent Government considered that the Chamber exceeded its subsidiary role in altering the factual determinations of domestic courts found to have acted compatibly with Article 6. Indeed, in re-assessing the facts, the Chamber had overlooked certain crucial facts surrounding the events of 27 May 1944 which had been established by the Criminal Affairs Division, upheld by the Supreme Court Senate, notably as regards the existence of a judgment of any Partisan Tribunal as regards the villagers of Mazie Bati. In any event, any such Partisan Tribunal judgment would have been unlawful as it would have been delivered in absentia in violation of even the basic tenets of a fair trial. The respondent Government had submitted to the Chamber letters dated February 2008 from the Prosecutor General's Office (about the existence of the Partisan Tribunal, the role of Mazie Bati and its villagers in the German defence and why arms had been issued to the villagers) and re-submitted these to the Grand Chamber.

Moreover, and on the basis of detailed submissions, the respondent Government argued that the Court should take into account the broader historical and political events before and after the Second World War and, notably, that the Soviet occupation of Latvia in 1940 had been unlawful and, although interrupted by the equally unlawful German occupation of 1941–1944, it remained in place until independence was restored in the early 1990s. During that Soviet occupation, Latvia was prevented from exercising its sovereign powers, including its international obligations. Apart from the resultant fear of the local population of the Red Partisans, it was a distortion for the applicant to suggest that the events of 27 May 1944 in Mazie Bati were a civil war incident as opposed to part of the international armed conflict opposing the Axis powers and, inter alia, the USSR.

While the Court was competent to apply relevant principles of international law, the respondent Government disagreed with the Chamber's application of international law. It had disregarded or misapplied several important sources of international law and certain principles derived therefrom including the criteria for defining civilians and the standard of humane treatment they should be afforded, the principle that the loss of civilian status did not amount to the loss of international humanitarian protection, the limits of military necessity and the prohibition of perfidious acts. On the contrary, the respondent Government argued, referring extensively to contemporary Conventions and declarations as well as to the Charter and judgment of the IMT Nuremberg, that the applicant was clearly guilty of war crimes as understood in 1944.

While accepting that the principle of distinction was not an entirely straightforward matter in 1944, they maintained it was clear that the villagers of Mazie Bati were ‘civilians’: indeed, even if persons were armed, even if they sympathised with the Nazi occupation and even if they belonged to a law enforcement organisation, they did not lose their civilian status. In any event, even if they had lost that status and were to be considered ‘combatants’, nothing allowed the summary execution and murder of any person hors de combat unless a fair trial had taken place (and there was no proof of this) wherein it was established that they were indeed implicated in a criminal offence. Moreover, these were not lawful acts of ‘lawful belligerent reprisals’ since, inter alia, such actions had been prohibited against prisoners of war since the 1929 Geneva Convention and, as regards civilians, it was never suggested that the villagers committed war crimes themselves.

Moreover, the applicant's acts constituted in 1944 (and thereafter) criminal offences under national law. Criminal provisions of the 1926 Criminal Code (adopted in 1940 by decree of the Latvian SSR Supreme Council, in force until 1991 and re-introduced in 1993) criminalised and specified punishments for violations of the rules and customs of war and such provisions were sufficiently clear and accessible. The period of ambiguity from September 1991 to April 1993 was of no practical importance since Latvia had an underlying international obligation to prosecute individuals on the basis of existing international law.

It was irrelevant whether the applicant was the actual perpetrator as he bore command responsibility.

Neither was his conviction statute-barred having regard, inter alia, to Article 14 (and the Official Notes) of the 1926 Criminal Code, Article 45 of the 1961 Criminal Code and Article 1 of the 1968 Convention, the retroactive force of which Convention had been recognised by this Court.

In light of the above, it was clearly objectively foreseeable in 1944 that the applicant's acts were criminal and it was unnecessary to show that he was aware of each element of the precise legal qualification of his acts. Indeed, his alternative version of the facts (that he was seeking to arrest the villagers following their conviction by a Partisan Tribunal) was revealing in that it suggested an acknowledgement that he was indeed aware at the time that the impugned conduct (killing instead of arresting) was criminal. His conviction was also objectively foreseeable given, inter alia, the declarations of certain States during the Second World War and the international and national prosecutions during and immediately after that war, in which processes the Soviet authorities had much involvement. That he was a Soviet war hero for years thereafter was not relevant: the key point was whether the acts could have been reasonably foreseen in 1944 as amounting to war crimes and not that his later fortuitous political situation would have excluded his prosecution. Neither was it a defence to argue that others committed war crimes to avoid criminal liability oneself, unless the departure from principle by other States was sufficient to constitute evidence of a change in international usage and custom.

In the alternative, the applicant's crimes constituted crimes under the ‘general principles of law recognised by civilised nations’ within the meaning of Article 7 § 2 of the Convention. This provision was also drafted to eliminate any doubt about the validity of the post-Second World War prosecutions by the IMTs and, since subsequent international and national practice had confirmed the universal validity of the IMTs and their principles, that role of Article 7 § 2 was now defunct. Whether such ‘general principles’ were a primary or secondary source of international law, they were derived from national systems to fill gaps in positive and customary international law. In the absence of any consensus as to the survey of national systems required to establish such principles, the respondent Government reviewed jurisdictions which had, by 1944, already pronounced on the subject of war crimes as well as the criminal codes of Latvia and the USSR. Noting that national courts and tribunals relied on established principles of international law in charging violations of the laws and customs of war, the respondent Government argued that the general principles of law recognised the applicant's acts as criminal so that the present domestic courts could have had recourse to such principles.

The applicant supported the Chamber's reasoning and conclusions, arguing that he was not guilty of a crime under national law, international law or under general principles of law recognised by civilised nations.

He disputed the suggestion that the Chamber had exceeded its competence and incorrectly decided certain facts. On the contrary, he maintained that the respondent Government had misrepresented and misquoted to the Grand Chamber the facts as established by the Chamber.

Before the Grand Chamber he gave his version of the circumstances surrounding the killing in February 1944 of the members of Major Chugunov's group of partisans. That group had taken refuge in Meikuls Krupniks' barn and the deceased villagers had participated in delivering that partisan group into the hands of the wehrmacht by ruse: they had pretended to guard the partisans but sent word to the wehrmacht in the vicinity. The next day the German soldiers arrived and, having taken more detailed information from three women in the village, killed each member of Chugunov's group. Certain women, including Meikuls Krupniks' mother, removed clothing from the bodies. The villagers concerned were rewarded by the German military administration with firewood, sugar, alcohol and money. A villager captured by other partisans had later given the names of the relevant villagers who had denounced Major Chugnov's unit.

He reiterated that he acted further to a decision of an ad hoc Partisan Tribunal, whose existence was substantiated. That tribunal had investigated, identified the Mazie Bati villagers who had betrayed Major Chugnov's group and had sentenced them to death. His unit had been charged with delivery of the convicted persons to that tribunal. However, he also clarified to the Grand Chamber that, given the combat conditions persisting at that time, his unit would not have been in a position to capture the villagers and keep them as prisoners (they were an obstacle in combat and a mortal danger to the partisans) nor would it have been possible to have brought the villagers to the Partisan Tribunal.

The applicant considered that his rights under Article 7 § 1 had been violated. The guarantees under that provision were of central importance and they had to be interpreted and applied in such as way as to ensure effective protection against arbitrary prosecutions and trials. Article 7 § 2 did not apply since the alleged offences did not fall within its scope.

As to the definition of a war crime, the applicant essentially relied on the Hague Convention and Regulations 1907 as well as the Charter and judgment of the IMT Nuremberg and he excluded reliance on the Geneva Conventions 1949 or the Protocol Additional 1977 since they post-dated the events. Since a war crime was defined as one committed against a civilian population, by an occupier and on territory occupied, the impugned acts could not be considered war crimes under international law or the general principles of law recognised by civilised nations, for the following reasons.

In the first place, the villagers were not civilians. The letters of February 2008 from the Prosecutor General's Office were inaccurate, inadequate and incorrect in that they suggested that he, the accused, had to substantiate his defence whereas it was for the prosecution to prove the charges. He nevertheless submitted new documents (from the 1940s and from the Latvian State archives) to the Grand Chamber which he considered demonstrated a number of points: a plan of the German defence posts including Mazie Bati; that the Nazi administration prohibited ‘civilians’ carrying arms and, since they gave arms to the villagers of Mazie Bati, that village was clearly taking part in military operations and was a focal point of the German defence; that the deceased villagers (notably members of the family of Bernards Šķirmants, Ambrozs Buls and Meikuls Krupniks) had joined at some point the aizsargi, and that the aizsargi regularly participated in anti-Semitic and partisan killings in Latvia. He further maintained that Bernards Šķirmants and Meikuls Krupniks were Schutzmänner.

In short, the villagers were either aizargi or Schutzmänner. They were accordingly armed by, and carrying out active service for, the German military administration: their handing over of Major Chugnov's group was not an act of self-defence but of collaboration. They could not be considered part of the civilian population and became a legitimate military target. The applicant's unit, who were combatants, had the right to punish them.

Secondly, Latvia was lawfully one of the Republics of the USSR since 1940 and it was contrary to historical fact and common sense to state otherwise. The Declaration of 4 May 1990 and his conviction were designed to achieve a condemnation of the annexation of Latvia in 1940 as illegal, rather than a desire to fulfil international obligations to pursue war criminals. On 27 May 1944 he was a combatant defending his own State's territory against Germany and other USSR citizens who were actively collaborating with Germany (relying on the judgment of Latgale Regional Court). Since the USSR was not an occupying power, the applicant could not be a perpetrator of a war crime. He considered historically inaccurate the positions of the respondent and Lithuanian Governments which equate the lawful incorporation of Latvia in 1940 with the German occupation of 1941. The only two options available to Latvians in 1944 were to be anti-German or anti-USSR: he fought Nazi forces with the USSR to liberate Latvia and the villagers acted against them in concert with the Nazis.

Thirdly, there was no war crimes chapter in the 1926 Criminal Code and the respondent Government's reliance on Military Crimes in Chapter IX of that Code was flawed as ‘military crimes’ were violations of the established order of military service and were to be distinguished from ‘war crimes’. Indeed, he remarked that criminal liability was included in the 1926 Criminal Code for a failure to execute an order (Article 193-3).

Moreover, it was simply not foreseeable that he would have been prosecuted for war crimes. His trial was unprecedented: it was the first time a soldier, fighting against the Axis powers, found himself indicted almost 50 years later. He was only 19 years of age when, against the background of various international agreements and armed conflicts for which he was not responsible, he fought as a member of the anti-Hitler coalition. On 27 May 1944 he understood (referring to the Latgale Regional Court judgment) that he was defending Latvia as part of the USSR and he could never have imagined that Latvia would decades later consider that it had been unlawfully occupied by the USSR and that his actions would be considered criminal. He supported the Chamber's conclusion that it was not foreseeable that he would have been convicted under domestic law.

Finally, he also submitted that the Grand Chamber should re-consider his complaints under Articles 3, 5, 6, 13, 15 and 18 which were declared inadmissible by decision of the Chamber of 20 September 2007.

In its decision of 20 September 2007, the Chamber declared admissible the complaint under Article 7 of the Convention and inadmissible those made under Articles 3, 5 (in conjunction with Article 18), 6 § 1, 13 and 15 of the Convention. The applicant argued that the Grand Chamber should re-open and assess those inadmissible complaints.

The Grand Chamber observes that the Chamber's decision to declare the above-noted complaints inadmissible was a final decision: this part of the application is not, therefore, before the Grand Chamber (see K. and T. v. Finland, no. 25702/94, § 141, ECHR 2001-VII, and Šilih v. Slovenia, no. 71463/01, §§ 119–121, 9 April 2009).

Accordingly, the Grand Chamber will proceed to examine that part of the application declared admissible by the Chamber namely, the complaint under Article 7 of the Convention.

The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision — and, if need be, with the assistance of the courts' interpretation of it and with informed legal advice — what acts and omissions will make him criminally liable.

When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II; K.-H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001-II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101–109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69–71, 19 September 2008).

Finally, the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (Tess v. Latvia (dec.), no. 34854/02, 12 December 2002). Having regard to the subject matter of the case and the reliance on the laws and customs of war as applied before and during the Second World War, the Court considers it relevant to recall that the travaux préparatoires to the Convention indicate that the purpose of the second paragraph of Article 7 was to specify that Article 7 did not affect laws which, in the wholly exceptional circumstances at the end of the Second World War, were passed in order to punish, inter alia, war crimes so that Article 7 does not in any way aim to pass legal or moral judgment on those laws (X. v. Belgium, no 268/57, Commission decision of 20 July 1957, Yearbook 1, p. 241). In any event, the Court further notes that the definition of war crimes included in Article 6(b) of the IMT Nuremberg Charter was found to be declaratory of international laws and customs of war as understood in 1939 (paragraph 118 above, paragraph 207 below).

The Court will first examine the case under Article 7 § 1 of the Convention. It is not therein called upon to rule on the applicant's individual criminal responsibility, that being primarily a matter for assessment by the domestic courts. Rather its function under Article 7 § 1 is twofold: in the first place, to examine whether there was a sufficiently clear legal basis, having regard to the state of the law on 27 May 1944, for the applicant's conviction of war crimes offences; and, secondly, it must examine whether those offences were defined by law with sufficient accessibility and foreseeability so that the applicant could have known on 27 May 1944 what acts and omissions would make him criminally liable for such crimes and regulated his conduct accordingly (Streletz, Kessler and Krenz, § 51; K.-H. W. v. Germany, § 46; and Korbelyv. Hungary, § 73, all cited above).

Before examining these two questions, the Court will address the factual disputes between the parties and third parties.

The Court recalls that, in principle, it should not substitute itself for the domestic jurisdictions. Its duty, in accordance with Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. Given the subsidiary nature of the Convention system, it is not the Court's function to deal with alleged errors of fact committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, mutatis mutandis, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45; Streletz, Kessler and Krenz, cited above, § 49; and Jorgic, cited above, § 102) and unless that domestic assessment is manifestly arbitrary.

The Chamber found the applicant's trial to be compatible with the requirements of Article 6 § 1 of the Convention by final decision (paragraphs 182–184 above). In the context of the complaint under Article 7, and as the Chamber pointed out, the Grand Chamber has no reason to contest the factual description of the events of 27 May 1944 as set out in the relevant domestic decisions namely, the judgment of the Criminal Affairs Division of 20 April 2004, upheld on appeal by the Supreme Court Senate.

The facts established by the domestic courts as regards the events of 27 May 1944 are summarised above (paragraphs 15–20) and the Court extracts the following central elements. When the applicant's unit entered Mazie Bati, the villagers were not engaging in hostilities: they were preparing to celebrate Pentecost and all the deceased villagers were found by the partisans at home (one in his bath and another in bed). While arms and munitions supplied by the German military administration were found in the deceased villagers' homes, none of those villagers were carrying those or any arms. The Chamber (§ 127) found this latter fact to be of no relevance but, for reasons set out below, the Grand Chamber considers this pertinent. While the applicant maintained before the Grand Chamber that no one was burned alive, the domestic courts established that four persons died in the burning farm buildings, three of whom were women. Finally, none of the villagers killed attempted to escape or offered any form of resistance to the partisans so that, prior to being killed, all were unarmed, not resisting and under the control of the applicant's unit.

The domestic courts rejected certain factual submissions of the applicant. It was not established that the deceased villagers had handed over Major Chugunov's unit but rather that Meikuls Krupniks had denounced that unit to the German forces, noting that the unit's presence in his barn was a danger to his family. The archives did not show that the deceased villagers were Schutzmänner (German Auxiliary Police) but only that Bernards Šķirmants and his wife were aizsargi (Latvian National Guard). Nor was it established precisely why the villagers had been provided with arms by the German military administration (whether as a reward for information about Major Chugunov's unit or because they were Schutzmänner, aizsargi or had another formal auxiliary capacity).

The parties, as well as the Government of the Russian Federation, continued to dispute these matters before this Court, the applicant submitting new material from the Latvian State archives to the Grand Chamber. The Court notes that the disputed facts concern the extent to which the deceased villagers participated in hostilities (either by delivering Major Chugunov's unit to the German military administration or as Schutzmänner, aizsargi or in another formal auxiliary capacity) and, consequently, their legal status and attendant legal right to protection. The domestic courts found the villagers to be ‘civilians’, an analysis supported by the Latvian Government. Reviewing certain of the domestic courts' factual conclusions, the Chamber considered the male villagers to be ‘collaborators’, making alternative assumptions about the female villagers. The applicant, as well as the Government of the Russian Federation, considered the villagers to be ‘combatants’.

Having regard to the above-described dispute, the Grand Chamber, for its part, will begin its analysis on the basis of a hypothesis most favourable to the applicant: that the deceased villagers fall into the category of ‘civilians who had participated in hostilities’ (by passing on information to the German administration as alleged, an act that could be defined as ‘war treason’16.) or that they had the legal status of ‘combatants’ (on the basis of one of the alleged auxiliary roles).

The Court clarifies that the villagers were not franc tireurs given the nature of their alleged activities which led to the attack and since they were not, at the relevant time, participating in any hostilities17.. The notion of levée en masse has no application as Mazie Bati was already under German occupation18..

The applicant was convicted under Article 68-3 of the 1961 Criminal Code, a provision introduced by the Supreme Council on 6 April 1993. Although noting certain acts as examples of violations of the laws and customs of war, it relied on ‘relevant legal conventions’ for a precise definition of war crimes (paragraph 48 above). His conviction for war crimes was, therefore, based on international rather than domestic law and must, in the Court's view, be examined chiefly from that perspective.

The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation so that its role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Korbely, cited above, § 72).

However, the Grand Chamber agrees with the Chamber that the Court's powers of review must be greater when the Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicant's conviction and, in particular, it must satisfy itself that the result reached by the relevant domestic courts (a conviction for war crimes pursuant to Article 68-3 of the former Criminal Code) was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power of review to this Court would render Article 7 devoid of purpose. The Court will not therefore express an opinion on the different approaches of the lower domestic courts, notably that of the Latgale Regional Court of October 2003 on which the applicant heavily relies but which was quashed by the Criminal Affairs Division. Rather it must determine whether the result reached by the Criminal Affairs Division, as upheld on appeal by the Supreme Court Senate, was compatible with Article 7 (Streletz, Kessler and Krenz, cited above, §§ 65–76).

In sum, the Court must examine whether there was a sufficiently clear legal basis, having regard to the state of international law in 1944, for the applicant's conviction (see, mutatis mutandis, Korbely v. Hungary, cited above, at § 78).

The Government of the Russian Federation maintained that any prosecution of the applicant was statute-barred at the latest in 1954, having regard to the maximum limitation period for which Article 14 of the 1926 Criminal Code provided. The Latvian Government considered that his prosecution had not been statute-barred and the applicant relied on the Chamber judgment.

The applicant was convicted under Article 68-3 of the 1961 Criminal Code, Article 6-1 of that Code stated that there was no limitation period for, inter alia, war crimes and both Articles were inserted into the Criminal Code in 1993. The Supreme Court Senate also cited with approval the 1968 Convention (paragraphs 130–132 above). The parties essentially disputed therefore whether the applicant's prosecution (on the basis that there was no limitation period for the relevant offences) amounted to a ex post facto extension of a national limitation period which would have applied in 1944 and whether, consequently, that prosecution amounted to a retroactive application of the criminal law (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, ECHR 2000-VII).

The Court observes that, had the applicant been pursued for war crimes in Latvia in 1944, Chapter IX on Military Crimes in the 1926 Criminal Code, of itself, would not have covered the above-described relevant war crimes (the applicant and the Government of the Russian Federation agreed): a domestic court would therefore have had to rely upon international law to found the charges of war crimes (see paragraphs 196 and 208 above). Equally, Article 14 of the 1926 Criminal Code, with its limitation periods applicable to crimes foreseen by the 1926 Criminal Code only, could have had no application to war crimes sourced under international law and there was no provision in that Code saying that its prescription provisions could have had any such application. On the contrary, the Court notes that the 1926 Criminal Code was conceived of as a system to pursue ‘dangerous social acts’ which could harm the established socialist order60., the terminology in the Official Notes to Article 14 illustrating this. In such circumstances, a domestic prosecution for war crimes in 1944 would have required reference to international law, not only as regards the definition of such crimes, but also as regards the determination of any applicable limitation period.

However, international law in 1944 was silent on the subject. Previous international declarations61. on the responsibility for, and obligation to prosecute and punish, war crimes did not refer to any applicable limitation periods62.. While Article II(5) of the Control Council Law No. 10 addressed the issue as regards war crimes committed on German territory prior to and during the Second World War, neither the Charters of the IMT Nuremberg/Tokyo, nor the Genocide Convention 1948, the Geneva Conventions 1949 or the Nuremberg Principles contained any provisions concerning the prescriptibility of war crimes (as confirmed by the Preamble to the 1968 Convention).

The essential question to be determined by this Court is whether at any point prior to the applicant's prosecution, such action had become statute-barred by international law. It follows from the previous paragraph that in 1944 no limitation period was fixed by international law as regards the prosecution of war crimes. Neither have developments in international law since 1944 imposed any limitation period on the war crimes charges against the applicant63..

In sum, the Court concludes, firstly, that any prescription provisions in domestic law were not applicable (paragraph 230 above) and, secondly, that the charges against the applicant were never prescribed under international law (paragraph 232). It concludes that the prosecution of the applicant had not become statute-barred.

The applicant further maintained that he could not have foreseen that the impugned acts constituted war crimes, or have anticipated that he would be subsequently prosecuted.

In the first place, he underlined that in 1944 he was a young soldier in a combat situation behind enemy lines and detached from the above-described international developments, in which circumstances he could not have foreseen that the acts for which he was convicted could have constituted war crimes. Secondly, he argued that it was politically unforeseeable that he would be prosecuted: his conviction following the independence of Latvia in 1991 was a political exercise by the Latvian State rather than any real wish to fulfil international obligations to prosecute war criminals.

As to the first point, the Court considers that, in the context of a commanding officer and the laws and customs of war, the concepts of accessibility and foreseeability must be considered together.

The Court recalls that the scope of the concept of foreseeability depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed. Persons carrying on a professional activity must proceed with a high degree of caution when pursuing their occupation and can be expected to take special care in assessing the risks that such activity entails (Pessino v. France, no. 40403/02, § 33, 10 October 2006).

As to whether the qualification of the impugned acts as war crimes, based as it was on international law exclusively, could be considered to be sufficiently accessible and foreseeable to the applicant in 1944, the Court recalls that it has previously found that the individual criminal responsibility of a private soldier (a border guard) was defined with sufficient accessibility and foreseeability by, inter alia, a requirement to comply with international fundamental human rights instruments, which instruments did not, of themselves, give rise to individual criminal responsibility and one of which had not been ratified by the relevant State at the material time (K.-H.W. v. Germany, §§ 92–105, cited above). The Court considered that even a private soldier could not show total, blind obedience to orders which flagrantly infringed not only domestic law, but internationally recognised human rights, in particular the right to life, a supreme value in the international hierarchy of human rights (K.-H.W. v. Germany, at § 75).

It is true that the 1926 Criminal Code did not contain a reference to the international laws and customs of war (as in K.-H. W v. Germany) and that those international laws and customs were not formally published in the USSR or in the Latvian SSR (as in Korbely v. Hungary [GC], cited above, at §§ 74–75). However, this cannot be decisive. As is clear from the conclusions at paragraphs 213 and 227 above, international laws and customs of war were in 1944 sufficient, of themselves, to found individual criminal responsibility.

Moreover, the Court notes that in 1944 those laws constituted detailed lexspecialis regulations fixing the parameters of criminal conduct in a time of war, primarily addressed to armed forces and, especially, commanders. The present applicant was a Sergeant in the Soviet Army assigned to the reserve regiment of the Latvian Division: at the material time, he was a member of a commando unit and in command of a platoon whose primary activities were military sabotage and propaganda. Given his position as a commanding military officer, the Court is of the view that he could have been reasonably expected to take such special care in assessing the risks that the operation in Mazie Bati entailed. The Court considers that, having regard to the flagrantly unlawful nature of the ill-treatment and killing of the nine villagers in the established circumstances of the operation on 27 May 1944 (paragraphs 15–20 above), even the most cursory reflection by the applicant, would have indicated that, at the very least, the impugned acts risked being counter to the laws and customs of war as understood at that time and, notably, risked constituting war crimes for which, as commander, he could be held individually and criminally accountable.

For these reasons, the Court deems it reasonable to find that the applicant could have foreseen in 1944 that the impugned acts could be qualified as war crimes.

As to his second submission, the Court notes the declarations of independence of 1990 and 1991, the immediate accession by the new Republic of Latvia to various human rights instruments (including the 1968 Convention in 1992) and the subsequent insertion of Article 68-3 into the 1961 Criminal Code in 1993.

It recalls that it is legitimate and foreseeable for a successor State to bring criminal proceedings against persons who have committed crimes under a former regime and that successor courts cannot be criticised for applying and interpreting the legal provisions in force at the material time during the former regime, but in the light of the principles governing a State subject to the rule of law and having regard to the core principles on which the Convention system is built. It is especially the case when the matter at issue concerns the right to life, a supreme value in the Convention and international hierarchy of human rights and which right Contracting parties have a primary Convention obligation to protect. As well as the obligation on a State to prosecute drawn from the laws and customs of war, Article 2 of the Convention also enjoins the States to take appropriate steps to safeguard the lives of those within their jurisdiction and implies a primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences which endanger life (see Streletz, Kessler and Krenz, §§ 72 and 79–86, and K.-H.W. v. Germany, cited above, §§ 66 and 82–89). It is sufficient for present purposes to note that the above-cited principles are applicable to a change of regime of the nature which took place in Latvia following the declarations of independence of 1990 and 1991 (see paragraphs 27–29 and 210 above).

As to the applicant's reliance on the support of the Soviet authorities since 1944, the Court considers that this argument has no relevance to the legal question of whether it was foreseeable that the impugned acts of 1944 would constitute war crimes.

Accordingly, the applicant's prosecution (and later conviction) by the Republic of Latvia, based on international law in force at the time of the impugned acts and applied by its courts, cannot be considered unforeseeable.

In the light of all of the above considerations, the Court concludes that, at the time when they were committed, the applicant's acts constituted offences defined with sufficient accessibility and foreseeability by the laws and customs of war.