CONCURRING OPINION OF JUDGE MYJER

1. I am keenly aware that the outcome of this case will be emotional, not only for the applicant and for people who, like the applicant, have been members of Red Army commando and Partisan groups during the Second World War, but also for the descendants of the men and women who died on 27 May 1944 in Mazie Bati and more generally for those people who sincerely believed that the outcome of the domestic proceedings against the applicant was the right one. That is the reason why I have decided, exceptionally, to write a concurring opinion in which I hope to explain my own reasons for voting with the majority in this case. A judge should not normally express his private thoughts in relation to a judgment on which he has voted. In this exceptional case, however, I think that my comments may at least clarify that there are many ways of thinking behind the legal wording in which this Strasbourg judgment has been drafted.

2. When I first read the file in this case, my almost immediate reaction was that what happened in Mazie Bati on 27 May 1944 was atrocious. Imagine what would have been your own reaction if you witnessed the killing of your loved ones or fellow villagers. But I also felt that it could not be right for the applicant to be prosecuted for these events 54 years later. That seemed to me a flagrant injustice, unless he was actually wanted in connection with these events immediately after they occurred (or became public knowledge) and had managed to evade prosecution. But that was not the case. On the contrary, what happened that day seems to have been widely known and after the Second World War the applicant was actually decorated as a war hero for his activities as a Partisan. And even assuming that the events (and his part in them) were not known, he could only have been prosecuted if the offences of which he was suspected were not subject to statutory limitation – unless humanitarian international law demanded otherwise.

3. In that respect I was tempted at first to consider if – in the very specific circumstances of the case – the prosecution of the applicant was, per se , so unfair as to make the whole trial unfair. On second thoughts I agreed that the case should be dealt with under Article 7 alone. Thus I voted with my colleagues to declare inadmissible the complaints raised under Article 6 (admissibility decision of 20 September 2007).

I am convinced that the domestic proceedings were attended with the guarantees of Article 6. From the way the case was handled at the domestic level it appears that the national judges also had different views as to the legal consequences which should be drawn from the actual facts. Since these facts are very much linked to the legal questions which need answering in relation to Article 7, I agree with the general reasoning in the judgment as expressed in paragraphs 108-112.

4. In principle it is not the task of this Court to substitute its view for that of the domestic courts and tribunals. It is primarily for the national authorities, notably the courts, to establish the facts and to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or international agreements. The Court ' s 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 Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001 ‑ II ). Nevertheless, in a case like this where the facts and the interpretation of the domestic and international law are so interlinked, there is also reason to ascertain whether domestic and international law were applied in relation to these facts in a way that cannot be considered arbitrary. The Court has jurisdiction to review the circumstances complained of by an applicant in the light of the entirety of the Convention ' s requirements. In the performance of that task it is, notably, free to attribute to the facts of the case, as found to be established on the evidence before it, a characterisation in law different from that given by one of the parties or, if need be, to view the facts in a different manner (see Streletz , Kessler and Krenz , cited above, § 111).

5. To my knowledge this is the first case before this Court relating to events which took place during the Second World War in which the person on trial was not associated with the Nazis or their allies and collaborators, but was on the side of the Allied powers fighting the Nazis.

Article 6 of the Charter of the International Military Trial (Nuremberg) made it clear that “ The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries [should] have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. “

It then enumerated these crimes in the following terms:

“ The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private

property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

(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 domestic law of the country where perpetrated.

Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. ”

And although right from the beginning comments were made that the Nuremberg Trials should be considered no more than biased “victors ' justice”, because after the Second World War war crimes and crimes against humanity committed by the Allies were never tried at the (inter)national level, that – as far as I am aware – was intended to put an end to the matter: the Nuremberg trials and the subsequent trials of the Nazis and their henchmen at the international and national level were to be the final “judicial settlement” under criminal law of what had happened during the Second World War. After that, all States could start with a clean slate.

6. In that respect this case differs from cases like, for instance, Papon v. France . People like Papon were Nazi collaborators and had no right to complain about the fact that they were tried for war crimes or crimes against humanity many years after the end of the Second World War. In the admissibility decision of 15 November 2001, Papon ' s complaint of a violation of Article 7 § 2 was declared inadmissible on the following grounds:

“ ... The Court points out that paragraph 2 of the above-mentioned Article 7 expressly provides that that Article must not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. This is true of crimes against humanity, in respect of which the rule that they cannot be time-barred was laid down by the Statute of the Nuremberg International Tribunal annexed to the Inter-Allied Agreement of 8 August 1945 and a French law of 26 December 1964, referring expressly to that agreement when providing that the prosecution of crimes against humanity cannot be time-barred (see Touvier v. France , no. 29420/95, Commission decision of 13 January 1997, Decisions and Reports (DR) 88-B, pp. 148, 161). '

7. The case therefore also differs from cases concerning people tried for crimes against humanity or war crimes committed after the Second World War and the Nuremberg trials. No person who committed crimes against humanity or war crimes after Nuremberg could reasonably say that he was not aware of the nature of his acts. I refer in that respect also to the reasoning of this Court in the admissibility decision of 4 January 2006 in the case of Penart v. Estonia , no. 14685/04:

“ ... Although the Nuremberg Tribunal was established for trying the major war criminals of the European Axis countries for the offences they had committed before or during the Second World War, the Court notes that the universal validity of the principles concerning crimes against humanity was subsequently confirmed by, inter alia , Resolution No. 95 of the General Assembly of the United Nations Organisation (11 December 1946) and later by the International Law Commission. Accordingly, responsibility for crimes against humanity cannot be limited only to the nationals of certain countries and solely to acts committed within the specific time frame of the Second World War. In this context the Court would emphasise that it is expressly stated in Article I (b) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity that no statutory limitations shall apply to crimes against humanity, irrespective of the date of their commission and whether committed in time of war or in time of peace . ...”

8. I note that the Latvian Government admitted (see paragraph 92) that the Kononov trial can be considered as a kind of belated victor ' s justice as well and that trials of this kind “helped to make up for the inadequacies of the Nuremberg trial.” I will however refrain from commenting on that specious argument.

9. Before elaborating on some of these points, I must explain that my perception is somehow tainted by my own national background. I was born in the Netherlands just after the Second World War and grew up with the perception that the Nazis and their collaborators were entirely in the wrong and those who fought against the Nazis (including members of resistance groups) were completely in the right. Whatever acts the resistance groups had committed against the occupying German forces or against Netherlands nationals who had collaborated with them, it had always been for the right cause. If resistance groups had silenced collaborators who had informed on Jews or persons in hiding, they had done the right thing. And in the event that, after the war, a person who had been a member of a resistance group was found guilty of a crime committed during the war, it certainly had nothing to do with his or her underground work, but only with the settling of personal scores or with ordinary crime.

As far as I know, there were no instances in the Netherlands in the Second World War of occupying forces supplying weapons to Netherlands “citizens” who feared reprisals from resistance groups.

10. I am convinced that during the Second World War the situation in Latvia was more complicated than in the Netherlands . Without having to take a stand on the “double occupation ” view point of the Latvian Government, what is clear is that in 1940 Latvia was incorporated into the USSR , and that on 22 June 1941 Nazi Germany launched its attack against the USSR and in that context occupied Latvian territory in order to incorporate Latvia into the German Reich. The occupation of Latvia was effected on 5 July 1941. Later on the Red Army tried to reconquer the territory lost by the USSR . On the occupied territory of Latvia itself, acts of sabotage against the Germans were performed by special Red Army commandos and Red Partisans.

I must admit that for a moment I did consider the possibility that there might have been a difference between the behaviour of the German occupiers in countries like Latvia and their behaviour elsewhere, if it could be assumed that, unlike in other occupied countries, they did not commit war crimes or crimes against humanity in Latvia . If that had been the case then some inhabitants of Latvia might have been forgiven for finding it legitimate to collaborate with these occupying forces. However, having read the chapter ' The aggressive war against the Union of Soviet Social ist Republics ' in the j udgment of the International Military Tribunal for the Trial of German Major War Criminals (the Nuremberg judgment, 1 October 1946) and additional information on the mass killings of especially men, women and children of Jewish or Roma descent which took place in Latvia during the German occupation, I am fully convinced that this was not at all the case. In that respect I agree with the reasoning in the judgment (paragraph 130) that there was no justification for a pro-Nazi attitude or active collaboration with the Nazis in Latvia either.

11. The applicant Kononov – who was born in Latvia and lived there until the German occupation – was a member of one of the special USSR commando groups.

In February 1944 a Partisan group under the command of one Major Chugunov stayed in the village of Mazie Bati . According to the judgment of 30 April 2004 of the criminal chamber of the Latvian Supreme Court, one of the villagers of Mazie Bati gave them away to the Germans, who then murdered them. According to the applicant many more villagers were involved in this act of treachery. Be that as it may, after these events the Germans provided a certain number of villagers with a rifle, ammunition and two grenades. Another group of Partisans were sent to Mazie Bati under the command of the applicant. On 27 May 1944 they entered the village, searched several houses and killed the men and women – including a pregnant woman – in whose house weapons provided by the Germans were found.

12. I have no doubt that – with hindsight – the killing of the men and women on 27 May 1944 in Mazie Bati can be considered a criminal act. Understandable as it may seem that the Partisans wanted to take revenge for the betrayal and subsequent massacre of their fellow Partisans – or even wanted to set an example to other Latvian villages who might otherwise be willing to collaborate with the occupying German forces – they should not have resorted to an “eye for an eye” approach and should have chosen other means. Even in a situation of war, and even allowing for the difficulties facing a Partisan group having to take collaborators prisoner and transport them to a safe place to stand trial, they ought not to have killed these people on the spot. Besides, some of the killings were particularly gruesome. And although the applicant was not found guilty by the Latvian courts of having carried out the killings himself, since the acts happened under his command he seems to have borne responsibility as the field commander in charge of events.

13. Should the applicant at that time have been aware that what he did was criminal?

I am a little bit more hesitant to answer that in the affirmative. As I pointed out above, it is understandable that the Partisans did not want the betrayal and massacre of their fellow Partisans to remain unpunished. It is also clear from the facts that Kononov ' s commandos only reacted against those villagers in whose homes weapons supplied by the Germans had been found – a fact which made it altogether reasonable to consider them as collaborators. And yes, as a member of the Partisans – someone who must be considered a combatant – he should have been aware of the applicable jus in bello rules, as is explained in paragraph 121 of the judgment. One of these rules expressly requires the rights of the civilian population, which is not engaged in the hostilities itself, to be respected. But what if one has strong reasons to believe that certain civilians have actively collaborated with the enemy to such an extent that they have betrayed fellow Partisans and thus caused their cruel deaths? And what if these civilians – who, what is more, are one ' s own compatriots – are armed by the selfsame enemy one is fighting as a Partisan? Are they still entitled to the same level of protection as real non-combatants? Or can they be equated with the enemy itself, that is, considered enemy combatants? To carry this argument further, can the applicant still argue, as he did, that the villagers were not the enemy but his compatriots? Are there acceptable, or indeed common-sense answers to these questions? With some hesitation I come to the conclusion that – whatever the status of the villagers who had betrayed the first Partisan group and who had accepted weapons from the German occupying forces – the applicant should have been aware that, even in the very specific circumstances of the case, the reprisals and the way they were performed could not be justified.

14. Can what happened in Mazie Bati be seen as a crime against humanity or a war crime, and if so, does that imply that the Latvian authorities were right to prosecute the applicant as late as 54 years after the events? In this respect, I wish to emphasise that not all crimes committed during the war can be considered war crimes. The reasons for committing specific crimes and the scale on which this happened are relevant considerations.

In this connection , I accept that, as was pointed out in the judgment, in 1944 the only pertinent positive international law was constituted by the Hague Conventions of 1899 and 1907. The Nuremberg trials took place after these events. Later on new conventions on international humanitarian law were adopted (the 1949 Geneva Conventions and the Protocol of 1977). The most recent development is the establishment of international criminal tribunals, special ones – the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda , the Special Court for Sierra Leone – and more recently a general one, the International Criminal Court. There can be no clearer affirmation that the most serious crimes concern humanity as a whole and must not go unpunished. But all that came later. Although the Nuremberg judgment referred to the same Hague Conventions to reach its conclusions that the Nazis and their allies who stood trial before it had committed war crimes, it was that trial which for the first time made it clear to the outside world that anyone who might commit similar crimes in future could be held personally responsible.

15. With the majority I am of the opinion that what happened in Mazie Bati on 27 May 1944, both according to international standards then applicable and according to domestic standards, cannot be seen as a crime for which no statutory limitation should apply. Accordingly, in my opinion Article 7 was violated.

16. In the circumstances of the case I consider the amount of compensation afforded by the Court quite equitable.