Kononov v Latvia  ECHR 667 (17 May 2010)
The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.
The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences. Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.
As a commanding officer in the Soviet Army in 1944, Mr Kononov and his unit brutally murdered nine Latvian villagers and burned down their houses and farm buildings. In 2004, the Latvian Criminal Affairs Division convicted Mr Kononov of offences contrary to Article 68-3 of the 1961 Criminal Code. This provision states:
Any person found guilty of a war crime as defined in the relevant legal conventions…shall be liable to life imprisonment or to imprisonment for between three and fifteen years.
The ‘relevant legal conventions’ are the Hague Convention 1907, the Geneva Convention (IV) 1949 and the Protocol Additional to that Convention 1977. Also relevant was Article 45-1 of the 1961 Code, which specifies that no statutory limitation applies to war crimes.
At the time of the offence, however, the applicable law was the 1926 Criminal Code of Soviet Russia. War crimes were not offences under that code, which also contained a 10 year statutory limitation for criminal prosecutions. Mr Kononov appealed on the basis that Articles 68-3 and 45-1 had been retrospectively applied to convict him, in violation of art 7 of the Convention. That article relevantly says:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
The majority of the Grand Chamber affirmed that the guarantee against retrospective criminal liability is ‘an essential element of the rule of law’ (at 185) and should be applied to protect against arbitrary conviction and punishment. Article 7 embodies the principles that a crime and its penalty can only be defined and prescribed by law, and that the criminal law should not be broadly construed against an accused. Article 7 therefore requires that the law clearly define an offence.
An offence will be clearly defined in law if it can be known from the wording of a provision (and judicial interpretation and legal advice) which acts or omissions attract criminal liability. A law can be written or unwritten, but must be accessible and foreseeable. Gradual clarification of the criminal law through judicial interpretation is not caught by art 7, as long as it is consistent with the essence of the offence and is reasonably foreseeable.
Turning to Mr Kononov’s case, the majority of the Grand Chamber said that Article 68-3 was based on international, not national law. It was therefore irrelevant that war crimes were not domestic offences at the time. After assessing the state of international law on 27 May 1944, the majority held that it provided a sufficiently clear legal basis to convict Mr Kononov for war crimes.
Furthermore, as Mr Kononov was a commanding military officer, it should have been foreseeable that his actions would constitute war crimes for which he could be criminally prosecuted. Interestingly, the majority held this despite noting that the relevant international laws and customs were not published in the USSR or the Latvian SSR at the time.
The majority also held that, as Mr Kononov was convicted under international law, the statutory limitation under the 1926 Criminal Code did not apply. At the time of the offence, international law did not prescribe a time limit for the prosecution of war crimes. Nor have subsequent developments introduced such limits. Therefore the conviction was not statute barred.
Accordingly, as Mr Kononov was convicted of an offence that was a crime under international law at the time it was committed, art 7 was not violated.
In a joint concurring opinion, four judges departed from the reasoning of the majority on the statutory limitation issue. They preferred to see it as a procedural issue relevant to fairness of proceedings and art 6 of the Convention, rather than art 7. They held that the belated conviction of Mr Kononov on the basis of laws existing at the time involved no question of retrospective application of substantive law.
It is questionable which is the better approach. On a literal reading, art 7 is concerned solely with whether an act or omission constituted an offence at the time it was committed. It is not concerned with whether prosecution of the offence was subsequently statute barred. However, as the majority pointed out, art 7 should be construed broadly to protect against arbitrary conviction and punishment. Therefore, it is arguable that the courts should read into it a prohibition on the arbitrary extension of time limits for criminal prosecution.
The dissenting opinion by three judges disagreed with the majority on the factual question as to whether international law at the time provided a sufficiently clear legal basis for Mr Kononov’s conviction. They also held that the prosecution was statute barred under the 1926 Criminal Code. The overriding of this limitation by Article 45-1 of the 1961 Criminal Code involved the retrospective application of the criminal law in contravention of art 7. As discussed above, it is debatable whether art7 should apply to time limits on prosecution.
Relevance to the Victorian Charter
The guarantee in art 7 is substantively the same as the protection against retrospective criminal laws in s 27 of the Victorian Charter. Specifically, s 27(1) says that a person ‘must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’. Section 27(4) says that the section does not affect acts or omissions that were criminal offences under international law at the time.
Kononov’s case adds to the jurisprudence on this fundamental protection. In particular, it should guide Australian courts in determining whether an act or offence was a criminal offence under international law at the time it was committed. The proper approach in such cases is firstly to determine whether an offence was clearly defined by international law at the time. It must then be assessed whether the law was sufficiently accessible and foreseeable. This will be satisfied if an accused could reasonably have been expected to know that their actions would make them criminally liable.
The decision is at www.bailii.org/eu/cases/ECHR/2010/667.html.
Marc Fauvrelle, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group