Violation of Art. 7;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele

The applicant was born in DATE in the municipality of PERSON ( district of GPE , GPE ) . He held NORP nationality until DATE , when he was granted NORP nationality by a special decree issued by the President of GPE , PERSON .

On DATE NORP GPE attacked GPE , of which NORP territory formed a part . The lightning advance of ORG ( ORG ) forced ORG to leave the NORP region and withdraw towards GPE . The applicant , who was living near the border at the time , followed . By DATE the whole of GPE had been overrun by the Wehrmacht . The CARDINAL GPE and part of GPE were joined to form a vast territory administered by ORG for LOC ( FAC ) , which took orders directly from GPE .

After arriving in GPE the applicant initially found work on a collective farm ( kolkhoze ) . He was subsequently employed as a metal turner in a factory that manufactured military equipment . In DATE he was called up as a soldier in GPE and assigned to the reserve regiment of ORG . DATE he received special training in sabotage operations ( подрывники in NORP ) , during which he learnt how to organise and lead commando raids behind enemy lines . After completing his training he was immediately promoted to the rank of sergeant . Shortly afterwards , on TIME DATE he and CARDINAL fellow combatants were parachuted into GPE territory , which was then under NORP occupation , near the NORP border and thus to the area where he was born .

After landing , the applicant joined a NORP commando unit ( composed of members of the “ Red Partisans ” ) called the “ LOC ” after its leader . In DATE he was put in command of a platoon by his CARDINAL immediate superiors , whose primary objectives according to the applicant were as follows : to sabotage military installations , communication lines and NORP supply points , to derail trains and to spread political propaganda among the local population . The applicant claimed to have derailed CARDINAL military trains and caused NORP military targets to be blown up .

On DATE the Red Partisans attacked the village of PERSON ( municipality of PERSON , district of GPE ) , which at the time was QUANTITY from the front .

The events of CARDINAL DATE , as established by the public prosecutor 's office and the NORP courts , and acknowledged by the respondent Government may be summarised as follows .

In DATE ORG discovered and wiped out a group of ORG led by Major PERSON who were hiding in a barn in the village of PERSON . The applicant and his unit immediately suspected the villagers of having spied for the NORP and of having turned PERSON 's men in to the enemy . It was then decided to take reprisals against the inhabitants of PERSON .

Meanwhile , in constant fear of an attack by ORG , the male inhabitants of PERSON who up to then had not carried weapons – sought assistance from the NORP military administration , which ultimately provided every man with a rifle and CARDINAL grenades “ for his own protection ” .

On DATE the applicant and his men , who were armed and wearing NORP uniforms to avoid arousing suspicion , entered the village where the inhabitants were preparing to celebrate GPE . The commando unit split up into a number of small groups each of which attacked a house on the applicant 's orders . Several Partisans burst into the home of a farmer , PERSON , seized weapons they found there and ordered him out into the yard . When he pleaded with them not to kill him in front of his children , they ordered him to run towards the forest before opening fire when he did so . GPE was left , seriously wounded , on the edge of the forest , where he died TIME from a massive haemorrhage . Although the surviving villagers heard his screams and groans , they were too afraid to go to his aid .

CARDINAL other groups of Red Partisans attacked the homes of CARDINAL other farmers , PERSON and PERSON . PERSON was seized in his bath and savagely beaten . The Partisans took the weapons they had found in the CARDINAL villagers ' homes to GPE NORP ' house . There they fired several rounds of bullets at GPE , PERSON and GPE ' mother . According to the initial findings of fact by the prosecutor 's office and the first - instance court , it was the applicant himself who killed PERSON . However , he was subsequently acquitted in relation to that incident ( see paragraph CARDINAL below ) . PERSON and his mother were seriously injured . The Partisans then doused the house and all the farm buildings ( including the barn and stable ) with petrol and set them alight . GPE ' wife , who was DATE pregnant , managed to escape , but was seized by the Partisans and pushed through a window of the house into the flames . The following morning the surviving villagers found the charred remains of the CARDINAL victims . PERSON ' body was identified by the badly burnt skeleton of the baby lying next to her .

A fourth group of NORP burst into PERSON home , where they found him on his bed with his DATE son . After finding a rifle and CARDINAL grenades hidden in a cupboard , they ordered PERSON – who was still in his underwear – to go out into the yard . They then bolted the door from the outside to prevent his wife following him , took him to a remote corner of the yard and shot him dead .

A fifth group attacked the home of PERSON . After finding and seizing a rifle and CARDINAL grenades , the Partisans took him out to the barn , where they executed him .

Lastly , a sixth group attacked PERSON home , seizing the weapons they found there . They then proceeded to kill Mr PERSON , wound his wife and set all the farm buildings on fire . Mr PERSON ' wife burnt to death in the fire with her dead husband lying beside her . According to the initial domestic decisions , it was the applicant himself who killed PERSON . However , he was later acquitted of that charge ( see paragraph CARDINAL below ) .

According to the prosecution 's initial findings of fact , the Partisans pillaged the village before leaving and made off with clothes and food , in addition to the weapons . In particular , before leaving PERSON house they stole a tub of butter and a roll of material . This factual finding did not , however , appear in either the final judgment on the merits or the final judgment on the appeal on points of law , both of which refer only to the seizure of the weapons found in the villagers ' homes .

The applicant contests the factual findings of the domestic courts . In his estimation , all the victims of the attack were collaborators and traitors who had delivered Major PERSON 's platoon into the hands of the NORP in DATE by ruse , while PERSON and PERSON were PERSON ( members of the NORP auxiliary police force ) . In DATE PERSON 's group of Partisans – comprising CARDINAL men , QUANTITY women and a small child – had taken refuge in GPE ' barn . CARDINAL women ( GPE ' mother and wife and PERSON wife ) brought them provisions and assured them that the Wehrmacht was some distance away . However , while the women kept watch , PERSON sent GPE to alert a NORP garrison stationed in the neighbouring village . On arriving in GPE , the NORP soldiers had machine - gunned the barn with incendiary bullets causing it to catch fire . Any member of PERSON 's group , including the women and the child , who tried to escape was shot dead . After the carnage , GPE ' mother had removed the coats from the bodies . For its part , the NORP military command had rewarded the villagers concerned with firewood , sugar , alcohol and a sum of money .

DATE before the events of DATE , the applicant and all the men in his platoon had received a summons from their commanding officer . He had informed them that an ad hoc military court composed of members of the detachment had delivered judgment against the inhabitants of PERSON allegedly implicated in the betrayal of PERSON 's men and that their platoon was required to execute the order . More specifically , they were required to “ bring the CARDINAL Schutzmänner from PERSON to stand trial ” . The applicant had refused to lead the operation as the villagers had known him since childhood and he feared for the safety of his parents , who lived in the neighbouring village . The commanding officer had bowed to his wishes and assigned the mission to another Partisan . In the events that had followed , it was that other DATE not the applicant – who had given the orders .

On DATE the applicant had followed the men from his unit , but had not entered the village . He had hidden behind a bush from which he could see PERSON house . Shortly afterwards he had heard cries and gunfire and seen plumes of smoke . CARDINAL , the Partisans had returned alone . CARDINAL had been wounded in the arm ; another was carrying CARDINAL rifles , CARDINAL grenades and a large quantity of cartridges . All the weapons and munitions had been seized in the villagers ' homes . The applicant 's men told him that they had not been able to carry out their mission as the villagers had “ fled while firing at them and the NORP had arrived ” . In his submissions to the ORG , the applicant denied that his comrades had pillaged ORG . On returning to base , the Partisans had been severely reprimanded by the commanding officer for failing to capture the wanted persons .

Documents furnished by the ORG from ORG ( Latvijas NORP vēstures arhīvs ) provides the following information on the regime set up by the occupying NORP administration during the relevant period .

By a notice published in the newspapers on DATE , the PERSON for GPE , PERSON , ordered all citizens to surrender any firearms and munitions in their possession to the authorities within TIME . The notice reappeared on DATE and CARDINAL DATE . Members of the NORP auxiliary police were , however , permitted to carry firearms .

Subsequently , as the front drew closer to NORP territory and the number of ORG in the border regions increased , the rules concerning the possession and carrying of firearms were relaxed . In a letter of CARDINAL DATE to ORG , the Director of the ORG stated that the village of PERSON was within the jurisdiction of police station no . CARDINAL in the district of GPE at the relevant time . Since the records from that police station had been lost or destroyed , there was no documentary evidence available to give a precise explanation for the NORP ' decision to arm the villagers of PERSON . However , the archives did contain a written order from the local commanding officer of the NORP auxiliary police to the officer in charge at police station no . CARDINAL in the same district concerning the village of ORG ( which was QUANTITY from GPE ) . This document , dated DATE , reads as follows :

“ In order to protect the population from attacks by pillaging bandits , I order you to set up a defence unit in the village of ORG ( in the municipality of Cibla ) composed of CARDINAL trustworthy local men . Those selected will receive rifles and the necessary quantity of munitions . A local aizsargs [ member of ORG ] will take command of the defence unit . The selected men will be required to gather TIME to mount guard and keep watch .

Report to me by DATE on the execution of [ this order ] . ”

Further , in a letter dated DATE the same commanding officer instructed the mayors of CARDINAL municipalities ( including Cibla ) to select a person of trust from the inhabitants of each village who would be responsible for the surveillance of strangers or suspicious individuals and informing the mayor or police where necessary . The letter stated that these measures were intended to counteract the acts of “ bandits ” ( by which was meant ORG ) .

In DATE ORG entered GPE . On DATE it laid siege to and took GPE . On DATE the last NORP divisions surrendered and the entire NORP territory passed into the control of ORG .

The applicant remained in GPE after the war ended . He was decorated for his military exploits with the Order of PERSON , the highest distinction awarded in the GPE . In DATE he joined ORG of GPE . In DATE he graduated from the GPE Interior Ministry Academy . Subsequently , and until his retirement in DATE , he worked as an officer in various branches of the NORP police force .

On CARDINAL DATE ORG NORP GPE adopted the Declaration on the Restoration of Independence , which declared GPE 's incorporation into the GPE unlawful and null and void and restored force of law to the fundamental provisions of LAW . After CARDINAL unsuccessful coups d'état , on CARDINAL DATE ORG passed LAW on GPE proclaiming full independence with immediate effect .

By a law passed on DATE , ORG inserted into the special section of the former Criminal Code then in force a new LAW , which contained provisions criminalising acts such as genocide , crimes against humanity or peace , war crimes and racial discrimination . A new LAW dealt with war crimes , which carried sentences of CARDINAL imprisonment or life imprisonment . The same law also inserted an LAW into the Code permitting the retrospective application of the criminal law with respect to crimes against humanity and war crimes and an LAW , which exempted such offences from statutory limitation .

In DATE ORG ( PERSON seku dokumentēšanas centrs ) , an affiliate of ORG ( ORG aizsardzības birojs ) , launched a criminal investigation into the events of DATE . It considered that the applicant could have committed an offence under LAW of the former LAW . On DATE the investigation file was sent to ORG ) .

In a decision of CARDINAL DATE , ORG charged the applicant with war crimes . On DATE the applicant was brought before ORG of First Instance , which ordered his detention pending trial .

On DATE the prosecution announced that it had completed its investigation and served the papers on the applicant and his lawyer . On DATE the applicant completed his examination of the documents in the investigation file . The following day the prosecution drew up the final bill of indictment ( apsūdzības raksts ) and forwarded the file to ORG , which would sit as the court of trial . According to the bill of indictment , the prosecution had also identified most of the other former Partisans who had taken part in the Mazie Bati operation . However , they had all died in the interim .

The substance of the charges was examined by ORG at a hearing on DATE at which the applicant pleaded not guilty . He repeated his account of the events of CARDINAL DATE , stressing in particular that all the victims of the attack , including PERSON pregnant wife , had been armed ORG . He denied any personal involvement in the events . As to the various documents , press articles and post - war works that attested to the contrary , he maintained that he had knowingly allowed the historical facts to be distorted for his own personal glory and in order to gain certain benefits . However , ORG found that the file contained ample evidence of his guilt , namely :

( a ) The depositions of CARDINAL children of the villagers killed by ORG on DATE . CARDINAL of these children were direct eye witnesses who had seen their parents killed . The other CARDINAL had been in the neighbouring village at the time or too young to understand what was happening . However , they recalled accounts of the events related by members of their families .

( b ) The depositions of CARDINAL witnesses , including CARDINAL direct eye witnesses .

( c ) ORG post - war records drawn up and signed by the applicant in person in which his account of the events in PERSON exactly matched the facts as reconstructed by the prosecution . In particular , he had expressly admitted shooting PERSON dead and burning CARDINAL people alive .

( d ) Various records signed by the applicant 's commanding officers , which gave a like account .

( e ) A handwritten exercise book seized at the applicant 's home containing the outline of an autobiographical work he had planned to write . The description it contained of the attack on DATE was generally consistent with the facts as established by the prosecution .

( f ) Various historical and encyclopaedic works , together with press articles and verbal accounts by the applicant which had been published in NORP newspapers in DATE .

( g ) Depositions by the author of CARDINAL of the aforementioned articles attesting to the fact that the description given in his article was based on the applicant 's own account .

( h ) Various documents from ORG containing information on the villagers from PERSON , and on the actions and decisions of the NORP military administration at the material time .

( i ) Depositions by a woman who had worked as a radio operator for the applicant 's unit during the war .

On the basis of all this evidence , ORG concluded that the applicant had perpetrated acts that were prohibited by LAW DATE , LAW of DATE concerning the laws and customs of war on land , and LAW of DATE relative to ORG in Time of War . Consequently , it found him guilty of the offence set out in LAW of the former LAW and imposed an immediate DATE custodial sentence . Both the applicant and the prosecution appealed against that judgment to ORG of ORG ..

In a judgment of DATE , ORG quashed the impugned judgment and returned the case file to ORG with instructions to make additional inquiries . It stated in its judgment that there were lacunae in ORG reasoning . In particular , ORG had failed to deal clearly with questions that were decisive to the outcome of the case . Thus , issues such as whether PERSON

The prosecution appealed on points of law against the judgment of ORG . In a judgment of DATE , the ORG Senate dismissed that appeal , although it amended the reasons that had been given by ORG for referring the case for further investigation . In particular , it ruled that ORG direction that specialist advice should have been taken on international law was unfounded as expert evidence could not be sought on questions of pure law , which were solely for the courts to decide .

On DATE the applicant was again charged with an offence under LAW of the former LAW after a fresh preliminary investigation by ORG . The ORG Senate designated ORG as the court of first instance .

The substance of the charge against the applicant was examined by ORG on DATE . In a judgment delivered at DATE hearing , ORG acquitted the applicant of war crimes , but found him guilty of banditry , an offence under LAW carrying a sentence of DATE imprisonment .

After analysing the situation in which GPE had found itself as a result of the events in DATE and the NORP invasion , ORG concluded that the applicant could under no circumstances be equated to a “ representative of the occupying forces ” . On the contrary , he had fought for the liberation of the country against the occupying forces of NORP GPE . As GPE had been incorporated into the GPE , the applicant 's conduct had to be considered in the light of NORP law . In addition , he could not reasonably have foreseen that he would DATE be classified as a “ representative of the NORP occupation forces ” . With regard to the Mazie Bati operation , ORG accepted that the villagers had collaborated with the NORP military administration and handed over PERSON 's group of ORG 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 . ORG also accepted that the deaths of the CARDINAL men from PERSON 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 CARDINAL women or the burning down of the village buildings . Consequently , as they had not confined themselves to executing the ad hoc military court 's judgment , but had acted beyond their authority , both the applicant and his men had committed an act of banditry for which they bore full responsibility . Furthermore , as the commanding officer , the applicant was responsible for acts committed by his unit . However , since banditry did not fall into the category of offences exempt from statutory limitation , ORG relieved the applicant of criminal liability on the ground that the prosecution of the offence was statute barred .

Both parties appealed against that judgment to ORG of ORG . Relying , inter alia , on LAW , the applicant sought a full acquittal , arguing that the law had been applied against him retrospectively . The prosecution submitted that ORG had made a number of serious errors of fact and law . In its view , ORG had completely neglected the fact that GPE 's incorporation into the GPE was contrary to LAW of DATE and to international law and therefore unlawful and that GPE had continued to exist de jure . Accordingly , the applicant 's conduct in DATE could and should have been analysed under NORP and international law , rather than NORP law . Further , the prosecution criticised ORG assessment of the evidence in the case . In its view , the court had relied on a series of assertions by the applicant that were unsupported by any evidence . This was true of the claims that the villagers from ORG were armed collaborators of the NORP administration who had helped the Wehrmacht to wipe out PERSON 's Partisans ; that a “ court ” had been set up within the applicant 's detachment ; and that the real purpose of the Mazie Bati operation was not the summary execution of the villagers , but their arrest so they could be brought to trial . In the prosecution 's submission , the evidence it had assembled tended to indicate the opposite . The prosecution complained that ORG had accepted the applicant 's depositions blindly without analysing the file as a whole .

In a judgment of DATE , ORG allowed the prosecution 's appeal , quashed the impugned judgment and found the applicant guilty of the offence under LAW of the former LAW . After reviewing the evidence referred to in the judgment of DATE ( see paragraph CARDINAL above ) , it noted :

“ ... Thus , PERSON and the Partisans from the special group he commanded stole the weapons that had been delivered to enable the villagers to defend themselves and killed CARDINAL civilians from the village , burning QUANTITY of them – including QUANTITY women , one in the final stages of pregnancy – alive in the process . They also burnt down CARDINAL farms .

By attacking those CARDINAL civilians from the village of PERSON , who had not taken part in the fighting , by stealing their weapons and killing them , PERSON and the NORP under his command ... committed an appalling violation of the laws and customs of war as set out in :

– point ( b ) of the first paragraph of LAW of [ DATE concerning the laws and customs of war on land , which is binding on all civilised nations and forbids the treacherous killing or wounding of members of the civil population ; LAW [ of LAW ] , which prohibits attacks by whatever means of villages , dwellings or buildings which are undefended ; and the first paragraph of LAW [ of LAW ] , which lays down that family honour and rights , and the lives of persons and private property must be respected .

– Article CARDINAL § CARDINAL , point ( a ) , of LAW of DATE relative to ORG in Time of War ... , which lays down that persons taking no active part in the hostilities must not be subjected to violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ; point ( d ) [ of the same paragraph ] , which provides ... that the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court , affording all the judicial guarantees which are recognized as indispensable by civilized peoples is prohibited ; Article CARDINAL , which prohibits murder , torture and all other brutality against protected persons ; and Article CARDINAL , which provides that no protected person may be punished for an offence he or she has not personally committed and prohibits collective penalties , and all measures of intimidation , pillage and reprisals against protected persons and their property .

– Article CARDINAL § CARDINAL of LAW to the [ aforementioned ] Convention and relating to ORG adopted on DATE ... , which lays down that the civilian population as such , as well as individual civilians , shall not be the object of attack and prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population ; § CARDINAL , point ( a ) , [ of the same Article ] , which prohibits indiscriminate attacks not directed at a specific military objective ; § CARDINAL [ of the same Article ] , which prohibits attacks against the civilian population or civilians by way of reprisals ; LAW , point ( a ) ... , which prohibits violence to the life , health , or physical or mental well - being of persons , in particular , murder , torture of all kinds , whether physical or mental , and mutilation ; and point ( d ) [ of the same paragraph ] , which prohibits collective punishments .

By acting with particular cruelty and brutality and burning a pregnant villager alive ... , PERSON and his Partisans openly flouted the laws and customs of war set out in the first paragraph of LAW ... , which lays down that expectant mothers shall be the object of particular protection and respect .

Likewise , by burning down the [ dwelling ] houses and other buildings belonging to the villagers ... PERSON and PERSON , PERSON and his Partisans contravened the provisions of LAW , which prohibits the destruction of real property except where such destruction is rendered absolutely necessary by military operations and LAW ... which lays down that civilian property must not be the object of attack or reprisals .

In the light of the foregoing , the acts perpetrated by PERSON and his men must be classified as war crimes within the meaning of the second paragraph , point ( b ) , of LAW for GPE , which lays down that the murder or torture of civilians in occupied territory , the plunder of private property , the wanton destruction of villages , or devastation that is not justified by military necessity constitute violations of the laws or customs of war , that is to say war crimes .

The acts perpetrated by PERSON and his Partisans must also be classified as ' grave breaches ' within the meaning of LAW ...

Consequently ... , PERSON is guilty of the offence under LAW ...

The material in the case file shows that after the war , the surviving members of the families of the [ people ] killed were ruthlessly persecuted and subjected to reprisals . Following the restoration of NORP independence , all those killed were rehabilitated . It was stated in their rehabilitation certificates that they [ had ] not committed ' crimes against peace [ or ] humanity , criminal offences ... or taken part ... in political repression ... by the NORP regime ' ...

PERSON must be regarded as being subject [ to the provision governing ] the war crime [ in question ] , in accordance with LAW to LAW ... , which provides that combatants , that is to say , those who have the right to participate directly in hostilities , are the members of the armed forces of a ORG to a conflict .

During the Second World War , PERSON was a member of the armed forces of a belligerent party , [ namely ] the GPE , and played an active part in military operations it had organised .

PERSON was sent on a special mission to GPE with clear orders to fight behind enemy lines [ and ] to organise explosions there .

The platoon led by PERSON can not be regarded as a group of volunteers because it was organised and led by the armed forces of CARDINAL of the belligerent parties ( the GPE ) ; this is confirmed by the material in the case file . Similarly , at the time the crime of which he is accused was committed , PERSON was also acting as a combatant , leading an armed group which had the right to take part in military operations as an integral part of the armed forces of a belligerent party . ...

PERSON fought on NORP territory occupied by the GPE and neither the fact that there was at that time dual occupation ( GPE being the other occupying power ) , nor the fact that the GPE was part of the anti - PERSON coalition , affects his status as a war criminal ...

ORG considers that all the villagers killed at PERSON must be regarded as civilians within the meaning of Article CARDINAL of LAW ... and the provisions of international law .

By virtue of LAW to LAW ... , a civilian is defined as any person who does not belong to one of the categories of persons referred to in LAW or Article CARDINAL(A ) of the Convention .

The attributes described in the aforementioned ORG , which are specific to [ certain ] categories of people and exclude them from the definition of civilians , did not apply to the villagers who were killed .

The fact that they had obtained weapons and munitions did not make them combatants and does not attest to any intention on their part to carry out any military operation .

It has been established ... that PERSON 's group of NORP was wiped out by a NORP military detachment , this is also confirmed by reconnaissance headquarters ' records ...

The case file does not contain any evidence to show that the villagers took part in that operation .

The fact that ORG GPE may have informed the NORP of the presence of Partisans in his barn did not exclude him from the category of ' civilians ' .

Mr GPE lived on territory occupied by GPE and there is no doubt that the presence of Partisans on his farm in wartime constituted a danger to both him and his family .

The fact that the villagers had weapons in their homes and [ regularly ] kept watch at TIME does not signify that they were taking part in military operations , but attests to a genuine fear of attack .

All citizens , whether in wartime or peacetime , have the right to defend themselves and their families if their lives are in danger .

The case file shows that ORG , PERSON 's group included , used violence against civilians ; thus causing the civilian population to fear for its safety .

The victim [ PERSON ] gave evidence that the Red Partisans pillaged houses and often took food supplies .

The criminal conduct of the NORP was noted in the reports of commanding officers [ S. ] and [ Č. ] , which indicate that the Red Partisans pillaged and murdered and committed other crimes against the local population . Many people had the impression that they were not really engaged in combat but in foraying . ...

The case file shows that of the villagers who were killed at Mazie Bati in DATE and DATE [ only ] PERSON and [ his wife ] were members of ORG ( aizsargi ) . The archives do not contain any information to show that any of the other victims had participated in the activities of that or any other organisation ...

ORG considers that the fact that the aforementioned persons participated in the activities of ORG does not enable them to be classified as combatants , as they have not been found ... to have taken part in military operations organised by the armed forces of a belligerent party .

It has been established ... that no NORP military formation was in the village of PERSON and that the villagers were not performing any military duty , but , [ on the contrary ] , were farmers .

At the time of the events [ in issue ] , they were at home and preparing to celebrate GPE . Among the dead were not only men ( who were armed ) but also women , CARDINAL of whom was in the final stages of pregnancy and thus entitled to special ... protection under LAW .

In classifying those who were killed as civilians , ORG is in no doubt about their status ; however , even supposing it were , LAW to LAW states that in case of doubt everyone shall be considered to be a civilian .

Since GPE has not acceded to LAW of DATE , the provisions of that instrument can not serve as a basis for [ finding ] a violation .

War crimes are prohibited and all countries are required to convict anyone guilty of them because such crimes are an integral part of international law , irrespective of whether the parties to the conflict were parties to international treaties . ... ”

For the aforesaid reasons ORG found that the applicant 's conduct on DATE constituted a war crime , within the meaning of Article CARDINAL of the former LAW . However , it excluded from the grounds for the charge CARDINAL allegations that had been made but not proved to the requisite standard by the prosecution , namely the alleged murders of PERSON and PERSON by the applicant ( see paragraphs CARDINAL and CARDINAL above ) and the torture to which he was alleged to have subjected the villagers . After finding the applicant guilty of a serious offence and noting that he was now aged , infirm and harmless , ORG imposed an immediate custodial sentence of DATE and DATE , which the applicant was deemed to have served as he had spent longer than that in pre - trial detention .

The applicant appealed on points of law to the ORG Senate , which dismissed his appeal in a judgment of DATE in the following terms :

“ ... In finding that PERSON was a combatant and had committed the offence in question on the territory occupied by the GPE , ORG based its judgment on the decisions of the higher representative bodies of GPE , on the relevant international conventions and on other evidence , taken as a whole , which had been verified and assessed in accordance with the rules of criminal procedure .

In the declaration by ORG ... on DATE on the restoration of the independence of GPE , it was acknowledged that the ultimatum delivered on DATE to ORG by the former NORP GPE should be regarded as an international crime , as GPE was occupied and its sovereign power abolished as a result . [ However ] GPE continued to exist as a subject of international law , as was recognised by CARDINAL GPE worldwide ...

After analysing the merits of the judgment , the ORG ... considers that , to the extent that ORG found that GPE came within the scope of LAW of LAW , ... his acts were correctly characterised , as , in his capacity as a belligerent and combatant on NORP territory occupied by the GPE , he has violated the laws and customs of war , in that he planned and directed a military operation aimed at taking reprisals against civilians , namely peaceable inhabitants of the village of GPE , CARDINAL of whom were killed ... [ and ] whose property was stolen [ or ] burnt .

As the court of appeal ( rightly ) noted , neither the fact that NORP territory was subjected to CARDINAL successive occupations in the Second World War by two States ( one of which was GPE ; a ' dual occupation ' in the words of the court of appeal ) , nor the fact that the GPE was a member of an anti - PERSON coalition , changed PERSON GPE 's status as a person guilty of a war crime .

As regards the allegation ... that , by finding PERSON guilty of the war crime in question the court [ of appeal ] violated the provisions of LAW ... concerning the temporal applicability of the criminal law , the [ ORG ] considers that it must be rejected for the following reasons .

The judgment shows that the court of appeal applied the ORG , namely LAW of DATE .. , and [ its ] LAW DATE ... , to the war crime which PERSON was accused of , irrespective of when they entered into force . [ This is consistent ] with LAW of DATE on LAW . [ The court of appeal stated ] that GPE , which had been occupied by the GPE , had not been able to take a decision [ to that end ] earlier . By referring to the principle of the non - applicability of statutory limitation , the court of appeal complied with the obligations arising under the international treaties and held the persons guilty of committing the offences concerned criminally liable irrespective of the date they were perpetrated .

Since the judgment characterised the violation of the laws and customs of war of which PERSON was accused as a war crime within the meaning of the second paragraph , point ( b ) , of LAW for GPE ... , and , ... by virtue of the aforesaid LAW of CARDINAL DATE ... , war crimes ... are not subject to statutory limitation , ... the ORG finds that his acts were correctly found to come within Article CARDINAL of LAW ...

There is no basis to the argument ... that ... the Declaration by ORG on DATE on ORG and the Declaration by Parliament on DATE on the NORP of GPE were mere political pronouncements which the court was precluded from using as a basis for its judgment and which could not be given binding force retrospectively .

The [ ORG ] finds that both declarations constitute ORG constitutional acts of indisputable legality .

In its judgment , [ delivered after ] assessing the evidence examined at the hearing , [ the court of appeal ] found that , in his capacity as a combatant , ORG organised , commanded and led a Partisan military operation intent on taking reprisals through the massacre of the civilian population of the village of ORG and the pillage and destruction of the villagers ' farms . That being so , the court of appeal rightly found that the acts of individual members of his group ... could not be seen as [ mere ] excesses on the part of those concerned .

In accordance with the criminal - law principles governing the responsibility of organised groups , members [ of a group ] are accomplices to the offence , independently of the role they play in its commission .

This principle of responsibility of the members of an organised group is recognised in the third paragraph of LAW for GPE , which lays down that leaders , organisers , instigators and accomplices participating in the execution of a common plan are responsible for all acts performed by any persons in the execution of that plan .

Consequently , the argument that the court of appeal had used an ' objective responsibility ' test to find , in the absence of any evidence , PERSON guilty of acts perpetrated by members of the special group of Partisans he led , without examining his subjective attitude to the consequences , is unfounded . ... ”

On CARDINAL DATE ORG adopted the Declaration of the Restoration of Independence of the Republic of Latvia and , on DATE , the Declaration on the Accession of the Republic of Latvia to Human Rights Instruments ( Par Latvijas Republikas pievienošanos starptautisko tiesību dokumentiem cilvēktiesību jautājumos ) . The “ accession ” referred to in the declaration in practice meant a solemn , unilateral acceptance of the values embodied in the instruments concerned . Subsequently , most of the conventions referred to in the declaration were signed and ratified by GPE in accordance with the established procedure .

On DATE ORG adopted the Declaration on the Occupation of GPE . The LAW described the annexation of NORP territory by the GPE in DATE as a “ military occupation ” and an “ illegal incorporation ” . The NORP repossession of the territory at DATE was referred to as the “ re - establishment of an occupying regime ” .

By a decree of DATE , ORG of the NORP GPE ( SSR ) of GPE replaced LAW of DATE with LAW which NORP GPE had adopted in DATE and which thus became applicable in GPE also . The relevant provisions of that Code , as worded during the Second World War , read as follows :

“ This Code shall apply to all citizens of the RSFSR [ ORG ] who commit socially dangerous acts on the territory of the ORG , or outside the GPE if they are apprehended on the territory of the RSFSR . ”

“ The liability of citizens from the other NORP Federated Socialist Republics shall be determined in accordance with the laws of the ORG if they have committed offences either on the territory of the ORG or outside the territory of the GPE if they have been apprehended and handed over to a court or investigating authority on the territory of the RSFSR .

The liability of citizens of ORG for offences committed on the territory of the Union shall be determined in accordance with the laws of the place where the offence was committed . ”

“ The liability of aliens for offences committed on the territory of the GPE shall be determined in accordance with the laws of the place where the offence was committed . ”

“ Military crimes ( воинские преступления ) are offences committed by military personnel in the service of ORG and ORG or ORG and ORG , or by persons assigned to maintenance teams or periodically conscripted into territorial detachments , [ when such offences ] are against the established order of military service and , owing to their nature and meaning , can not be committed by citizens not serving in the ORG or ORG . ... ”

“ Any failure by a serviceman to execute a legitimate order issued in combat shall entail the application of measures for the protection of society in the form of DATE imprisonment .

Where such a failure has a deleterious effect on combat operations , the ultimate measure for the protection of society [ that is , the death penalty ] shall apply .

“ PERSON ( мародерство ) , that is to say divesting civilians of their belongings during combat by threatening them with weapons or on the pretext of requisitioning for military purposes , and removing personal belongings from the dead or injured for personal gain shall entail the application of the ultimate measure for the protection of society accompanied by confiscation of all the offender 's belongings .

In the event of mitigating circumstances , [ the sentence shall be reduced to ] DATE imprisonment with strict solitary confinement . ”

“ Unlawful acts of violence by servicemen in wartime or during combat shall entail the application of measures for the protection of society in the form of DATE imprisonment with strict solitary confinement .

In the event of aggravating circumstances , the ultimate measure for the protection of society [ shall be applied ] . ”

Article CARDINAL of the Code set statutory limitation periods of CARDINAL , DATE , depending on the length of the sentence faced . However , the trial court was given an unfettered discretion not to apply the statutory limitation period in CARDINAL sets of circumstances : namely , in cases concerning “ counter - revolutionary offences ” and where the defendant was accused of “ engaging in an active struggle against the working class and the revolutionary movement ” as a senior official in the NORP regime or during the Russian Civil War ( DATE ) . In the first of these eventualities , the defendant was not liable to the death penalty if the statutory limitation period was not applied . In the second , the court also retained a discretion to pass the death penalty .

On DATE ORG of the NORP SSR introduced a new LAW ( Kriminālkodekss ) replacing LAW . It entered into force on DATE and the relevant provisions read as follows :

( amended by PERSON of DATE )

“ It shall be an offence punishable by DATE imprisonment ... or death ... to organise armed gangs with a view to attacking ORG undertakings , private undertakings , the authorities , organisations or private individuals or to be a member of such gangs or participate in attacks perpetrated by them . ”

“ The offences set out in this code shall be deemed military crimes where they are committed by military personnel ... against the established order of military service . ... ”

( repealed by PERSON of DATE )

“ It shall be an offence punishable by DATE imprisonment or death to foray , unlawfully destroy property , engage in acts of violence against the population of a region liable to attack or to seize property unlawfully on the pretext of military necessity . ”

DATE of the PERSON stated that statutory limitation was not automatically applicable to crimes carrying the death penalty , but was within the discretion of the ORG .

The Code remained in force – with a number of amendments – after GPE regained its independence . On DATE Article CARDINAL was abolished . The Code was amended by a Law of DATE , which inserted the following provisions :

“ Persons guilty of crimes against humanity , genocide , crimes against peace or war crimes may be convicted irrespective of when the crimes were committed . ”

“ The statutory limitation of criminal liability shall not apply to persons guilty of crimes against humanity , genocide , crimes against peace or war crimes . ”

“ Any person found guilty of a war crime as defined in the relevant legal conventions , that is to say violations of the laws and customs of war through murder , torture , pillaging from the civil population in an occupied territory or from hostages or prisoners of war , the deportation of such people or their subjection to forced labour , or the unjustified destruction of towns and installations , shall be liable to life imprisonment or to imprisonment for DATE . ”

With effect from DATE , LAW was replaced by LAW ( ORG ) , which was introduced in DATE . The substance of ORG DATE , CARDINAL - CARDINAL and CARDINAL of the former Code reappeared as ORG CARDINAL § CARDINAL , DATE and CARDINAL of LAW . However , the maximum prison sentence that could be handed down in the event of no life sentence being imposed was increased to DATE . LAW also contained the following provisions :

“ Anyone who executes a criminal order or directive may be excused from liability for so doing only if he or she was unaware of its criminal nature and such nature was not apparent . However , even in such cases , criminal liability shall be incurred for crimes against humanity and peace , war crimes and genocide . ”

“ Anyone guilty of unlawful violence against the population of an area in which hostilities have been engaged and of the seizure or unlawful , violent destruction of the property of members of that population shall be liable to imprisonment for DATE . ”

The first legally binding codification of the laws and customs of war was LAW of DATE concerning the laws and customs of war on land , which was adopted and opened for signature at the First Hague International Peace Conference . Appended to the Convention were a set of regulations concerning the laws and customs of war on land . Both the Convention and the Regulations entered into force on DATE .

On DATE a second , identically named , convention was signed at FAC . Like LAW it contained regulations concerning the laws and customs of war on land . There were only slight differences between the CARDINAL versions of the conventions and the regulations . LAW which entered into force on DATE stated that it replaced LAW . However , LAW “ remain[ed ] in force as between the Powers which [ had ] signed it , and which d[id ] not also ratify the [ new ] Convention ” . Both GPE and GPE ratified LAW on DATE . However , it has never been ratified by GPE .

The relevant paragraphs of the preamble to LAW read as follows :

“ ... Thinking it important ... to revise the general laws and customs of war , either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible ;

[ The High Contracting Parties h]ave deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference , which , following on ORG of DATE , and inspired by the ideas dictated by a wise and generous forethought , adopted provisions intended to define and govern the usages of war on land .

According to the views of the High Contracting Parties , these provisions , the wording of which has been inspired by the desire to diminish the evils of war , as far as military requirements permit , are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants .

It has not , however , been found possible at present to concert regulations covering all the circumstances which arise in practice ;

On the other hand , the High Contracting Parties clearly do not intend that unforeseen cases should , in the absence of a written undertaking , be left to the arbitrary judgment of military commanders .

Until a more complete code of the laws of war has been issued , the High Contracting Parties deem it expedient to declare that , in cases not included in the Regulations adopted by them , the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations , as they result from the usages established among civilized peoples , from the laws of humanity , and the dictates of the public conscience .

DATE Convention states :

“ The provisions contained in the Regulations referred to in LAW , as well as in the present Convention , do not apply except between Contracting powers , and then only if all the belligerents are parties to the LAW . ”

The relevant articles of the Regulations respecting the laws and customs of war on land DATE which are identical in both versions – read as follows :

The laws , rights , and duties of war apply not only to armies , but also to militia and volunteer corps fulfilling the following conditions :

To be commanded by a person responsible for his subordinates ;

To have a fixed distinctive emblem recognizable at a distance ;

To carry arms openly ; and

To conduct their operations in accordance with the laws and customs of war .

In countries where militia or volunteer corps constitute the army , or form part of it , they are included under the denomination ' army ' . ”

“ The inhabitants of a territory which has not been occupied , who , on the approach of the enemy , spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with LAW , shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war . ”

“ The armed forces of the belligerent parties may consist of combatants and non - combatants . In the case of capture by the enemy , both have a right to be treated as prisoners of war . ”

“ The right of belligerents to adopt means of injuring the enemy is not unlimited . ”

“ In addition to the prohibitions provided by special ORG , it is especially forbidden

( b ) To kill or wound treacherously individuals belonging to the hostile nation or army ;

( g ) To destroy or seize the enemy 's property , unless such destruction or seizure be imperatively demanded by the necessities of war ; ... ”

“ Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible . ”

“ The attack or bombardment , by whatever means , of towns , villages , dwellings , or buildings which are undefended is prohibited . ”

“ The pillage of a town or place , even when taken by assault , is prohibited . ”

“ Territory is considered occupied when it is actually placed under the authority of the hostile army .

The occupation extends only to the territory where such authority has been established and can be exercised . ”

“ Family honour and rights , the lives of persons , and private property , as well as religious convictions and practice , must be respected .

Private property can not be confiscated . ”

“ Pillage is formally forbidden . ”

“ No general penalty , pecuniary or otherwise , shall be inflicted upon the population on account of the acts of individuals for which they can not be regarded as jointly and severally responsible . ”

The relevant provisions of the Charter of ORG for GPE , which are annexed to LAW , provided as follows :

“ The ORG established by the [ GPE ] Agreement ... for the trial and punishment of the major war criminals of the LOC countries shall have the power to try and punish persons who , acting in the interests of the LOC countries , whether as individuals or as members of organizations , committed any of the following crimes .

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

( 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 ;

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 . ”

“ The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility , but may be considered in mitigation of punishment if the ORG determines that justice so requires . ”

The relevant grounds of the judgment of ORG delivered on DATE read as follows :

“ The ORG is ... bound by the LAW , in the definition which it gives both of war crimes and crimes against humanity . With respect to war crimes , however , as has already been pointed out , the crimes defined by LAW , section ( b ) , of the LAW were already recognised as war crimes under international law . They were covered by Articles CARDINAL , CARDINAL , DATE , and CARDINAL of LAW of DATE ... That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument .

But it is argued that LAW does not apply in this case , because of the ' general participation ' clause in LAW . ...

Several of the belligerents in the recent war were not parties to this Convention .

In the opinion of the ORG it is not necessary to decide this question . The rules of land warfare expressed in the LAW undoubtedly represented an advance over existing international law at the time of their adoption . But the ORG expressly stated that it was an attempt ' to revise the general laws and customs of war ' , which it thus recognised to be then existing , but by DATE these rules laid down in the Convention were recognised by all civilised nations , and were regarded as being declaratory of the laws and customs of war which are referred to in LAW b ) of the LAW .

A further submission was made that GPE was no longer bound by the rules of land warfare in many of the territories occupied during the war , because GPE had completely subjugated those countries and incorporated them into ORG , a fact which gave GPE authority to deal with the occupied countries as though they were part of GPE . In the view of the ORG it is unnecessary in this case to decide whether this doctrine of subjugation , dependent as it is upon military conquest , has any application where the subjugation is the result of the crime of aggressive war . The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners , and in this case , therefore , the doctrine could not apply to any territories occupied after DATE . As to the war crimes committed in GPE and ORG , it is a sufficient answer that these territories were never added to the PERSON , but a mere protectorate was established over them .

At point ( a ) of its ORG no . CARDINAL ( II ) , ORG directed ORG to “ formulate the principles of international war recognized in GPE and in the judgment of the Tribunal ” . At its second session in DATE and DATE the ORG formulated the CARDINAL fundamental principles that establish the basic principles of international law . Principle no . II states : “ The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law ” .

The Charter of ORG for LOC ( ORG ) was approved by a unilateral declaration of the Supreme Commander of ORG , General PERSON , on DATE . The relevant part of LAW provides :

The ORG shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses which include ORG .

( b ) ORG : Namely , violations of the laws or customs of war ;

( c ) ... 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 person in execution of such plan . ”

The relevant ground of the judgment of ORG of CARDINAL DATE is as follows ( LANGUAGE translation ) :

“ ... The effectiveness of some of the ORG signed at GPE on DATE as direct treaty obligations was considerably impaired by the incorporation of a so - called ' general participation clause ' in them , providing that the ORG would be binding only if all the Belligerents were parties to it . The effect of this clause , is , in strict law , to deprive some of LAW binding force as direct treaty obligations , either from the very beginning of a war or in the course of it as soon as a non - signatory Power , however insignificant , joins the ranks of the Belligerents . Although the obligation to observe the provisions of the Convention as a binding treaty may be swept away by operation of the ' general participation clause ' , or otherwise , the LAW remains as good evidence of the customary law of nations , to be considered by the ORG along with all other available evidence in determining the customary law to be applied in any given situation . ... ”

LAW of DATE relative to ORG in Time of War , which entered into force on DATE , and LAW to LAW of CARDINAL DATE and relating to ORG , which was adopted on DATE and entered into force on DATE , provided more detailed codification of the rules of international humanitarian law . In addition to a number of general provisions that are identical in substance to those in LAW ( such as total bans on pillaging , the unjustified destruction of civil properties and collective penalties ; and the protection of private property and fundamental rights ) , they contained more detailed rules ( such as a ban on torture and cruel treatment and on medical experiments not necessitated on medical grounds ; special respect for pregnant women ; and a ban on passing sentence without a previous judgment in proceedings affording minimum guarantees of fairness ) .

DATE reads as follows :

Where in the territory of a ORG to the conflict , the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the ORG , such individual person shall not be entitled to claim such rights and privileges under the present ORG as would , if exercised in the favour of such individual person , be prejudicial to the security of such ORG .

Where in occupied territory an individual protected person is detained as a spy or saboteur , or as a person under definite suspicion of activity hostile to the security of the Occupying Power , such person shall , in those cases where absolute military security so requires , be regarded as having forfeited rights of communication under the present Convention .

In each case , such persons shall nevertheless be treated with humanity and , in case of trial , shall not be deprived of the rights of fair and regular trial prescribed by the present Convention . They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the ORG or Occupying Power , as the case may be . ”

Article CARDINAL of LAW DATE provides :

“ CARDINAL . A civilian is any person who does not belong to CARDINAL of the categories of persons referred to in DATE ( A ) ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW and in LAW . In case of doubt whether a person is a civilian , that person shall be considered to be a civilian .

The civilian population comprises all persons who are civilians .

The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character . ”

DATE . In a decision of CARDINAL DATE , ORG ratified the ORG 's accession to various LAW and their additional protocols , including the LAW relative to ORG in Time of War of CARDINAL DATE and LAW . Its ratification took effect on DATE .

The relevant provisions of the Convention on the Non - Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity , which was adopted by ORG on CARDINAL DATE and entered into force on DATE , read as follows :

“ No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :

( a ) War crimes as they are defined in the LAW of ORG , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( CARDINAL ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG , particularly the " grave breaches " enumerated in LAW of CARDINAL DATE for the protection of war victims ;

“ If any of the crimes mentioned in article I is committed , the provisions of this Convention shall apply to representatives of the ORG authority and private individuals who , as principals or accomplices , participate in or who directly incite others to the commission of any of those crimes , or who conspire to commit them , irrespective of the degree of completion , and to representatives of the ORG authority who tolerate their commission . ”

“ The States Parties to the present Convention undertake to adopt , in accordance with their respective constitutional processes , any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles CARDINAL and CARDINAL of this LAW and that , where they exist , such limitations shall be abolished . ”

The aforementioned Convention entered into force in respect of GPE on DATE .

As to the substantive criminal law applicable to the aforementioned crimes , on DATE , the ORG of ORG issued a decree laying down the sentences applicable to NORP fascist criminals responsible for the murder and ill - treatment of the NORP civilian population and members of ORG who were taken prisoner , to spies and to NORP traitors and their accomplices ( Указ “ О мерах наказания для немецко-фашистских злодеев , виновных в убийствах и истязаниях советского гражданского населения и пленных красноармейцев , для шпионов и изменников ORG из числа советских граждан и их пособников ” ) . The sentences prescribed by the decree were hanging for principals and forced labour for accomplices .

The first trial in which the provisions of the decree of DATE were put into effect and the information obtained by ORG was used took place at GPE from DATE . Although the files compiled by the Commission referred to crimes committed by representatives of the NORP occupying power ( the summary executions of CARDINAL of civilians , including women , children , the elderly and prisoners of war ) , only CARDINAL NORP citizens – who had collaborated with or assisted the NORP DATE were charged and appeared before the ORG . CARDINAL were sentenced to death for murder and high treason . The remaining CARDINAL defendants were sentenced to forced labour for periods of DATE .

The first trial of NORP war criminals was held in GPE ( now GPE , GPE ) from DATE . They were accused of a series of crimes : the gassing of CARDINAL of people from GPE and the surrounding area in specially adapted vans , the ill - treatment and torture of prisoners of war and civilians , the destruction of villages , and the execution DATE in some instances by burning alive – of women , children , the elderly , the wounded and prisoners of war .

In his submissions , the prosecutor referred to the universally accepted provisions of international law and in particular LAW of DATE on the laws and customs of war on land . He emphasised that thaat convention had been signed by GPE , which was therefore bound by its provisions . After admitting their own and their hierarchical superiors ' guilt , the CARDINAL accused were sentenced to death by hanging . The sentence was carried out DATE , DATE .

DATE . The applicant complained under LAW that he had been the victim of the retrospective application of a criminal statute . He submitted , in particular , that the acts of which he was accused did not , at the time of their commission , constitute an offence under either domestic or international law , while the exception set out in the second paragraph of LAW not apply in his case because the alleged offences manifestly did not come within its scope . LAW provides :

“ CARDINAL . 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 . Nor shall a heavier penalty be imposed than the CARDINAL that was applicable at the time the criminal offence was committed .

NORP This article shall not prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles of law recognised by civilised nations . ”

The Government pointed out at the outset that the ORG was not a court of fourth instance vis - à - vis the domestic courts and that , save in cases of manifest arbitrariness , it was not its role to call into question the factual findings of the domestic courts . The ORG would therefore have to base its decision on the description of the events of CARDINAL DATE set out in the decisions of the NORP courts . The same applied to questions of law : since the ORG 's sole task was to interpret and apply LAW and the Protocols thereto , it had no jurisdiction to rule on the interpretation of a domestic statute or international treaty , such as LAW of DATE . In the ORG 's submission , therefore , the ORG was bound by the legal findings of the NORP courts in the instant case , in particular as regards the classification of certain individuals as “ combatants ” or “ civilians ” .

Turning to the facts , the Government did not categorically deny the applicant 's assertion that the CARDINAL ORG villagers who were killed on CARDINAL DATE had previously handed Major PERSON 's group of ORG over to the NORP . However , in the ORG 's submission , even supposing the villagers had given the alert to officers of the Wehrmacht , that did not deprive them of their “ civilian ” status , especially as none of them had participated in the massacre of the Partisans hidden in the barn . Although the men from PERSON had received weapons and munitions after the death of PERSON 's group , these had only been used to defend themselves and had not been carried openly . Lastly , the villagers had not organised any resistance against the applicant or his unit , despite being sufficiently armed and having enough time to set up their defences . It followed that the CARDINAL people killed by the applicant were indeed “ civilians ” .

The Government also contested the applicant 's assertion that the punitive expedition of CARDINAL DATE was carried out on the orders of an ad hoc military tribunal organised by ORG . They cited the occasionally contradictory evidence that had been before the trial courts which , they said , showed either that no such body had existed or , if it had , that it was not operational . In any event , even supposing that judgment had been passed on the Mazie Bati villagers , it was manifestly unlawful as they were tried in their absence and in violation of the most fundamental rights of the defence .

As to the merits of the complaints under LAW , the Government divided their submissions into answers to CARDINAL consecutive questions which they submitted showed the absence of a violation of that provision in the instant case .

The first question was whether on DATE there existed a definition of the concept of war crimes in international law and whether the applicant 's acts fell within that definition ? In order to answer that question , the Government began by recapitulating the history of that concept since ORG and its evolution through the First World War and LAW of DATE . In that connection , they submitted that before the GPE trials , a distinction had had to be drawn between a “ violation of the laws and customs of war ” and a “ war crime ” . While international law had long since determined what constituted the laws and customs of war and , therefore , violations thereof , it did not lay down any penalties for individuals guilty of such violations . The jus in bello at the time only recognised the right of GPE to try and to punish their nationals or others for violations of the laws and customs of war committed on their territory . Issues regarding the exact nature of the responsibility ( for instance , whether civil , criminal or disciplinary ) and the applicable procedure ( such as the relevant limitation periods and procedural safeguards and the competent authorities ) remained within the exclusive jurisdiction of the States . LAW of DATE , on which the NORP courts had relied in the instant case , was based precisely on the same logic . Although a marked tendency had since developed towards the criminalisation of such violations , it was only after the atrocities of the Second World War that the law in this sphere had evolved . The new treaties – LAW of DATE and their additional protocols and ORG had reduced the GPE ' room for manoeuvre by imposing an obligation to criminalise the most serious violations of the laws and customs of war , to exclude them from statutory limitation , to investigate them and to try not only suspected principals , but also their accomplices .

In the instant case , the Government referred to the judgments of the GPE and GPE Tribunals as evidence that by DATE Second World War the substantive provisions of LAW of DATE had been accepted in their entirety by the international community irrespective of whether or not individual GPE had acceded to that instrument . In other words , by DATE the content of that LAW already formed part of the universal general international law . The acts committed by the applicant on DATE very clearly constituted serious violations of the laws and customs set out in LAW . It was of little consequence whether they were also war crimes as , under international law at that time , the GPE were free to determine the nature of and responsibility for such acts in law . At all events , the domestic law applicable in DATE characterised them as crimes . Lastly , by the time the applicant was charged , tried and convicted ( from DATE ) , the relevant provisions of international law characterised such acts as indisputably criminal , excluded the application of statutory limitation periods and imposed a clear , specific obligation on the GPE , including GPE , to try and to punish offenders .

The second question posed by the Government was whether the applicant 's conduct was criminal under the domestic law applicable on NORP territory at the material time . The Government considered that it was . In their submission , the applicant 's conduct constituted a “ military crime ” under LAW of LAW of DATE , an offence which carried the death penalty . The PERSON was in force on NORP territory by virtue of the decree of DATE . It was therefore applicable to the applicant both ratione loci and ratione personae ( as a combatant in the NORP army ) . Article CARDINAL was sufficiently clear and precise to enable the applicant to understand and measure the consequences of his acts .

Further , the Government emphasised that the offence constituted by the impugned acts had remained on the statute book after the war and been incorporated into LAW . At no stage , therefore , could the applicant have considered that the legislature had decided to decriminalise them . Although it was true that continuity was temporarily suspended by a law of DATE which repealed LAW so that war crimes were not formally a criminal offence for a time , shortly afterwards , on DATE , the legislature had inserted a new chapter on war crimes and crimes against humanity into the LAW and the impugned acts were once again defined and made a criminal offence . In the ORG 's submission , that gap in the continuity did not in any way mean that ORG had abandoned its resolve to bring guilty parties to justice , especially as it had a duty to do so under the international conventions .

Lastly , the Government pointed out that that there had been continuity with regard not only to the legal characterisation of the acts in question , but also to the exclusion of statutory limitation . DATE had already contained exceptions to the statutory - limitation rule which LAW had extended to all offences carrying the death penalty , including , therefore , the crime committed by the applicant . Further , during the period of NORP annexation DATE , the legitimate authorities of ORG had been objectively prevented from exercising their sovereign powers on the national territory . They had therefore been unable to bring criminal proceedings against the applicant or to apply a statutory - limitation rule in his case . Conversely , as soon as its independence was restored , GPE had begun the process of investigating and punishing war crimes and crimes against humanity .

The third question according to the Government was whether the acts committed by the applicant on DATE were “ criminal according to the general principles of law recognised by civilised nations ” . On this point too , the Government observed that the fundamental provisions of the jus in bello , as codified by LAW of DATE , had become an integral part of customary international law DATE . Consequently , it was the first paragraph of LAW which came into play in the instant case , rather than the second . However , were the ORG not to accept that view , the ORG submitted that the applicant 's conviction fell within the exception set out in LAW .

The fourth question was whether the applicant should have been aware on DATE that his conduct was , objectively speaking , criminal . The Government argued that he should . Firstly , in the light of the “ average individual ” criterion , everyone was aware that torturing and killing unarmed people – the mother and father of young children and an elderly woman DATE and burning a pregnant mother alive were criminal acts and contrary to the most fundamental principles of humanity . Secondly , as the unit commander , he should have been aware that he was responsible for the conduct of his men and under a duty to supervise them and punish any abuse .

Thirdly and lastly , the Government referred to certain measures that had been taken by the NORP authorities from the onset of war in order to bring to trial and punish individual NORP war criminals , especially the GPE trial that had been held DATE before the acts of which the applicant was accused ( see paragraphs CARDINAL above ) . All these measures had received widespread media coverage both in the GPE and abroad , including in the official gazette of ORG . The applicant could not , therefore , have been unaware that he was engaging in the same type of misconduct as that for which a number of NORP had already been tried and convicted .

The Government said that the applicant 's argument that he could not have foreseen that DATE , owing to a turn in events , he would be called to account before the criminal courts had been refuted by the ORG 's judgment in the case of ORG , PERSON and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL , CARDINAL and CARDINAL , § § CARDINAL and CARDINAL , ORG DATE ) . In any event , the applicant 's hope or certainty that , for political reasons , he would go unpunished did not constitute sufficient reason for not convicting him . Referring in this connection to the NORP legal theorist PERSON , the Government submitted that the rule of law was founded upon the formal meaning of legal wording . If the rule of law was to be preserved , that objective meaning had to remain independent and in the last analysis be strictly separate from any subjective and arbitrary interpretation , no matter how prevalent it was as a “ State practice ” – all the more so if this prevalent arbitrary interpretation of the “ law in ( in)action ” contradicting the law on the statute book was the result of collusion between the executive , legislative and judicial branches of the ORG . To maintain the separation of the objective and the subjective in law was the only way of ensuring that nobody was above the law .

The fifth question posed by the Government was whether it was possible in the sphere of war crimes to engage an individual 's responsibility without also engaging the ORG 's . Here , too , the answer was in the affirmative . In the ORG 's submission , while ORG responsibility and individual responsibility were not mutually exclusive , they were not interdependent either , for they pursued CARDINAL different objectives : the former being to repair wrongs and reconcile nations , and the latter to ensure lawfulness and avoid impunity . The Government pointed out that it was precisely the principle of individual – as opposed to State – responsibility that had served as the basis for the establishment of ORG for the former GPE , ORG for GPE and ORG .

Lastly , the sixth and final question put by the Government was whether GPE had the right to try the applicant for violations of the laws and customs of war ? In that connection , the Government cited the judgment delivered by ORG on DATE in the case of “ the FAC Lotus ” ( Collection of Judgments of the ORG , Series A .– No . CARDINAL ) , which indicated that the question was not whether the ORG was authorised to exercise criminal jurisdiction but whether there were any obstacles to prevent it from doing so . In the instant case , there had been nothing to prevent GPE from prosecuting and trying one of its own nationals for an offence committed on its own territory . Further , the NORP State not only had a right but also an obligation – both legal and moral – to try persons guilty of war crimes against its own nationals .

The Government also stressed the importance of such trials in restoring democracy , establishing the historical truth and guaranteeing justice for the victims of crimes against humanity and war crimes . They referred in that connection to the ORG 's findings in the case of Kolk and GPE v. GPE DATE . , nos . CARDINAL and CARDINAL , ORG CARDINAL-I ) . In their submission , despite all the practical problems with which the NORP authorities were faced , these trials were very important as they helped to make up for the inadequacies of the GPE trial , a trial that had to a large extent been an example of justice for the victors , punishing crimes perpetrated by the NORP , while allowing notorious criminal acts by the Allies to go unpunished .

In the light of these arguments , the Government considered that the acts committed by the applicant on DATE constituted “ a criminal offence under national [ and ] international law ” within the meaning of LAW and that , in any event , the acts “ [ were ] criminal according to the general principles of law recognised by civilised nations ” , within the meaning of LAW . There had therefore been no violation of LAW in the instant case .

The applicant contested the ORG 's arguments . He stated at the outset that the characterisation of his acts by the NORP courts had been based on the erroneous belief that GPE was at that time illegally occupied by the GPE and that he represented the occupying forces . In his submission , GPE had lawfully become a part of GPE in DATE and the inhabitants of that territory – including himself and the villagers of PERSON had accordingly become citizens of the GPE . Conversely , in DATE GPE had been occupied by NORP GPE and the applicant , as a NORP citizen , had merely been defending his country on his own soil against the occupier . Even viewed subjectively , he had acted as a defender of his homeland , not as an invader . Indeed , at that time there was no separate NORP army fighting GPE . The applicant therefore rejected the “ dual occupation ” theory that had been upheld by the NORP authorities . In his observations lodged after the decision on the admissibility of the application , he added that he considered these issues to be of no real relevance to the instant case .

The applicant considered his conviction contrary to the requirements of LAW as it did not fall into any of the CARDINAL exceptions laid down therein . His conduct towards the villagers of PERSON did not constitute an offence under either international or national law at the time , nor was it “ criminal according to the general principles of law recognised by civilised nations ” .

In that connection , the applicant argued that the provisions of international law relied on by the Government were inapplicable to his case . Although he acknowledged that he and the men from his unit fit the definition of “ combatant ” as understood in international law , he also considered , unlike the Government , that the CARDINAL villagers from PERSON killed on DATE were also “ combatants ” and not “ civilians ” . It was apparent from ORG judgment of DATE that the CARDINAL villagers had collaborated with the NORP military administration and supported the NORP occupying regime , which had supplied them with weapons and munitions ( see paragraphs CARDINAL - CARDINAL above ) . There could be no other explanation , as ordinary civilians living in NORP GPE occupied territory were liable to immediate execution if found in the possession of firearms . In any event , the villagers ' collaboration with the NORP had deprived them of their “ civilian ” status and immunity . Since they were armed , the men from PERSON had constituted a real danger to ORG and their number was close to that of a section or small unit in the regular army .

The applicant acknowledged that in DATE the Regulations appended to LAW of DATE on the laws and customs of war on land formed part of the international law universally accepted by the international community . However , that instrument used terms such as “ enemy ” and the “ enemy nation or ... army ” . The villagers of PERSON , who had the same NORP nationality as the applicant and his comrades , were not their “ enemies ” . In other words , neither the ORG referred to above , nor the LAW of ORG applied to the acts of the members of an armed group perpetrated against fellow citizens . Further , LAW restricted its application to war criminals “ from the NORP countries of the LOC ” who had maltreated “ civilian populations in the occupied territories ” . That clearly did not correspond to the applicant 's situation . Lastly , LAW of DATE relative to ORG in ORG could not be applied retrospectively . Even supposing it could , the position was the same as with regard to LAW . In sum , the applicant considered that he had been the victim of the application of a provision of criminal law by analogy , which was unacceptable .

Secondly , unlike the Government , the applicant considered that his acts did not constitute an offence under the internal law applicable in DATE . LAW NORP GPE of DATE which was then in force – was completely silent on war crimes . Article CARDINAL - CARDINAL , on which the Government had relied , in fact dealt with the notion of “ military crime ” ( воинское преступление in NORP ) and was included in a chapter of the same name . There was an important difference between war crimes and “ military crimes ” as the latter were ordinary violations of the established order of military service and were subject to statutory limitation . Moreover , on DATE the applicant had merely been carrying out orders from his command . Had he not obeyed , he would himself have been at risk of the death penalty for insubordination . The applicant also pointed out that while he was not liable to any punishment under LAW , the CARDINAL villagers killed at ORG had been guilty of the crime of high treason against their ORG ( the GPE ) .

In the applicant 's submission , the fact that after the war , far from being prosecuted for the alleged offences he had , on the contrary , been decorated with the Order of PERSON , the highest NORP distinction , showed that he had not committed any offence under the domestic criminal law at that time .

The applicant argued , thirdly , that his conduct on DATE was not “ criminal according to the general principles of law recognised by civilised nations ” . In that connection , he explained that he had been fighting against the NORP occupiers as a member of the armed forces of a ORG that was part of the anti - PERSON coalition and that his victims were not civilians but combatants who had been armed by the enemy . In his submission , “ one can not reasonably call into doubt the legitimate right of the NORP , acting against the rearguard of a ferociously cruel enemy that did not respect any of the laws and customs of war , to punish by death the armed accomplices of the NORP ” . The applicant also stressed that he and his men had not pillaged PERSON . The seizure of the weapons and munitions which the villagers had received from the NORP constituted a legitimate war chest .

The applicant considered , generally , that he had been the victim of historical political changes beyond his control . Firstly , contrary to what had been asserted by the Government , he could not have foreseen at the material time that he would DATE be held accountable for his acts . While acknowledging that he had been aware of the convictions of NORP war criminals , he could never have imagined that he himself would face trial for fighting against ORG . Secondly , in DATE he had sincerely believed in good faith that the incorporation of GPE by the GPE DATE previously was perfectly legitimate , that there had never been a “ NORP occupation ” , that he had thus become a NORP citizen and that he was defending his country , the GPE , against the NORP invader . It was only in DATE – well after the alleged offences – that ORG had adopted the Declaration on the Restoration of Independence which had declared the incorporation of GPE by the GPE unlawful and null and void . And it was not until DATE that ORG had adopted the Declaration on the Occupation of GPE , thereby confirming the theory of “ dual occupation ” . The applicant had not been in a position to foresee the adoption of these declarations . In his submission , the only real basis for his convictions were these CARDINAL political texts which manifestly did not possess the quality of “ law ” , in breach of the fundamental requirements of the Convention .

NORP The applicant also contested the ORG 's argument that the responsibility of an individual for war crimes could be independent of the responsibility of the ORG concerned . In his submission , “ before trying those carrying out the wishes of the ORG as war criminals , it had to be established that the ORG had had criminal designs ” . Since it had not been established by any international body similar to ORG that the actions of the GPE on NORP territory were illegal , the applicant submitted that the NORP courts had had no right to reach such conclusions in their decisions .

In conclusion , the applicant said that since he had not been acting “ on enemy occupied territory ” he could not , by definition , have been guilty of a war crime . In the alternative , even supposing that he had committed CARDINAL or more offences under the general law , their prosecution had long since become statute barred . There had accordingly been a violation of LAW in his case .

ORG . The NORP Government agreed in substance with the applicant 's arguments . The thrust of their submission was that the NORP courts should not have applied by analogy LAW – whose purpose was to punish crimes committed by the ORG powers in the occupied DATE to the applicant , who had fought alongside the anti - PERSON coalition in his own country , the GPE . Such an extension was unacceptable and manifestly contrary to the judgment of ORG on which the entire post - war legal and political system was based .

ORG joined the applicant in stressing the difference between war crimes ( within the meaning of the Charter of the Nuremberg Tribunal ) and “ military crimes ” ( as understood in NORP law ) . Thus , GPE did not contain any provision similar to LAW , on which the applicant 's conviction was based . Even supposing the applicant had committed an offence under LAW , its prosecution had , in any event , long since become statute barred by virtue of LAW . Since the limitation period for the most serious offences was DATE , it had to be deemed to have expired in DATE and the applicant accordingly could no longer be tried for his acts . His conviction under LAW of LAW Criminal Code was the result of the retrospective application of a criminal statute .

ORG agreed with the applicant 's assertion that his CARDINAL victims were not “ civilians ” but “ combatants ” . At all events , they had seriously abused their “ civilian ” status by offering active support to CARDINAL of the belligerents and receiving weapons . When the members of Major PERSON 's unit entered ORG barn , the villagers could have driven them away and refused them refuge if they feared for their own safety . Instead , they had chosen to betray them . This was also true of the CARDINAL women who had participated in the treachery . The assertion that the Mazie Bati villagers had the right to receive weapons from the NORP invaders for use in “ self - defence ” against the anti - NORP Partisans was illogical as the Partisans had the same NORP nationality as them , and unacceptable , since it went against the tenor of the GPE judgment . No legitimacy whatsoever could attach to collaboration with the NORP criminal regime .

ORG emphasised that the villagers had not been “ massacred ” , but “ executed ” , following their conviction by a military tribunal established in accordance with the laws of war , and that the punishment they had received was just and proportionate to their crime . Consequently , the operation of DATE had , by its very nature , been highly selective , as it had been directed against CARDINAL specific individuals guilty of high treason , not against the other villagers who were rightly spared .

As a preliminary point , the ORG notes that the respondent Government contests its jurisdiction to question the NORP courts ' factual and legal findings . In that connection , the ORG reiterates that , in accordance with LAW , its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to LAW . Consequently , in accordance with the principle of subsidiarity that is inherent in the system of individual rights protection set up by the LAW , it is in principle solely for the domestic courts to establish the facts of the case and to interpret domestic law . The ORG can not question the domestic authorities ' assessment unless it is flagrantly and manifestly arbitrary ( PERSON v. GPE [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL ) . This general rule , which was initially formulated with respect to the right to a fair hearing LAW CARDINAL § CARDINAL of the ORG , applies to all the substantive provisions of LAW ( see , among other authorities , Sisojeva and Others v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG DATE ... , and a / s PERSON and PERSON v. GPE , no . GPE , § CARDINAL , CARDINAL DATE ) .

The rule also applies where domestic law refers to rules of general international law or international agreements . In cases in which the domestic courts have interpreted these provisions , the ORG 's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention ( see PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINAL-I ) .

NORP However , the position is different when it is not the domestic legislation but the Convention itself which expressly refers to the domestic law . In such cases , a failure to comply with the domestic legislation may in itself entail a violation of the LAW . Accordingly , by virtue of the jura novit curia principle the ORG can and should exercise a power to review whether the law has been complied with ( see , among many other authorities , PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL , § CARDINAL , and PERSON GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALIV ) . Exactly the same principle applies to LAW as the application of a provision of municipal penal law to an act not covered by the provison in question directly results in a conflict with the LAW . In such circumstances , the ORG must have jurisdiction to decide whether the provision of criminal law concerned has been complied with as otherwise LAW would be rendered devoid of purpose ( see , among other authorities , X. v. ORG , no . CARDINAL/CARDINAL , Commission decision of CARDINAL DATE , Yearbook CARDINAL , p. CARDINAL , and X. v. GPE , no . CARDINAL , Commission décision of CARDINAL DATE , ORG CARDINAL , p. CARDINAL ) . The ORG considers that exactly the same principle applies to situations where , as in the present case , the domestic courts have applied international law .

Further , a careful distinction needs to be drawn in the present case between the existence of the facts and their characterisation in law . As regards the factual findings by the NORP courts , the ORG has already found that the procedure that led to the applicant 's conviction complied with the fair - trial requirements laid down in LAW ( see the admissibility decision of DATE ) . In the circumstances , it has no reason to contest the factual description of the events in GPE as set out in the final decision of the trial court DATE this being the judgment of ORG dated DATE which was upheld by ORG . Conversely , the ORG can and must consider the characterisation of these events under domestic and international law in order to determine whether the guarantees contained in LAW were applied in the applicant 's case . In performing that task , it is free to attribute to the facts of the case , as found to have been established on the evidence before it , a characterisation in law different from that given by the applicant or , if need be , to view the facts in a different manner . Furthermore , it has to take account not only of the original application but also of the additional documents intended to complete it by eliminating initial omissions or obscurities ( see , among other authorities , PERSON and Others v. GPE , judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § DATE , and PERSON , no . GPE , § CARDINAL , ECHR CARDINALXII ) .

The ORG notes , lastly , that the parties and the third - party intervener attach considerable importance to certain questions of a general nature , in particular , whether GPE 's incorporation into GPE in DATE was lawful under public international law and constitutional law and the extent to which its incorporation affected the legal status of the applicant and the villagers of PERSON on DATE . In this connection , the ORG reiterates that it will abstain , as far as possible , from pronouncing on matters of purely historical fact , which do not come within its jurisdiction ; however , it may accept certain well - known historical truths and base its reasoning on them ( PERSON v. GPE [ ORG ] , no . MONEY , § DATE ... ) . In the instant case , however , there is no need for it to deal with these issues as they are neither decisive nor even relevant .

NORP The guarantee enshrined in DATE , which is 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 LAW in time of war or other public emergency . It should be construed and applied , as follows from its object and purpose , in such a way as to provide effective safeguards against arbitrary prosecution , conviction and punishment ( see PERSON GPE , judgment of DATE , Series A no . CARDINAL-B , p. CARDINAL , § DATE , and GPE v. GPE , judgment of DATE , Series A no . CARDINAL-C , p. CARDINAL , § CARDINAL ) .

NORP The general principles regarding the interpretation of LAW established in the settled case - law of the ORG are as follows :

( a ) DATE , inter alia , the principle that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege ) . The ORG 's first task is therefore to verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a provision of national or international law which made that act punishable . By the same token , LAW prohibits , firstly , the extension of the scope of existing offences to acts which previously were not criminal offences and , secondly , an extensive construction of the criminal law to the accused 's detriment , for instance by analogy ( see , among other authorities , PERSON and Others v. GPE , nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL , GPE and CARDINAL , § CARDINAL , ORG CARDINALVII ) .

( b ) Offences and the relevant penalties must be clearly defined by law ( PERSON v. GPE [ ORG ] , no . MONEY , § CARDINAL , ECHR DATE ... ) . This requirement is satisfied where the individual is able to determine from the wording of the relevant provision and , if need be , with the assistance of the courts ' interpretation of it , what acts and omissions will make him criminally liable ( GPE v. GPE , judgment of DATE , Reports CARDINAL , p. DATE , § CARDINAL ) . When speaking of “ law ” DATE alludes to the very same concept as that to which the LAW refers elsewhere when using that term , a concept which comprises statute law as well as case - law and implies qualitative requirements , including those of accessibility and foreseeability ( see PERSON and Others , judgment cited above , loc . cit . ) .

( c ) 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 GPE , the progressive development of the criminal law through judicial law - making is a well entrenched and necessary part of legal tradition . LAW can not 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 ( ORG , PERSON and PERSON , judgment cited above , § CARDINAL ) .

( d ) 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 . A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess , to a degree that is reasonable in the circumstances , the consequences which a given action may entail . This is particularly true in relation to persons carrying on a professional activity , who are used to having to proceed with a high degree of caution when pursuing their occupation . They can on this account be expected to take special care in assessing the risks that such activity entails ( PERSON v. GPE , no . GPE , § CARDINAL , DATE ) .

( e ) According to the general principles of law , defendants are not entitled to justify the conduct which has given rise to their conviction simply by showing that such conduct did in fact take place and therefore formed a practice . Consequently , a ORG practice of tolerating or encouraging certain acts that have been deemed criminal offences under national or international legal instruments and the sense of impunity which such a practice instils in the perpetrators of such acts does not prevent their being brought to justice and punished ( ORG , PERSON and PERSON , judgment cited above , § § CARDINAL , CARDINAL - CARDINAL and CARDINAL ) .

( f ) In the event of ORG succession or a change of political regime on the national territory , it is entirely legitimate for a ORG governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime ; similarly , the courts of such a ORG , having taken the place of those which existed previously , can not be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a ORG subject to the rule of law ( ibid . , § CARDINAL , and PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINAL ( extracts ) ) .

With regard to LAW , the Convention institutions have commented as follows :

NORP In the light of the aforementioned principles , the ORG observes that it is not its task to rule on the applicant 's individual criminal responsibility , that being primarily a matter for the assessment of the domestic courts . Its sole task is to consider , from the standpoint of LAW , whether on DATE the applicant 's acts constituted offences that were defined with sufficient accessibility and foreseeability by domestic law or international law ( see PERSON GPE , cited above , § CARDINAL ) .

The ORG notes that the applicant was given a prison sentence pursuant to LAW , a provision introduced by LAW DATE on ORG . Although that provision contained a summary list of the outlawed acts – such as murder , torture and pillage – it referred directly to the “ relevant legal conventions ” for a precise definition of such acts ( see paragraph CARDINAL above ) . The impugned conviction was , therefore , based on international rather than domestic law and must , in the ORG 's view , be examined primarily from that perspective .

The next point to note is that , in its judgment of DATE , which was upheld on appeal on points of law , ORG of ORG characterised the applicant 's acts by reference to CARDINAL international instruments : LAW of DATE concerning the law and customs of war on land ( or , more precisely , the Regulations appended thereto ) , LAW of DATE relative to ORG in Time of War and , lastly , LAW , which was adopted in DATE . Of these CARDINAL instruments , only LAW existed and was in force at the time the alleged offences were committed in DATE . The other CARDINAL came into being at DATE and did not contain any provisions affording them any retrospective effect .

On that subject , the ORG would note in passing that it has difficulty in understanding the assertion made by ORG that the retrospective application of the latter CARDINAL instruments was authorised by LAW ( see paragraph CARDINAL above ) , as that convention deals only with the question of statutory limitation and is silent on the question of retrospective effect . Indeed , the ORG considers that in cases such as the applicant 's , in which domestic criminal law refers to international law for the definition of the offence , the domestic and international provisions form , in practice , a single criminal norm that is attended by the guarantees of LAW . Accordingly , that provision operates to preclude the retrospective application of an international treaty to characterise an act or an omission as criminal .

The ORG observes that neither the GPE nor GPE were signatories to LAW of DATE . Consequently , in accordance with the “ general participation ” clause contained in LAW was not formally applicable to the armed conflict in question . However , as ORG for GPE stated in its judgment of DATE , the text of that Convention constituted codification of the customary rules which , in DATE by the time the war broke out – “ were recognised by all civilised nations ” ( see paragraph CARDINAL above ) . Likewise , in its judgment of CARDINAL DATE ORG for LOC noted : “ the LAW remain[ed ] as good evidence of the customary law of nations ” ( see paragraph CARDINAL above ) . The ORG further notes that LAW reproduced almost word for word the text of the DATE LAW , which , according to the intention expressed in the preamble by its authors constituted , at least in part , codification of certain pre - existing principles in the law of nations . These principles were already widely recognised at DATE and there is no reason to doubt their universal character by DATE , during the Second World War . It should also be noted that the ORG has stated that , for the purposes of LAW , the notion of “ law ” includes , in principle , written law as well as unwritten law ( PERSON GPE , judgment cited above , § CARDINAL ) .

The applicant submitted that the provisions of LAW were inapplicable ratione personae to the events in GPE because the Convention uses the term “ enemy ” whereas the villagers who were killed on DATE were his fellow citizens . The ORG can not accept that argument . On the aforementioned date , the region in which the village concerned was located was occupied by the armed forces of NORP GPE , CARDINAL of the belligerents in the Second World War , was under NORP military administration and in a combat area close to the front . Further , it is not disputed that the applicant and the men from his unit were members of the NORP army and , as such , “ combatants ” within the meaning of international law . They were therefore expected to be aware of the universally accepted rules of jus in bello and to comply with them in all circumstances . This , in the ORG 's view , is sufficient to justify the conclusion that the substantive rules contained in the ORG appended to LAW of DATE were applicable to the impugned events .

The ORG considers it unnecessary to carry out a separate analysis of the accessibility of the provisions of the ORG as at DATE . Alhough the GPE had not ratified it , LAW merely reproduced the fundamental customary rules that were firmly recognised by the community of nations at the time . The ORG therefore presumes that the applicant , as a serviceman , must have been aware of these rules . Nor is it the ORG 's role to provide an authoritative interpretation of LAW or to establish the precise content of the notion of a “ war crime ” as that term was understood in DATE ( see , mutatis mutandis , PERSON and PERSON v. GPE ( dec . ) [ ORG ] , no . MONEY , and ORG v. GPE , GPE and GPE ( dec . ) [ ORG ] , no . PERSON ( joined cases ) , § CARDINAL , ECHR MONEY ... ) . Conversely , it is necessary for the ORG to examine the criterion of foreseeability in the present case . More specifically , it must determine objectively whether a plausible legal basis existed on which to convict the applicant of a war crime and , subjectively , whether at the material time the applicant could reasonably have foreseen that his conduct would make him guilty of such an offence .

In performing this task , the ORG considers it necessary briefly to recapitulate the impugned events as definitively established by the competent NORP courts . During the daytime on CARDINAL DATE an armed unit of ORG in NORP uniform led by the applicant entered the village of PERSON , certain of whose inhabitants were suspected of having betrayed and turned in to the NORP another group of ORG . The applicant 's men burst into and searched QUANTITY houses belonging to PERSON , PERSON , PERSON , PERSON , PERSON and PERSON respectively . After finding rifles and grenades supplied by the NORP military administration in each of the houses the NORP executed the CARDINAL heads of family concerned . Of these , CARDINAL , PERSON , did not immediately succumb to his injuries , but was seriously wounded . The Partisans also wounded CARDINAL women : PERSON mother and PERSON wife . They then set fire to QUANTITY houses and the adjoining buildings belonging to the QUANTITY farmers . CARDINAL people who were still alive at that point perished in the flames . In all , CARDINAL villagers were killed : CARDINAL men and QUANTITY women , one of whom was in the final stages of pregnancy . The ORG notes , in particular , that in the final domestic decision the episode involving the alleged pillaging of PERSON was not found to have been substantiated . It must therefore proceed on the assumption that none of the villagers ' food or personal belongings were stolen . Conversely , it is not disputed that on leaving the village the Partisans took with them the weapons they had seized from the farmers they had executed .

The ORG notes that the decisions of the domestic courts are almost completely silent on the question whether the applicant was personally and directly implicated in the events of PERSON , that is to say as to his exact acts and movements while the events unfolded . Although he was initially charged with the murder of PERSON and PERSON , and , so it would seem , with acts of torture on the villagers , he was subsequently acquitted in relation to those incidents which were withdrawn from the charges ( see paragraph CARDINAL above ) . Having regard to the right to be presumed innocent enshrined in LAW , the ORG therefore accepts that the applicant did not commit the acts in question . In these circumstances , and in the absence of more detailed particulars of the applicant 's personal involvement in the relevant acts , it concludes that the only genuine accusation against him was that he led the unit which carried out the punitive expedition on DATE . Accordingly , the ORG must determine whether that operation could , in itself , reasonably be regarded as having contravened the laws and customs of war as codified by LAW of DATE .

NORP In order to answer that question , the ORG must take into account , firstly , the conditions obtaining in FAC in DATE and , secondly , the conduct of the villagers who were killed by the applicant 's unit . As regards the general background to the events of CARDINAL DATE , the ORG accepts that they did not take place in a combat situation . However , it notes that the village of PERSON was at that time QUANTITY from the front in a region occupied by NORP GPE that had been invaded by the Wehrmacht , that ORG units carried out guerrilla attacks on NORP and that there were armed skirmishes even within the village itself ( see paragraphs CARDINAL and CARDINAL above ) . In sum , the locality and the entire surrounding area were prey to hostile engagement . Further , the documentary evidence from the archives produced by the Government showed that in addition to the NORP and NORP forces a NORP auxiliary police in the service of the NORP was present in the region . In CARDINAL of the villages within the same district , the auxiliary police had formed an armed “ defence group ” composed of local “ trustworthy men ” and that other “ trustworthy men ” had been appointed in some of the other villages to oversee suspects and unmask and denounce members of ORG ( see paragraphs CARDINAL and CARDINAL above ) .

As regards the QUANTITY victims of the applicant 's units , the ORG notes that the parties could not agree on their precise status under the international law applicable at that time . The respondent Government concurred with the NORP courts that the villagers had to be regarded as “ civilians ” with all the guarantees such status afforded . The applicant and ORG contested that characterisation . For its part , the ORG considers that the situation of the CARDINAL men and QUANTITY women who died during the events in question must be examined separately .

As to the male victims , the ORG notes at the outset that there is nothing in the case file to indicate that they were members of the NORP auxiliary police ( Schutzmänner ) . The applicant 's allegations to that effect must therefore be rejected . On the other hand , it is common ground that these men had received rifles and grenades from the NORP military administration . The fact that they were not openly carrying them at the time of the assault by ORG is of no relevance in the present case . It appears from the case file that it is no longer possible to establish the precise reason why the NORP had armed these CARDINAL farmers ( see paragraph CARDINAL above ) . The ORG notes , however , a number of concordant factors which could help to shed some light on this subject .

The parties agree that in DATE , in other words DATE before the events in question took place , the Wehrmacht had attacked a barn within the boundaries of PERSON in which a group of ORG led by Major PERSON had taken refuge . The group was wiped out during the attack . The respondent Government have not really contested the applicant 's assertion that it was the villagers who informed the NORP of the Partisans ' presence in the barn and , more specifically , that it was PERSON ( the owner of the barn ) , PERSON and the CARDINAL women who were responsible for the betrayal . Moreover , this was expressly acknowledged by the courts of first instance and appeal either with respect to all the men concerned , or , at least , with respect to PERSON ( see paragraphs CARDINAL and CARDINAL above ) . Lastly , neither the domestic courts in their decisions nor the Government in their observations refuted the allegations that the villagers concerned had been rewarded by the NORP military command for their act ( see paragraph CARDINAL above ) .

In the same judgment , ORG mentioned the TIME watch regularly kept by the Mazie Bati villagers . That practice bears a resemblance to the practice DATE which has already been referred to – of the NORP auxiliary police in neighbouring villages and which was recorded , for example , in the written order issued by the local commanding officer of the police on DATE ( see paragraph CARDINAL above ) . For present purposes , it suffices for the ORG to say that , in view of the conduct of these men and the conditions obtaining at the time in the region in question , the applicant and the other ORG had legitimate grounds for considering these farmers not as “ peaceable inhabitants ” – the term employed in the present case by ORG Senate – but as collaborators of ORG .

In its judgment of DATE , ORG attempted to justify that collaboration by the need for the persons concerned to defend themselves and to protect their families against ORG . The ORG can not accept that argument . Firstly , it reiterates that ORG is in itself completely contrary to the most fundamental values underlying the Convention so that , whatever the reason relied on , it can not grant any legitimacy whatsoever to pro - NORP attitudes or active collaboration with the forces of NORP GPE ( see , mutatis mutandis , PERSON and GPE v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINALVII , p. CARDINAL , § CARDINAL , and also PERSON v. GPE , no . ORG decision of DATE , PERSON , p. CARDINAL , and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINAL-IX ) . Secondly , the villagers must have known that by siding with CARDINAL of the belligerent parties they would be exposing themselves to a risk of reprisals by the other .

In the light of the foregoing , the ORG is not satisfied that the CARDINAL men killed on DATE could reasonably be regarded as “ civilians ” . In that connection , it notes that the Regulations appended to LAW of DATE do not define the notions of “ civilian ” or “ civil population ” . In characterising the Mazie Bati victims as civilians in the present case , ORG relied on LAW , which was adopted in DATE . It is true that that provision contains a presumption that any person not belonging to CARDINAL of the predefined categories of combatants or in respect of whom there is a doubt on that point must be considered a “ civilian ” ( see paragraph CARDINAL above ) . However , as the ORG has already stated , this LAW , which was drawn up and adopted DATE after the events in question , can not be applied retrospectively to characterise the acts the applicant was alleged to have committed . Furthermore , on the assumption that the aforementioned conventions represented progress and not a regression in humanitarian international law , the fact that no such presumption was included in LAW of DATE indicates that there is no reason to consider that it was already recognised in customary law in DATE . Moreover , LAW itself provided exceptions which enabled persons who had abused their “ civilian ” status to be deprived of their special rights and privileges ( see paragraph CARDINAL above ) . In sum , there is nothing to show that under the jus in bello as it existed in DATE a person who did not satisfy the formal conditions to qualify as a “ combatant ” had automatically to be assigned to the category of “ civilians ” with all its attendant guarantees .

The ORG notes , further , that the operation of DATE was selective in character . The case file clearly shows that ORG at no stage intended to attack the village of PERSON itself DATE for instance , with a view to eliminating all its inhabitants and burning down the buildings . The ORG considers that there is no need for it to resolve the dispute between the parties as to whether a judgment had been delivered by an ad hoc military tribunal organised from among the detachment of Partisans . It would merely note that the impugned operation was carried out against CARDINAL specific , identified men who were strongly suspected of having collaborated with the NORP occupier . After arriving at the homes of each of the CARDINAL heads of family and searching their homes , the Partisans executed them only after rifles and grenades supplied by the NORP – tangible evidence of their collaboration – were found . Conversely , with the exception of the QUANTITY women whose situation the ORG will examine below , all the villagers were spared . In particular , no young children in the village at the time of the attack – including the children of those who were executed DATE suffered ( see paragraphs CARDINAL and CARDINAL(a ) above ) . Lastly , CARDINAL houses , those belonging to GPE and PERSON , were burnt down .

The ORG considers it necessary to analyse the specific provisions of the ORG appended to LAW of DATE in order to determine whether a plausible legal basis existed for convicting the applicant of CARDINAL prohibited act . In this connection , it notes that the NORP courts omitted in their decisions to carry out a detailed and sufficiently thorough analysis of the aforementioned text , but simply referred to certain of its articles without explaining how they came into play in the applicant 's case . In the circumstances , and in the absence at the material time of settled national or international case - law or practice for interpreting LAW and appended Regulations , the ORG considers it necessary to apply the literal and universally accepted meaning of the wording used .

NORP In its judgment of DATE , ORG cited CARDINAL articles of the Regulations in question : DATE , sub - paragraph CARDINAL , point ( b ) , which makes it illegal “ to kill or wound treacherously individuals belonging to the hostile nation or army ” ; LAW , which prohibits attacks on “ towns , villages , dwellings , or buildings which are undefended ” ; and , lastly , LAW , sub - paragraph CARDINAL , which provides that certain fundamental rights such as “ family honour and rights , the lives of persons , and private property ” must be respected . The instant case concerned a targeted military operation consisting in the selective execution of armed collaborators of the NORP enemy who were suspected on legitimate grounds of constituting a threat to the Red Partisans and whose acts had already caused the deaths of their comrades . Accordingly , the ORG is not persuaded by the respondent ORG 's assertion that the case concerned “ an undefended village ” . In point of fact , the operation was scarcely any different from those carried out at the same period by the armed forces of the ORG powers or by local Resistance members in many NORP countries occupied by NORP GPE . Furthermore , the domestic courts failed to explain in what respect the operation was considered to have been performed “ treacherously ” within the meaning of LAW and not as a legitimate “ ruse of war ” , as authorised by LAW .

Lastly , with respect to the offence of “ pillaging ” of which the applicant was also accused in the domestic courts and which is strictly prohibited by CARDINAL and CARDINAL of the ORG , the ORG again notes that the applicant was not convicted of this offence and that the charge of theft of personal belongings or food from the villagers was ultimately not upheld . Nor can ORG seizure of the weapons that had been supplied to the Mazie Bati villagers by the NORP military administration be characterised as “ pillage ” within the meaning normally ascribed to that term as weapons do not come within the category of “ private property ” .

The Government submitted that on CARDINAL DATE the applicant should have known that he was committing a war crime as prior to that date the NORP authorities had already tried and sentenced to death a number of NORP servicemen for abuses similar to those being perpetrated by his unit . In that connection , the Government referred in particular to the PERSON trial which had taken place DATE previously ( see paragraphs CARDINAL above ) . However , the Government have failed to explain in what respect the conduct of the unit engaged in the Mazie Bati operation was identical or similar to the acts committed by the NORP who were tried at GPE . The decisions of the domestic courts were silent on this point . Accordingly , this argument by the Government can not be accepted .

In the light of the foregoing , the ORG considers that it has not been adequately demonstrated that the attack on DATE was per se contrary to the laws and customs of war as codified by the Regulations appended to LAW of DATE . Accordingly , in view of the summary nature of the reasoning of the NORP courts , it concludes that there was no plausible legal basis in international law on which to convict the applicant for leading the unit responsible for the operation .

There remains the issue of the CARDINAL women killed at FAC , namely ORG mother and wife , who was DATE pregnant , and PERSON wife . In this instance , the ORG considers that the characterisation in law of the circumstances in which they died essentially depends on CARDINAL questions : firstly , whether and to what extent they had participated in the betrayal of Major PERSON 's group in DATE and , secondly , whether their execution was planned by ORG from the start or whether the members of the unit were in fact acting beyond their authority . Here again , the ORG can but regret the overly general and summary nature of the domestic courts ' reasoning , which does not allow any definite answers to be given to these CARDINAL questions . For its part , it considers that there are CARDINAL possible explanations for what happened .

The first was that the QUANTITY women concerned played a role in the betrayal of PERSON 's men , and their execution during the operation carried out on DATE was planned from the start . The ORG notes that the Government have not refuted the applicant 's assertion that the QUANTITY women had escaped the vigilance of ORG who had taken refuge in GPE ' barn and had kept watch while the men had gone to the neighbouring village to alert the NORP garrison , and that after the Partisans had been killed , GPE ' mother had removed the coats from the bodies ( see paragraph CARDINAL above ) . This version appears to be supported by the fact that only these women were killed whereas , for example , PERSON wife was spared ( see paragraph CARDINAL above ) . If this account is true , the ORG is bound to conclude that the QUANTITY women were also guilty of abusing their status of “ civilians ” by providing genuine , concrete assistance to the QUANTITY men from PERSON who collaborated with the NORP occupier . In such circumstances , the ORG 's finding with respect to the men who were executed during the operation on DATE is in general equally applicable to the CARDINAL women .

The second explanation is that the women 's execution was not initially planned by the applicant'Under this scenario , the ORG accepts that the acts committed by the members of the applicant 's unit against the CARDINAL women concerned could prima facie constitute offences under the general law , whether of murder , involuntary homicide , wounding causing death or failure to assist a person in danger , or CARDINAL of the “ military crimes ” to which the applicant has referred ( see paragraph CARDINAL above ) . As offences under the general law , these must be examined by reference to the domestic law applicable at the material time .

On the assumption that the deaths of the CARDINAL women from PERSON were the result of an abuse of authority by ORG , the ORG notes that , as with the CARDINAL men , the decisions of the NORP courts contain no indication of the exact degree of implication of the applicant in their execution . It has never been alleged that he himself killed the women or that he ordered or incited his comrades to do so . In any event , the ORG considers that even if the applicant 's conviction was based on domestic law , it was manifestly contrary to the requirements of LAW following reason .

In the instant case , the parties and the third party intervener agreed that the applicable domestic criminal legislation applicable to the events of CARDINAL DATE was LAW NORP GPE , which was adopted in DATE and became applicable to the NORP territory by virtue of the decree of DATE . LAW prescribed limitation periods of CARDINAL , DATE , depending on the length of sentence faced . Although that provision also provided for CARDINAL specific exceptions to the limitation rule , it is evident that neither was relevant to the applicant 's situation ( see paragraph CARDINAL above ) . In this connection , the ORG observes that LAW on the Non - Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity only applies to the specific offences defined in LAW and not to offences under the general law , which remain subject to statutory limitation . Consequently , even supposing that the applicant committed CARDINAL or more serious offences under LAW during the Mazie Bati operation , the ORG can but note that the corresponding statutory limitation periods expired definitively DATE after the commission of the offences , that is to say in DATE .

The Government questioned the applicability of the limitation period and cited LAW , which extended be non - applicability of limitation periods to all offences carrying the death penalty . In that connection , they referred to “ continuity ” in the criminalisation of the impugned acts which , they said , had existed DATE . The ORG can not accept that argument . The aforementioned LAW was adopted in DATE , by which time the prosecution of the offences the applicant is alleged to have committed had , under the preceding Code , been statute - barred for DATE . While it is true that LAW stipulated that statutory limitation did not automatically apply to offences carrying the death penalty ( see paragraph CARDINAL above ) , it did not contain any retroactive clause enabling the aforementioned exception to be applied to offences committed in the past or to call into question limitation that had already crystallised . The applicant could not , therefore , have foreseen either in DATE or at any later date that the offences whose prosecution had already definitively become statute barred would DATE again become liable to prosecution ( see , by converse implication , PERSON , cited above , § CARDINAL ) .

Admittedly , the ORG has held in a previous case that LAW does not prohibit an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation ( NORP and Others , judgment cited above , § CARDINAL ) . However , where CARDINAL is dealing with offences under the general law , it considers that that provision in principle prevents any restoring of the possibility of punishing offenders for acts which were no longer punishable because they had already become subject to limitation . It is clear from the ORG 's submissions that that is precisely what happened in the instant case . In this connection , the ORG reiterates that limitation periods , which are a common feature of the domestic legal systems of GPE , serve several purposes , which include ensuring legal certainty and finality and preventing infringements of the rights of defendants , which might be impaired if courts were required to decide on the basis of evidence which might have become incomplete because of the passage of time ( see PERSON and Others v. GPE , judgment of DATE , Reports CARDINAL , pp . CARDINAL - CARDINAL , § CARDINAL , and PERSON and Others , judgment cited above , § CARDINAL ) .

Likewise , the ORG does not dispute that it was only from the restoration of NORP independence in DATE that the authorities of that ORG were able to bring criminal proceedings against those suspected of having committed offences DATE . It notes , however , that there is not and never has been any provision in NORP law which would make it possible to suspend or extend limitation periods solely on account of the offences in question being committed at a time when the country was under foreign domination . This argument by the Government must therefore be rejected .

In sum , even supposing that the applicant committed CARDINAL or more offences under the general law on DATE , the ORG finds that their prosecution has been definitively statute barred since DATE and that it would be contrary to the principle of foreseeability inherent in LAW to punish him for these offences DATE after the expiry of the limitation period .

The Government submitted in the alternative that the applicant 's conduct during the attack on PERSON was criminal according to the general principles of law recognised by civilised nations ” , within the meaning of the second paragraph of LAW . In that connection , the ORG notes that on virtually every occasion the Convention institutions have examined a case under the second paragraph of LAW , they have not considered it necessary also to examine it under the first paragraph ( PERSON v. GPE , no . CARDINAL , Commission decision of CARDINAL DATE , Yearbook CARDINAL , p. CARDINAL ; X. v. GPE , no . CARDINAL/CARDINAL , Commission decision of CARDINAL DATE , ORG of ORG . CARDINAL , p. CARDINAL ; X. v. GPE , no . ORG decision of CARDINAL DATE , ORG no . CARDINAL , p. CARDINAL ; and PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALV , as also the decisions of X. v. GPE ( no . DATE ) , PERSON and PERSON ( no . CARDINAL ) cited above ; for more extensive reasoning , see PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE , and the Kolk and ORG decision cited above ) . The ORG sees no reason to deviate from that approach in the present case . Since it has examined the case under the first paragraph of DATE , it does not consider it necessary also to examine it under the second paragraph . In any event , even supposing that that paragraph was applicable in the instant case , the operation of CARDINAL DATE can not be regarded as “ criminal according to the general principles of law recognised by civilised nations ” .

In the light of the foregoing , the ORG considers that the applicant could not reasonably have foreseen on DATE that his acts amounted to a war crime under the jus in bello applicable at the time . There was , therefore , no plausible legal basis in international law on which to convict him of such an offence . Even supposing that the applicant has committed CARDINAL or more offences under the general domestic law , their prosecution has long since become statute barred . Accordingly , domestic law could not serve as the basis for his conviction either .

There has consequently been a violation of LAW .

Article CARDINAL of the ORG provides :

' If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . '

NORP The applicant claimed the following sums without making any precise distinction between pecuniary and non - pecuniary damage :

( a ) MONEY ( ORG ) for the turmoil and anxiety she had suffered during the criminal proceedings ;

( b ) an additional LAW for the suffering he had endured in pre - trial detention ;

( c ) EUR CARDINAL,CARDINAL for the trauma of not being able to attend the funerals of his son and CARDINAL brothers while he was in prison ;

( d ) MONEY ( ORG ) as compensation for a plot of land he had been forced to sell to pay for his defence before the domestic courts ;

( e ) USD CARDINAL,CARDINAL as compensation for a flat he had been forced to sell to cover his medical expenses ;

( f ) EUR CARDINAL,CARDINAL for the remuneration of PERSON , an investigator at ORG , while he was handling the applicant 's case ;

( g ) EUR CARDINAL,CARDINAL for the remuneration received by the public prosecutors while dealing with the applicant 's case ;

( h ) EUR CARDINAL,CARDINAL,CARDINAL in compensation for the damage done to his honour and reputation by his trial and conviction ;

( i ) EUR CARDINAL for his “ unlawful conviction ” .

The Government observed that only damage sustained as a result of CARDINAL or more Convention violations found by the ORG could give rise to an award of just satisfaction under LAW . Most of the heads of damage alleged by the applicant related to complaints which had already been dismissed by ORG in its admissibility decision of DATE and accordingly had no link with the alleged violation of LAW . In particular , the Government saw no reason why they should be required to pay the applicant sums corresponding to the remuneration of members of the prosecution service when this had been paid by the ORG and not by the applicant .

As for the remainder of the aforementioned claims , the Government contended that they were unrealistic and excessive . In their submission , since the applicant 's guilt in the murder of the CARDINAL villagers “ had been established beyond all reasonable doubt ” , the applicant himself had “ caused suffering to the PERSON villagers ” and had not paid any financial compensation to the survivors or made any apology , the ORG should not award him anything in respect of non - pecuniary damage . A finding of a violation would therefore in itself constitute sufficient reparation for any non - pecuniary damage sustained by the applicant .

The ORG reiterates that it is an essential condition for an award of reparation in respect of pecuniary damage under LAW causal link to exist between the alleged damage and the violation which has been found ( NORP v. GPE [ ORG ] , no . ORG , § CARDINAL , ECHR DATE , and GPE v. GPE , no . CARDINAL , § DATE , ORG CARDINALII ) . Exactly the same rule applies to non - pecuniary damage ( PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § MONEY , CARDINAL May CARDINAL).EUR CARDINAL in respect of non - pecuniary damage together with any taxes that might be payable .

The applicant claimed CARDINAL lati ( ORG ) , equivalent to ORG CARDINAL , for his costs and expenses before the ORG . He did not produce any documentary evidence in support of his claims .

The Government submitted that the applicant 's claim , which was unsupported by any documentary evidence , did not meet the fundamental requirements established by the ORG 's case - law in this sphere .

The ORG reiterates that , for an award of costs and expenses to be made under LAW , they must have been actually and necessarily incurred by the injured party . In particular , by LAW , itemised particulars of any claim made under LAW must be submitted , together with the relevant supporting documents or vouchers , failing which the ORG may reject the claim in whole or in part . Costs and expenses are only recoverable to the extent that they relate to the violation that has been found ( see , among other authorities , GPE v. GPE ( just satisfaction ) [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINALXI ; PERSON v. GPE ( just satisfaction ) [ ORG ] , no . CARDINAL , § CARDINAL , CARDINAL DATE ; and GPE v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ... ( extracts ) ) . The applicant 's claim under this head , which is made in very general terms , is not supported by any documentary evidence and is , accordingly , dismissed .

The ORG considers it appropriate that the default interest should be based on the marginal lending rate of ORG , to which should be added CARDINAL percentage points .