II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION

91. Having regard to the Russian Government’s consistent refusal to produce, at the Court’s request, a copy of the decision of 21 September 2004 by which the investigation into the Katyn massacre had been discontinued (see paragraphs 42 and 43 above), the Court considers it appropriate to start the examination of the case with an analysis of the Russian Government’s compliance with their procedural obligation flowing from Article 38 of the Convention to furnish all necessary facilities for the conduct of the Court’s investigation. Compliance with this obligation is a condition sine qua non for the effective conduct of the proceedings before the Court and it must be enforced irrespective of any findings that will be made in the proceedings and of their eventual outcome.

92. Article 38 reads as follows:

“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”

A. The parties’ submissions

1. The Russian Government

93. The Russian Government maintained that their refusal to provide a copy of the decision of 21 September 2004 was founded on the provisions of international and domestic law. Pursuant to the State Secrets Act, the Government Regulation no. 1003 of 22 August 1998 on the procedure of access to State secrets by dual nationals, stateless persons, foreign nationals, emigrants and returning emigrants, and the Government Regulation no. 973 (cited in paragraph 86 above), a decision on transferring classified information to a foreign state or international organisation was to be made by the Government on the basis of a report drafted by the Inter-agency Commission for the Protection of State Secrets and in accordance with the procedure set out in an international treaty. In the instant case there was no Commission report, Government decision or international treaty. As regards their international obligations, the Russian Government referred to the European Convention on Mutual Legal Assistance in Criminal Matters which provided that assistance could be refused “if the requested Party considers that the execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests of its country” (Article 2 (b)). A similar provision was contained in Article17 of the Russian-Polish bilateral agreement on legal assistance and legal relations in civil and criminal cases. In the Russian Government’s opinion, Article 38 of the Convention did not prohibit them from withholding information which could impair State security.

94. The Russian Government submitted that the decision of 21 September 2004 was not the crucial document in the instant case because it did not mention the applicants’ names, affect their rights or contain information about the fate of their relatives or the position of their burial sites. Accordingly, its disclosure was not necessary. They also claimed that “many States still [kept] certain documents relating the events of World War II secret, despite the requests for their disclosure” and that the information relating to intelligence, counterintelligence and operational and search activities constituted a State secret within the meaning of the State Secrets Act. The Russian Government asserted that they had discharged their obligations under Article 38 by submitting to the Court the necessary information, including the decisions of the domestic courts and limited information on the contents of the decision of 21 September 2004. Moreover, Russian counsel for the applicants had had access to the documents in the case-file, including the decision of 21 September 2004.

2. The applicants

95. The applicants pointed out at the outset that the submission of a copy of the decision of 21 September 2004 was crucial to the determination by the Court whether the Russian investigation into the Katyn massacre had been effective. In their view, State security considerations did not relieve the Russian Government from their obligation under Article 38 of the Convention to submit a copy of the document. Besides, the Russian Government did not substantiate their allegations of security concerns: they did not ask the Court to restrict the access to the document in question or edit out the potentially sensitive passages and access to the documents was not restricted to the highest State officials because the Russian advocates of the applicants could take cognisance of its contents. Most importantly, the Russian Government did not explain why the document needed to be classified. The decision in question concerned an atrocity that had been committed by a totalitarian regime whose principles contradicted the values of the Convention and making and keeping it secret could not serve to protect the core security interests of a MemberState of the Council of Europe and the Convention. Besides, section 7 of the Russian State Secrets Act contained a list of information which could not be declared secret or classified, and that list included information about violations of rights and freedoms and about unlawful action by State authorities or officials.

96. The applicants further pointed to the longstanding principle of customary international law, according to which no internal rule, even of constitutional rank, can be invoked as an excuse for non-observance of international law (here they referred to the case-law of the Permanent Court of International Justice and of the International Court of Justice (ICJ)). This principle was codified in Article 27 of the Vienna Convention on the Law of Treaties as an extension of the more general pacta sunt servanda principle and has been frequently invoked in the jurisdiction of international courts and quasi-judicial bodies, including the Human Rights Committee, the International Criminal Tribunal for the former Yugoslavia (ICTY), the Inter-American Court on Human Rights, the African Commission on Human and Peoples’ Rights, and arbitrate tribunals. When confronted with a State party’sreluctance to submit the requested materials on account of confidentiality concerns, international tribunals held hearings in a closed session (see Godínez Cruz v. Honduras, IACtHR, judgment of 20 January 1989, and Ballo v. UNESCO, ILO Administrative Tribunal, judgment no. 191, 15 May 1972).Admittedly, the ICJ in the Corfu Channel case did not draw any negative inference when the United Kingdom refused to submit the evidence which it considered related to naval secrecy (judgment of 9 April 1949). However, the ICTY rejected the Croatian Government’s reliance on the Corfu judgment as a justification for their refusal to produce some documents and evidence of a military character in the Prosecutor v. Tihomir Blaškić case, holding, in particular, that a blanket right of States to withhold, for security reasons, documents necessary for proceedings might jeopardise the very function of the Tribunal (judgment of 29 October 1997). It added that the validity of State security concerns can be accommodated by procedural arrangements, including in camera hearings and special procedures for communicating and recording of sensitive documents. In the later case of Prosecutor v. Dario Kordić and Mario Čerkez, the ICTY also held that the questions of the relevance of the requested material for the proceedings fell into its full discretion and could not be challenged by States (decision of 9 September 1999). The applicants submitted that the ratio decidendi of those cases was applicable, mutatis mutandis, to the instant case.

3. The Polish Government

97. The Polish Government emphasised that the obligation to provide materials under Article 38 of the Convention would not be violated in the event that the refusal to provide them had been convincingly explained. The Russian Government, however, did not put forward a justification for classifying as secret a part of evidence collected during the investigation and the decision to discontinue the investigation of 21 September 2004. The proceedings in question were not related to the current functions or operations of special services or the police. Even if a part of the materials had been classified by the former regime, it could not be assumed that there existed a continuous and actual public interest in maintaining those restrictions. The Russian authorities had recognised the events which occurred in 1940 as historical, and there was no present interest in keeping the material relating to those 71-year-old events secret. Moreover, the alleged public interest in obscuring the circumstances of the crime perpetrated by a totalitarian regime in the past was placed above the continuous and actual private interest of the applicants whose aim was to learn the fate that had befallen their closest relatives. The Polish Government also invited the Court to consider the context in which the investigation into the Katyn massacre had taken place.

98. The Polish Government averred that the refusal to produce a copy of the decision was in breach of Article 27 of the Vienna Convention. What is more, the obligation to take all necessary measures in order to comply with the Court’s request to furnish certain documents flowed not only from international law but also from Article 15 § 4 of the 1993 Russian Constitution which proclaimed the priority of international law over any domestic legal provisions. The European Court has full capacity under Article 38 to address summons for the production of tangible evidence (subpoenae duces tecum) or for the appearance to give testimony to State parties to obtain information. The duty to discharge the obligation to co-operate was all the more compelling when the Court instructed, in advance, on the admissible manner of protecting State secrets from disclosure.

B. The Court’s assessment

1. General principles

99. The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 34 that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV, Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000‑VI). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact‑finding investigation or performing its general duties as regards the examination of applications. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well‑foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova v. Russia, no. 25385/04, § 76, 15January 2009, and Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI).

100. The obligation to furnish the evidence requested by the Court is binding on the respondent Government from the moment such request was formulated, whether it be upon an initial communication of an application to the Government or at a subsequent stage of the proceedings (see Enukidze and Girgvliani v. Georgia, no. 25091/07, § 295, 26 April 2011, and Bekirski v. Bulgaria, no. 71420/01, §§ 111-113, 2 September 2010). It is a fundamental requirement that the requested material must be submitted in its entirety, if the Court so requested, and any missing elements must be properly accounted for (see Enukidze and Girgvliani, cited above, §§ 299‑300, and Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §167 et seq., 1 July 2010).In addition, the documents must be produced promptly and, in any event, within the time-limit fixed by the Court, for a substantial and unexplaineddelay may lead the Court to find the respondent State’s explanations unconvincing (see Enukidze and Girgvliani, cited above, §§297 and 301).

101. The Court found that the respondent Government failed to comply with the requirements of Article 38 in cases where they had not provided any explanation for the refusal to submit requested documents (see, for instance, Bekirski, cited above, § 115, and Tigran Ayrapetyan v. Russia, no. 75472/01, § 64, 16September 2010) or had submitted an incomplete or distorted copy, while refusing to produce the original document for the Court’s inspection (see Trubnikov v. Russia, no. 49790/99, §§ 50-57, 5 July 2005). In cases where the Government put forward confidentiality or security considerations as the reason for their failure to produce the requested material, the Court undertook an independent verification whether or not there had actually existed reasonable and solid grounds for treating the documents in question as secret or confidential. Thus, in many cases chiefly concerning disappearances in the ChechenRepublic, the Russian Government relied on the provision of the Code of Criminal Procedure which, in their submission, precluded disclosure of the documents from the file of an ongoing investigation. The Court, however, pointed out that the provision in question must have been misconstrued, for it did not contain an absolute prohibition but rather set out the procedure for and limits to such disclosure. It also noted that in many comparable cases the Government had submitted the requested documents without mentioning that provision, or agreed to produce documents from the investigation files even though they had initially invoked that provision (see, for instance, Sasita Israilova and Others v. Russia, no. 35079/04, § 145, 28 October 2010, and Musikhanovaand Others v. Russia, no. 27243/03, § 107, 4December 2008).

102. As regards the secrecy classification, the Court was not satisfied with the Government’s explanation that regulations relating to the procedure for review of prisoners’ correspondence would constitute a State secret (see Davydov and Others, cited above, § 170) or that the domestic law did not lay down a procedure for communicating information classified as a State secret to an international organisation (see Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009). If there existed legitimate national security concerns, the Court pointed out that the Government should have edited out the sensitive passages or supplied a summary of the relevant factual grounds (ibid.). Finally, when reviewing the nature of the classified information, the Court took into account whether the document was known to anyone outside the secret intelligence and the highest State officials. High sensitivity of information was put into doubt once it became clear that laymen, such as counsel for the party in a civil case, could take cognisance of the document in question (ibid.).

Date: 2015-01-11; view: 777