Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






Application of the principles in the instant case

103. On 10 October 2008 and 27 November 2009 the Court gave notice of applications nos. 55508/07 and 29520/09, respectively, to the Russian Government, put a number of questions to them and requested them to produce a copy of the decision of 21 September 2004 relating to the discontinuation of the proceedings in the Katyn investigation. The Russian Government refused to provide it, citing its secret classification at domestic level. Following its decision of 5 July 2011 as to the joinder of the applicants and partial admissibility of the applications, the Court informed the parties that they would have until 15 September 2011 to submit any additional material which they wished to bring to its attention and also put a question on the Russian Government’s compliance with their obligations under Article 38 of the Convention. The Russian Government did not make use of that additional time to submit a copy of the requested decision.

104. In so far as the Russian Government claimed that the requested decision had not been the crucial document in the case and had not been necessary for the conduct of the Court proceedings, the Court reiterates that, being master of its own procedure and of its own rules, it has complete freedom in policing the conduct of its own proceedings, assessing the admissibility and relevance of evidence as well as its probative value. In particular, only the Court may decide whether and to what extent the participation of a particular witness would be relevant for its assessment of the facts and what kind of evidence the parties should produce for due examination of the case. The parties are obliged to comply with its evidential requests and instructions, and provide timely information on any obstacles in complying with them and provide any reasonable or convincing explanations for such a failure (see Davydov and Others, cited above, §174; Nevmerzhitsky v. Ukraine, no. 54825/00, § 77, ECHR 2005-II (extracts), and Ireland v. the United Kingdom, 18 January 1978, § 210, Series A no. 25). In the light of these considerations, the Court emphasises that it has absolute discretion to determine what evidence it needs for the examination of the case and, accordingly, it finds without merit the Russian Government’s argument relating to the allegedly unimportant role of the requested decision in the Court proceedings.

105. The Russian Government advanced the domestic classification of the decision of 21 September 2004 as the secondary justification for their failure to produce it before the Court. According to them, the domestic laws and regulations prevented them from communicating classified documents to international organisations in the absence of the Inter-agency Commission’sreport and decision to that effect and an international treaty setting out the procedure and guarantees of confidentiality for such documents.

106. The Court reiterates that the Convention is an international treaty which, in accordance with the principle of pacta sunt servanda codified in Article 26 of the Vienna Convention on the Law of Treaties, is binding on Contracting Parties and must be performed by them in good faith. Pursuant to Article 27 of the Vienna Convention, the provisions of internal law may not be invoked as justification for the Contracting State’s failure to perform a treaty. In the context of the obligation flowing from the text of Article 38 of the Convention, this requirement means that the respondent Government may not rely on their domestic legal impediments to justify a failure to furnish the facilities necessary for the Court’s examination of the case. In so far as the Russian Government referred to the absence of a report by the Inter-agency Commission, the Court considers, as did the Human Rights Committee in its General Comment No. 31, that the executive branch which usually represents the State Party internationallymay not point to the fact that an action incompatible with the provisions of an international treaty was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility (see paragraph 78 above).



107. It is apposite to recall in this connection the Court’s constant position that Governments are answerable under the Convention for the acts of any State agency since what is in issue in all cases before the Court is the international responsibility of the State (see Lukanov v. Bulgaria, 20 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). As the Court has already found in a similar case against Russia, a mere reference to the structural deficiency of the domestic law which rendered impossible communication of sensitive documents to international bodies is an insufficient explanation to justify the withholding of information requested by the Court (see Nolan and K., cited above, § 56). It follows that the Russian Government are not entitled to invoke the provisions of their own domestic law to justify their refusal to comply with the Court’s request for the production of written evidence.

108. Finally, it is noteworthy that at no point in the proceedings did the Russian Government explain the exact nature of the security concerns which required classification of the decision of 21 September 2004, and even the identity of the authority which made the decision on its classification was far from clear (see the outline of the domestic declassification proceedings in paragraphs 59 to 63 above). The Court, for its part, is unable to discern any legitimate security considerations which could have justified suppression of information contained in that decision from public scrutiny. It notes that the decision in question concluded the investigation into a mass murder of disarmed prisoners, a war crime committed by the USSR authorities more than seventy years ago, which has been described in the Russian Parliament’s declaration of 26 November 2010 as an “atrocity”, “terrible tragedy” and “arbitrary act by the totalitarian State”. The decision thus related to a historical event, with most of protagonists being already dead, and it could not have touched upon any current police surveillance operations or activities.

109. The Court is not convinced that a public and transparent investigation into the crimes of the previous totalitarian regime could have compromised the national security interests of the contemporary democratic Russian Federation, especially taking into account that the responsibility of the Soviet authorities for that crime has been acknowledged at the highest political level. Moreover, the decision to classify the document appears to have been at variance with the requirements of the Russian law, in that section 7 of the State Secrets Act expressly precluded any information about violations of human rights by State officials from being classified. In sum, the Court finds likewise no substantive grounds which could have justified the Russian Government’s refusal to produce a copy of the requested decision.

110. Even assuming that the Russian Government had legitimate security considerations for keeping secret the text of the requested decision, those could have been accommodated with appropriate procedural arrangements, including a restricted access to the document in question under Rule 33 of the Rules of Court and, in extremis, the holding of a hearing behind closed doors. Although the Russian Government were fully aware of those possibilities, they preferred not to make use of them or seek their application by the Court, which is an additional indication of their reluctance to comply with the Court’s request under Article 38 of the Convention.

111. In the light of the above considerations, the Court concludes that the Russian Government breached their obligations under Article 38 of the Convention on account of their failure to submit a copy of the requested document.


Date: 2015-01-11; view: 742


<== previous page | next page ==>
II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION | III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
doclecture.net - lectures - 2014-2024 year. Copyright infringement or personal data (0.007 sec.)