III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

112. The applicants complained that the Russian authorities had not discharged their obligation flowing from the procedural limb of Article 2 of the Convention, which required them to conduct an adequate and effective investigation into the death of their relatives. Article 2 provides as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

A. The parties’ submissions

1. The Russian Government

113. The Government submitted that a legal distinction ought to be drawn between two situations: in the first case, a violation of the Convention occurred in the period outside the Court’s temporal jurisdiction, in the second case a violation of the Convention “did not legally exist at all” because at the material time the Convention had not existed. In the cases previously examined by the Court, the events that triggered the duty to investigate had occurred after the adoption of the Convention. In the instant case the alleged violation of Article 2 under its substantive limb not only fell outside the Court’s temporal jurisdiction but also had not existed de jure, since the Katyntragedy had preceded the adoption of the Convention on 4 November 1950 by ten years and its ratification by Russia on 5 May 1998 by fifty-eight years. In the Government’s view, this precluded the Court from examining Russia’s compliance with its procedural obligations. Referring to the Court’s findings in the Moldovan and Blečić cases (Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005‑VII (extracts), and Blečić v. Croatia[GC], no. 59532/00, ECHR 2006‑III), the Government stressed that the Convention did not impose on Russia an obligation to investigate the Katyn events because they had been outside the Court’s temporal jurisdiction.

114. The Government further distinguished the present case from Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) and Varnava and Others v. Turkey ([GC], nos. 16064/90, 16065/90, etc., ECHR 2009‑...). Thus, in Šilih,a significant number of the procedural steps had been carried out after the entry into force of the Convention in respect of Slovenia (§§ 163 and 165), but the most important investigative actions in case no. 159 had taken place between 1990 and 1995, before the ratification of the Convention by Russia. Moreover, in Šilih the death of the applicants’ son occurred just one year before the ratification of the Convention by Slovenia and the criminal and civil proceedings began after the ratification date, whereas the “Katyn events” had preceded the Russian ratification by 58 years and the Katyn investigation had been initiated in 1990, that is eight years before the ratification date. The Government stressed that in Varnava the alleged disappearances had also occurred after the adoption of the Convention and had therefore legally existed, which was a pre-condition for the Court’s finding that it had temporal jurisdiction over the investigation. This element distinguished the Varnava situation from the instant case concerning events in 1940. Furthermore, the applicants in the instant case must have been aware from the media reports about the on-going investigation since 1990, but it was not until 1998 that they formally requested the Russian authorities to investigate the “disappearance or death” of their relatives.

115. The Government submitted that the Russian authorities had not actually investigated “the circumstances of the death of the applicants’ relatives” since criminal case no. 159 had been instituted in connection with the mass graves of unknown Polish citizens discovered near Kharkov. The investigation had established that certain officials of the USSR NKVD had exceeded their official duties and that the so-called “troika” had taken extrajudicial decisions in respect of certain prisoners of war. However, owing to the destruction of the records, the investigation had not been able to determine in what circumstances Polish citizens had been taken prisoner and detained in the NKVD camps, what charges had been brought against them and whether their guilt had been proven or who had carried out the executions. The suspects in case no. 159 had died before the proceedings had been instituted; even if they had been alive in 2004, they would have been exempt from criminal liability. Moreover, since the suspects would not be able to participate in the criminal proceedings, those proceedings would not have an adversarial character and their prosecution would run counter to the fairness requirement.

116. In addition, the institution of case no. 159 had been unlawful because the decision of 22 March 1990 did not refer to any specific provisions of the Ukrainian Code of Criminal Procedure and because the maximum prescription period – set at ten years under the RSFSR[2] Criminal Code of 1926 applicable at the time – had already expired. The “Katyn events” had not been recognised by any national or international tribunal as falling into the category of crimes not subject to prescription. The RSFSR Criminal Code of 1926 did not contain a definition of a war crime and Article 22 § 2 of the Rome Statute prohibits criminal law from being extended by analogy. Accordingly, neither Article 78 § 5 of the Criminal Code concerning imprescriptible crimes nor the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968 was applicable. In those circumstances, the Russian authorities had no legal obligation, under either national or international law, to carry out an investigation in case no. 159.

Date: 2015-01-11; view: 761