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The applicants

117. The applicants acknowledged that the Katyn massacre committed in 1940 was an act outside the temporal reach of the Convention and that the Court had no competence ratione temporis to deal with its substantive aspect. However, in their view, the Court could examine the observance by Russia of the applicants’ right to obtain an effective investigation under the procedural limb of Article 2.

118. The applicants disagreed with the legal characterisation of the Katyn massacre as an abuse of power by SovietState officials, an offence which was subject to a three-year prescription period. They submitted that the Polish soldiers captured by the Red Army had been entitled to the full protection guaranteed to prisoners of war, including the protection against acts of violence and cruelty afforded by the provisions of the Hague Convention IV of 1907 and the Geneva Convention of 1929 (cited in paragraphs 72 and 73 above). The murder of Polish prisoners of war in 1940 had been an unlawful act which violated Articles 4, 23(c) and 50 of the Hague Convention IV and Articles 2, 46, 61 and 63 of the Geneva Convention. Even though the USSR had not been a party to either Convention, it had a duty to respect the universally binding principles of international customary law, which had merely been codified in those Conventions. That such an obligation was recognised as legally binding by the USSR was clearly evidenced by the fact that, at the Nuremberg trial, the Soviet prosecutor had attempted to charge the Nazi leaders with the murder of Polish prisoners of war. The extermination of Polish prisoners of war was a war crime within the meaning of Article 6 (b) of the Nuremberg Charter and the shooting of civilians amounted to a crime against humanity as defined in Article 6 (c) of the Nuremberg Charter. Execution of prisoners of war constituted and was treated as a war crime by the international community, which was convincingly demonstrated by the abundant case-law from the post-war trials of war criminals. The Katyn massacre was also described as “a war crime having the character of genocide” in the resolution of the Polish Parliament of 23 September 2009 and the statement of the Delegation to the EU-Russia Parliamentary Co-operation Committee of 10 May 2010.

119. The applicants considered that the Court was competent to examine the observance by Russia of the procedural aspect of Article 2 because Russia was the legal successor to the USSR and because the obligation to treat prisoners of war and civilians humanely and not to kill them had existed de jure at the time of the Katyn massacre and had been binding on the USSR. If the Katyn case were to be treated as a “confirmed death case” – the interpretation favoured by the applicants as being consistent with the established historical facts – the obligation under Article 2 to carry out an effective investigation into the Katyn massacre should be analysed in the light of the “need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” (the applicants referred to Šilih, cited above, § 163 in fine). The expression “the underlying values of the Convention” had been previously invoked by the Court to find that particular instances of hate speech, such as speech denying the Holocaust or justifying war crimes, were incompatible with the values of the Convention (here they referred to Garaudy v. France, (dec.),no. 65831/01, ECHR 2003‑IX (extracts), and Orban and Others v. France, no. 20985/05, § 35, 15 January 2009). Since speech denying the reality of crimes of international law was deemed to contravene the underlying values of the Convention, the same rationale would apply to the acts themselves that undermined the very sense of justice and peace, which are the fundamental values of the Convention, as expressed in its Preamble. Accordingly, in the applicants’submission, the mention of the underlying values in paragraph 163 of the Šilih judgment was a justification for the State’s obligation to conduct an effective investigation when the death had preceded the ratification of the Convention by the respondent State. In that case the proportion of procedural steps undertaken before or after the “critical date” (the date of ratification) was not relevant for determining the Court’s jurisdiction ratione temporis. As the mass killings of Polish citizens constituted both a war crime and a crime against humanity, they were to be characterised as contrary to the very foundations of the Convention. In such a case compliance with the procedural limb of Article 2 was to be seen as the only real and effective protection of the Convention’s underlying values.



120. Furthermore, the Court was also competent to examine the complaint on account of the fact that a significant part of the procedural steps in the Katyn investigation had taken place after the ratification date on 5 May1998, since the facts established before and after that date differed profoundly. Whereas at earlier stages of the investigation the execution of Polish prisoners by the NKVD organs had not been doubted – as evident from the prosecutor’s letter of 21 April 1998 to Ms Wołk and that of 10 February 2005 to Mr Nawratil and Mr Janowiec – by late 2004 the position of the Russian authorities had changed and the prosecutors and the courts had accepted the disappearance of the Polish prisoners as the only version. Although it was impossible to determine precisely what legal steps had taken place before and after the ratification date, owing to the classified nature of many of the Katyn investigation files, the fact that the crucial decisions to discontinue the investigation and to classify its materials had been made only in September and December 2004, long after the “critical date”, was of relevance. The applicants also referred to the Court’s judgments in which the deaths under investigation had occurred some time before the ratification date, but the investigation itself had been carried out after ratification: Association 21 December 1989and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011;Jularić v. Croatia, no. 20106/06, 20 January 2011; Lyubov Efimenko v. Ukraine, no. 75726/01, 25 November 2010; Şandru and Others v. Romania, no. 22465/03, 8 December 2009, and Agache and Others v. Romania, no. 2712/02, 20 October 2009.

121. Alternatively, the Katyn massacre could be treated as a “disappearance case”, although, in the applicants’ view, such an interpretation would distort the historical facts and would merely follow the line taken by the Russian courts. If this approach were taken, the Court’s case-law concerning disappearance cases, including Varnava and Others, cited above, and many “Chechen” cases against Russia and “Kurdish” cases against Turkey, would be applicable. Disappearance constituted a continuing situation and it was therefore irrelevant when the person had disappeared in so far as there were relatives – spouses, children, siblings, parents – who could be considered as indirect victims. Owing to the continuing nature of the violation, the respondent State had an obligation to account for the fate of those who had disappeared and the Court should have temporal jurisdiction over the investigation into the disappearance.

122. The applicants rejected the Russian Government’s argument that the investigation in case no. 159 had not concerned the death of their relatives. The case had been instituted in 1990 to investigate the disappearance of Polish officers and the relevant decision had never been declared unlawful by any prosecutorial or judicial body. The investigation had uncovered dispatch records mentioning the applicants’ relatives’ names and had determined that Polish prisoners had been placed “at the disposal” of the NKVD organs. The witnesses examined during the investigation had confirmed that the Polish prisoners had been shot dead, and had provided the names of NKVD officials who had been their source of information or who had actually executed Polish citizens. The materials in case no. 159 contained no information to suggest that any of the applicants’ relatives might have died of natural causes or been set free by the NKVD. The legal characterisation of the Katyn massacre was not dependent on a prior decision of any international or domestic court and, as it constituted an imprescriptible crime under international law, the Russian authorities had an obligation to institute and conduct a criminal investigation into the circumstances of the massacre. The applicants referred to the Court’s findings in Kononov v. Latvia to the effect that a domestic prosecution for war crimes would have required reference to international law, not only as regards the definition of such crimes, but also as regards the determination of any applicable limitation period (they cited Kononov v.Latvia [GC], no. 36376/04, § 230 in fine, ECHR 2010‑...).

123. On the merits, the applicants considered that the investigation in case no. 159 could not be regarded as effective. Firstly, the Russian authorities had given contradictory information about the fate of the applicants’ relatives, initially confirming their death at the hands of the NKVD squads and subsequently describing them as disappeared persons. Secondly, the Chief Military Prosecutor’s Office had disregarded numerous pieces of evidence, including the findings of the 1943 exhumation and the NKVD dispatching lists, and had failed to commission DNA tests comparing genetic samples taken from the interred bodies with samples from living relatives. Thirdly, the applicants had been refused victim status in case no. 159 and the Russian authorities had taken no steps to identify the relatives of the alleged victims. Fourthly, owing to the classified status of the materials, the applicants had been denied access to the documents concerning the fate of their relatives. Lastly, the investigation, which had lasted from 1990 to 2004, had failed to meet the transparency, promptness and reasonable expedition requirements.


Date: 2015-01-11; view: 759


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III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION | The Polish Government
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