The Polish Government

124. The Polish Government submitted that there existed a genuine connection between the death of the applicants’ relatives and the Convention’s entry into force. Firstly, the investigation was instituted only in 1990 because any earlier steps had been impossible for political reasons, namely the direct involvement of the USSR’s leaders. Secondly, the investigation had been instituted proprio motu on the initiative of Soviet authorities and had been pursued by the Russian authorities six years after the ratification. Thirdly, there existed extensive and conclusive evidence of Katyn massacre being a massive and multiple delictum iuris gentium which triggered the application of the last sentence in paragraph 163 of the Šilih judgment. The Polish Government insisted that the Katyn massacre presented all the features of a crime of war within the meaning of the customary international law, as it had existed at least since the late nineteenth century, and the Nuremberg Principles and subsequent instruments.

125. The Polish Government acknowledged that the responsibility of a State under the Convention was not unlimited in time but a procedural obligation “binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it” (they quoted from Šilih, cited above, § 157, and also referred to Brecknell v. the United Kingdom, no. 32457/04, §§ 66-72, 27 November 2007). They also quoted a passage from the Brecknell judgment concerning an obligation on States to investigate unlawful killings arising many years after the events because of the obvious public interest in obtaining the prosecution and conviction of perpetrators, particularly in the context of war crimes and crimes against humanity (§ 69). A failure to undertake such an investigation or prosecute perpetratorsof the killing would be tantamount to a denial of justice and be contrary to the public order. In the Polish Government’s submission, the application of the Court’s case-law relating to the “detachability” of the procedural obligation under Article 2 of the Convention should lead it to the conclusion that the death of the applicants’ relatives had been the result of actions by State officials and that the obligation to conduct an investigation was autonomous in character and unconnected with the original interference with the rights of the applicants’ relatives resulting in their death.

126. In the Polish Government’s view, the investigation fell short of the effectiveness and fairness requirements because the Russian authorities had not made use of the evidence collected by the Polish side in the context of the legal‑assistance request of 25 December 1990 by the USSR Chief Prosecutor’s Office. It was clear from the Russian Government’s submissions that between 1995 and 2004 no efforts had been made to collect evidence independently. The Russian authorities had not examined the applicants residing in Poland or asked their Polish counterparts to examine them. The forensic endeavours of the Russian authorities had been too haphazard to be conducive to a real possibility of establishing a convincing body count.

127. Furthermore, the investigation could not be considered effective because the applicants had been barred from participating in the proceedings and had been denied victim status under Russian law. The applicant Ms Wołkand others had stated their interest in obtaining information about the proceedings as far back as 1998, but had not been given official notification that the investigation in case no. 159 had been discontinued on 21 September 2004. The refusal of victim status had represented a denial of justice and prevented the applicants from accessing the evidence gathered, which contained information on the fate of their relatives. However, according to the settled case-law of the Court, relatives of the victims had to be given the possibility of actively participating in the proceedings, submitting motions for evidence to be taken or influencing the proceedings in other ways (here the Polish Government referred to Rajkowska v. Poland (dec.), no.37393/02, 27November 2007).

B. The Court’s assessment

128. In its admissibility decision of 5 July 2011, the Court joined the Government’s objection as to its temporal jurisdiction in respect of the procedural limb of Article 2 of the Convention to the merits of the case. Accordingly, it will examine at the outset whether the objection must be upheld or rejected.

129. The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party. This is an established principle in the Court’s case-law (see Blečić, cited above, § 70) based on the general rule of international law embodied in Article 28 of the Vienna Convention (see paragraph 77 above).

130. The obligation to carry out an effective investigation into unlawful or suspicious deaths is well-established in the Court’s case-law relating to Article 2 of the Convention (for a full statement of principles by the Grand Chamber, see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 110-113, ECHR 2005-VII).While it is normally death in suspicious circumstances that triggers the procedural obligation under Article 2, this obligation binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it (seeŠilih, cited above, § 157, with further references).

131. The Court has consistently examined the question of procedural obligations under Article 2 separately from the question of compliance with the substantive obligation and, on several occasions, a breach of a procedural obligation has been alleged in the absence of any complaint as to the substantive aspect of this Convention provision (see Calvelli and Ciglio v. Italy[GC], no. 32967/96, § § 41-57, ECHR 2002‑I; Byrzykowski v. Poland, no.11562/05, §§86 and 94-118, 27June 2006; and Brecknell, cited above, § 53). In the Court’s case-law, the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State even when the death took place before the critical date (see Šilih, cited above, §§ 159-160).

132. Nevertheless, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article2 in respect of deaths that occur before the critical date is not open-ended.

First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that datecan fall within the Court’s temporal jurisdiction.

Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect.

Thus, a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account – will have been or ought to have been carried out after the critical date.

However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner (see Šilih, cited above, §§ 160-163).

133. The Court also notes that there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events, since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity (see Brecknell, cited above, § 69). Where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures. The lapse of time will, inevitably, be an obstacle as regards, for example, the location of witnesses and the ability of witnesses to recall events reliably (loc. cit., § 71). The extent to which the requirements of effectiveness, independence, promptness and expedition, accessibility to the family and sufficient public scrutiny apply will again depend on the particular circumstances of the case, and may well be influenced by the passage of time. Promptness will be likely not to come into play in the same way, since, for example, there may be no urgency as regards the securing of a scene of the crime from contamination or in obtaining witness statements while recollections are sharp. Reasonable expedition will remain a requirement, but what is reasonable is likely to be coloured by the investigative prospects and difficulties which exist at such a late stage (loc. cit., § 72).

134. The Court has examined a number of cases in which the death of an individual occurred before the date of ratification of the Convention by the respondent State but the Court nevertheless had temporal jurisdiction to examine the respondent State’s compliance with the procedural obligation flowing from Article 2 of the Convention owing to its “detachable” nature. Thus, in Šilih, the death of the applicants’ son occurred a little more than a year before the entry into force of the Convention in respect of Slovenia, while, with the exception of the preliminary investigation, all the criminal and civil proceedings were initiated and conducted after that date (see Šilih, cited above, § 165). In a series of cases against Romania concerning the investigation into killings of protesters during the Romanian revolution in December 1989, the Court found that it had jurisdiction on account of the fact that on the date of the ratification of the Convention by Romania which happened on 20June 1994 the proceedings were still pending before the prosecutor’s office (see Association 21 December 1989and Others, § 117, Şandru and Others, § 58, Agache and Others, § 71, all cited above, andLăpuşan and Others v. Romania, nos. 29007/06, etc., § 59, 8 March 2011). Similarly, the fact that all the major events of the investigation occurred after the ratification date was sufficient to establish the Court’s temporal jurisdiction, even though the applicant’s son had died four years and three months before the entry into force of the Convention in respect of Ukraine (see Lyubov Efimenko, cited above, § 65). The Court has also implicitly rejected the Croatian Government’s objection in a case in which the killing of the applicant’s husband occurred six years before the ratification, during the Homeland War in Croatia, probably at the hands of members of the occupying forces and on territory outside the control of the Croatian authorities (see Jularić, cited above, §§38 and 45-46).

135. The first common feature of the above-mentioned cases was a relatively short period of time that passed between the death and the entering in force of the Convention in respect of the respondent State. It was as short as one year in the leading Šilih case and six years at the longest in the Jularić case. The Court emphasises that the lapse of time between the triggering event and the ratification date must remain reasonably short, if it is to comply with the “genuine connection” standard enunciated in the Šilih judgment (see the case-law cited above). The second element threading the above cases together was the fact that a significant proportion of the investigative steps required for ensuring compliance with the procedural obligation under Article 2 of the Convention was carried out after the ratification date. This is a corollary of the principle that the Court’s jurisdiction only extends to the procedural acts and omissions occurring after that date. Whenever a major part of the proceedings had taken place before the ratification, this principle would preclude the Court from assessing the efficiency of the investigation in its entirety and from forming a view as to the respondent State’s compliance with Article 2.

136. Turning to the established facts in the instant case, the Court notes that the applicants’ relatives who had been taken prisoners after the Soviet Red Army had invaded the Polish territory and who had been detained at the Soviet prison camps, were executed on orders of the Politburo of the USSR Communist Party on various dates in April and May 1940. The lists of prisoners for execution were compiled on the basis of the NKVD “dispatch lists” which mentioned, among others, the names of the applicants’ relatives. It is true that only three of the applicants’ relatives were identified during the 1943 exhumation; the remains of the others have never been found. Nonetheless, in the absence of any evidence, however circumstantial it could be, that they may have somehow escaped the shooting, they must be presumed to have perished in the 1940 hecatomb. In the light of the historical evidence that has gradually come to light to this day, the Court concludes that the present case concerns the death of the applicants’ relatives which occurred in 1940.

137. The Russian Federation ratified the Convention on 5 May 1998, that is fifty-eight years after the execution of the applicants’ relatives. In the Court’s view, the period of time between the death and the ratification date is not only many times longer than those which triggered the coming into effect of the procedural obligation under Article 2 in all previous cases but also it is excessively long in absolute terms to establish any genuine connection between the death and the entry into force of the Convention in respect of Russia.

138. The Court further notes that a significant proportion of the Katyn investigation in criminal case no. 159 appears to have taken place before the ratification date. The excavation of the corpses at the mass burial sites in Kharkov, Mednoye and Katyn was performed in 1991 and in the same time period the investigators commissioned a number of forensic examinations and organised interviews with more than forty witnesses. In 1992, the Russian State Archives handed over to the Polish authorities the historic documents relating to the Katyn massacre, including the Politburo decision of 5 March 1940. In 1995, a stock-taking meeting was held between the Russian, Polish, Belarusian and Ukrainian prosecutors. That being so, the Court is unable to find any indication in the file or in the parties’ submissions that any procedural steps of comparable importance were undertaken in the post-ratification period. It is true that neither the Polish parties nor the Court have at their disposal the entire investigation file in case no. 159, parts of which were given secrecy classification by the Russian authorities. Nonetheless, should there have been any major procedural developments in the case between the ratification date and the discontinuation of the proceedings in 2004, it must have been possible to provide at least a summary description of such developments, without giving specific details. The applicants’conjecture that some important event must have occurred in the post-ratification period which prompted a change of position on the part of the Russian authorities is not sufficient to convince the Court that the proportion of the investigative steps after 1998 significantly outweighed the important investigative and forensic work that was carried out in the early 1990s.It follows that the criterion triggering the coming into effect of the procedural obligation imposed by Article 2 has not been fulfilled.

139. The Court is further called upon to examine whether the circumstances of the instant case were such as to justify the finding that the connection between the triggering event and the ratification could be based on the need to ensure the effective protection of the guarantees and the underlying values of the Convention. Far from being fortuitous, the reference of the underlying values of the Convention indicates that, for such connection to be established, the event in question must be of a larger dimension than an ordinary criminal offence and constitute a negation of the very foundations of the Convention, such as for instance, war crimes orcrimes against humanity. Although such crimes are not subject to a statutory limitation by virtue of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (cited in paragraph 76 above), it does not mean that the States have an unceasing duty to investigate them. Nevertheless, the procedural obligation may be revived if information purportedly casting new light on the circumstances of such crimes comes into the public domain after the critical date. It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell, cited above, §§ 66-72). Should new material come to light in the post-ratification period and should it be sufficiently weighty and compelling to warrant a new round of proceedings, the Court will have temporal jurisdiction to satisfy itself that the respondent State has discharged its procedural obligation under Article 2 in a manner compatible with the principles enunciated in its case-law (see the applicable principles in paragraph 133 above).

140. The Court accepts that the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime. Both the Hague Convention IV of 1907 and the Geneva Convention of 1929 prohibited acts of violence and cruelty against war prisoners and the murder of prisoners of war constituted a “war crime” within the meaning of Article 6 (b) of the Nuremberg Charter of 1945. Although the USSR was not a party to the Hague or Geneva Conventions, the obligation to treat prisoners humanely and abstain from killing them clearly formed part of the international customary law which it had a duty to respect. In its declaration of 26 November 2010, the Russian Parliament recognised that the mass extermination of Polish citizens had been “an arbitrary act by the totalitarian State”. It is further noted that war crimes are imprescriptible in accordance with Article I (a) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, to which Russia is a party. It remains therefore to be seen whether there have been any new elements in the post-ratification period capable of furnishing the connection between the prisoners’ death and the ratification and imposing a fresh obligation to investigate under Article 2 of the Convention. In this connection, the Court observes that the documents, on the basis of which the decision to execute the Polish prisoners had been made, were made public by the Russian State Archives in 1992 and that the investigators obtained statements from witnesses as to the manner in which the executions had been carried out. By contrast, in the period after 5 May 1998, no piece of evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues has been produced or uncovered. The Court is therefore bound to conclude that there were no elements capable of providing a bridge from the distant past into the recent post-ratification period and that the special circumstances justifying a connection between the death and the ratification have not been shown to exist.

141. Lastly, in so far as it can be alleged that the institution of any kind of proceedings in connection with the death of an individual will ipso factobe indicative of the applicability of Article 2, the Court reiterates its position, as expressed in the Brecknell judgment: if Article 2 does not impose the obligation to pursue an investigation into an incident, the fact that the State chooses to pursue some form of inquiry does not thereby have the effect of imposing Article 2 standards on the proceedings (see Brecknell, cited above, § 70).In other words, not every investigation that has been instituted must be conducted in accordance with the procedural requirements of Article 2. A distinction must be drawn between a domestic decision to investigate which could be made on account of political, legal or ethical considerations at national level, and the procedural obligation to investigate which flows from the Convention and engages the international responsibility of the State. It is only the latter, but not the former, that is subject to the Court’s scrutiny and in the instant case no such procedural obligation can be said to have arisen.

142. Having regard to the above considerations, the Court upholds the Government’s objection as to its competence ratione temporis and finds that it is unable to take cognisance of the merits of the complaint under Article 2 of the Convention.

Date: 2015-01-11; view: 850