Today, the Grand Chamber of the European Court of Human Rights is expected to announce its final judgement in the case of Janowiec and others v. Russia (applications no. 55508/07, 9520/09 ). The case originated from the events of April and May 1940 when an estimated 21,000 Polish officers and officials were detained in the Kozielsk, Starobelsk, and Ostashkov camps before being executed by the Soviet secret police (NKVD) in Katyń forest and the Kharkov and Tver NKVD prisons. The bodies were buried in mass graves.

Photo credit: http://www.pamietamkatyn1940.pl

When the graves were first discovered in 1943, Soviet authorities put the blame on the Nazis (see Burdenko Commission). The crime was ignored at the Nuremberg trials (see the commentary of Prof. Schabas here and here) and the “official” version of the events was imposed for the next 50 years. Investigation into the crimes started in 1990 and ceased in 2004 following the decision of Russian authorities to classify part of the case file as top secret and to discontinue the investigation. The applicants in the case are relatives of some of the victims of the Katyń killings. They claim that the Russian authorities breached their rights by failing to carry out an effective investigation into the death of their relatives and by displaying a dismissive attitude towards the applicants’ requests for information about their relatives’ fate.

The seven-judge chamber was quite divided on all of the issues discussed in the judgement of 12 April 2012. By five votes to two, the Chamber granted the application under article 3 of the Convention (prohibition of degrading or inhumane treatment) having found that “the manner in which the applicants’ enquiries have been dealt with by the Russian authorities has attained the minimum level of severity to be considered inhuman treatment within the meaning of Article 3 of the Convention” (para. 166). The Majority found also that Russian authorities violated article 38 of the Convention (obligation to furnish necessary facilities for examination of the case) through their failure to provide the Court with the classified 2004 decision on discontinuation of the investigation into the Katyń crimes. This post however, will look at the gist of the reasoning pertaining to the part of the application which was rejected – namely, the failure of the Russian authority to fulfil their positive obligation under article 2 of the Convention (right to life) to investigate unlawful or suspicious deaths effectively.

The issue at stake is the temporal applicability of the Convention. The Janowiec et al case is the first case in which the ECHR considered applicability of a state-party’s procedural obligation under article 2 with regard to events that took place not only before it ratified the Convention (Russia ratified in 1998), but even before the Convention was drafted!

The Majority judgement relied on a rather vaguely worded test applied by the Grand Chamber in its decision of 2009 in the Šilih v. Slovenia case (Application no. 71463/01). According to Šilih v. Slovenia, there is a possibility for the Court to consider cases concerning an investigation into the events that took place before a given state’s ratification of the Convention (“critical date”), but only as it pertains to procedural acts/omissions occurring after the critical date. Moreover, there needs to be a “genuine connection” between the crime and the entry into force of the Convention. This requires that a significant proportion of the procedural steps pertaining to the investigation in question must take place after the ratification of the Convention. There is a clause in the test, however, which seems to provide leeway for exceptions: in “certain circumstances”, genuine connection could also be based on “the need to ensure that the guarantees and underlying values of the Convention are protected in a real and effective manner” (Šilih, paras. 160-163).

Having applied the above criteria in Janowiec et al., the Majority found that the 58 year long time lapse between the death of the applicants’ relatives and the entry into force of the Convention by Russia was unprecedented in terms of the temporal circumstances of the similar cases in which the Court has previously found a positive obligation under article 2 (the longest time lapse prior to Janowiec was just six years in Jularić v. Croatia (Application no. 20106/06). It was also unable to find any post-ratification procedural developments that would be comparably significant to those that took place before the ratification of the Convention by Russia in 1998. As to the exceptional clause, the Majority did recognize that the crimes in question were war crimes to which no statutory limitation applied. However, it stated that from this mere fact, one cannot derive a state’s “unceasing obligation to investigate” such crimes. Furthermore, the Majority added an extra qualification to the Šilih test – an obligation to investigate war crimes which occurred long in the past will arise only if some new information becomes available after the “critical date” (Brecknell v the UK, Application no. 32457/04, paras 66-67). Such information must have “the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further”. By four to three votes the Chamber found that this was not the situation in the case of the Katyń investigation, as the critical documents were made public by the Russian State Archives in 1992, six years before the Convention’s entry into force for Russia (see paras 134-140).

Judges Spielman, Villiger and Nussberger strongly opposed the Majority’s restrictive application of the “underlying values of the Convention” clause. They noted the vague wording of the clause while at the same time contesting the additional qualification introduced in the majority’s reasoning.

According to the three judges “the gravity and magnitude of the crimes in question coupled with the attitude of the Russian authorities after the entry into force of the Convention, warrant application of the special-circumstances clause in the last sentence of paragraph 163  of the crimes.” They assert that the clause introduced in the Šilih judgement was intended to cover cases exactly like the one of “20,000 prisoners of war who were murdered by State agents without any judicial process and buried in mass graves”. In their view, as long as an investigation is still possible (i.e. the evidence is still available), the Court will have temporal jurisdiction over the investigation carried out by the Russian authorities into the Katyń massacres. To this end they pointed to the decision of the Russian authorities to classify part of the case files as top secret and to discontinue the investigation in September 2004. According to the three judges, the Majority, when applying its interpretation of the Šilih judgment’s special circumstances clause, should have considered these decisions as major developments in the Katyń investigation.

It will be interesting to see which way the Grand Chamber will take this dispute. The factual background is also important here. The article 3 violation found by the seven-judge panel seems to be largely based on the applicants’ lack of access to the part of the case file and authorities refusal to provide the applicants access to the decision on discontinuation of the investigations (all of which occurred after the “critical date”).

The Grand Chamber’s decision may have wide-reaching consequences on the investigation and prosecution of war crimes committed many years ago. If the Katyń case triggers the positive obligation to investigate under the Convention, other victims groups may be bringing similar claims before the ECHR.