I. AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF THE APPLICANT MR KRZYSZTOF JAN MALEWICZ
89. Following the death of the applicant Mr Krzysztof Jan Malewicz on 7 July 2011, his son, Mr Piotr Malewicz, informed the Court of his wish to pursue in his stead the grievances he had raised.
90. The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant’s heirs or close family members who expressed the wish to pursue the proceedings before it (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX, and Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). It therefore accepts that Mr Piotr Malewicz, born in 1975 and living in Wroclaw, Poland, may pursue the application in so far as it was lodged by his late father.
II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION
91. Having regard to the Russian Government’s consistent refusal to produce, at the Court’s request, a copy of the decision of 21 September 2004 by which the investigation into the Katyn massacre had been discontinued (see paragraphs 42 and 43 above), the Court considers it appropriate to start the examination of the case with an analysis of the Russian Government’s compliance with their procedural obligation flowing from Article 38 of the Convention to furnish all necessary facilities for the conduct of the Court’s investigation. Compliance with this obligation is a condition sine qua non for the effective conduct of the proceedings before the Court and it must be enforced irrespective of any findings that will be made in the proceedings and of their eventual outcome.
92. Article 38 reads as follows:
“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”
A. The parties’ submissions
1. The Russian Government
93. The Russian Government maintained that their refusal to provide a copy of the decision of 21 September 2004 was founded on the provisions of international and domestic law. Pursuant to the State Secrets Act, the Government Regulation no. 1003 of 22 August 1998 on the procedure of access to State secrets by dual nationals, stateless persons, foreign nationals, emigrants and returning emigrants, and the Government Regulation no. 973 (cited in paragraph 86 above), a decision on transferring classified information to a foreign state or international organisation was to be made by the Government on the basis of a report drafted by the Inter-agency Commission for the Protection of State Secrets and in accordance with the procedure set out in an international treaty. In the instant case there was no Commission report, Government decision or international treaty. As regards their international obligations, the Russian Government referred to the European Convention on Mutual Legal Assistance which provided that assistance could be refused “if the requested Party considers that the execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests of its country” (Article 2 (b)). A similar provision was contained in Article 17 of the Russian-Polish bilateral agreement on legal assistance and legal relations in civil and criminal cases. In the Russian Government’s opinion, Article 38 of the Convention did not prohibit them from withholding information which could impair State security.
94. The Russian Government submitted that the decision of 21 September 2004 was not the crucial document in the instant case because it did not mention the applicants’ names, affect their rights or contain information about the fate of their relatives or the position of their burial sites. Accordingly, its disclosure was not necessary. They also claimed that “many States still [kept] certain documents relating the events of World War II secret, despite the requests for their disclosure” and that the information relating to intelligence, counterintelligence and operational and search activities constituted a State secret within the meaning of the State Secrets Act. The Russian Government asserted that they had discharged their obligations under Article 38 by submitting to the Court the necessary information, including the decisions of the domestic courts and limited information on the contents of the decision of 21 September 2004. Moreover, Russian counsel for the applicant had had access to the documents in the case-file, including the decision of 21 September 2004.
2. The applicants
95. The applicants pointed out at the outset that the submission of a copy of the decision of 21 September 2004 was crucial to the determination by the Court whether the Russian investigation into the Katyn massacre had been effective. In their view, State security considerations did not relieve the Russian Government from their obligation under Article 38 of the Convention to submit a copy of the document. Besides, the Russian Government did not substantiate their allegations of security concerns: they did not ask the Court to restrict the access to the document in question or edit out the potentially sensitive passages and access to the documents was not restricted to the highest State officials because the Russian advocates of the applicants could take cognisance of its contents. Most importantly, the Russian Government did not explain why the document needed to be classified. The decision in question concerned an atrocity that had been committed by a totalitarian regime whose principles contradicted the values of the Convention and making and keeping it secret could not serve to protect the core security interests of a Member State of the Council of Europe and the Convention. Besides, section 7 of the Russian State Secrets Act contained a list of information which could not be declared secret or classified, and that list included information about violations of rights and freedoms and about unlawful action by State authorities or officials.
96. The applicant further pointed to the longstanding principle of customary international law, according to which no internal rule, even of constitutional rank, can be invoked as an excuse for non-observance of international law (here they referred to the case-law of the Permanent Court of International Justice and of the International Court of Justice (ICJ)). This principle was codified in Article 27 of the Vienna Convention on the Law of Treaties as an extension of the more general pacta sunt servanda principle and has been frequently invoked in the jurisdiction of international courts and quasi-judicial bodies, including the Human Rights Committee, the International Criminal Tribunal for the former Yugoslavia (ICTY), the Inter-American Court on Human Rights, the African Commission on Human and Peoples’ Rights, and arbitrate tribunals. When confronted with a State party’s reluctance to submit the requested materials on account of confidentiality concerns, international tribunals held hearings in a closed session (see Godínez Cruz v. Honduras, IACtHR, judgment of 20 January 1989, and Ballo v. UNESCO, ILO Administrative Tribunal, judgment no. 191, 15 May 1972). Admittedly, the ICJ in the Corfu Channel case did not draw any negative inference when the United Kingdom refused to submit the evidence which it considered related to naval secrecy (judgment of 9 April 1949). However, the ICTY rejected the Croatian Government’s reliance on the Corfu judgment as a justification for their refusal to produce some documents and evidence of a military character in the Prosecutor v. Tihomir Blaškić case, holding, in particular, that a blanket right of States to withhold, for security reasons, documents necessary for proceedings might jeopardise the very function of the Tribunal (judgment of 29 October 1997). It added that the validity of State security concerns can be accommodated by procedural arrangements, including in camera hearings and special procedures for communicating and recording of sensitive documents. In the later case of Prosecutor v. Dario Kordić and Mario Čerkez, the ICTY also held that the questions of the relevance of the requested material for the proceedings fell into its full discretion and could not be challenged by States (decision of 9 September 1999). The applicants submitted that the ratio decidendi of those cases was applicable, mutatis mutandis, to the instant case.
3. The Polish Government
97. The Polish Government emphasised that the obligation to provide materials under Article 38 of the Convention would not be violated in the event that the refusal to provide them had been convincingly explained. The Russian Government, however, did not put forward a justification for classifying as secret a part of evidence collected during the investigation and the decision to discontinue the investigation of 21 September 2004. The proceedings in question were not related to the current functions or operations of special services or the police. Even if a part of the materials had been classified by the former regime, it could not be assumed that there existed a continuous and actual public interest in maintaining those restrictions. The Russian authorities had recognised the events which occurred in 1940 as historical, and there was no present interest in keeping the material relating to those 71-year-old events secret. Moreover, the alleged public interest in obscuring the circumstances of the crime perpetrated by a totalitarian regime in the past was placed above the continuous and actual private interest of the applicants whose aim was to learn the fate that had befallen their closest relatives. The Polish Government also invited the Court to consider the context in which the investigation into the Katyn massacre had taken place.
98. The Polish Government averred that the refusal to produce a copy of the decision was in breach of Article 27 of the Vienna Convention. What is more, the obligation to take all necessary measures in order to comply with the Court’s request to furnish certain documents flowed not only from international law but also from Article 15 § 4 of the 1993 Russian Constitution which proclaimed the priority of international law over any domestic legal provisions. The European Court has full capacity under Article 38 to address summons for the production of tangible evidence (subpoenae duces tecum) or for the appearance to give testimony to State parties to obtain information. The duty to discharge the obligation to co-operate was all the more compelling when the Court instructed, in advance, on the admissible manner of protecting State secrets from disclosure.
B. The Court’s assessment
1. General principles
99. The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 34 that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV, Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000-VI). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova v. Russia, no. 25385/04, § 76, 15 January 2009, and Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI).
100. The obligation to furnish the evidence requested by the Court is binding on the respondent Government from the moment such request was formulated, whether it be upon an initial communication of an application to the Government or at a subsequent stage of the proceedings (see Enukidze and Girgvliani v. Georgia, no. 25091/07, § 295, 26 April 2011, and Bekirski v. Bulgaria, no. 71420/01, §§ 111-113, 2 September 2010). It is a fundamental requirement that the requested material must be submitted in its entirety, if the Court so requested, and any missing elements must be properly accounted for (see Enukidze and Girgvliani, cited above, §§ 299-300, and Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 167 et seq., 1 July 2010). In addition, the documents must be produced promptly and, in any event, within the time-limit fixed by the Court, for a substantial and unexplained delay may lead the Court to find the respondent State’s explanations unconvincing (see Enukidze and Girgvliani, cited above, §§ 297 and 301).
101. The Court found that the respondent Government failed to comply with the requirements of Article 38 in cases where they had not provided any explanation for the refusal to submit requested documents (see, for instance, Bekirski, cited above, § 115, and Tigran Ayrapetyan v. Russia, no. 75472/01, § 64, 16 September 2010) or had submitted an incomplete or distorted copy, while refusing to produce the original document for the Court’s inspection (see Trubnikov v. Russia, no. 49790/99, §§ 50-57, 5 July 2005). In cases where the Government put forward confidentiality or security considerations as the reason for their failure to produce the requested material, the Court undertook an independent verification whether or not there had actually existed reasonable and solid grounds for treating the documents in question as secret or confidential. Thus, in many cases chiefly concerning disappearances in the Chechen Republic, the Russian Government relied on the provision of the Code of Criminal Procedure which, in their submission, precluded disclosure of the documents from the file of an ongoing investigation. The Court, however, pointed out that the provision in question must have been misconstrued, for it did not contain an absolute prohibition but rather set out the procedure for and limits to such disclosure. It also noted that in many comparable cases the Government had submitted the requested documents without mentioning that provision, or agreed to produce documents from the investigation files even though they had initially invoked that provision (see, for instance, Sasita Israilova and Others v. Russia, no. 35079/04, § 145, 28 October 2010, and Musikhanova and Others v. Russia, no. 27243/03, § 107, 4 December 2008).
102. As regards the secrecy classification, the Court was not satisfied with the Government’s explanation that regulations relating to the procedure for review of prisoners’ correspondence would constitute a State secret (see Davydov and Others, cited above, § 170) or that the domestic law did not lay down a procedure for communicating information classified as a State secret to an international organisation (see Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009). If there existed legitimate national security concerns, the Court pointed out that the Government should have edited out the sensitive passages or supplied a summary of the relevant factual grounds (ibid.). Finally, when reviewing the nature of the classified information, the Court took into account whether the document was known to anyone outside the secret intelligence and the highest State officials. High sensitivity of information was put into doubt once it became clear that laymen, such as counsel for the party in a civil case, could take cognisance of the document in question (ibid.).
2. 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’s report 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 internationally may 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.
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 Katyn tragedy 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  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.
2. 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 Soviet State 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 63 and 64 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 May 1998, 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 1989 and 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.
3. 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 perpetrators of 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 Wołk and 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, 27 November 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 (see Šilih, 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, 27 June 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 Article 2 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 date can 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 20 June 1994 the proceedings were still pending before the prosecutor’s office (see Association 21 December 1989 and Others, § 117, Şandru and Others, § 58, Agache and Others, § 71, all cited above, and Lăpuşan 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 or crimes 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 facto be 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.