IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
143. The applicants relied on Article 3 of the Convention, submitting that, owing to a lack of information about the fate of their relatives and the Russian authorities’ dismissive approach to their requests for information, they had endured inhuman and degrading treatment in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The Russian Government
144. The Government put forward three arguments. Firstly, they pointed out that the right to rehabilitation fell outside the scope of the proceedings before the Court. Secondly, they stressed that the Chief Military Prosecutor’s Office had provided the applicants with all the relevant information about their relatives that was available in criminal case no. 159. Thirdly, they maintained that the mere fact that the Russian authorities’ replies to the applicants had been different did not amount to inhuman or degrading treatment and that the Russian authorities had had no intention of causing suffering to the applicants by providing the information contained in their replies.
145. The Government also contrasted the instant case with the case of Gongadze v. Ukraine (no. 34056/02, ECHR 2005-XI). The Gongadze case concerned the disappearance of the applicant’s husband and for more than five years the applicant received contradictory information from the Ukrainian authorities about the identification of his body which gave her hope that her husband might be alive. As regards the instant case, the Government claimed that the death of the applicants’ relatives had not been established and their bodies had not been discovered or identified. The applicants themselves had been neither witnesses or participants to the “events”.
2. The applicants
146. The applicants asserted that the sudden reversal of the position of the Russian authorities which had occurred at some point in 2004 and had entailed the transformation of the dead Katyn victims into “disappeared persons” amounted, on its own, to inhuman and degrading treatment, especially when the advanced age of all the applicants but one was taken into account. An additional element contributing to the applicants’ suffering had been the authorities’ unjustified denial of access to the documents in case no. 159 which could shed light on the fate of their relatives, both at the domestic level and in the proceedings before the Court (here they referred to the Court’s findings to the same effect in the case of Imakayeva v. Russia, no. 7615/02, § 165, ECHR 2006-XIII (extracts)).
147. The applicants’ expectations and hopes of having the circumstances of the Katyn massacre elucidated had been further dashed by the Russian courts’ decisions declaring that it had not been established what had happened to their relatives after they had been placed “at the disposal” of the NKVD. Those findings represented a sheer denial of the basic historical facts and were tantamount to informing a group of relatives of Holocaust victims that the victims must be considered unaccounted for as their fate could only be traced to the dead-end track of a concentration camp because the documents had been destroyed by the Nazi authorities.
148. The applicants believed that the reaction of the Russian institutions to their requests for the rehabilitation of their relatives also contained elements of degrading treatment. The Chief Military Prosecutor’s Office and the Moscow courts had refused their requests, claiming that it was impossible to determine the specific legal provisions governing the execution of Polish prisoners of war. Reliance on such grounds implied and even suggested that there might have been good reasons for the executions and that the victims might have been criminals who deserved capital punishment. This was to be considered highly offensive and degrading to the applicants.
3. The Polish Government
149. The Polish Government pointed out that the persons who had been taken prisoner, held and eventually murdered by the Soviet authorities were the next-of-kin of the applicants. Over a period of many years, for political reasons, the Soviet authorities had denied access to any official information about the fate of persons taken prisoner in late 1939. After an investigation had been instituted in 1990, the applicants had unsuccessfully attempted to gain access to the investigation materials for the purpose of obtaining the legal rehabilitation of their relatives. The lack of access and the contradictory information the applicants had received had instilled in them a feeling of constant uncertainty and stress and made them totally dependent on the actions of the Russian authorities aimed at humiliating them. This amounted to treatment in breach of Article 3 of the Convention.
B. The Court’s assessment
150. The applicants claimed that a prolonged denial of information about the fate of their relatives, taken together with dismissive and contradictory replies by the Russian authorities in respect to their requests for information and the Russian courts’ insistence of the version of “disappearance” in defiance of the established historic facts, amounted to inhuman or degrading treatment with the meaning of Article 3. The Court recalls that Article 3 has previously been relied on in a number of cases in which the applicants complained that they had suffered inhuman and degrading treatment on the part of the domestic authorities in the context of the death or disappearance of their next of kin.
151. The essence of the issue under Article 3 is not that there has been a serious human rights violation concerning the missing person; it lies in the authorities’ reactions and attitudes to the situation when it has been brought to their attention. The relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person. The Court emphasises that the finding of such a violation is not limited to cases where the respondent State has been held responsible for the disappearance but can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the fate of the missing person (see, amongst many authorities, Varnava and Others, cited above, § 200; Osmanoğlu v. Turkey, no. 48804/99, § 96, 24 January 2008; Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006; Imakayeva, § 164, and Gongadze, § 184, both cited above; Taniş and Others v. Turkey, no. 65899/01, § 219, ECHR 2005–VIII; Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV).
152. The Court observes at the outset that the authorities’ obligation under Article 3 is distinct from the obligation flowing from Article 2 of the Convention both on points of substance, and in its temporal outreach. There is a degree of similarity between the two obligations in that both are not an obligation of result, but one of means. However, whereas the procedural obligation under Article 2 requires the authorities to take specific legal action capable of leading to identification and punishment of those responsible, the obligation imposed by Article 3 is a more general humanitarian nature, for it enjoins the authorities to react to the plight of the relatives of the dead or disappeared individual in a humane and compassionate way. The authorities have a duty to comply with the requirements of Article 3 irrespective of whether they were responsible for the original act of death or disappearance (see Açış v. Turkey, no. 7050/05, §§ 36 and 51-54, 1 February 2011, in which the applicants’ husband and father was abducted by the separatist movement). It follows that the Court may assess the authorities’ compliance with this provision even in cases where the original taking of life escapes its scrutiny because of a procedural bar such as, for instance, the scope of its temporal jurisdiction (compare with the Human Rights Committee’s views on the admissibility of a similar complaint in Mariam Sankara et al. v. Burkina Faso, No. 1159/2003, 28 March 2006, cited in paragraph 81 above). Further, the scope of the Court’s analysis under Article 3 is not confined to any specific manifestation of the authorities’ attitudes, isolated incidents or procedural acts; on the contrary, the Court gives a global and continuous assessment of the way in which the authorities of the respondent State responded to the applicants’ enquiries as long as the final decision was made within six months before the introduction of the complaint (see Açış, cited above, § 45). In the instant case the most recent decisions being those issued by the Supreme Court of the Russian Federation on 24 May 2007 (in application no. 55508/07) and on 29 January 2009 (in application no. 29520/09), the Court may examine the Russian authorities’ reactions and attitudes from the moment of the ratification and until the above date.
153. As regards the proximity of the family ties between the applicants and the victims of the Katyn massacre, it is noted that a majority of the applicants have been the closest relatives of Polish officers or State officials who were had taken Soviet prisoners in 1939 and killed in 1940: Ms Wołk is the widow, and Mr Janowiec, Ms Michalska, Mr Tomaszewski, Mr Wielebnowski, Mr Gustaw Erchard, Ms Irena Erchard, Mr Jerzy Karol Malewicz, the late Mr Krzysztof Jan Malewicz who died in the course of the proceedings before the Court, and Ms Mieszczankowska are children, of executed Polish men. The children had been born at least a few years before the outbreak of the Second World War and were in their formative years when their fathers went missing. It must therefore be accepted that there existed a strong family bond between those applicants and their fathers or, in case of Ms Wołk, husband, and that all the above applicants may claim to be victims of the alleged violation of Article 3 (see Açış, cited above, § 53, and Luluyev and Others v. Russia, no. 69480/01, § 112, ECHR 2006-XIII (extracts)).
154. The situation is different with regard to the other five applicants. Two of them, Ms Wołk-Jezierska and Ms Krzyszkowiak, are the children of the victims of the Katyn massacre but they were born after the precipitated departure of their fathers to war and have never had a personal contact with them. Of the other three applicants who were twice removed from the Katyn victims, only Ms Rodowicz may have had an opportunity to seeing her grandfather before he perished in the NKVD camps, whereas Mr Trybowski and Mr Romanowski were born in 1940 and 1953 and had never known their respective grandfather and uncle. While accepting that the fact of being raised without their father must have been a source of continuing distress for Ms Wołk-Jezierska and Ms Krzyszkowiak, the Court considers that the mental anguish which those five applicants experienced on account of the disappearance of their fathers or more distant relatives was not such as to fall within the ambit of Article 3 of the Convention (see Taymuskhanovy v. Russia, no. 11528/07, § 122, 16 December 2010, and Musikhanova and Others v. Russia, no. 27243/03, § 81, 4 December 2008). In these circumstances, the Court will continue its examination of the alleged violation of Article 3 only in respect of the first group of applicants.
155. As in other cases concerning disappearances of family members, the widow and nine children who are now applicants before the Court were not eyewitnesses to the death of their loved ones and remained for a long time in a state of uncertainty as to the fate that had befallen them. There is evidence that sporadic exchange of correspondence between the Polish prisoners and their families was maintained until at least the spring 1940, so the families must have been aware that their husbands and fathers were alive and held as prisoners in Soviet camps. It was not until 1943 that the German Army uncovered mass burials near Katyn forest and carried out partial exhumation and identification of the remains. The Soviet authorities denied that they had executed the Polish prisoners-of-war and, without access to the NKVD files, it was not possible to ascertain the fate of those prisoners whose bodies had not been identified, including the relatives of the applicants in the instant case.
156. The end of the Second World War did not bring peace of mind to the applicants who could still nurture hope that at least some of the Polish prisoners could have survived, either in more remote Soviet camps or by escaping and going into hiding. As Poland fell into the Soviet zone of influence, the Soviet version of Nazi-orchestrated killings had been imposed as the official one in the People’s Republic of Poland for the entire duration of its existence, that is until 1989. With the passage of time, the applicants’ hope to re-unite with their disappeared relatives must have waned; however, as the realisation of their certain death was settling in, the desire for elucidating the circumstances surrounding their end of life must have been growing. The Court appreciates that the applicants suffered a double trauma: not only had their relatives perished in the war but they were not allowed, for political reasons, to learn the truth about what had happened and forced to accept the distortion of historical fact by the Soviet and Polish Communist authorities for more than fifty years.
157. Following the public acknowledgment of the fact that the Polish prisoners had been executed by the Soviet authorities and the institution of criminal proceedings, the applicants could have reasonably expected a genuine intention on the part of the Russian authorities to shed light on the circumstances of the Katyn massacre. However, by the time of ratification of the Convention by Russia in 1998, the investigation had not yielded any tangible results and had virtually stalled. The applicants have thus lived through a long period of uncertainty about the fate of their loved ones, followed by the Soviet-time epoch of deceit and distortion of historical facts, and then suffered frustration on account of an apparent lack of progress in the investigation. It is against this background that the Court will examine whether the Russian authorities’ responses to the applicants’ enquiries amounted to inhuman treatment in breach Article 3 of the Convention.
158. The Court observes at the outset that at no point in the investigation have the applicants been given access to its materials or otherwise involved in the proceedings. Whenever they made independent enquiries, those elicited only short replies from the Russian Chief Military Prosecutor’s Office in which they were initially informed that an investigation was ongoing or, at a later stage, that they would not have access to the investigation files because they had not formally been recognised as the injured parties. The requests for information submitted through diplomatic channels or through the Polish Institute for National Remembrance have been likewise unsuccessful. After the decision to discontinue the investigation had been made, shortly thereafter it was classified and its existence was only revealed at a press-conference. The applicants or the Polish authorities or members of the Institute for National Remembrance had never been officially informed of the outcome of the investigation (compare Orhan, cited above, § 359; see also Luluyev and Others, cited above, § 117). What is more, they were expressly banned from taking cognisance of the contents of that decision on account of their foreign nationality.
159. The Court is struck by the apparent reluctance of the Russian authorities to recognise the reality of the Katyn massacre, to which the applicants’ relatives had fallen victims. Admittedly, the Russian Chief Military Prosecutor’s Office conceded on a number of occasions that the applicants’ relatives had been executed in 1940 by the NKVD of the USSR (see the letters of 21 April 1998, 23 June 2003 and 10 February 2005 concerning Mr Wołk, Mr Nawartil and Mr Janowiec). However, in their initial observations on the admissibility and merits of application no. 55508/07, the Russian Government sought to discredit the information contained in the letter of 23 June 2003, claiming that the “conclusions had been made before the end of the investigation and were not confirmed later”. Further, while acknowledging that the applicants’ relatives had been detained as prisoners in the NKVD camps, the Russian military courts consistently avoided any mention of their subsequent execution, citing a lack of evidence to that effect from the Katyn investigation (see the Military Courts’ judgments of 18 April 2007 and 14 October 2008). The judgments were upheld on appeal in a summary fashion by the military bench of the highest court in the country, the Supreme Court of the Russian Federation (see the judgments of 24 May 2007 and 29 January 2009). The Court considers that the approach chosen by the Russian military courts which consisted in maintaining, to the applicants’ face and contrary to the established historic facts, that the applicants’ relatives had somehow vanished in the Soviet camps, demonstrated a callous disregard for the applicants’ concerns and deliberate obfuscation of the circumstances of the Katyn massacre (compare Timurtaş, cited above, § 97).
160. The Court further reiterates that from the standpoint of Article 3 it may examine the authorities’ reactions and attitudes to the applicants’ enquiries in their entirety and rejects the Government’s argument that it should disregard the rehabilitation proceedings. In those proceedings which followed on after the discontinuation of the investigation, the Russian prosecutors consistently rejected the applicants’ requests for rehabilitation of their relatives, claiming that, owing to the disappearance of relevant files, it was not possible to determine the specific legal basis for the repression against Polish prisoners (see the Chief Military Prosecutor’s letters of 18 January 2006, 12 February 2007 and 13 March 2008). The courts examining the applicants’ appeals against the prosecutor’s refusals reiterated, yet again, that there was no reason to assume that the Polish prisoners had actually been killed (see the judgment of 24 October 2008, upheld on appeal on 25 November 2008). These findings made in the rehabilitation proceedings not only distorted the established historical facts but also were mutually exclusive, for it could not be reasonably maintained at the same time that the Polish prisoners had been the victims of the repression, albeit on an unclear legal basis, and that they had not been murdered at all. In addition, the prosecutors’ reference to the missing criminal files in respect of Polish prisoners was in stark contradiction to the explicit terms of the Poliburo’s decision of 5 March 1940, according to which the cases of Polish prisoners were to be decided “without bringing any charges, with no statement concluding the investigation and no bill of indictment”. In sum, the Court finds it hard to disagree with the applicants’ argument that a denial of the reality of the mass murder reinforced by the implied proposition that Polish prisoners may have had a criminal charge to answer and had been duly sentenced to capital punishment demonstrated the attitude vis-à-vis the applicants that was not just opprobrious but also lacking in humanity.
161. On 26 November 2010 the Russian Duma adopted a statement on the Katyn tragedy and its victims, in which it recognised that the Polish prisoners-of-war had been shot dead and that their death on the USSR territory had been “an arbitrary act by the totalitarian State”. It also considered necessary “to continue studying the archives, verifying the lists of victims, restoring the good names of those who perished in Katyn and other places, and uncovering the circumstances of the tragedy”. However, the declaration did not lead to a re-opening of the investigation, declassification of its materials, including the decision on its discontinuation, or any attempts on the part of the Russian authorities to establish direct contacts with the victims of the Katyn massacre and involve them into the elucidation of its circumstances. Being a mere political declaration without any visible follow-up, it did little to alleviate the feeling of frustration, since the previously made allegations that the applicants’ relatives might have been criminally responsible, were not explicitly dismissed. The Court is struck by the Russian authorities’ continued complacency in the face of the applicants’ anguish and distress, especially as they are becoming more and more fragile by virtue of their age.
162. The Court acknowledges that the amount of time that has passed since the applicants parted with their relatives is significantly larger in the present case than it was in others, in which a violation of Article 3 was found on account of the authorities’ callous attitude to the relatives’ attempts to find out about the fate of missing persons. Moreover, it cannot be said that the applicants are still suffering the agony of not knowing whether their family member is dead of alive: there is no doubt, and it is an established historic fact, that the applicants’ relatives were executed in 1940 by the Soviet NKVD. Nevertheless, the authorities’ obligation to account for the fate of the missing person cannot be reduced to a mere acknowledgment of the fact of death, and even if it were, the Court has seen above ample evidence that such acknowledgment was more often than not withheld by the Russian authorities.
163. The scope of the State’s obligation under Article 3 is significantly larger than an acknowledgement of the fact of death. Even though the State is not legally responsible for the death or disappearance, Article 3 requires it to exhibit a compassionate and respectful approach to the anxiety of the relatives of the deceased or disappeared person and to assist the relatives in obtaining information and uncovering relevant facts. The silence of the authorities of the respondent State in face of the real concerns of the relatives may only be categorised as inhuman treatment (see Varnava and Others, cited above, § 201). The Court notes that the United Nations Human Rights Committee repeatedly found a violation of Article 7 of the International Covenant on Civil and Political Rights on account of the anguish and psychological pressure experienced by the family of the killed individuals who did not know how their relative had died or were denied information about the precise burial location (see Mariam Sankara et al. v. Burkina Faso, No. 1159/2003, 28 March 2006, and Schedko v. Belarus, No. 886/1999, 3 April 2003, cited in paragraphs 80 and 81 above). The Court considers that the same requirements on the respondent State to account for the circumstances of the death and the location of the grave are contained in Article 3 of the Convention, which is substantially similar in its wording to Article 7 of the Covenant (cited in paragraph 79 above).
164. In conclusion, the applicants suffered a long ordeal during the entire post-war Communist era in which political factors put insurmountable obstacles to their quest for information. The institution of Katyn proceedings gave them a spark of hope in the early 1990s but it was gradually extinguished, in the post-ratification period, when the applicants were confronted with the attitude of official denial and indifference in face of their acute anxiety to know the circumstances of the death of their close family members and their burial sites. They were excluded from the proceedings on the pretence of their foreign nationality and barred from studying the materials that had been collected. They received curt and uninformative replies from Russian authorities and the findings that had been made in the judicial proceedings were not only contradictory and ambiguous but also contrary to the historic facts which, nonetheless, were officially acknowledged at the highest political level. The Russian authorities did not provide the applicants with any official information about the circumstances surrounding the death of their relatives or made any earnest attempts to locate their burial sites.
165. Furthermore, the Court reiterates its constant position that a denial of crimes against humanity, such as the Holocaust, runs counter to the fundamental values of the Convention and of democracy, namely justice and peace (see Lehideux and Isorni v. France, 23 September 1998, § 53, Reports 1998-VII, and Garaudy (dec.), cited above), and that the same is true of statements pursuing the aim of justifying war crimes such as torture or summary executions (see Orban and Others, cited above, § 35). By acknowledging that the applicants’ relatives had been held prisoners in the Soviet camps but declaring that their subsequent fate could not be elucidated, the Russian courts denied the reality of summary executions that had been carried out in the Katyn forest and at other mass murder sites. The Court considers that such approach chosen by the Russian authorities has been contrary to the fundamental values of the Convention and must have exacerbated the applicants’ suffering.
166. In sum, the Court finds that the applicants were left to bear the brunt of the efforts to uncover any facts relating to the manner in which their relatives died, whereas the Russian authorities demonstrated a flagrant, continuous and callous disregard for their concerns and anxieties. The Court therefore considers 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.
167. It follows that there has been a violation of Article 3 of the Convention in respect of the applicants Ms Wołk, Mr Janowiec, Ms Michalska, Mr Tomaszewski, Mr Wielebnowski, Mr Gustaw Erchard, Ms Irena Erchard, Mr Jerzy Karol Malewicz, the late Mr Krzysztof Jan Malewicz, and Ms Mieszczankowska, and that there has been no violation of this provision in respect of the other five applicants.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
168. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
169. The applicants Mr Janowiec and Mr Trybowski claimed 50,000 euros (EUR) each in respect of non-pecuniary damage for the loss of their father and grandfather, respectively.
170. The applicant Mr Jerzy Malewicz claimed EUR 1,048,800 in respect of pecuniary damage which represented a loss of income of his late father over a nineteen-year period and the interest on that amount. He further claimed double that amount in respect of non-pecuniary damage.
171. The other applicants left the determination of the amount of just satisfaction to the discretion of the Court.
172. The Government pointed out that the claims by Mr Janowiec, Mr Trybowski and Mr Jerzy Malewicz related to the death of their relatives. The complaint in this regard was declared inadmissible as falling outside the Court’s jurisdiction ratione temporis. As to the claims by the other applicants, the Government stressed that they had initially claimed a symbolic compensation of one euro each and that they had not given a convincing explanation for a subsequent change in their position. Furthermore, they had not been direct or indirect participants in, or witnesses to, the Katyn massacre and some of them were only born in 1940 or after the Second World War.
173. The Court reiterates that it has found a violation of Article 3 in respect of the applicants Mr Gustaw Erchard, Ms Irena Erchard, Mr Janowiec, Mr Jerzy Karol Malewicz, the late Mr Krzysztof Jan Malewicz, Ms Mieszczankowska, Ms Michalska, Mr Tomaszewski, Mr Wielebnowski, and Ms Wołk. It accepts that they must have suffered anxiety and frustration on account of the Russian authorities’ flagrant, continuous and callous disregard for their enquiries. However, in the exceptional circumstances of the present case, it considers that the finding of a violation would constitute sufficient just satisfaction.
174. In so far as some applicants claimed compensation in respect of pecuniary and non-pecuniary damage in connection with the death of their father or grandfather, the Court notes that the complaint about their killing in 1940 falls outside the scope of the instant case (see § 101 of the admissibility decision of 5 July 2011). Accordingly, it rejects this part of the claims.
B. Costs and expenses
175. The applicants claimed EUR 25,024.82 in legal fees of Mr Szewczyk (exclusive of legal aid received from the Court), EUR 7,000 in legal fees of Mr Karpinskiy and Ms Stavitskaya, and EUR 7,581 and 1,199.25 Polish złotys for transport and translation costs. In addition, the applicant Mr Jerzy Karol Malewicz claimed 2,219.36 US dollars for his daughter’s and his own travel and accommodation expenses incurred in connection with their presence at the hearing before the Court.
176. The Government commented that Mr Szewczyk’s fees appeared excessive, that the necessity of travel expenses had not been convincingly shown, and that two Russian counsel had only taken part in the domestic rehabilitation proceedings which fell outside the scope of the instant case. Moreover, the claim by Russian counsel was not based on any payment rate and was not linked to the amount of work actually performed. Finally, the Government pointed out that Mr Szewczyk and Mr Kamiński had been granted legal aid for their appearance before the Court.
177. Under the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. On the basis of the materials in the file, the Court is not satisfied that Mr Karpinskiy or Ms Stavitskaya carried out any substantive work on the case. The Court also finds the legal fees claimed by Mr Szewczyk excessive. Having regard to those elements and the above criteria, the Court considers it reasonable to award the applicants jointly EUR 5,000 in respect of Mr Szewczyk’s fees, translation and travel expenses, plus any tax that may be chargeable to them, and EUR 1,500 in respect of the applicant Mr Jerzy Malewicz’s travel and accommodation expenses, plus any tax that may be chargeable to him.
C. Default interest
178. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.