JOINT CONCURRING OPINION OF JUDGES KOVLER AND YUDKIVSKA
We voted with the majority in finding that the Court does not have jurisdiction ratione temporis to examine the applicants’ complaint under Article 2 of the Convention. However, we cannot fully subscribe to the reasoning in the judgment and the proposed application of the Šilih principles to the present case.
A preliminary remark should be made. As the majority, we consider that the Katyn massacre was a particularly horrific war crime committed by the Soviet totalitarian regime, and we agree with our dissenting colleagues that “[t]his was clearly one of the war atrocities that the drafters of the Convention sought to prevent from ever happening in the future”. On the other hand, we believe that the European Convention on Human Rights, having arisen out of a bloody chapter of European history in the twentieth century, was drafted “as part of the process of reconstructing western Europe in the aftermath of the Second World War”, and not with the intention of delving into that black chapter.
In fact, this is the very first case in which the Court has dealt with procedural obligations under Article 2 arising out of an event which happened not only before ratification of the Convention by the respondent State but before the Convention was even drafted. We can hardly see how the Russian authorities could have an obligation to conduct an investigation into the circumstances of the Katyn massacre after 5 May 1998, the date of ratification of the Convention, or how it can be assumed that they were aware of the possible consequences of ratifying the Convention with regard to the said investigation.
The investigation that started in 1990 was a goodwill gesture on the part of the Russian Federation. As mentioned in paragraph 141 of the judgment, a domestic decision to investigate, which could be made on account of political or ethical considerations, should be distinguished from the procedural obligation under the Convention to investigate, and “only the latter, and not the former ... is subject to the Court’s scrutiny”. We agree with this approach and we find it to be central to the conclusion that the complaint under Article 2 falls outside the Court’s jurisdiction ratione temporis.
Indeed, the majority reached that conclusion for a different reason. Having applied the Šilih test, according to which, for the procedural obligations imposed by Article 2 to come into effect, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State, and thus a significant proportion of the procedural steps must have been carried out after the critical date (see paragraph 132 of the judgment), it found in paragraph 138 that “a significant proportion of the Katyn investigation ... appears to have taken place before the ratification date”, in particular between 1991 and 1995. For this reason “the criterion triggering the coming into effect of the procedural obligation imposed by Article 2 has not been fulfilled”. It follows logically from this passage that had the Russian Federation ratified the Convention, for example, seven years earlier in 1991, the “genuine connection” test would have been satisfied.
With due respect, we disagree with this approach. It is true 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 v. the United Kingdom, no. 32457/04, § 69, 27 November 2007). It is also established that the 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” (see Šilih v. Slovenia [GC], no. 71463/01, § 157, 9 April 2009, emphasis added). Thus, according to the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, “the purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death”.
Could the Russian authorities be reasonably expected to establish all the circumstances of the Katyn atrocity and to call the perpetrators to account fifty years after the event and thirty years after the main evidence was destroyed (see paragraph 20), when the majority of the perpetrators and witnesses were already dead? In our view, the answer is in the negative, as any such investigation would have been a priori ineffective and the procedural guarantees of Article 2 should not be extended to it. It is also hard to imagine any possible new evidence or information that might appear fifty years later “capable of furnishing the connection between the prisoners’ death and the ratification and imposing a fresh obligation to investigate under Article 2” (see paragraph 140).
A similar conclusion was reached in the case of Çakir and Others v. Cyprus (dec.) (no. 7864/06, 29 April 2010), where, applying the Šilih principles to the investigation into killings that occurred more than fourteen years before the right of individual petition in respect of Cyprus took effect, the Court noted that “the request for information [about the results of the investigation] ..., made over thirty years after the killings, does not constitute a new plausible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrators such as to revive the authorities’ procedural obligation to investigate the applicants’ relatives’ deaths and to bring the procedural obligations under Article 2 within the temporal jurisdiction of the Court.”
Like our learned colleague Judge Lorenzen we believe that “there must be a clear temporal connection between on the one hand the substantive event – death, ill-treatment etc. – and the procedural obligation to carry out an investigation and, on the other, the entry into force of the Convention in respect of the respondent State”. All the cases in which the Court has found that it had jurisdiction ratione temporis to examine the case under the procedural limb of Article 2 although the death of an individual had occurred before the ratification of the Convention have, in addition to the common features mentioned in paragraph 135, one more significant factor which distinguishes them from the present case: the investigation into the circumstances of the death in question started immediately, and thus many items of evidence were preserved for further investigative steps. In a situation where there has been no investigation into the crime for fifty years, we fail to see any possibility of fulfilling the requirements of an effective investigation, namely to elucidate the circumstances of death and establish responsibility for it.
It is true that “the Court has elaborated extensive guidelines on the needs of effective investigations, encompassing diverse components from the scope of autopsies to the involvement of the victims’ families”; however, in the absence of any possibility of achieving the above aim of an effective investigation, separate examination of the applicants’ involvement in the proceedings would appear to be an artificial fragmentation of the State’s procedural obligations.
To the extent that the applicants’ complaint under Article 2 concerns the suffering they underwent owing to their exclusion from the proceedings and the denial of information, this complaint was examined by the Court under Article 3 of the Convention.
PARTLY DISSENTING OPINION OF JUDGE KOVLER JOINED BY JUDGES JUNGWIERT AND ZUPANČIČ
We cannot follow the unusual logic behind the methodology employed in the present judgment in finding, first of all, a violation of Article 38 of the Convention, as the Court did, for example, in the Nolan case (see Nolan and K. v. Russia, no. 2512/04, 12 February 2009). In the present case the Court states that “[c]ompliance 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” (see paragraph 91 of the judgment). Even assuming that the Court, especially in the initial stages of the proceedings, had an interest in requesting a copy of the decision of 21 September 2004 by which the investigation into the Katyn massacre was discontinued, the fact that the Court decided that it was unable to take cognisance of the merits of the complaint under the procedural limb of Article 2 of the Convention greatly reduced the initial importance of that interest, and the Court could have concluded that no separate issue arose.
As to the merits, we would observe that in its Grand Chamber judgment in Stoll v. Switzerland the Court accepted the necessity of a certain “discretion” in relation to some confidential official documents of the member States (see Stoll v. Switzerland [GC], no. 69698/01, § 136, ECHR 2007-V) and the need to preserve it. We also take note that the applicants’ Russian counsel had access to the classified documents in the case file of criminal case no. 159, including the decision of 21 September 2004, and that the arguments set forth in that document had been examined by the domestic courts, which had found that it provided sufficient justification for the decision to discontinue criminal case no. 159. We would also recall the Court’s statement in another Russian case, according to which: “Mindful of its subsidiary role and the wide margin of appreciation open to the States in matters of national security, it accepts that it is for each Government, as the guardian of their people’s safety, to make their own assessment on the basis of the facts known to them. Significant weight must, therefore, attach to the judgment of the domestic authorities, and especially of the national courts, who are better placed to assess the evidence relating to the existence of a national security threat” (see Liu v. Russia (no. 2), no. 29157/09, 26 July 2011, § 85).
We do not want to speculate about the content of the said document (perhaps the names of the infiltrated agents or those of the perpetrators of the massacre?). We simply take note of the observation of the Polish Government (paragraph 96), who emphasised that the obligation to provide materials under Article 38 of the Convention would not be violated if the refusal to provide them was convincingly explained. This raises the question of the evaluation of the cogency of this explanation, which is a matter of value judgment...
JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER AND NUSSBERGER
1. This case raises important questions affecting the application of the Convention as well as serious issues of general importance in respect of Article 2 (procedural limb). Nevertheless, we are in no doubt that the Court is able to take cognisance of the merits of the complaint under Article 2 and that this Article has been violated.
2. As regards the procedural limb of Article 2, the difficulty as to the interpretation and application of the Convention concerns the jurisdiction ratione temporis of the Court and in particular the interpretation of the somewhat “mysterious” paragraph 163 of the judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009). Šilih v. Slovenia was the first judgment in which the detachability and autonomous role of the procedural obligation under Article 2 were examined. The Grand Chamber held:
“161. ... 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.
162. 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.
163. 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 (Vo, cited above, § 89) – 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.”
3. In our view, applying Šilih v. Slovenia to the facts of this case and interpreting the last sentence of paragraph 163 in a way which is consistent with the Grand Chamber’s decision to base a genuine connection “on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” leads us to the conclusion that the case falls within the temporal jurisdiction of the Court and that there has been a procedural violation of Article 2. Drawing inspiration from Brecknell v. the United Kingdom (no. 32457/04, 27 November 2007), and qualifying the “genuine connection” test identified in Šilih, the majority reads the final sentence of paragraph 163 as comprising two elements. First, and in compliance with the “genuine connection test”, the reference to “underlying values of the Convention” must be understood in the sense that the triggering event must be of a larger dimension than an ordinary criminal offence and constitute a negation of the very foundations of the Convention as is the case, for instance, with a war crime or a crime against humanity. Second, and restricting this test, there must be sufficiently important material casting new light on that offence and coming into the public domain in the post-ratification period (as regards this second element, see paragraph 10 below).
4. In our view, the gravity and magnitude of the war crimes committed in 1940 in Katyń, Kharkov and Tver, coupled with the attitude of the Russian authorities after the entry into force of the Convention, warrant application of the special-circumstances clause in the last sentence of paragraph 163.
5. We would recall that this case has its origins in the killing of more than 20,000 prisoners of war who were murdered by State agents without any judicial process and buried in mass graves. This was clearly one of the war atrocities that the drafters of the Convention sought to prevent from ever happening in the future. It was obviously an act contrary to the underlying values of the Convention. In Šilih, the Court included the last sentence of paragraph 163 precisely to catch exceptional cases like the one at hand and to distinguish this case from cases concerning events that happened so long ago that any investigation would be impossible to carry out and hence pointless.
6. The killing was a “war crime”. There is no doubt about that. The massacres were committed in the aftermath of the Molotov-Ribbentrop Pact (the Treaty of Non-Aggression of 1939 and its infamous secret Protocol), which is an undisputed historical fact. Under this illegal agreement, the Soviet forces committed the crime of aggression against, inter alia, Poland, which resulted, after partition, in illegal occupation of this independent State.
It appears that the Russian authorities characterised the Katyń massacre as an “abuse of power.” Since the text of the decision is not available, it is not clear whether it was an abuse of power on the part of the Politburo leaders or the actual executioners. However, this characterisation does not appear convincing: both the Hague Convention IV of 1907 and the Geneva Convention relative to the Treatment of Prisoners of War 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 international customary law subsequently laid down in the Nuremberg Charter, which it had a duty to respect. That such an obligation was recognised as legally binding by the USSR was confirmed by the fact that the Soviet prosecutor attempted to charge the Nazi leaders with the Katyń killings during the Nuremberg trial. The Katyń massacre, as a “war crime”, is not subject to statutory limitation, in accordance with both Russian domestic law and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
7. Seen in the light of the last sentence in paragraph 163 of the Šilih judgment, the existence of an act contrary to the underlying values of the Convention which constituted a war crime not subject to a statutory limitation is, as long as investigation is still possible, sufficient in our view to establish the Court’s temporal jurisdiction over the investigation into this act, especially in circumstances where a substantial part of the investigation was conducted in the post-ratification period.
8. In the case at hand, the underlying values of the Convention are also affected by the rather strange and inconsistent attitude of the Russian authorities in taking, after the entry into force of the Convention, both positive and negative procedural decisions. Suffice it to mention that in December 2004, that is, some fourteen years after the archives had been opened, the Interagency Commission for the Protection of State Secrets classified thirty-six volumes of the case file as “top secret”. What is so inconsistent, and hence shocking, is the fact that what was initially a transparent investigation ended in total secrecy. The Russian Government refused to produce the decision of 21 September 2004, a circumstance which has been found to be in breach of Article 38 of the Convention. On the other hand, as late as 2003, the Prosecutor General’s Office was still in dialogue with counsel for the applicants, confirming the existence of the criminal investigation, and in early 2005 the Chief Military Prosecutor’s Office replied that Mr Nawratil and Mr Janowiec were listed among the prisoners who had been executed in 1940 by the NKVD and buried near Kharkov. However, no further material was made available and no further information transpired. To sum up, the inconsistent, changing and strange attitude of the Russian Government after the entry into force of the Convention is a highly relevant reason to treat this case as an exceptional case covered by the last sentence of paragraph 163 of the Šilih judgment.
9. It is also clear from the text of the Russian judgments that the Russian courts adopted the view that the applicants’ relatives had simply “disappeared” after having been placed “at the disposal” of the Soviet secret police. At the same time, grave allegations of a criminal nature had been made against the applicants’ relatives. These allegations even triggered a request for rehabilitation, rejected by the authorities in 2008. The volte face of the authorities concerning the events, coupled with their inconsistent attitude, is in itself problematic and constitutes another specific procedural ground for declaring Article 2 of the Convention applicable in its procedural limb.
10. But even if we were to adopt the logic of the majority qualifying the “genuine connection test” by introducing a second element (that is, sufficiently important material casting new light on the offence and coming into the public domain in the post-ratification period: see paragraph 3 above), we would still be satisfied that the Court has jurisdiction to examine the complaint. Indeed, both the decision of 21 September 2004 to discontinue the investigation and the decision to classify the case file amounted to major developments in the investigation. Although these procedural decisions as such do not constitute “new material” for the investigation, the sudden classification of the case file as secret after it had been at least partly open for several years cannot but be interpreted as a strong indication of new and relevant – although hidden – findings. Therefore, these procedural decisions could be interpreted as indicating new material coming to light in the post-ratification period. In these circumstances, we strongly believe that the Court has jurisdiction to examine the Russian authorities’ compliance with the procedural obligation under Article 2 in the post-ratification period.
11. Turning to the merits of the complaint under the procedural limb of Article 2, we are aware that in view of the nature of the investigation at issue, not all the guarantees under the procedural limb of Article 2 may be relevant. However we have little doubt that there has been a violation of this provision on account of the applicants’ exclusion from the proceedings. Their right to participate effectively in the investigation was not secured: the applicants were denied victim status and access to the case file because foreign nationals could not access classified material. Moreover, the classification of the most important parts of the case file citing national security considerations appears arbitrary in the light of the fact that, according to the Russian Government’s own words, the individuals who could be – at least in theory – held responsible for the massacre had already died. The decision to classify the materials of the investigation also sits ill with the Russian Government’s consistent position that the crime was committed by the totalitarian regime of a different State, the Soviet UNI0N, more than sixty years ago. In these circumstances, the public interest in uncovering the crimes of the totalitarian past should have coincided with the applicants’ private interest in finding out the fate of their relatives, and outweighed any outstanding national-security considerations. In the case at hand, the applicants were simply excluded from the investigation.
12. The applicants further claimed that the prolonged denial of information about the fate of their relatives, taken together with the curt and mutually contradictory replies by the Russian authorities and the denial of the established historical facts, disclosed a serious problem under the Convention. In our view, this claim is particularly relevant as regards the procedural aspect of Article 2. It is against this background that we must view the suffering of the victims’ relatives when they were denied victim status in the proceedings on the basis that it was not proven that their relatives were among those killed although their names figured on the ”death lists”. That suffering, rightly examined by the judgment as a separate issue under Article 3 of the Convention, was aggravated by the refusal to grant rehabilitation on the ground that it was not known on what legal basis the applicants’ relatives had been condemned to death and executed; this amounted to an allegation that they might indeed have committed criminal acts. Moreover, the Russian authorities adopted the version of the “disappearance” of the applicants’ relatives as the official one and refused the applicants any access to the case materials on spurious national-security grounds. The Russian courts rejected all applications for rehabilitation, claiming that it was impossible to determine the specific legal provision forming the basis for the execution of the Polish prisoners of war. It is hard to disagree with the applicants’ argument that such a finding appeared to suggest that there might have been good reasons for their relatives’ execution, as if they had been common criminals deserving of capital punishment. By making such allegations, the Russian authorities not only did not comply with the positive obligation arising out of Article 2, but turned the positive obligation into its opposite. In other words, the procedural violation stems not just from culpable inaction, but from a positive intention not to comply with Convention standards.
13. In view of the long period of uncertainty and frustration suffered by the applicants and the not merely contradictory but indeed incomprehensible approach of the Russian authorities, this case has to be considered as truly exceptional.
14. For these reasons, we are of the opinion that Article 2 of the Convention has been violated.
JOINT PARTLY DISSENTING OPINION OF JUDGES JUNGWIERT AND KOVLER
We cannot share the Court’s conclusion that there has been a violation of Article 3 of the Convention in respect of the applicants mentioned in point 4 of the operative part. The applicants submitted 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.
We are surprised that in this particular case the Court observes that the authorities’ obligation under Article 3 is distinct from the obligation resulting from Article 2 of the Convention “both on points of substance, and in its temporal outreach” and that “the obligation imposed by Article 3 is of a more general humanitarian nature” (see paragraph 152 of the judgment). On this occasion we would point out that in a number of cases the Court has found that the relatives of a “disappeared person” were themselves victims of a violation of Article 3 of the Convention. Those findings were based on the state of uncertainty the relatives had had to endure owing to their inability to find out the fate of their next-of-kin (see, among other cases, Orhan v. Turkey, no. 25656/94, § 324, 18 June 2002). In the present case the Court itself did not accept the “disappeared persons” version, thereby applying a strict criterion under Article 2, treating the deaths as an instantaneous act. With regard to the Article 3 issue, the Court has previously concluded that “no separate issues arise under this Convention provision beyond those already examined under Article 2 of the Convention” (see Tangiyeva v. Russia, no. 57935/00, § 104, 29 November 2007; Sambiyev and Pokayeva v. Russia, no. 38693/04, §§ 74-75, 22 January 2009; and Velkhiev and Others v. Russia, no. 34085/06; § 138, 5 July 2011).
We would also point out that in some “Chechen” cases, despite finding a violation of the procedural limb of Article 2 of the Convention, the Court said that it was not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it had breached Article 2 in its procedural aspect, could in itself have caused the applicant mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see Khumaydov and Khumaydov v. Russia, no. 13862/05, §§ 130-131, 28 May 2009, and Zakriyeva and Others v. Russia, no. 20583/04, §§ 97-98, 8 January 2009).
While we do not doubt that the death of their relatives caused the applicants profound suffering, we nevertheless find no basis in the Court’s case-law for finding a separate violation of Article 3 of the Convention, especially in the particular context – the time factor – of the present case. Consequently, we will not explore further the other reasons for the Court’s conclusions on this issue.
. http://rusarchives.ru/publication/katyn/spisok.shtml. Last visited on 15 February 2012.
. RSFSR – Russian Soviet Federative Socialist Republic.
. Steven Greer, The European Convention on Human Rights – Achievements,
Problems, and Prospects, Cambridge University Press (2006), pp. 365, p.1 (emphasis added).
. Recommended by Economic and Social Council resolution 1989/65 of 24 May 1989.
. See the concurring opinion of Judge Lorenzen in the case of Šilih v. Slovenia (emphasis added).
. Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004), pp. 239, p. 41 (emphasis added).
. Judge Kovler voted against finding a violation of Article 3 for the reasons expressed in the joint dissenting opinion of judges Jungwiert and Kovler.
. Judge Zagrebelsky, in his concurring opinion, joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó, described the “vague wording” (sic!) of the said paragraph in the following way:
“In my view, the introduction (for which there was no need in the present case) of the notion of ‘limits’ on the ‘detachability’ of the procedural obligation from the substantive obligation under Article 2 weakens the reasoning of the Court and makes the application of the legal principle established by the Grand Chamber difficult, debatable and unforeseeable. This is particularly true and troublesome in the light of the vague wording used in paragraph 163 to define the ‘limits’ in question. The Court will be forced to carry out complex and questionable assessments on a case-by-case basis that will be difficult to dissociate from the merits of the case. The impact this is likely to have on ‘legal certainty’ (which the Court has rightly referred to) is, I would venture, both obvious and harmful.”
In a recent judgment of the UK Supreme Court (18 May 2011), Lord Phillips said the following:
“49. The meaning of each of the three sentences of para 163 is far from clear. The concept of a ‘connection’ between a death and the entry into force of the Convention for the state in question is not an easy one if, as seems to be the case, this connection is more than purely temporal. The final sentence of the paragraph is totally Delphic and would seem designed to prevent the closing of the door on some unforeseen type of connection. I shall say no more about it.” (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland))  UKSC 20.
. In this respect, we are not convinced by Lord Philipps’ statement that the sentence was included “to prevent the closing of the door on some unforeseen type of connection.” (emphasis added). See above (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland))  UKSC 20, at para .
. Compare Judge Zagrebelsky, joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó: “In any event, if the criminal law is no longer applicable owing to the expiration of the limitation period or if an investigation would be pointless because of the disappearance of evidence and witnesses, there will be no justification for imposing the obligation.”
. In fact, the massacres were committed on three different sites: Katyń, near Smolensk, Kharkov (now Ukraine) and Tver.
JANOWIEC AND OTHERS v. RUSSIA JUDGMENT
JANOWIEC AND OTHERS v. RUSSIA JUDGMENT
JANOWIEC AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINIONS
JANOWIEC AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINIONS