Janowiec and Others v. Russia

Information Note on the Court’s case-law No. 151

April 2012

Janowiec and Others v. Russia - 55508/07 and 29520/09

Judgment 16.4.2012 [Section V]

Article 3

Inhuman treatment

Positive obligations

Failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyń in 1940: violation

Article 35

Article 35-3

Ratione temporis

Court’s temporal jurisdiction in respect of deaths that occurred 58 years before the Convention entered into force in respondent State: preliminary objection allowed

[This case was referred to the Grand Chamber on 24 September 2012]

Facts – The applicants are relatives of Polish officers and officials who were detained in Soviet camps or prisons following the Red Army’s invasion of the Republic of Poland in September 1939 and who were later killed by the Soviet secret police without trial, along with more than 21,000 others, in April and May 1940. The victims were buried in mass graves in the Katyń forest. Investigations into the mass murders were started in 1990 but discontinued in 2004. The text of the decision to discontinue the investigation has remained classified to date and the applicants have not had access to it or to any other information about the investigation. Their repeated requests to gain access to that decision and to declassify its top-secret label were continuously rejected by the Russian courts. The Russian authorities also refused to produce a copy of the decision to the European Court on the grounds that the document was not crucial to the applicants’ case and that they were prevented by domestic law from disclosing classified information. The applicants’ requests for rehabilitation of their relatives were rejected by both the Chief Military Prosecutor’s Office and the Russian courts.

Law – Article 38: The reasons given by the Government for not complying with the Court’s request to produce a copy of the 2004 decision discontinuing the investigation were not valid. As to the argument that the decision did not contain crucial information, the Court had absolute discretion to determine the evidence it needed for the examination of the case. Compliance with the procedural obligation to furnish all necessary facilities for the conduct of the Court’s investigation was a condition sine qua non for the effective conduct of the proceedings before the Court and had to be enforced irrespective of any findings that might be made in the proceedings and their eventual outcome.

The argument that the Government were precluded by domestic law from communicating classified information also failed. Since, pursuant to Article 27 of the Vienna Convention on the Law of Treaties, internal law could not be invoked as justification for a Contracting State’s failure to perform a treaty, the Government could not rely on domestic legal impediments to justify their failure to furnish the facilities necessary for the Court’s examination of the case. It was noteworthy too that the Government had at no point explained the exact nature of their concerns. For its part, the Court was unable to discern any legitimate security considerations. In particular, it was not convinced that a public and transparent investigation into the crimes of a previous totalitarian regime could have compromised the national-security interests of contemporary democratic Russia, especially bearing in mind that the Soviet authorities’ responsibility for that crime had been acknowledged at the highest political level. Moreover, the decision to classify appeared to be at variance with the requirements of section 7 of the State Secrets Act which expressly precluded the classification of information about human-rights violations by State officials. In any event, even assuming legitimate security considerations existed, they could have been accommodated with appropriate procedural arrangements, including restricted access to the document (Rule 33 of the Rules of Court) and, in extremis, the holding of a hearing behind closed doors.

Conclusion: failure to comply with Article 38 (four votes to three).

Article 2 (procedural aspect): The Court reiterated that States had a well-established obligation to investigate unlawful or suspicious deaths effectively. That obligation had evolved into a separate and autonomous duty even when the death took place before the entry into force of the Convention in respect of the respondent State (the critical date). However, the Court’s temporal jurisdiction in such cases was not open-ended. Where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date could fall within the Court’s temporal jurisdiction and there had to be a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligation to come into effect. Accordingly, a significant proportion of the procedural steps required by Article 2 will or ought to have been carried out after the critical date. However, it was not excluded that in certain circumstances the connection could also be based on the need to ensure that the guarantees and underlying values of the Convention were protected in a real and effective manner*.

In the instant case, in the absence of any evidence that they might somehow have escaped from the Soviet prison camps in which they were detained, the applicants’ relatives had to be presumed to have died in the 1940 massacre. Russia had ratified the Convention on 5 May 1998. The period of 58 years between the deaths and Russian ratification of the Convention was many times longer than the periods that had been found to trigger the procedural obligation under Article 2 in previous cases that had come before the Court. It was also excessively long in absolute terms to establish any genuine connection between the deaths and the entry into force of the Convention in respect of Russia. Further, a significant proportion of the Katyń investigation appeared to have taken place before ratification and there was no indication that any important procedural steps had taken place after ratification. Accordingly, the criterion triggering the coming into effect of the procedural obligation imposed by Article 2 had not been fulfilled.

However, it was also necessary to examine whether the circumstances of the case were such as to justify finding that the connection between the deaths and the ratification could be based on the need to ensure the effective protection of the guarantees and the underlying values of the Convention. The reference to the underlying values of the Convention indicated that, for such a connection to be established, the event in question had to 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. Nevertheless, the States did not have an unceasing duty to investigate crimes even of that gravity. Rather, the procedural obligation could be revived if information purportedly casting new light on the circumstances of such crimes came into the public domain after the critical date. 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 would 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**. While the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime, no evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues had been produced or uncovered after Russian ratification. There were, therefore, no elements capable of providing a bridge between the distant past and the recent post-ratification period, and no special circumstances justifying a connection between the deaths and ratification. The Court thus had no temporal jurisdiction to examine the merits of this complaint.

Conclusion: preliminary objection upheld (four votes to three).

Article 3: The authorities’ obligation under Article 3 was distinct from that under Article 2 both in substance and in temporal outreach. While both obligations were of means, not of result, the procedural obligation under Article 2 required the authorities to take specific legal action capable of leading to the identification and punishment of those responsible, whereas the obligation imposed by Article 3 was of a more general humanitarian nature and required them to react to the plight of the missing men’s relatives in a humane and compassionate way. The Court could assess compliance with this latter obligation even in cases where the original taking of life escaped its scrutiny because of a procedural bar such as a lack of temporal jurisdiction, provided the complaint was introduced within six months of the final domestic decision. Accordingly, the court had jurisdiction in the instant case to examine the Russian authorities’ reactions and attitudes from the moment of ratification until the Supreme Court’s decisions of 24 May 2007 (application no. 55508/07) and 29 January 2009 (application no. 29520/09) respectively.

However, only the closest relatives of the men killed in 1940 could claim to be victims of an Article 3 violation. These were the widow of one of the men, and nine other applicants who were children in their formative years when their fathers went missing. The remaining five applicants had never had personal contact with their missing fathers or other relatives, and so had not experienced mental anguish such as would fall within the ambit of Article 3.

These ten closest relatives had suffered a double trauma: losing their relatives in the war and not being allowed to learn the truth about their death for more than 50 years because of the distortion of historical fact by the Soviet and Polish communist authorities. In the post-ratification period, they had not been given access to the investigation materials, nor had they otherwise been involved in the proceedings or officially informed of the outcome of the investigation. They had been explicitly prohibited from seeing the 2004 decision to discontinue the investigation on account of their foreign nationality.

Thus, although the institution of the Katyń proceedings had given the applicants a spark of hope in the early 1990s, this had been gradually extinguished in the post-ratification period when they were confronted with the attitude of official denial and indifference in face of their acute anxiety to know the circumstances of the deaths 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 the 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 had not provided the applicants with any official information about the circumstances surrounding the deaths of their relatives or made any earnest attempts to locate their burial sites, despite these being obligations under Article 3. Further, by acknowledging that the applicants’ relatives had been held prisoner in the Soviet camps but declaring that their subsequent fate could not be elucidated, the Russian courts had denied the reality of summary executions that had been carried out in the Katyń forest and at other mass murder sites. That approach was contrary to the fundamental values of the Convention and must have exacerbated the applicants’ suffering. In sum, the Russian authorities had demonstrated a flagrant, continuous and callous disregard for the applicants’ concerns and anxieties amounting to inhuman treatment.

Conclusion: violation in respect of ten applicants (five votes to two).

Article 41: In the exceptional circumstances of the present case, the finding of a violation of Article 3 constituted sufficient just satisfaction.

* See Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009, Information Note no. 118.

** See Brecknell v. the United Kingdom, no. 32457/04, 13 November 2007, Information Note no. 102.

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This summary by the Registry does not bind the Court.

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