We are pleased to welcome this guest post from Jacek Kowalewski, Trainee-attorney in Warsaw, and executive officer of the Central and Eastern European Initiative for International Criminal Law and Human Rights. This essay does not necessarily reflect the position of the Initiative.
The ECHR judgment in the case Janowiec et al. v. Russia addressed the legacy of the so-called ‘Katyń’ crime: mass executions committed on Polish prisoners by the NKVD (Soviet secret police) in 1940. The case required the Court to interpret the duty of effective investigation in light of the underlying values of the Convention. Yet, the majority of the Court’s panel did not fully appreciate the historic context within which the Convention had been drafted, and, for reasons of temporal jurisdiction, declared the complaint partly inadmissible. A review by the Grand Chamber is on the way.
The Katyń crime and the investigation
In the aftermath of the Red Army’s invasion into Poland on 17 September 1939[i],
[o]n 5 March 1940 the Politburo of the Central Committee of the USSR Communist Party, the highest governing body of the Soviet Union [that featured, among others, Joseph Stalin], took the decision to consider “using a special procedure” and employing “capital punishment – shooting” in the case of 14,700 former Polish officers held in the prisoner-of-war (POW) camps, as well as 11,000 members of various counter-revolutionary and espionage organisations, former landowners, industrialists, officials and refugees held in the prisons of western Ukraine and Belarus. The cases were to be examined “without summoning the detainees and without bringing any charges, with no statement concluding the investigation and no bill of indictment”. The killings took place in April and May 1940. … >[A] total of 21,857 persons were shot…<” (paras. 13-16 of the judgment).
The Soviets made every effort to shift the blame for ‘Katyń’ (after the name of the forest where the first mass graves were found) onto the Nazis, including through (futile) accusations before the Nuremberg Tribunal and oppressive propaganda.[ii] The policy of the Russian authorities changed only with the fall of Communism: an investigation into the mass murders commenced in 1990 and progressed at a relatively good pace in the first years. Later, however, it seemingly stalled and in 2004, six years after the Russian Federation had ratified the Convention, the investigation was formally discontinued. This decision was revealed only later, at a press conference in 2005. Moreover, the reasoning of the decision, together with one fourth of the case file, remained classified. For unspecified reasons of national security, even the European Court of Human Rights (hereinafter also: ECHR) was refused access to the discontinuance decision. The Court only inferred from the Russian government’s submissions “that the investigation had been discontinued … in connection with the suspects’ death” (para. 43 of the judgment). The Russian authorities had also claimed that ‘Katyń’ had gone into prescription, especially because it had not constituted a core international crime covered by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968.
The complaint to the ECHR
The applicants were fifteen Polish nationals whose twelve relatives fell victims to ‘Katyń’. None of the complainants had ever been recognized formally as a victim in the Russian investigation, nor granted access to the discontinuance decision. They claimed the procedural limb of Article 2 – the duty of effective investigation into a case of deprivation of life of their closest – had been breached ever since the day that Russia had ratified the Convention. Moreover, the applicants accused national authorities of having subjected them to inhuman or degrading treatment in breach of Article 3, in particular by distorting the historical truth of the executions: in 2007, despite compelling circumstantial evidence, a military court had noted that the remains of the relatives had not been identified as a result of exhumations and had further purported that there had been no legal grounds to assume that the relatives had actually been executed. Furthermore, Russian authorities had suggested that, as long as the legal justification for the killings remained unknown, one could not exclude the possibility that these legal grounds may have existed, and held therefore that the crime could not be deemed political.
The Court, by a fragile majority of four votes to three, concluded that it was unable to review the merits of the complaint under Article 2 for lack of temporal jurisdiction. As far as the complaint under Article 3 was concerned, the Court found a violation in respect of a group of ten applicants whose family ties to the respective victims were deemed tight enough. The Court assessed that the violation amounted to inhuman treatment. The obstruction of proceedings by not revealing the requested discontinuance decision resulted in the finding of a violation of Article 38 of the Convention.
The reasons for inadmissibility
The partial inadmissibility verdict resulted from application of the test crafted by the ECHR’s Grand Chamber in the case of Šilih v. Slovenia[iii]. There, the Court had not excluded to review the merits of the complaints under procedural limb of Article 2 where the deaths had occured before the ratification of the Convention by the impugned state. The Court had added two caveats: (a) the review will concern only the post-ratification conduct of the state, (b) there must exist a connection between the deaths and the entry into force of the Convention in respect of the state.
The Court in ‘Katyń’ checked whether this connection could indeed be drawn. In the first place, guided by the ‘Silih’ precedent, it deliberated on whether a significant proportion of the investigative activities had been undertaken after the crucial date of the Russian ratification of the Convention. Given that the conclusion was not in favour of the complaint, the Court turned to another, last-resort-like sub-test of ‘Silih’ to verify whether the connection existed – and it is this analysis that is commented in the remainder of this case note.
This second sub-test required the Court to verify whether the connection between the executions and the entry into force of the Convention for Russia could be based on the need to ensure effective protection of the guarantees and the underlying values of the Convention. This sub-test had not been elaborated any further in ‘Šilih’, and in the ‘Katyń’ case, two issues mattered to the Court in order to apply it. First, “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.” The Court did recognize that the ‘Katyń’ executions had “the features of a war crime” (para. 40 of the judgment), a recognition that in itself must have brought some satisfaction to the relatives. Nevertheless, the Court subsequently arrived at a negative conclusion on admissibility after checking whether “new material [had come] to light in the post-ratification period and [whether it had been] sufficiently weighty and compelling to warrant a new round of proceedings” (para. 139 of the judgment).
This case note presents a different position on admissibility. As it is elaborated below, the ‘Katyń’ investigation did serve as a litmus test to determine whether the guarantees and the underlying values of the Convention were effectively protected in Russia. In fact, the proceedings before the Court showed cristal clear that the Russian authorities denied responsibility for ‘Katyń’ on the part of individual State agents and of the State itself, from which one can draw a general opinion about the respect for the Convention standards.
The duty of effective investigation in the historic context
As a starting point, let us remember that “the single most important driving force across the continent [that contributed to the process of European integration] was the memory of war,”[iv] in which context also “the Convention itself … can be understood as a transitional legal instrument.”[v] For Russia, the task of dealing with WWII was compounded with the transition from a Communist regime; for this country, as much as for Poland, putting an end to repressive structures, strengthening democracy and establishing the rule of law based on observance of human rights constitutes one of the key aims of dealing with the past.[vi]
The task of devising and implementing investigations into mass violations of human rights remains a crucial element of this endeavour: the underlying purpose of such investigations is, “to convey to citizens a disapproval of violations and support for certain democratic values [, which] can help to persuade citizens as well as institutions of the centrality of those values.”[vii] When confronted with a core international crime being a state crime “of commission” (where a state contributed “through direct, overt and purposeful action”)[viii], this purging and transformative dimension of a criminal investigation cannot be realized fully unless the accountability of individual state agents as well as of state bodies is genuinely sought. This is also reflected in the formulation of the underlying objective of the procedural limb of Article 2: “to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.”[ix] Although as a result of a criminal process only individuals could possibly be convicted and incarcerated, still the evidence would ideally reveal to the public “the chain of command, the orders given, the establishments that were used, and the mechanisms knowingly used to insure impunity and secrecy”[x]. This knowledge not only should but also can and may[xi] be pursued irrespective of the death of the alleged perpetrators in the course of proceedings, as the case may be with regard to historic crimes – contrary to what the Russian government seems to have contended (para. 42 of the judgment).
Application of the above to the ‘Katyń’ case
It follows that the Convention, at latest from the point of its ratification by the Russian Federation[xii], was meant to reinvigorate and guide on-going investigations such as the one concerning ‘Katyń’. The expected direct outcome was the observance of Convention rights of victims and suspects or defendants. But the more long-term and macro-level objective of the Convention-based scrutiny was to contribute to a societal and statal renewal predicated upon thorough and transparent elucidation of the deeds of the former regime.[xiii]
However, what the Court found was that the Russian authorities had failed “to recognise the reality of the Katyń massacre” and “[maintained], to the applicants’ face and contrary to the established historic facts, that the applicants’ relatives had somehow vanished in the Soviet camps” (para. 159 of the judgment). In this respect, from the perspective of Article 3, the Court did declare the Russian approach to have been “contrary to the fundamental values of the Convention”. The facts accepted by the Court proved that the Russian authorities had not been, despite ratification of the Convention, committed to effectively investigate a case of a core international crime administered by the state and state officials. Unwillingness to treat such a case in a serious manner – i.e. expeditiously, transparently, with due regard to suspects’ and victims’ rights, and generally in accordance with international criminal law – is indicative of any contemporary prospects for dealing with more recent and future crimes by Russian authorities,[xiv] and is not conducive to effective prevention of repetition of grave human rights violation in the first place.
The ‘Šilih’ test, as reconstructed by the Court in ‘Katyń’, did not capture the fundamental failure outlined above because it could not.[xv] The Court should not have exempted the ‘Katyń’ investigation from the standard of effective investigation. To do this, even though the original act consituted a war crime, and against prima-facie and strong indications of absence of the embrace by the Russian government of some of the guarantees and the underlying values of the Convention – is to shoot oneself in the foot, i.e. against the ECHR system of human rights protection.
In the words of one near victim of ‘Katyń’, “[a]ccountability does not necessarily entail establishment of criminal trials to punish the guilty. Likely, the main culprits have already died. … The Katyń affair will be closed only when the whole Russian nation will condemn this horrendous crime…”[xvi] The dismissive attitude of the Russian authorities obstructs any attempts to remedy scarce public awareness of Communist crimes.[xvii] The fate of the victims of the ‘Katyń’ massacre remains largely unknown also within Western societies. Through a combination of political expediency and Soviet propaganda, the crime was swept under the carpet already during wartime years.[xviii] Today, the review of the case by the Grand Chamber is pending[xix] amid various calls to improve the scant record of national and international investigations into crimes committed by Communist regimes in Europe.[xx]
[i] The Russian Government contests the Army’s march into Poland was an act of aggression. They claim it was to protect national minorities from Blietzkrieg.
[ii] In Communist Poland, to object to the regime-imposed truth was an offence. See an internet database of the repressions (in Polish) at www.ipn.gov.pl/katyn_baza/index.php?menu=1 .
[iii] Judgment from 9 April 2009, application no. 71463/01.
[iv] Timothy Garton Ash, “The crisis of Europe”, Foreign Affairs, 1 October 2012.
[v] Fionnuala Ní Aoláin, “Transitional emergency jurisprudence: derogation and transition”, [e-book edition, no pagination], [in:] Antoine Buyse and Michael Hamilton (eds.), “Transitional jurisprudence and the ECHR. Justice, Politics and Rights”, Cambridge 2011.
[vi] Adam Czarnota, “Transitional justice and rule of law. Observations on Central-Eastern European Experiences”, Studies in logic, grammar and rhetoric, 19 (32) 2009.
[vii] United Nations, “Rule-of-law tools for post-conflict states. Prosecution initiatives”, New York and Geneva, 2006, p. 4. See also: Hugo van der Merwe, “Delivering justice during transition: research challenges”, [in:] Hugo van der Merwe et al. (eds.), “Assessing the impact of transitional justice. Challenges for empirical research”, p. 125.
[viii] I use these expressions after: Stephan Parmentier, “International Crimes and Transitional Justice: where does organised crime fit?”, Rivista di Criminologia, Vittimologia e Sicurezza, Vol. III – N. 3, Vol. IV – N. 1, September 2009–April 2010, p. 90, who in turn quotes: David Kauzlarich, “Political Crimes of the State”, [in:] Richard Wright and J. Mitchell Miller (eds.), “Encyclopedia of Criminology”, 3 vols, Routledge: New York/London, 2005, pp. 1231-1234.
[ix] Judgment in the case Nachova and others v. Bulgaria, applications nos. 43577/98 and 43579/98, 6 July 2005. Generally, it has been noted that “there is something dissatisfying in judging individuals [only]” for their varying contribution to collective core international crimes – see: Alette Smeulers and Roelof Haveman, “International crimes and criminology: an agenda for future research”, [in:] (same authors – eds.), “Supranational Criminology: Towards a Criminology of International Crimes”, Intersentia, 2008, p. 506.
[x] Juan Mendez, “The right to truth”, [in:] Christopher Joyner et al. (eds.), “Reining in impunity for international crimes and serious violations of fundamental human rights”, Ramonville St. Agne 1998, p. 265. On using investigations for truth-revealing purposes: idem, and Christopher Joyner, “Policy considerations on accountability, peace and justice” [in:] Christopher Joyner et al. (eds.)…. This is different from enjoying freedom to receive information protected by Article 10 of the ECHR, notwithstanding a possible broad interpretation of the freedom (cf. the decision on admissibility in the case Sdružení Jihočeské Matky c. la République tchèque, application no. 19101/03, 10 July 2006).
[xi] In recent past, the Russian Code of Criminal Procedure (CCP) allowed for proceedings despite a suspect’s death. See the ECHR judgment in the case Vulakh and others v. Russia, application no. 33468/03, 10 January 2012, para. 19. See also article 45.3 and 45.4 of the The Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation, 18 December 1998, in English at http://ipn.gov.pl/portal/en/31/327/The_Act_on_the_Institute_of_National_Remembrance.html .
[xii] Bearing in mind that the Russian application to the Council of Europe [CoE] dates back to 1992. See also Article 18 of the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
[xiii] See also: Serguei Kovalev, address concerning Russia’s request for membership in the CoE, 30 January 1995, as quoted in: Ernst Muehlemann (rapporteur of the Parliamentary Assembly of CoE), Russia’s request for membership of the CoE. Report, 2 January 1996, Doc. 7443, section II. a., http://assembly.coe.int/Documents/WorkingDocs/doc96/EDOC7443.htm .
[xiv] It also makes unlikely that the state will attempt to identify the Russians and members of other nationalities buried in mass graves in the very same forests where the Polish victims lie. See: Krzysztof Persak, Ekshumacje katyńskie, [in Polish, “Exhumations in Katyń”], Biuletyn Instytutu Pamięci Narodowej, idem, pp. 46 i 50, and National Institute of Remembrance, “Zbrodnia Katyńska. Materiały dla ucznia” [in Polish], Cracow-Warsaw 2010, http://ipn.gov.pl/download/1/23084/Zbrodnia_katynska_UCZEN.pdf .
[xv] Hence, I arrive in principle at the same conclusion as ECHR judges Spielmann, Villiger and Nussberger in their joint partly dissenting opinion of judges (paras. 3-10).
[xvi] Stanisław Swianiewicz, “W cieniu Katynia”, Instytut Literacki, Paris 1976, p. 352, author’s translation. Also on victims’ expectations in: Hugo van der Merwe, idem, p. 123.
[xvii] Resolution 1481 (2006) of the Parliamentary Assembly of the CoE ‘Need for international condemnation of crimes of totalitarian communist regimes’ of the, paras. 5-7. See also.: “[A]ccording to a poll conducted by the Levada Centre in late March 2010, 53% of respondents were unable to identify the perpetrators of the Katyn murder, 28% pointed to the Third Reich, and 19% to the Stalinist authorities” – Jadwiga Rogoża for the Centre for Eastern Studies, “Russian debate on the Katyn massacre: Acknowledgement and closure?”, 14 April 2010, www.osw.waw.pl/en/publikacje/eastweek/2010-04-14/russian-debate-katyn-massacre-acknowledgement-and-closure . See also: Nanci Adler, [book review], International Journal of Transitional Justice, Vol. 5, 2011, p. 313, on little reseach on Communist crimes.
[xviii] Andrzej Przewoźnik, “Katyń in the memory of Europeans”, http://enrs.eu/images/Teksty%20pdf%20ang/PrzewoznikKatyn_ANG.pdf . See also, in the context of the recent disclosure of U.S. Congress documents on ‘Katyń’: Vanessa Gera, Randy Herschaft and AP, Katyn Massacre Memos Show U.S. Hushed Up Soviet Crime, Huffington Post, 10 September 2012, www.huffingtonpost.com/2012/09/10/katyn-massacre-memos-us-soviet-crime_n_1870498.html .
[xix] The request for a referral to the Grand Chamber has been lodged by at least some of the applicants and supported by the Polish government (see: Polish Press Agency, Polish government backs Katyn charge to Strasbourg, 14 August 2012, www.visegradgroup.eu/news/polish-government-backs).
[xx] Resolution 1481 (2006) of the Parliamentary Assembly of the CoE ‘Need for international condemnation of crimes of totalitarian communist regimes’, para. 5. See also: the commitment to bring the perpetrators of totalitarian regimes’ crimes to justice made by justice ministers of the EU Member States in the Warsaw Declaration of 23 August, 2011, www.memoryandconscience.eu/wp-content/uploads/2011/08/warsaw_declaration.pdf , and the call by the Platform of European Memory and Conscience for creation of a supranational judicial body for the gravest crimes committed by the Communist dictatorships, 5 June 2012, www.memoryandconscience.eu/2012/06/07/platform-will-seek-establishment-of-a-supranational-court-for-international-crimes-committed-by-communists/ .