European Court of Human Rights

Information Note on the Court’s case-law No. 167

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

Judgment 21.10.2013 [GC] See: [2013] ECHR 1003

Article 3

Inhuman treatment

Positive obligations

Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyń in 1940: no 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

Article 38

Refusal on grounds of national security to provide copy of domestic court decision to discontinue criminal investigation into Katyń massacre: failure to comply with Article 38

Facts – The applicants were 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 remained classified at the date of the European Court’s judgment and the applicants were not given access to it. 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.

In a judgment of 16 April 2012 (see Information Note 151), a Chamber of the Court held by four votes to three that the Government had failed to comply with Article 38 of the Convention by not producing a copy of the decision to discontinue the investigation, but that it had no temporal jurisdiction to examine the merits of the applicants’ complaint of a violation of its obligation to carry out an effective investigation into the deaths. By five votes to two, the Chamber found a violation of Article 3 in respect of ten of the applicants due to the suffering caused by the continuous disregard shown for their situation by the Russian authorities.

Law – Article 2 (procedural aspect): The Court reiterated that its temporal jurisdiction to review a State’s compliance with its procedural obligation under Article 2 to carry out an effective investigation into alleged unlawful killing by State agents was not open-ended where the deaths had occurred before the date the Convention entered into force in respect of that State. In such cases, the Court had jurisdiction only in respect of procedural acts or omissions in the period subsequent to the Convention’s entry into force and provided there was a “genuine connection” between the death as the triggering event and the entry into force. For a “genuine connection” to be established, the period between the death and the entry into force had to have been reasonably short and a major part of the investigation had or ought to have been carried out after the date of entry into force. For this purpose, a reasonably short period meant a period of no more than ten years.

On the evidence, the applicants’ relatives had to be presumed to have been executed by the Soviet authorities in 1940. However, Russia had not ratified the Convention until May 1998, some fifty-eight years later. That period was not only many times longer than the periods which had triggered the procedural obligation under Article 2 in all previous cases that had come before the Court, but also too long in absolute terms for a genuine connection to be established between the deaths and the entry into force of the Convention in respect of Russia. Further, although the investigation into the origin of the mass burials had only been formally terminated in 2004, six years after the entry into force of the Convention in respect of Russia, it was impossible, on the basis of the information available in the case file and in the parties’ submissions, to identify any real investigative steps after the date of entry into force. The Court was unable to accept that a re-evaluation of the evidence, a departure from previous findings or a decision regarding the classification of the investigation materials could be said to have amounted to the “significant proportion of the procedural steps” required for establishing a “genuine connection” for the purposes of Article 2. Nor had any relevant piece of evidence or substantive item of information come to light in the period since the critical date. Accordingly, neither criterion for establishing the existence of a “genuine connection” had been fulfilled.

Nevertheless, as the Court had noted in Šilih, there might be extraordinary situations which did not satisfy the “genuine connection” standard, but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognising the existence of a connection. For the required connection to be found in such cases the triggering event would have to be of a larger dimension than an ordinary criminal offence and amount to the negation of the very foundations of the Convention. Serious crimes under international law, such as war crimes, genocide or crimes against humanity would fall into that category. However, this so-called “Convention values” clause could not be applied to events which occurred prior to the adoption of the Convention on 4 November 1950, for it was only then that the Convention had begun its existence as an international human-rights treaty. A Contracting Party could not be held responsible under the Convention for not investigating even the most serious crimes under international law if they predated the Convention. In this connection, there was a fundamental difference between a State having the possibility to prosecute for a serious crime under international law where circumstances allowed, and it being obliged to do so by the Convention. The events that might have triggered the obligation to investigate under Article 2 had taken place in early 1940, more than ten years before the Convention came into existence. Accordingly, there were no elements capable of providing a bridge from the distant past into the recent post-entry-into-force period and the Court had no competence to examine the complaint under Article 2.

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

Article 3: In its case-law, the Court had accepted that the suffering of family members of a “disappeared person”, who had gone through a long period of alternating hope and despair, might justify finding a violation of Article 3 on account of the particularly callous attitude of the authorities towards their requests for information. However, in the applicants’ case, the Court’s jurisdiction only extended to the period starting on 5 May 1998, the date of entry into force of the Convention in respect of Russia. By then, no lingering uncertainty as to the fate of the Polish prisoners of war remained. Even though not all of the bodies had been recovered, their deaths had been publicly acknowledged by the Soviet and Russian authorities and had become an established historical fact. It necessarily followed that what could initially have been a “disappearance” case had to be considered a “confirmed death” case. Since none of the special circumstances of the kind which had prompted the Court to find a separate violation of Article 3 in “confirmed death” cases (for example, being a direct witness of the victim’s suffering), were present in the applicants’ case, their suffering had not reached a dimension and character distinct from the emotional distress inevitably caused to relatives of victims of a serious human-rights violation.

Conclusion: no violation (twelve votes to five).

Article 38: The Government had not complied with the Court’s request to provide it with a copy of the decision of September 2004 to discontinue the Katyń investigation, on the grounds that the decision had been lawfully classified top-secret at domestic level and that the Government were precluded from communicating classified material to international organisations in the absence of guarantees as to its confidentiality.

The Court reiterated that, even where national security was at stake, the concepts of lawfulness and the rule of law in a democratic society required that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence, otherwise the State authorities would be able to encroach arbitrarily on rights protected by the Convention.

In the instant case, the national courts had not subjected to any meaningful scrutiny the executive’s assertion that information contained in the decision to discontinue the investigation should be kept secret more than seventy years after the events. They had confined the scope of their inquiry to ascertaining that the classification decision had been issued within the administrative competence of the relevant authorities, without carrying out an independent review of whether the conclusion that its declassification constituted a danger to national security had a reasonable basis in fact. They had not addressed in substance the argument that, since it brought to an end the investigation into one of the most serious violations of human rights committed on orders from the highest level, the decision was not in fact amenable to classification under the domestic law. Nor had they performed a balancing exercise between, on the one hand, the alleged need to protect the information and, on the other, the public interest in a transparent investigation and the private interest of the victims’ relatives in uncovering the circumstances of their death. Given the restricted scope of the domestic judicial review of the classification decision, the Court was unable to accept that the submission of a copy of the 2004 decision to discontinue the investigation could have affected Russia’s national security.

The Court also emphasised that legitimate national security concerns could be accommodated in proceedings before it by means of appropriate procedural arrangements, including restricted access to the document in question under Rule 33 of the Rules of Court and, in extremis, the holding of a hearing behind closed doors. However, the Government had not requested the application of such measures.

Conclusion: failure to comply with Article 38 (unanimously).

Article 41: Claims in respect of damage dismissed as a failure to comply with Article 38 of the Convention was a procedural matter which did not call for an award of just satisfaction.

(See Šilih v. Slovenia [GC], 71463/01, 9 April 2009, Information Note 118)

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