Posted on October 31, 2013, by Mark Kersten
In April 1940, the Soviet secret police initiated a
secret massacre of some 20,000 Polish officials and officers. The struggle to
establish the truth of what happened in the Katyń forests came to dominate much
of contemporary Polish political life and played a leading role in the struggle
to wrench the country free from the shackles of communism. JiC is thrilled to
welcome Maria Radziejowska for this
guest-post on the recent ruling at the European Court of Human Rights on
whether Russia has sufficiently investigated the Katyń massacre. Maria is
currently working for the Polish Institute of International Affairs in Warsaw
where she conducts research and analysis focusing on international security and
justice issues. She also blogs at Beyond the
Hague.
Katyn monument in Jersey
City (Photo Mark Grabowski)
The Katyń massacre took place between
April and May 1940 when 20,000 thousand Polish officers and officials were
executed by NKVD, the Soviet special police. After decades of denial, Russia
publicly acknowledged Soviet responsibility for the massacre in 1990. But the
entire truth about what happened in the forests of Katyń has remained out of
reach. Many believe Russia has not done enough in coming clean about the
massacre.
Last week, the Grand Chamber of the ECHR delivered
its final decision in Janowiec et al. v. Russia (other comment here). The case before the ECHR
concerned the quality of investigations conducted by Russian authorities into
the Katyń massacre. These started in 1990 and ceased in 2004, following the
decision of the Russian authorities to re-classify as “top-secret” 36 volumes
of files and to discontinue the investigation. The applicants before the Court
argued that Russian authorities breached their rights by failing to carry out
an effective investigation into the death of their relatives and displayed a
dismissive attitude towards the applicants’ requests for information about
their relatives’ fate.
The final
outcome of the case has turned out to be a bitter disappointment for the
victims’ families and the human rights community, especially in light of the
first instance decision partly granting the applicants’ claim pertaining to the
way they were treated by Russian authorities. Many observers reacted to the
Court’s decision with disappointment. So too did the dissenting judges who
proclaimed that this decision turned a “long history of justice delayed into a
permanent case of justice denied.”
The Grand Chamber confirmed that the Court has no
temporal authority to examine the efficiency of the investigations carried out
by the Russian authorities into the massacre. The majority considered that in
certain circumstances, a state-party may be obliged under the Convention to
investigate unlawful or suspicious deaths, even if such occurred before the
state in question was bound by the Convention (Šilih v. Slovenia which I recently discussed
in more detail here). However, not without
limits. The Grand Chamber clarified that the time lapse between the crime and
the entry into force of the Convention for the obliged state must not exceed
ten years (!). Moreover, the major part of the investigation must be carried
out after the Convention became binding for the state (paras 140-151). To this
end the applicants pointed out that the Court should have given due
consideration to the “Ukrainian list” pertaining to 3,435 victims, discovered
and conveyed to the Russian investigation authorities in 2004, or to the very
decision to classify parts of the files (para. 113, statement by victims’
representative, Ireneusz C. Kamiński in Polish). Nevertheless, the majority
upheld the previous finding that the most crucial part of the investigations
into the Katyń massacre took place before Russia ratified the Convention in
1998 (para. 159).
To the dismay of those who
had hoped to invoke the “humanitarian clause” to seek justice for grave human
rights breaches of the past, the verdict is clear. Even when the crime in
question is so grave that it negates the very foundations of the Convention, the
Court is not competent to examine state parties’ obligation to investigate war
crimes and crimes against humanity that predated the adoption of the Convention
(4 November 1950) (para. 151). The multitude of arguments one could make for or
against this finding is displayed in the majority judgment, the dissenting
opinions as well as in the third party submissions (i.e. Open Society Justice
Initiative or Amnesty International). The arguments raised elaborate on the
content and interpretation of the non-retroactivity of treaties, the
non-applicability of statute of limitations to war crimes, the values and the
intended purpose of the Convention, the customary law status of the crimes in
question. All that being said, it seems that the Court has chosen to definitively
close the door to victims of gross human rights violations that occurred prior
to the Convention.
The brutally ironic result is that following the
applicants’ decision to appeal, the Grand Chamber negated the first instance
finding that the manner in which the applicant’s enquiries were 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”. In view of the Grand Chamber this would be justified only if the
fate of the applicants’ relatives was uncertain. However, their death was
publicly acknowledged in 1990 and has become an established historical fact by
1998 (para. 186).
To assess the
level of one’s suffering in order to see whether it falls under certain legal
qualification, is surely a difficult task. The same holds for assessing whether
some procedural steps or developments constitute a “major part of an
investigation” or not. On the other hand, it is important to point to the historical
conditions to which the Grand Chamber should have given greater attention in
its considerations. Indeed, when Russia ratified the Convention in 1998, the
applicants knew that their relatives, who had been missing for 58 years, were
killed by the NKVD pursuant to Stalin’s order. However, the applicants’ first
serious attempts to gain more detailed information about their fate were made
after years of living a politically orchestrated lie, years of knowing that any
efforts to establish the truth would be refused but very likely punished. After
the investigations were instigated in 1990 by the Soviet and then Russian
authorities, corpses were excavated in Kharkov, Mednoye (Tver), Katyń. Evidence
was collected and some witnesses were interviewed. The applicants were finally
given an opportunity to learn what actually had happened to their grandfathers,
fathers, brothers or husbands. Yet, they were confronted with an uncooperative
attitude, lack of transparency, classified decisions, confusing legal qualifications,
misinformation and refusals to recognize the applicants as injured parties.
Katyn Memorial (Photo: Mike Church) |
Katyń plays a
significant role not only for the relatives of the victims but also more
generally in Poland’s contemporary historical identity. It remains an unsettled
part of the past, although, one may now speak about and discuss it freely. Not
all of the relatives of the victims demand investigations, but continuous lack
of open reckoning persists. Katyń also continues to haunt the rather chilly
Polish – Russian relations. Could this judgement be an opportunity to warm them
up?
According to
the Russian authorities, the investigations conducted into the Katyń massacre
were in fact conducted “in breach of the [Russian] criminal procedure
requirement, for political reasons, as a goodwill gesture to the Polish
authorities” (para. 109). So why cease them? This is the question that Poles –
and not just the applicants in the case –ask themselves. Given that states bear
the primary responsibility for investigating and prosecuting war crimes; given
the non-applicability of statute of limitations to war crimes; given, that at
this juncture the main purpose of the proceedings in question would be simply
to establish the truth and to legally rehabilitate victims of the massacre;
given all of this, why not continue this “goodwill gesture”? In a way, this
judgement burns the bridge between the past and present, thus allowing the
state not to confront its less glorious part of the Stalinist past. However,
the verdict does not actually bar the Russian authorities from taking further
steps, even if not based on the obligation anchored by the Convention.
Radek Sikorski, the Polish minister of Foreign Affairs has declared (here in Polish) that regardless of the verdict Poland will continue to
request the Russian authorities to conduct legal rehabilitation of victims of
the Katyń massacre and to handover the relevant investigation files. Perhaps
the case is lost before the Court, but it has not yet been dropped.
Disponível em: <http://justiceinconflict.org/2013/10/31/from-justice-delayed-to-justice-denied-katyn-in-strasbourg/>. Acesso em 14 nov. 2013.
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