In 1940, the Soviet leader Josef Stalin ordered the killing of tens of thousands of Polish prisoners of war, captured after the Soviet invasion of their country. Stalin described the POWs, most of them military officers, as “enemies of the Soviet authorities… full of hatred towards the Soviet system”; his NKVD security forces executed prisoners one after another, shooting them in the back of the head, in the infamous wartime atrocity known as the Katyn Massacre. To this day the full truth of what happened in 1940 has not come out.
In the infamous Katyn Massacre of 1940, Stalin ordered the murder of more than 21,000 POWs and other Poles detained after the Soviet invasion of Poland.
As the first bodies were discovered in 1942 and 1943, the Soviet Union first sought to blame Nazi Germany for the killings, then tried to add the massacre to the charges before the Nuremberg war crimes trials. In 1959, six years after the death of Stalin, Alexander Schelepin, then head of the KGB, acknowledged in a memo to Nikita Khrushchev, who succeeded Stalin as head of the Soviet Communist Party, that “21,857 persons were shot” in the “operation.” Schelepin then recommended the destruction of most, but not all, official records of the killings.
Schelepin’s 1959 memo became public as the old Soviet empire crumbled, and after a criminal investigation was launched in 1990 by the Russian Chief Military Prosecutor’s office. At that time, Russia admitted that the Soviets had committed the massacre, and disclosed the order to conduct the killings, signed by Stalin. But in 2004, the Russian authorities closed the investigation down, classifying the reasoning, and one-fifth of the investigation record, as “top secret.”
Family members have continued to fight to find out the full truth about what happened at Katyn. One of those executed in April 1940 was Andrzej Janowiec, a 49-year-old lieutenant in the Polish Army. His son was among a group of 15 family members of victims who are seeking a proper account in Janowiec v. Russia, a case they brought before the Grand Chamber of the European Court of Human Rights.
The Open Society Justice Initiative filed a third party intervention before the Grand Chamber of the European Court of Human Rights in the case.
The applicants in Janowiec argued that the failure to conduct an effective investigation leading to criminal prosecutions of the suspected perpetrators violated the duty to investigate in Article 2 (right to life) of the European Convention on Human Rights. On April 16, 2012, a chamber of the 5th Section of the European Court found that there was no jurisdiction under Article 2, as Russia only ratified the European Convention in 1998, and there was not a sufficient connection with the events of 1940 and the investigation that continued after 1998. However, the court found that the dismissive way that Russia had treated the family of the victims was inhuman treatment, contrary to Article 3.
In its third-party intervention, the Justice Initiative argued the following points:
Temporal jurisdiction over the investigation of international crimes: The Court can legitimately consider the violation of the duty to investigate the killings, despite the fact that the massacre occurred decades ago, and that the Russian Government is obliged to disclose documents establishing why it closed the investigation as well as archival documents concerning the circumstances of the massacre. States have an obligation to investigate international crimes and gross human rights violations as long as it is practically feasible to do so. Prosecution of crimes from World War II remains possible, and indeed, hundreds of such cases are ongoing in Germany and Poland. In Latin America, the Inter-American Court of Human Rights has considered numerous cases of human rights violations committed during the dictatorships and civil wars in the region during the 1970s and 1980s, sometimes 40 years after the acts.
The Right to truth: In exceptional cases, in the context of gross human rights violations and serious violations of international humanitarian law, the right to truth requires effective access to the results of investigations, and to archives and investigative files. Restrictions on access to such information must be narrowly construed, and more so with the passage of time.
October 6, 2011. Public hearing before Fifth Section of the European Court of Human Rights.
April 16, 2012. Judgment from Fifth Section of the European Court of Human Rights. The Chamber found no violation of Article 2, a violation of Article 3 for some but not all of the petitioners and a violation of Article 38 for Russia’s failure to provide the Court with the investigative files.
February 13, 2013. The Grand Chamber of the European Court of Human Rights held a hearing in the case.
October 21, 2013. Judgment from Grand Chamber of the European Court of Human Rights.
- No violation of Article 2. The Grand Chamber found no jurisdiction to consider the Article 2 violations as the acts challenged occurred before Russia’s ratification of the European Convention, and before its entry into force. While in extraordinary circumstances the court might review instances of war crimes, crimes against humanity and genocide prior to a country signing the Convention, the Court could not go back before 1950, when the Convention came into force.
- No violation of Article 3. The Grand Chamber found no violation of Article 3 due to the fact that at the time of Russia’s ratification of the Convention in 1998, there was no longer any uncertainty as to the fate of the applicants relatives. Their situation was not the same as a disappearance, and so not inhuman treatment.
- Violation of Article 38. The Grand Chamber found a violation of Article 38 for Russia’s failure to provide the Court with key investigative materials. National security is not a legitimate justification on its own to withhold information from the court; any other reading would permit if state authorities to arbitrarily encroach on protected Convention rights. The Grand Chamber found that Russia’s court considering this case did not subject to meaningful scrutiny the state assertions of national security more than 70 years after the occurrence of the challenged events, and failed to consider sufficiently the public interest in a transparent investigation into crimes of a previous totalitarian regime and the private interest of victims’ relatives in uncovering circumstances of their death.
Dissent. Four judges dissented from the majority opinion, finding that the Court should have distinguished from previous jurisdictional decisions or applied a “humanitarian clause” to find jurisdiction here; and then finding violations of Article 2 and 3 for all of the petitioners.
One judge, in a concurrence, asserted that the mere fact that the challenged acts predated the Convention was not decisive, and recognized the State obligation to conduct a thorough investigation, but ruled with the majority in finding that there had been some investigative actions taken by the State.