Case Watch: The Katyn Massacre and the Right to Truth

The Open Society Justice Initiative has filed a third party intervention before the Grand Chamber of the European Court of Human Rights in the case of Janowiec v. Russia. The case—a highly controversial one—involves the infamous Katyn Massacre of 1940, when Stalin ordered the murder of more than 21,000 POWs and other Poles detained after the Soviet invasion of Poland. For years the Soviet Union claimed that the killings had been conducted by the Nazis. In 1990, Russia admitted that the Soviets had done it, and disclosed the order to conduct the killings, signed by Stalin.

In 1990, the Russian authorities opened criminal investigations following criminal complaints from family members of the victims. However, these investigations were closed in 2004: the decision to do so has been classified.

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 the third party intervention, the Justice Initiative argued that the court does indeed have temporal jurisdiction to make a finding of a violation of Article 2, making two points:

·         A. Temporal Jurisdiction. The failure to carry out an effective and thorough investigation of the crimes at issue constitutes a continuing violation which establishes temporal jurisdiction. States have an obligation to investigate international crimes and gross human rights violations as long as it is practically feasible to do so, and prosecution of crimes from World War II was still possible after 1998. Indeed, hundreds of such cases are still ongoing in Germany and Poland.

·         B. The Right to Truth. In exceptional cases, the court should consider the right to truth arising from Articles 2, 3, and 5, read together with Article 13. The right applies in the context of gross human rights violations and serious violations of international humanitarian law, and may outlive the duty to conduct an investigation. The right requires effective access to the results of investigations, and to archives and investigative files, any restriction of which must be narrowly construed, and more so with the passage of time. An ongoing failure to provide access amounts to a continuing violation of the convention.

This case builds on submissions made by the Justice Initiative regarding the right to truth before the Inter-American Court in the Araguaia and Diario Militar cases, and also in the El-Masri case. Indeed, in Janowiec we submitted that the Grand Chamber should follow the dissenting judgment in El-Masri and explicitly find a right to truth arising out of the Convention. We have also dealt with temporal jurisdiction on previous occasions, most recently in Deyda Hydara Jr v. The Gambia (where the ECOWAS Court decided last year that they had jurisdiction even though the murder of Deyda Hydara occurred prior to the Gambia accepting the jurisdiction of the Court), in Yevgeniy Zhovtis v. Kazakhstan before the UN Human Rights Committee (where his trial was before ratification, but his appeal was after), and in Gerasimov v. Kazakhstan (where the UN Comittee against Torture found a violation of the failure to investigate, even though the torture preceded ratification).

The Grand Chamber will be holding a hearing in the case on Wednesday, February 13th. We will follow it carefully to see how the arguments develop.

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