The European Court of Human Rights ruling – Russia should have cooperated with the Court and treated Katyń victims’ relatives humanely

In today’s Chamber judgment in the case Janowiec and Others v. Russia (application nos. 55508/07 and 29520/09), which is not final1, the European Court of Human Rights held, by a majority, that there had been:

A violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights in respect of 10 of the applicants (see end of press release), and no violation of Article 3 in respect of the remaining five applicants; and

A breach of Russia’s obligation to cooperate with the Court under Article 38

(obligation to furnish necessary facilities for examination of the case) of the Convention.

The Court also found that it could not examine the merits of the complaint under Article 2 (obligation to investigate loss of life).

The case concerned complaints about the adequacy of the investigation by the Russian authorities into the 1940 Katyń massacre.

The Court found that it could not examine the applicants’ complaint about the ineffective investigation into the Katyń massacre because it could not establish a genuine connection between the deaths of the victims and the entry into force of the Convention in Russia in 1998. However, it held that Russia had failed to cooperate with the Court by refusing to provide a copy of its decision to discontinue the investigation, and that its response to most victims’ relatives’ attempts to find out the truth about what happened had amounted to inhuman treatment.

Full press release at

http://tinyurl.com/echr-katyn

The background of the case:

A.  Background

10.  On 23 August 1939 the Foreign Ministers of the Nazi Germany and the Soviet Union signed a non-aggression treaty (known as the Molotov-Ribbentrop Pact) which included an additional secret protocol whereby the parties agreed to settle the map of their “spheres of interests” in the event of a future “territorial and political rearrangement” of the then independent countries of Central and Eastern Europe, including Poland. According to the protocol, the eastern part of Polish territory was “to fall to” the Soviet Union.

11.  On 1 September 1939 Germany invaded Poland, starting the Second World War. On 17 September 1939 the Soviet Red Army marched into Polish territory, allegedly acting to protect the Ukrainians and Belarusians living in the eastern part of Poland because the Polish State had collapsed under the German attack and could no longer guarantee the security of its own citizens. The Polish Army did not offer any military resistance. The USSR annexed the territory newly under its control and in November 1939 declared that the 13.5 million Polish citizens who lived there were henceforth Soviet citizens.

12.  In the wake of the Red Army’s advance around 250,000 Polish soldiers, border guards, police officers, prison guards, State officials and other functionaries were detained. After they had been disarmed, about half of them were set free; the others were sent to special prison camps established by the NKVD (People’s Commissariat for Internal Affairs, the predecessor of the KGB) in Kozelsk, Ostashkov and Starobelsk. On 9 October 1939 it was decided that the Polish officer corps should be billeted at the camps in Kozelsk and Starobelsk and the remaining functionaries, including the police officers and prison guards, in Ostashkov.

13.  In early March 1940 Mr Lavrentiy Beria, head of the NKVD, submitted to Joseph Stalin, Secretary General of the USSR Communist Party, a proposal to approve the shooting of Polish prisoners of war on the grounds that they were all “enemies of the Soviet authorities and full of hatred towards the Soviet system”. The proposal specified that the prisoner-of-war camps held 14,736 former Polish officers, officials, landowners, police officers, gendarmes, prison guards, settlers and intelligence officers, and that the prisons in the western regions of Ukraine and Belarus accommodated a further 18,632 former Polish citizens who had been arrested.

14.  On 5 March 1940 the Politburo of the Central Committee of the USSR Communist Party, the highest governing body of the Soviet Union, 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”. Examination was delegated to a three-person panel (“troika”) composed of NKVD officials, which operated on the basis of lists of detainees compiled by the regional branches of the NKVD. The decision on the execution of the Polish prisoners was signed by all the members of the Politburo, including Stalin, Voroshilov, Mikoyan, Molotov, Kalinin and Kaganovich.

15.  The killings took place in April and May 1940. Prisoners from the Kozelsk camp were killed at a site near Smolensk, known as the Katyn Forest; those from the Starobelsk camp were shot in the Kharkov NKVD prison and their bodies were buried near the village of Pyatikhatki; the police officers from Ostashkov were killed in the Kalinin (now Tver) NKVD prison and buried in Mednoye. The circumstances of the execution of the prisoners from the prisons in western Ukraine and Belarus have remained unknown to date.

16.  The precise numbers of murdered prisoners were given in a note which Mr Shelepin, Chairman of the State Security Committee (KGB), wrote on 3 March 1959 to Nikita Khrushchev, Secretary General of the USSR Communist Party: “All in all, on the basis of decisions of the Soviet NKVD’s special troika, a total of 21,857 persons were shot, 4,421 of them in Katyn Forest (Smolenskiy district), 3,820 in the Starobelsk camp near Kharkov, 6,311 in the Ostashkov camp (Kalininskiy district) and 7,305 in other camps and prisons in western Ukraine and Belarus”.

17.  In 1942 and 1943, first Polish railroad workers and then the German Army discovered mass burials near Katyn Forest. An international commission consisting of twelve forensic experts and their support staff from Belgium, Bulgaria, Croatia, Denmark, Finland, France, Hungary, Italy, the Netherlands, Romania, Slovakia and Sweden was set up and conducted the exhumation works from April to June 1943. The remains of 4,243 Polish officers were excavated, of whom 2,730 were identified. The commission concluded that the Soviets had been responsible for the massacre.

18.  The Soviet authorities responded by putting the blame on the Germans who – according to Moscow – had in the summer of 1941 allegedly taken control of the Polish prisoners and had murdered them. Following the liberation of the Smolensk district by the Red Army in September 1943, the NKVD set up a special commission chaired by Mr Burdenko which purported to collect evidence of German responsibility for the killing of the Polish officers. In its communiqué of 22 January 1944, the commission announced that the Polish prisoners had been executed by the Germans in the autumn of 1941.

19.  On 14 February 1946, in the course of the trial of German war criminals before the Nuremberg Military Tribunal, the Soviet prosecutor cited the Burdenko commission’s report in seeking to charge the German forces with the shooting of up to 11,000 Polish prisoners in the autumn of 1941. The charge was dismissed by the US and British judges for lack of evidence.

20.  On 3 March 1959 Mr Shelepin wrote the above-mentioned note to Mr Khrushchev, recommending “the destruction of all the [21,857] records on the persons shot in 1940 in the … operation… [T]he reports of the meetings of the NKVD USSR troika that sentenced those persons to be shot, and also the documents on execution of that decision, could be preserved.”

21.  The remaining documents were put in a special file, known as “package no. 1”, and sealed. In Soviet times, only the Secretary General of the USSR Communist Party had the right of access to the file. On 28 April 2010 its contents were officially made public on the website of the Russian State Archives Service (rusarchives.ru1). The file contained the following historical documents: Mr Beria’s note of 5 March 1940, the Politburo’s decision of the same date, the pages removed from the minutes of the Politburo’s meeting and Mr Shelepin’s note of 3 March 1959.

Full text of the case at

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=906163&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

 

 

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