JOINT CONCURRING OPINION OF JUDGES KOVLER AND YUDKIVSKA

We voted with the majority in finding that the Court does not have jurisdiction ratione temporis to examine the applicants’ complaint under Article 2 of the Convention. However, we cannot fully subscribe to the reasoning in the judgment and the proposed application of the Šilih principles to the present case.

A preliminary remark should be made. As the majority, we consider that the Katyn massacre was a particularly horrific war crime committed by the Soviet totalitarian regime, and we agree with our dissenting colleagues that “[t]his was clearly one of the war atrocities that the drafters of the Convention sought to prevent from ever happening in the future”. On the other hand, we believe that the European Convention on Human Rights, having arisen out of a bloody chapter of European history in the twentieth century, was drafted “as part of the process of reconstructing western Europe in the aftermath of the Second World War” [3] , and not with the intention of delving into that black chapter.

In fact, this is the very first case in which the Court has dealt with procedural obligations under Article 2 arising out of an event which happened not only before ratification of the Convention by the respondent State but before the Convention was even drafted. We can hardly see how the Russian authorities could have an obligation to conduct an investigation into the circumstances of the Katyn massacre after 5 May 1998, the date of ratification of the Convention, or how it can be assumed that they were aware of the possible consequences of ratifying the Convention with regard to the said investigation.

The investigation that started in 1990 was a goodwill gesture on the part of the Russian Federation. As mentioned in paragraph 141 of the judgment, a domestic decision to investigate, which could be made on account of political or ethical considerations, should be distinguished from the procedural obligation under the Convention to investigate, and “only the latter, and not the former ... is subject to the Court’s scrutiny”. We agree with this approach and we find it to be central to the conclusion that the complaint under Article 2 falls outside the Court’s jurisdiction ratione temporis .

Indeed, the majority reached that conclusion for a different reason. Having applied the Šilih test, according to which, for the procedural obligations imposed by Article 2 to come into effect, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State, and thus a significant proportion of the procedural steps must have been carried out after the critical date (see paragraph 132 of the judgment), it found in paragraph 138 that “a significant proportion of the Katyn investigation ... appears to have taken place before the ratification date”, in particular between 1991 and 1995. For this reason “the criterion triggering the coming into effect of the procedural obligation imposed by Article 2 has not been fulfilled”. It follows logically from this passage that had the Russian Federation ratified the Convention, for example, seven years earlier in 1991, the “genuine connection” test would have been satisfied.

With due respect, we disagree with this approach. It is true that “there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity” (see Brecknell v. the United Kingdom , no. 32457/04, § 69, 27 November 2007). It is also established that the procedural obligation “binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it ” (see Šilih v. Slovenia [GC], no. 71463/01, § 157, 9 April 2009, emphasis added). Thus, according to the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions [4] , “ the purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death ”.

Could the Russian authorities be reasonably expected to establish all the circumstances of the Katyn atrocity and to call the perpetrators to account fifty years after the event and thirty years after the main evidence was destroyed (see paragraph 20), when the majority of the perpetrators and witnesses were already dead? In our view, the answer is in the negative, as any such investigation would have been a priori ineffective and the procedural guarantees of Article 2 should not be extended to it. It is also hard to imagine any possible new evidence or information that might appear fifty years later “capable of furnishing the connection between the prisoners’ death and the ratification and imposing a fresh obligation to investigate under Article 2” (see paragraph 140).

A similar conclusion was reached in the case of Çakir and Others v. Cyprus (dec.) (no. 7864/06, 29 April 2010), where, applying the Šilih principles to the investigation into killings that occurred more than fourteen years before the right of individual petition in respect of Cyprus took effect, the Court noted that “the request for information [about the results of the investigation] ..., made over thirty years after the killings, does not constitute a new plausible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrators such as to revive the authorities’ procedural obligation to investigate the applicants’ relatives’ deaths and to bring the procedural obligations under Article 2 within the temporal jurisdiction of the Court.”

Like our learned colleague Judge Lorenzen we believe that “ there must be a clear temporal connection between on the one hand the substantive event – death, ill-treatment etc. – and the procedural obligation to carry out an investigation and, on the other, the entry into force of the Convention in respect of the respondent State” [5] . All the cases in which the Court has found that it had jurisdiction ratione temporis to examine the case under the procedural limb of Article 2 although the death of an individual had occurred before the ratification of the Convention have, in addition to the common features mentioned in paragraph 135, one more significant factor which distinguishes them from the present case: the investigation into the circumstances of the death in question started immediately, and thus many items of evidence were preserved for further investigative steps. In a situation where there has been no investigation into the crime for fifty years, we fail to see any possibility of fulfilling the requirements of an effective investigation, namely to elucidate the circumstances of death and establish responsibility for it .

It is true that “the Court has elaborated extensive guidelines on the needs of effective investigations, encompassing diverse components from the scope of autopsies to the involvement of the victims’ families ” [6] ; however, in the absence of any possibility of achieving the above aim of an effective investigation, separate examination of the applicants’ involvement in the proceedings would appear to be an artificial fragmentation of the State’s procedural obligations.

To the extent that the applicants’ complaint under Article 2 concerns the suffering they underwent owing to their exclusion from the proceedings and the denial of information, this complaint was examined by the Court under Article 3 of the Convention [7] .