PARTLY DISSENTING OPINION OF JUDGE KOVLER JOINED BY JUDGES JUNGWIERT AND ZUPANČIČ

We cannot follow the unusual logic behind the methodology employed in the present judgment in finding, first of all, a violation of Article 38 of the Convention, as the Court did, for example, in the Nolan case (see Nolan and K. v. Russia , no. 2512/04, 12 February 2009). In the present case the Court states that “[c]ompliance with this obligation is a condition sine qua non for the effective conduct of the proceedings before the Court and it must be enforced irrespective of any findings that will be made in the proceedings and of their eventual outcome” (see paragraph 91 of the judgment). Even assuming that the Court, especially in the initial stages of the proceedings, had an interest in requesting a copy of the decision of 21 September 2004 by which the investigation into the Katyn massacre was discontinued, the fact that the Court decided that it was unable to take cognisance of the merits of the complaint under the procedural limb of Article 2 of the Convention greatly reduced the initial importance of that interest, and the Court could have concluded that no separate issue arose.

As to the merits, we would observe that in its Grand Chamber judgment in Stoll v. Switzerland the Court accepted the necessity of a certain “discretion” in relation to some confidential official documents of the member States (see Stoll v. Switzerland [GC], no. 69698/01, § 136, ECHR 2007-V) and the need to preserve it. We also take note that the applicants’ Russian counsel had access to the classified documents in the case file of criminal case no. 159, including the decision of 21 September 2004, and that the arguments set forth in that document had been examined by the domestic courts, which had found that it provided sufficient justification for the decision to discontinue criminal case no. 159. We would also recall the Court’s statement in another Russian case, according to which: “Mindful of its subsidiary role and the wide margin of appreciation open to the States in matters of national security, it accepts that it is for each Government, as the guardian of their people’s safety, to make their own assessment on the basis of the facts known to them. Significant weight must, therefore, attach to the judgment of the domestic authorities, and especially of the national courts, who are better placed to assess the evidence relating to the existence of a national security threat” (see Liu v. Russia (no. 2) , no. 29157/09, 26 July 2011, § 85).

We do not want to speculate about the content of the said document (perhaps the names of the infiltrated agents or those of the perpetrators of the massacre?). We simply take note of the observation of the Polish Government (paragraph 96), who emphasised that the obligation to provide materials under Article 38 of the Convention would not be violated if the refusal to provide them was convincingly explained. This raises the question of the evaluation of the cogency of this explanation, which is a matter of value judgment...

JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER AND NUSSBERGER

1. This case raises important questions affecting the application of the Convention as well as serious issues of general importance in respect of Article 2 (procedural limb). Nevertheless, we are in no doubt that the Court is able to take cognisance of the merits of the complaint under Article 2 and that this Article has been violated.

2. As regards the procedural limb of Article 2, the difficulty as to the interpretation and application of the Convention concerns the jurisdiction ratione temporis of the Court and in particular the interpretation of the somewhat “mysterious” paragraph 163 of the judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009). [8] Šilih v. Slovenia was the first judgment in which the detachability and autonomous role of the procedural obligation under Article 2 were examined. The Grand Chamber held:

“161. ... having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended.

162. First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction.

163. Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect.

Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account ( Vo , cited above, § 89) – will have been or ought to have been carried out after the critical date.

However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.”

3. In our view, applying Šilih v. Slovenia to the facts of this case and interpreting the last sentence of paragraph 163 in a way which is consistent with the Grand Chamber’s decision to base a genuine connection “on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” leads us to the conclusion that the case falls within the temporal jurisdiction of the Court and that there has been a procedural violation of Article 2. Drawing inspiration from Brecknell v. the United Kingdom (no. 32457/04, 27 November 2007), and qualifying the “genuine connection” test identified in Šilih , the majority reads the final sentence of paragraph 163 as comprising two elements. First, and in compliance with the “genuine connection test”, the reference to “underlying values of the Convention” must be understood in the sense that the triggering event must be of a larger dimension than an ordinary criminal offence and constitute a negation of the very foundations of the Convention as is the case, for instance, with a war crime or a crime against humanity. Second, and restricting this test, there must be sufficiently important material casting new light on that offence and coming into the public domain in the post-ratification period (as regards this second element, see paragraph 10 below).

4. In our view, the gravity and magnitude of the war crimes committed in 1940 in Katyń, Kharkov and Tver, coupled with the attitude of the Russian authorities after the entry into force of the Convention, warrant application of the special-circumstances clause in the last sentence of paragraph 163.

5. We would recall that this case has its origins in the killing of more than 20,000 prisoners of war who were murdered by State agents without any judicial process and buried in mass graves. This was clearly one of the war atrocities that the drafters of the Convention sought to prevent from ever happening in the future. It was obviously an act contrary to the underlying values of the Convention. In Å ilih , the Court included the last sentence of paragraph 163 precisely to catch exceptional cases like the one at hand [9] and to distinguish this case from cases concerning events that happened so long ago that any investigation would be impossible to carry out and hence pointless. [10]

6. The killing was a “war crime”. There is no doubt about that. The massacres were committed in the aftermath of the Molotov-Ribbentrop Pact (the Treaty of Non-Aggression of 1939 and its infamous secret Protocol), which is an undisputed historical fact. Under this illegal agreement, the Soviet forces committed the crime of aggression against, inter alia , Poland, which resulted, after partition, in illegal occupation of this independent State.

It appears that the Russian authorities characterised the Katyń massacre [11] as an “abuse of power.” Since the text of the decision is not available, it is not clear whether it was an abuse of power on the part of the Politburo leaders or the actual executioners. However, this characterisation does not appear convincing: both the Hague Convention IV of 1907 and the Geneva Convention relative to the Treatment of Prisoners of War of 1929 prohibited acts of violence and cruelty against war prisoners, and the murder of prisoners of war constituted a “war crime” within the meaning of Article 6 (b) of the Nuremberg Charter of 1945. Although the USSR was not a party to the Hague or Geneva Conventions, the obligation to treat prisoners humanely and abstain from killing them clearly formed part of international customary law subsequently laid down in the Nuremberg Charter, which it had a duty to respect. That such an obligation was recognised as legally binding by the USSR was confirmed by the fact that the Soviet prosecutor attempted to charge the Nazi leaders with the Katyń killings during the Nuremberg trial. The Katy ń massacre, as a “war crime”, is not subject to statutory limitation, in accordance with both Russian domestic law and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

7. Seen in the light of the last sentence in paragraph 163 of the Šilih judgment, the existence of an act contrary to the underlying values of the Convention which constituted a war crime not subject to a statutory limitation is, as long as investigation is still possible, sufficient in our view to establish the Court’s temporal jurisdiction over the investigation into this act, especially in circumstances where a substantial part of the investigation was conducted in the post-ratification period.

8. In the case at hand, the underlying values of the Convention are also affected by the rather strange and inconsistent attitude of the Russian authorities in taking, after the entry into force of the Convention, both positive and negative procedural decisions. Suffice it to mention that in December 2004, that is, some fourteen years after the archives had been opened, the Interagency Commission for the Protection of State Secrets classified thirty-six volumes of the case file as “top secret”. What is so inconsistent, and hence shocking, is the fact that what was initially a transparent investigation ended in total secrecy. The Russian Government refused to produce the decision of 21 September 2004, a circumstance which has been found to be in breach of Article 38 of the Convention. On the other hand, as late as 2003, the Prosecutor General’s Office was still in dialogue with counsel for the applicants, confirming the existence of the criminal investigation, and in early 2005 the Chief Military Prosecutor’s Office replied that Mr Nawratil and Mr Janowiec were listed among the prisoners who had been executed in 1940 by the NKVD and buried near Kharkov. However, no further material was made available and no further information transpired. To sum up, the inconsistent, changing and strange attitude of the Russian Government after the entry into force of the Convention is a highly relevant reason to treat this case as an exceptional case covered by the last sentence of paragraph 163 of the Šilih judgment.

9. It is also clear from the text of the Russian judgments that the Russian courts adopted the view that the applicants’ relatives had simply “disappeared” after having been placed “at the disposal” of the Soviet secret police. At the same time, grave allegations of a criminal nature had been made against the applicants’ relatives. These allegations even triggered a request for rehabilitation, rejected by the authorities in 2008. The volte face of the authorities concerning the events, coupled with their inconsistent attitude, is in itself problematic and constitutes another specific procedural ground for declaring Article 2 of the Convention applicable in its procedural limb.

10. But even if we were to adopt the logic of the majority qualifying the “genuine connection test” by introducing a second element (that is, sufficiently important material casting new light on the offence and coming into the public domain in the post-ratification period: see paragraph 3 above), we would still be satisfied that the Court has jurisdiction to examine the complaint. Indeed, both the decision of 21 September 2004 to discontinue the investigation and the decision to classify the case file amounted to major developments in the investigation. Although these procedural decisions as such do not constitute “new material” for the investigation, the sudden classification of the case file as secret after it had been at least partly open for several years cannot but be interpreted as a strong indication of new and relevant – although hidden – findings. Therefore, these procedural decisions could be interpreted as indicating new material coming to light in the post-ratification period. In these circumstances, we strongly believe that the Court has jurisdiction to examine the Russian authorities’ compliance with the procedural obligation under Article 2 in the post-ratification period.

11. Turning to the merits of the complaint under the procedural limb of Article 2, we are aware that in view of the nature of the investigation at issue, not all the guarantees under the procedural limb of Article 2 may be relevant. However we have little doubt that there has been a violation of this provision on account of the applicants’ exclusion from the proceedings. Their right to participate effectively in the investigation was not secured: the applicants were denied victim status and access to the case file because foreign nationals could not access classified material. Moreover, the classification of the most important parts of the case file citing national security considerations appears arbitrary in the light of the fact that, according to the Russian Government’s own words, the individuals who could be – at least in theory – held responsible for the massacre had already died. The decision to classify the materials of the investigation also sits ill with the Russian Government’s consistent position that the crime was committed by the totalitarian regime of a different State, the Soviet Union, more than sixty years ago. In these circumstances, the public interest in uncovering the crimes of the totalitarian past should have coincided with the applicants’ private interest in finding out the fate of their relatives, and outweighed any outstanding national-security considerations. In the case at hand, the applicants were simply excluded from the investigation.

12. The applicants further claimed that the prolonged denial of information about the fate of their relatives, taken together with the curt and mutually contradictory replies by the Russian authorities and the denial of the established historical facts, disclosed a serious problem under the Convention. In our view, this claim is particularly relevant as regards the procedural aspect of Article 2. It is against this background that we must view the suffering of the victims’ relatives when they were denied victim status in the proceedings on the basis that it was not proven that their relatives were among those killed although their names figured on the ”death lists”. That suffering, rightly examined by the judgment as a separate issue under Article 3 of the Convention, was aggravated by the refusal to grant rehabilitation on the ground that it was not known on what legal basis the applicants’ relatives had been condemned to death and executed; this amounted to an allegation that they might indeed have committed criminal acts. Moreover, the Russian authorities adopted the version of the “disappearance” of the applicants’ relatives as the official one and refused the applicants any access to the case materials on spurious national-security grounds. The Russian courts rejected all applications for rehabilitation, claiming that it was impossible to determine the specific legal provision forming the basis for the execution of the Polish prisoners of war. It is hard to disagree with the applicants’ argument that such a finding appeared to suggest that there might have been good reasons for their relatives’ execution, as if they had been common criminals deserving of capital punishment. By making such allegations, the Russian authorities not only did not comply with the positive obligation arising out of Article 2, but turned the positive obligation into its opposite. In other words, the procedural violation stems not just from culpable inaction, but from a positive intention not to comply with Convention standards.

13. In view of the long period of uncertainty and frustration suffered by the applicants and the not merely contradictory but indeed incomprehensible approach of the Russian authorities, this case has to be considered as truly exceptional.

14. For these reasons, we are of the opinion that Article 2 of the Convention has been violated.