1940 Soviet massacre outside reach of European Convention, rules Strasbourg

Trzy_krzyze-1Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09)read judgment

The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.

The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.

The ECtHR applications

The applicants complained that the Russian authorities had not carried out an effective investigation into the death of their relatives and had displayed a dismissive attitude to all their requests for information about their relatives’ fate. The applicants relied in particular upon Article 2 (right to life) and Article 3 (prohibition of inhumane or degrading treatment). The ECtHR held that the complaints under Article 2 and 3 were admissible, however, it joined to its examination of the merits of the complaint the issue of whether the Court had temporal jurisdiction to examine the adequacy of an investigation into events that had occurred before Russia ratified the Convention.

The temporal jurisdiction issue

The Court began its analysis by restating the overarching principles determining the scope of the ECHR, in particular that the ECHR does not bind a Contracting State in relation to any act or fact which took place, or any situation which ceased to exist, before the date of the entry into force of the ECHR for that State (‘the critical date’).

However, the Court acknowledged that while the procedural obligation under Article 2 was triggered by the facts concerning the substantive aspect of Article 2, the duty to carry out an effective and independent investigation had evolved into a separate and autonomous duty, and moreover that one that could bind a State even when the deaths in question occurred prior to the critical date.

The ‘Clarification’ of Šillih v Slovenia

The ECtHR summarised the principles from its earlier leading judgment in Šillih v Slovenia regarding the ‘detachable’ or independent Article 2 investigative duty as being:

(1) where the death occurred before the critical date, the Court’s temporal jurisdiction will extend only to the procedural acts or omissions in the period subsequent to that date;

(2) the procedural obligation will come into effect only if there was a genuine connection between the death as the triggering event and the entry into force of the Convention.

(3) a connection that is not genuine may be sufficient to establish the Court’s jurisdiction if it is needed to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective way.

The Court reviewed the application of those principles post- Šillih. It admitted (with some understatement) that “their application in practice has sometimes given rise to uncertainty, which is why further clarification is desirable.”

The ECtHR reiterated that the alleged violation is one of a procedural obligation, not any alleged breach of the right to life that may have occurred prior to the critical date. Procedural obligations are “acts…which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party.” Accordingly, an obligation on the part of the authorities to take investigative measures may be triggered when a plausible, credible allegation, piece of evidence or item of information comes to light that is relevant to the identification and eventual prosecution or punishment of those responsible. However, if the triggering event lies outside the Court’s temporal jurisdiction, the discovery of new material after the critical date gives rise to a fresh obligation to investigate only if either the ‘genuine connection test’ or ‘convention values test,’ is met.

Genuine connection

The Court held that unless the Convention values test was satisfied, the lapse of time between the triggering event and the critical date must remain reasonably short and should not exceed ten years. However, the decisive factor is whether “a major part of the proceedings or the most important procedural steps,” of the investigation into the death took place (or ought to have taken place) in the period following the relevant critical date. The Court stated if this was not the case “this may irretrievably undermine the Court’s ability to make a global assessment of the effectiveness of the investigation from the standpoint of the procedural requirements of Article 2 of the Convention.”

Convention values

The ECtHR stated that required connection to the underlying values of the Convention could be found to exist if the triggering event was of a larger dimension than an ordinary criminal offence and amounted to the negation of the very foundations of the Convention. This would be the case with serious crimes under international law, such as war crimes, genocide or crimes against humanity, in accordance with the definitions given to them in the relevant international instruments.

However, it held that: “a Contracting Party cannot be held responsible under the Convention for not investigating even the most serious crimes under international law if they predated the Convention,” i.e. if committed prior 4 November 1950.

Application to the facts

The ECtHR noted that Russia ratified the ECHR in May 1998. It held that the length of time since the deaths of the applicants’ relatives was too long in absolute terms for a genuine connection to be established. It also noted that there had been no real investigative steps after May 1998, and no other relevant piece of evidence or substantive item of information come to light in the period since that critical date. Accordingly, neither limb of the genuine connection test was met.

The ECtHR also held the events that might have triggered the obligation to investigate under Article 2 took place in early 1940, and the convention values test was also not satisfied.

Comment

Lord Phillips in McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 at §§46 and 49 spoke for many when he described the decision of the ECtHR in Šillih as “Delphic” and stated that he had difficulty in identifying the precise circumstances in which the procedural obligation attaches as a “separate and autonomous duty.”

To some extent this judgment by the ECtHR does acknowledge and reflect those criticisms of the elusive concept of a ‘genuine connection’ and represents a welcome clarification of the problematic decision in Šillih.  The inclusion of a specific temporal limb within the ‘genuine connection’ test is particularly welcome. The ECtHR has therefore confirmed the approach taken by Lord Phillips speaking for the majority in McCaughey at §61 that the Article 2 procedural obligation does not persist indefinitely. In practice, the effect of this aspect of Janowiec in the United Kingdom is likely to be restrict the potential for Šillih to be cited as requiring Article 2 compliant investigations into historic Northern Ireland deaths.

However, the judgment does once again create a potential tension between the principle that UK Human Rights jurisprudence should ‘mirror’ that of the ECtHR, and the restrictions on retroactive application entrenched in the Human Rights Act 1998. The Supreme Court in McCaughey acknowledged that following Šillih, the procedural obligation to investigate a death could apply after the HRA had come into force, even if it was in relation to a death that had occurred before the Act came into force. The Supreme Court was careful though to limit the scope of such an obligation to situations where an inquest was going to be held into those historic deaths. Lord Phillips at §51 held

“As a matter of international obligation it is now apparent that the United Kingdom has come under a free standing obligation under article 2 to ensure that the inquest complies with the procedural requirements of that article, at least in so far as this is possible under domestic law.”

Following Janoweic it is no longer clear whether the implicit limitation placed by the Supreme Court on the United Kingdom’s free standing obligations to commence Article 2 compliant investigations into pre HRA deaths can be sustained. Arguably such an obligation under the mirror principle will now exist if a “plausible, credible allegation, piece of evidence or item of information comes to light that is relevant to the identification and eventual prosecution or punishment of those responsible,” and either the genuine connection test or convention values (much more likely given the 10 year requirement) is satisfied.

Given the breadth of the scope of the ‘convention values’ test and the fact that the ‘critical date’ for the United Kingdom predates much of Britain’s flight from Empire in the 1950s it may well be that Janoweic provides ammunition for arguing that omitting to investigate new evidence, such as surfaced in relation to Mau Mau, that may suggest serious crimes against international law as part of de-colonialisation could be a breach of Article 2.

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