The Grand Chamber of the European Court of Human Rights has dismissed an application by the families of victims of the Katyn massacre based upon an evolving theory concerning the temporal application of the European Convention: Janowiec and Others v. Russia. For a comment and critique of the decision, see the statement by the European HumanRights Advocacy Centre, which had intervened in the case. There is also a very vigorous dissenting judgment by several members of the Court.
The applicants had previously been partially successful before a seven-judge Chamber of the Court. One of the ironies of this case is that it was the applicants who took the issue to the Grand Chamber where they in effect had a setback from their achievements in the Chamber.
The core issue was whether the so-called ‘procedural obligation’ upon States to investigate violations of the right to life, something that is now well-established in the European Court’s case law, can apply to events prior to entry into force of the Convention for a particular State. In Russia's case, the operative date is 1996. The Katyn massacre took place in 1940.
Until recently, the Court had confined the scope of this procedural obligation to violations of the right to life occurring since entry into force of the European Convention. The Katyn application attempted to take it further into the past, basing itself on the very important humanitarian grounds justifying a full and proper inquiry into the massacre.
The judgment discusses the history, noting that the killings on the orders of the Soviet leaders in 1940 were subsequently uncovered by the Nazis. The Soviets denied responsibility and even insisted that the Nazi defendants be prosecuted for the crime at Nuremberg, although as yesterday’s judgment notes the final ruling at Nuremberg, including the Soviet judge’s separate opinion, was silent on the question. Much later, Russia admitted responsibility. Yet apparently important records concerning the massacre remain inaccessible on the grounds of ‘national security’.
The European Court had the chance to heal a wound in Europe’s legal history that had been left open by the Nuremberg judgment. Alas, it has missed the chance. Moreover, it seems to have closed the door on scrutiny of the atrocities of the past. Some will think this is prudent because of the unforeseen consequences of opening what might amount to a Pandora’s box. Yet progress in human rights within Europe, and the important role that European human rights law plays as a model on a global scale, cannot rest on amnesia about dark episodes in the continent’s history.