Late justice or legal mock battle?

Posted on 18. January 2013

by Slawomir Parus

Slavomir ParusIn one of the previous blog posts my friend Ksenia described our debate in Hamburg concerning Katyn case recognized by European Court of Human Rights. Her remarks related mainly to a historical aspect of that crime. As I am a lawyer, legal side of the debate was equally important to me.

Just to stress the facts – in September 1939 Red Army invaded Poland with a backstabbing blow for the Polish army still fighting against the prevailing German forces. The Soviet Union encountered only some resistance from the scattered Polish army and together with the Nazis managed to divide Poland as it had been formerly agreed in a notorious Ribbentrop-Molotov pact. Between 20000 and 30000 Polish officers were imprisoned in NKVD concentration camps and executed in 1940 with a shot in the back of their heads in Katyn forest, Mednoye, Pyatikhatki and other still unknown places. After Hitler’s invasion on the Soviet Union and the discovery of mass-tombs, Germans were blamed for this slaughter by communist propaganda.

Many crimes were committed during the World War II, but this one had especially long-term effects on relations between Poland and Russia. In the post-war realities many people in Poland were aware of the truth. Those who had enough courage to openly speak about it ended up in prisons or were even sentenced to death by a puppet Polish communist regime. After the collapse of the Soviet Union, it seemed that Russia accepted the historical truth by starting the investigation into the Katyn massacre.

It suddenly ended in 2004 when the Russian prosecution decided to discontinue the investigation. Following this occurrence few Polish nationals, whose relatives were executed in Katyn, brought the case before European Court of Human Rights. In the first instance, the court adjudicated that Russia failed to cooperate with the court by not disclosing the decision to discontinue the investigation and that there has been a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman treatment) in respect to 10 applicants.

Moreover, the court found that it could not examine the merits of the complaint under Article 2 (obligation to investigate loss of life). In every aspect of this case there had been separate or concurring opinions expressed by the judges examining it. The appeal filed by Polish applicants following the court’s verdict will be recognized by the Grand Chamber of ECHR this February.

Why is this case so important? For Russia – because if the court found violation of Article 2 of ECHR and Russian prosecution would be obliged to investigate the Katyn case once again; for Poland – because the Katyn case impacts heavily on relations with Russia; for relatives of victims – because it could lead to rehabilitation of those murdered in Katyn; for European Court of Human Rights itself – because it is the first time that the court deals with the case having its roots in the era before the creation of European Convention on Human Rights – a judgment against Russia in this case could pose a ground-breaking precedent.

It seems that the gravity of this case entitles me to state that it is not just a legal mock battle. Whatever the court decides will have a strong impact on parties involved. I personally hope that the verdict of the Grand Chamber of ECHR could deliver a late justice.