TrustHLT/LaCour huggingface dataset:
GR1 (Government): The Russian authorities also maintain that their compliance with the procedural obligation under Article 2 falls beyond the court's jurisdiction ratiotemporis, since when it is prevented ratiotemporis from examining the circumstance of death or killing, it cannot establish whether or not this fact gave rise to the procedural obligation.
GR1 (Government): Their specified position goes in line with Article 28 of the Vienna Convention on the Law of Treaties, which defines the rule against retroactivity of treaties.
GR1 (Government): In addition, the rule of temporal jurisdiction establishes that a court cannot exercise jurisdiction with respect to events occurred before such time when the court came into existence.
GR1 (Government): For example, in the case of the ICC statute, it states in Article 11.1 that the court has jurisdiction
GR1 (Government): only with respect to crimes committed after the entry into force of the statute.
GR1 (Government): In Paragraph 131 of the judgment, the chamber fully endorse the sealage approach.
GR1 (Government): The Russian authorities find the implementation of this approach in practice to be at least problematic.
GR1 (Government): No matter how separate, autonomous, or detachable their procedural obligation is, it is not disputed that it can be triggered only by a death or a killing.
GR1 (Government): The court cannot turn to the examination of the obligation without first establishing whether the circumstance of the death or the killing have brought this obligation into play.
GR1 (Government): However, the court shall be precluded from taking this step when the death or a killing occurs before the ratification of the convention.
GR1 (Government): Besides, the subsequent initiation of the criminal proceedings cannot bring these events within the court jurisdiction.
GR1 (Government): The chamber, in Para 136 and 140 of its judgment, established the fact and the circumstance of the death of the applicant's relatives and even assessed their killing from the standpoint of international humanitarian law, contrary to the results of the completed domestic investigation.
GR1 (Government): By doing so, the chamber obviously overstepped its jurisdiction ratio temporis and ratio materia.
GR1 (Government): The cutting events constitute a distant historical fact that can receive no legal assessment from the standpoint of the convention.
GR1 (Government): In relying on the assiliate approach, one should not lose sight of restricting criteria to ensure legal certainty and prevent an unforeseeable extension of the court's jurisdiction and of the convention's outreach.
GR1 (Government): In particular, for the procedural obligation imposed by Article II to come into effect, there must exist a genuine connection between the death and the entry into force of the convention.
GR1 (Government): In addition, as rightly stated in Para 135 of the chamber judgment, the lapse of time between the triggering event and the identification date must remain reasonably short.
GR1 (Government): If it is to comply with the genuine connection standard, the chamber correctly noted that the period of 58 years between the events and the identification of the convention is not only many times longer than those which triggered the coming into effect of the procedural obligation under Article II in all previous cases, but also it is excessively long in absolute terms to establish any genuine connection.
GR1 (Government): The major part of all the investigative actions and all the most significant actions in the criminal case were taken between 1990 and 1995.
GR1 (Government): No investigative actions of comparable significance or intensity were performed under 1995, as it is confirmed by the chamber.
GR1 (Government): Since then, most of the time the investigators were waiting for the Ukrainian and Belarusian authorities to finish the independent investigations, which later appeared to reveal no pieces of evidence, allowing the investigation to be pursued further.
GR1 (Government): As to the test formulated in the last subparagraph of Paragraph 163 in SILIC, it is necessary to emphasize that its application implies that the court is called upon to establish whether the triggering event which had happened before the ratification of the convention is of a larger dimension than an ordinary criminal offense and constitute a negation of the very foundation of the convention, such as, for instance, war crimes or crimes against humanity.
GR1 (Government): Obviously, the court is prevented from performing such an assessment.
GR1 (Government): As regard the new material test in Para 140 of the judgment, the chamber confirmed that after 5th May 1998, no piece of evidence of a character or sentence which could revive a procedural obligation of investigation or rise new or wider issues have been produced or uncovered.
GR1 (Government): However, the Polish authorities pointed out certain events which occurred between 5th May 1998 and 23rd September 2004 and, in their view, could warrant the court's temporal jurisdiction in the present case.
GR1 (Government): It should be noted, however, that none of these events were capable of undermining the conclusions of the earlier investigation.
GR1 (Government): None of them required any fresh investigation.
GR1 (Government): After 1995, the actions essentially amounted to the refinement of the information already obtained.
GR1 (Government): No expert examinations were performed after 1998.
GR1 (Government): The documents in question are mere requests for clarification of certain circumstances forwarded to educational institutions, and the replies thereto were not joined to the criminal case file as evidence.
GR1 (Government): The classification of certain documents cannot be viewed as new material for the purposes of triggering any investigative obligations under Article 2.
GR1 (Government): Requests received by the Chief Military Prosecutor Office since 1998 conserved rehabilitation information about the applicant's relatives, issues of victim status, and declassification of the case file, and didn't contain any new pieces of information.
GR1 (Government): Under the court's case law, a request for information, let alone a rehabilitation request, especially made many 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 of or punishment of the perpetrators, such as to revive the authorities' procedural obligation to investigate the applicant's relatives' deaths and to bring their procedural obligation under Article 2 within the temporal jurisdiction of the court.
GR1 (Government): As regard the documents presented by the Ukrainian authorities in 2002, including the so-called Ukrainian cut-in list, they don't concern the execution of the Polish citizens in the spring of 1940, pursuant to the decision of 5 March 1940.
GR1 (Government): This statement is supported by the additional documents submitted by Russian authorities.
GR1 (Government): The Polish authorities have failed to produce any additional documents to substantiate their allegations.
GR1 (Government): As it was ruled in Brecknell, the nature and extent of a belated or renewed investigation might be different from that to be expected immediately after a suspicious or violent deaths have occurred.
GR1 (Government): The extent to which the requirements of effectiveness, independence, promptness, and expedition is simply to the family and sufficient public scrutiny apply is influenced inevitably and considerably by the passage of time.
GR1 (Government): In the present case, the effectiveness was undermined by objective reasons.
GR1 (Government): As regard the right of the applicants to participate effectively in the investigation, there were no grounds for securing it.
GR1 (Government): Firstly, the investigation was initiated in the absence of any obligations under either the domestic or international law as a goodwill gesture.
GR1 (Government): Secondly, the remains of the applicants' relatives have not been discovered and or identified during the exhumations.
GR1 (Government): Thirdly, there was no sufficient evidence for establishing a causal connection between the cut-in events and the deaths of the applicants' relatives up to the standard required for the purposes of criminal and rehabilitation proceedings.
GR1 (Government): Though the proceedings lasted 14 years and received a broad coverage in the mass media, it was not until after the discontinuation of the proceedings when two of the applicants claimed victim status for the first time.
GR1 (Government): However, the Russian criminal procedural law does not allow granting victim status after the discontinuation of the criminal proceedings while the request of the applicants would not trigger the resumption of the criminal proceedings since the suspects were dead.
GR1 (Government): As to the classification of some volumes of the case file, it didn't run contrary to the public interest in uncovering the circumstance of the events and the applicants' private interest in finding out the fate of their relatives.
GR1 (Government): Most of the documents referred to by the applicants and the Polish authorities are located in volumes 3, 12, 14, 24, 31, and 120, which have never been classified or marked for internal use only.
GR1 (Government): These volumes are also among the 67 volumes studied by a delegation of the Polish National Remembrance Institute from 10 till 19 October 2005.
GR1 (Government): Only the list of personal records of the prisoners from the Astashev camp are located in volumes 10 and 11 that used to be marked for internal use only until 2010.
GR1 (Government): Copies of the specified volumes were officially handed over to the Polish authorities on 7th and 8th May and 23rd September 2010.
GR1 (Government): In total, copies of 148 of 183 volumes were handed over in 2010 and 2011, including volumes 158 till 170 with the documents submitted by the Ukrainian authorities in 2002.
GR1 (Government): Copies of 20 volumes of the criminal case file and copies of the documents from the so-called case file number one, including the Politburo's decision of 5th March 1940 and the Chelyabinsk note of 3rd March 1959 were officially handed over to the Polish authorities already in 1992.
GR1 (Government): Since the early 90s, a lot of documents relating to the Katyn events, including those from the criminal case file, have been published freely and were available to the general public in their archives.
GR1 (Government): Thus, all the major documents relating to the Katyn events and all the few documents mentioning the applicants' relatives contained in the criminal case file have not been classified and must have been well known to the applicants and the Polish authorities long before their application to this court.
GR1 (Government): In its third question, the court calls the applicants' relatives missing persons.
GR1 (Government): However, they are not.
GR1 (Government): At the same time, the determination of the status of the applicants' relatives is crucial for establishing whether their separate issue arise under Article III.
GR1 (Government): Under the court's case file, no matter whether the victim appears to be killed or missing by the end of the domestic investigation, there should be a period of time when the relatives of the victim remains in a status of uncertainty as to the fate of the victim and their suffering during the period are further aggravated by the action inaction of the authorities.
GR1 (Government): While the exact circumstance of the death of the applicants' relatives in the present case have not been established up to the standard required for the purposes of criminal or rehabilitation proceedings, one could not have reasonably expected that they were still alive by 5th May, 1998.
GR1 (Government): As it is confirmed in chamber judgment, at least after 5th May, 1998, the applicants' relatives should be presumed dead.
GR1 (Government): Therefore, the applicants could have hardly remained in a state of uncertainty as to the fate of their relatives.
GR1 (Government): For Article III to come into play, there have to be special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of serious violation of human rights.
GR1 (Government): The proximity of the family ties is one of such factors.
GR1 (Government): There are five applicants who were born right before or after 1939 and therefore could not have known their relatives personally, and there could have been no strong family bonds established between them and their relatives.
GR1 (Government): In the light of the court case law, the Russian authorities point out a number of circumstances that have significantly diminished the alleged aggravating impact of their actions or inactions.
GR1 (Government): If there has been any such impact in the present case at all, firstly, none of the applicants witnessed their events.
GR1 (Government): Secondly, a period of 58 years separates the events and the date of ratification of the convention by the Russian Federation.
GR1 (Government): Thirdly, any suffering experienced by the applicants until 1990 can be in no way attributable to the Russian authorities.
GR1 (Government): Fourthly, at least since 5th May 1998, the applicants' relatives cannot be considered missing persons, and the applicants cannot claim to have been in a state of uncertainty as to their fate.
GR1 (Government): The replies of the chief military prosecutor's office to the request of the applicants contain all the available information about their relatives, which is based solely on the three lists of prisoners.
GR1 (Government): The case file contains no other documents enabling the establishment of the fate of the applicants' relatives or indicating their sites with their remains.
GR1 (Government): The list of prisoners were examined with the participation of their applicants' representatives during the domestic court proceedings and were handed over to the Polish authorities.
GR1 (Government): The inconsistencies in their replies to the applicants' requests come to the sole question whether the circumstances of the death of their relatives have been established up to the required standard.
GR1 (Government): The incorrect conclusions, which were based on a broad interpretation of the documents available in the criminal case file, were corrected by the domestic courts through the proper assessment of the documents mentioning the application relatives.
GR1 (Government): Neither the chief military prosecutor's office nor the domestic courts have ever denied the reality of the cut-in events.
GR1 (Government): They merely pointed out the lack of sufficient evidence for establishing the circumstances of the death of each of the applicants' relatives up to the standard required.
GR1 (Government): The reality of the cut-in events was acknowledged by the Russian authorities as early as in 1990.
GR1 (Government): They had not intention to distorting or denying historical facts and subjecting the applicants to inhuman or degrading treatment by lawfully applying strict standard of proof in the criminal proceedings.
GR1 (Government): Lastly, the court has on many occasions stated that in the absence of a finding of the respondent's state's responsibility for a disappearance or killing, it is not persuaded that the investigating authorities conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants' mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3.
GR1 (Government): As regard the obligation under Article 38 of the convention, it cannot be said that Russian legislation prevents confidential information from being communicated to international organizations.
GR1 (Government): It rather provides for a special procedure and requires certain arrangements to be implemented for the purposes of ensuring accountability for the possible disclosure of such information.
GR1 (Government): The same provisions might very likely be foreseen in the domestic legislation or the other member states or the Council of Europe.
GR1 (Government): Based on the Russian legislation, the competent domestic bodies have not come to a conclusion that the ruling of 21st September 2004 may be disclosed.
GR1 (Government): It's not necessarily against the requirements of Article 38, which does not expressly oblige to disclose a state's secret information, and it does not explicitly prohibit withholding information that can impair their security.
GR1 (Government): At the same time, it is not uncommon that international instruments contain express rules allowing the states to withhold information, the dissemination of which can impair their security.
GR1 (Government): Moreover, the courts have repeatedly accepted that the High Contracting Party enjoy a wide margin of appreciation in the sphere of national security.
GR1 (Government): The Russian authorities believe that their refusal to furnish a copy of a mentioned ruling is compatible with their obligation under Article 38.
GR1 (Government): To discharge their obligation, they provided sufficient information about this ruling, explained which agency classified it, and what their security concerns were, and indicated the grounds for the termination of the criminal proceedings.
GR1 (Government): They noted that the ruling didn't mention the applicants and contain no information about the fate of their relatives or about the location of their burial sites.
GR1 (Government): Beside that, the ruling of 21st September 2004 is an interim procedural document.
GR1 (Government): It's not a final judicial decision establishing the guilt of any state officials for having committed crimes.
GR1 (Government): The validity of the classification of 36 volumes of the criminal case file was checked by the competent bodies and confirmed by the domestic courts.
GR1 (Government): In this regard, the Russian authorities recall that mindful of its subsidiary role and the wide margin of appreciation open to the states in matter of national security, the court usually attached significant weight to the judgment of the domestic authorities, and especially of the national courts that are better placed to assess their corresponding evidence.
GR1 (Government): The ruling of 21st September 2004 was classified because it contains information in the sphere of intelligence, counterintelligence, and operational and search activity, which constitutes state secret under Article 5 para 4 of the law on state secrets of Russia.
GR1 (Government): It is compatible with Article 7 of this law, since the information about the violation of human rights by state officials contained therein have remained public and are assessable.
GR1 (Government): References being made to the documents stored in the archives, the documents from the so-called case file number one, which were handed over to the Polish authorities in 1992, and 20 volumes handed over to the Polish authorities in 1992, the 67 volumes, the access to which has never been restricted, and was given to the representative of the Polish authorities in 2005, as well as the 148 volumes, which were handed over to the Polish authorities in 2010 and 2011.
Josep Casadevall (JudgeP): Thank you Mr. Matyushkin, for the Polish government, I call Mrs. Mężykowska.
TP1 (ThirdParty): May it please the Grand Chamber.
TP1 (ThirdParty): These oral submissions of the government of Poland are intended to complement the written submissions, bringing in mind the questions raised by the Grand Chamber.
TP1 (ThirdParty): Poland, of course, fully supports the claims of the applicants.
TP1 (ThirdParty): We also find the materials submitted by non-governmental organizations that have intervened in the proceedings to be helpful contributions to this important case.
TP1 (ThirdParty): Poland is here today to present the matter in a broader framework.
TP1 (ThirdParty): As the Chamber decision notes, more than 20,000 people were murdered in what is known around the world as the Katyn massacre.
TP1 (ThirdParty): The voice of the victims and of their descendants should also be heard today.
TP1 (ThirdParty): The Katyn crime holds a very important place in the recent history of our continent, and the judgment the Grand Chamber will deliver should reflect this.
TP1 (ThirdParty): The terrible irony of these proceedings is that it was the Respondent State that initially insisted upon punishing the perpetrators of the Katyn crime.
TP1 (ThirdParty): At Russia's request, the Nazis were charged for the Katyn crime before the International Military Tribunal at Nuremberg with the war crimes of murder and ill-treatment of prisoners of war.
TP1 (ThirdParty): And the Soviet government put forward the report as an evidence of a Nazi guilt.
TP1 (ThirdParty): The Burden Commission report is referred to in paragraphs 18 and 19 of the Chamber decision.
TP1 (ThirdParty): Ironically, the commission was supervised by Vsevolod Merkulov, the man behind the Katyn operation and head of the troika that signed off on the list of prisoners bound for execution.
TP1 (ThirdParty): Indeed, no other single atrocity received so much attention during the Nuremberg trial as the Katyn crime.
TP1 (ThirdParty): Nonetheless, the Katyn judgment remains silent on the subject of Katyn massacre.
TP1 (ThirdParty): Therefore, paragraph 18 of the Chamber decision is not quite right when it says that the charge was dismissed by the US and British judges for lack of evidence.
TP1 (ThirdParty): In fact, the judgment did not provide any explanation.
TP1 (ThirdParty): At the Soviet Union's request, the indictment of the Nuremberg trial read that 11,000 Polish officers were killed in the Katyn forest.
TP1 (ThirdParty): At its most recent submission, Russia suggests a number of less than 2,000.
TP1 (ThirdParty): The Grand Jamba might note its contention at Nuremberg at about 11,000 and dim it a stop from making such cynical allegations.
TP1 (ThirdParty): The real numbers were actually much higher, and it is now established that at least 21,857 Polish nationals were murdered at Katyn and the other atrocity sites.
TP1 (ThirdParty): The Soviet lie in the Nuremberg indictment persisted for many decades.
TP1 (ThirdParty): Although Russia finally admitted the crime in 1990, the dishonesty of the past continues to haunt the present litigation, as well as the continuing resistance of Russia to fully disclose the facts and documents in its possession.
TP1 (ThirdParty): Russia still holds the key to the full truth behind the Katyn crime.
TP1 (ThirdParty): The first question of the Grand Jamba raises the issue of its jurisdiction and asks whether the mass murder of Polish prisoners can be characterized as war crime.
TP1 (ThirdParty): The first significant mention of the notion of war crimes in international law appears in the report of the Commission on Responsibilities, which met during the 1919 Paris Peace Conference.
TP1 (ThirdParty): The Commission noted that its list was not intended to be complete and exhaustive.
TP1 (ThirdParty): These discussions resulted in Article 228 of the Treaty of Versailles, which contemplated the persecution of what was called violation of the laws and customs of war, a term that is synonymous with war crimes.
TP1 (ThirdParty): There is no doubt that the murder of over 20,000 prisoners is a war crime, as the term was already understood in 1919.
TP1 (ThirdParty): It appears that the Chamber accepted the conclusion that the killing, Katyn killings were a war crime, although it would have been preferable for it to say it outright.
TP1 (ThirdParty): We have included in our delegation today a renote expert on the subject of war crimes and international criminal law, Professor William Schappas.
TP1 (ThirdParty): Should the Court desire further clarification on this point, it might direct a question to him.