TrustHLT/LaCour huggingface dataset:
TP1 (ThirdParty): The Corridor of Death, the first question asked by the Grand Jamba, points to an issue that was not addressed with precision by the Chamber.
TP1 (ThirdParty): We fully understand the concern of the Grand Jamba with an interpretation of the procedural obligation in Article 2 that goes back in time long before the Convention was adopted or entered into force.
TP1 (ThirdParty): In Silly, the Grand Jamba spoke first of the need for a genuine connection between the death and the entry into force of the Convention for the Respondent State in order to establish the existence of a procedural obligation in such a case.
TP1 (ThirdParty): In Silly, the temporal proximity was quite close, a matter of about a year.
TP1 (ThirdParty): In the present case, obviously, the temporal dimension is much more distant.
TP1 (ThirdParty): Yet there can be other compelling indications of a genuine connection.
TP1 (ThirdParty): Inevitably, the attempt by the Grand Jamba in Silly to identify the applicable parameters with respect to the objectival breach of the right to life was scolored by the facts in that case, which concerned a civil claim relating to medical negligence.
TP1 (ThirdParty): It is difficult to compare such circumstances with one of the most harrowing atrocities to take place on European soil in the past century.
TP1 (ThirdParty): We entirely endorse the remarks of the three dissenting judges in the Chamber, and now I quote, the gravity and magnitude of the war crimes perpetrated in 1940 in Katyn, 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.
TP1 (ThirdParty): Moreover, the new material confirm that it is not some stale case, long forgotten and revived on the basis of old and well-known material.
TP1 (ThirdParty): Take, for example, the so-called Ukrainian Katyn list, which we referred to in our related pleadings, consisting of 3,435 files of victims of the 1940 massacres.
TP1 (ThirdParty): In 2004, the list was included, among other documents as material evidence by Russian investigators, into the case file 159.
TP1 (ThirdParty): The statement by Russia in the letter dated 17 January 2013, and today, the dimensioned list is not a list of persons who have been killed, is unfounded and contrary to the actual state of affairs.
TP1 (ThirdParty): As a list of murdered Polish citizens, the document is closely related to the subject matter of the investigation.
TP1 (ThirdParty): Therefore, there were absolute grounds to include it in the case, together with other documents received by way of legal assistance from Ukraine.
TP1 (ThirdParty): Today, some eight years ago, the decision by a competent state body of the Russian Federation in charge of the Katyn crime investigation cannot be questioned.
TP1 (ThirdParty): The inclusion of these 13 volumes of evidence should be seen as a breakthrough in the proceedings with respect to the murder of prisoners incarcerated in the so-called Western Ukraine.
TP1 (ThirdParty): Indeed, these volumes are a source of particularly significant knowledge about the person's guilt.
TP1 (ThirdParty): Yet, the Russian prosecutors have not carried out any analysis of the list.
TP1 (ThirdParty): As regard the attempt to question its credibility, found in point 7 of the Russian memorandum, the arguments presented therein are also utterly false as evidence in our possession and not yet in the court file confirms.
TP1 (ThirdParty): Moreover, attachments 2 to 6 to the Russian memorandum are not only connected to the Katyn crime, but indeed stand contrary to the Russian conclusions made under attachment number 1.
TP1 (ThirdParty): As a general rule, the procedural obligation under article 2 will exist from the time of the interference with the right to life, although it may continue in time until the date when the convention enters into force and afterwards.
TP1 (ThirdParty): A distinction must be made between the existence of the obligation and the court's jurisdiction to adjudicate a violation of the obligation.
TP1 (ThirdParty): In this case, when did the obligation begin?
TP1 (ThirdParty): As far as the respondent state Russia is concerned, it began in 1943 when the Burdenko Commission was sent to investigate.
TP1 (ThirdParty): It certainly existed in 1945 when Russia insisted that the crime be prosecuted.
TP1 (ThirdParty): The reason it continues to the present day is because of the decades of lies and concealment are true, followed by a period of only partial disclosure of the relevant evidence during the investigation number 159.
TP1 (ThirdParty): The nature of the interference in international atrocity crime provides another strong criterion to be weighed in the assessment of a genuine connection.
TP1 (ThirdParty): The interference in Silic was not in such a category, and it seems reasonable, therefore, that a closer temporal connection be retained.
TP1 (ThirdParty): Virtually all national legal systems impose statutory limitations with respect to negligence claims, some of them quite strict.
TP1 (ThirdParty): With the passage of time, they lose their salience.
TP1 (ThirdParty): This cannot be the case with war crimes, crimes against humanity, and genocide.
TP1 (ThirdParty): International law prohibits any form of statutory limitation.
TP1 (ThirdParty): One important reason for this is the fact that States often conceal the truth and prevent it being uncovered through amnesty and similar measures, or through sheer denial and dishonesty, as in the present case.
TP1 (ThirdParty): It is unlikely that the Grand Chamber will ever get a better opportunity to explain the scope of the seemingly enigmatic words in the last sentence of paragraph 163 of the Sili v. Slovenia judgment.
TP1 (ThirdParty): Necessarily, it is a test that depends upon the circumstances of each individual case.
TP1 (ThirdParty): Wisely in Sili v. Slovenia, the Court
TP1 (ThirdParty): left itself a degree of flexibility and did not foreclose the possibility of addressing the procedural obligation under Article II with respect to any particular interference by setting a precise date that might result in a formulaic response.
TP1 (ThirdParty): The suggestion that 3rd September 153, the date of entry into force of the Convention, might fulfill a useful purpose here simply returns the Court to the straitjacket that was suggested by the Respondent State in Sili.
TP1 (ThirdParty): It replaces one inappropriate date, the entry into force for the Respondent State, with another.
TP1 (ThirdParty): Poland suggests that the Court adopt a functional approach to this problem, one that resists an essentially technical or procedural solution and that takes into account the nature of the substantive infringement of Article II.
TP1 (ThirdParty): There is nothing uncertain about such a standard.
TP1 (ThirdParty): Indeed, an emphasis on this factor will assist the Court in establishing legal certainty with respect to pre-ratification interferences with one of the basic values of democratic societies making up the Council of Europe.
TP1 (ThirdParty): Answering the Court's question concerning the effectiveness of the Russian investigation, the Polish government regrets to reiterate that the Russian cut in investigation has not been conducted effectively.
TP1 (ThirdParty): In our written observation on this, we already pointed out several instances of the lack of effectiveness.
TP1 (ThirdParty): Now, we would like only to emphasize, as did one of the third parties, that there still are possibilities to investigate crimes committed in the distant past under previous regimes.
TP1 (ThirdParty): Answering in a most diligent way the Court's question concerning Article 38 of the Convention, it is important to underline that according to obtainable information, the classification of the decision to discontinue the domestic proceedings is itself incompatible with Russian law.
TP1 (ThirdParty): First of all, the decision constitutes a violation of substantive law.
TP1 (ThirdParty): Article 7 of the Federal Act on State Secrets specifies that it is forbidden to classify as a State secret information on violations of human and civil rights and liberties, as well as information on any violation of law by public authorities and their officials.
TP1 (ThirdParty): Moreover, the protection of personal data can also not be seen as a premise for classification of documents due to the lapse of the 30-year classification period that applies to such data.
TP1 (ThirdParty): Such an interpretation of the Act of State Secret was reaffirmed in the latest ruling of the Constitutional Court of the Russian Federation, dated 15 January 2013.
TP1 (ThirdParty): Secondly, the ruling in question is unlawful under Russian law, as it constitutes a violation of formal law.
TP1 (ThirdParty): It should be assumed that the materials were classified as secret only by marking them with a relevant classification level.
TP1 (ThirdParty): It is in violation of the established procedure.
TP1 (ThirdParty): Finally, it should be noted that the classification of the file materials concerns events that took place 71 years ago and which by no means have any bearing on the present security of the Russian State.
TP1 (ThirdParty): There is no justification under the Convention to place the alleged public interest to protect the circumstances and suspect of the cutting of the crime perpetrated by a totalitarian regime above the continuing interest of the applicants to learn the fate of their closest relatives.
TP1 (ThirdParty): The whole respectfully submits.
Josep Casadevall (JudgeP): Thank you, Mrs. Mężykowska.
Josep Casadevall (JudgeP): That's the end of the first round.
Josep Casadevall (JudgeP): In this first part, I told to my colleagues there is questions from the judges.
Josep Casadevall (JudgeP): No, it's not the case.
Josep Casadevall (JudgeP): Now I will give the floor to the applicant representatives for your reactions for 10 minutes.
Josep Casadevall (JudgeP): Who wish to take the floor?
Josep Casadevall (JudgeP): Yes, Mr. Kamiński.
AP3 (Applicant): Thank you Mr. President, members of the distinguished court.
AP3 (Applicant): Very briefly, to react to the arguments presented by the representative of the Russian Federation's government.
AP3 (Applicant): We cannot agree that the cutting massacre, we call it massacre, we don't call it cutting events because it's offensive, was committed by another state, by the Soviet Union, from which the Russian Federation is completely separated.
AP3 (Applicant): The Russian Federation is the legal successor of the Soviet Union, so there is continuity between the Soviet Union and Russia.
AP3 (Applicant): In our memorandum, we also provided numerous references to international law, to international case law, precising that the definition of war crime consisting in killings of prisoners of war was clearly defined before the war.
AP3 (Applicant): If we look, for example, at the Nuremberg tribunal proceedings, there were some hesitations about the definition of the crime against peace, about the crime of aggression, but no, I stress this, no problems arise as to the definition of the war crime of killings of prisoners of war.
AP3 (Applicant): So this crime was clearly defined, both its content and the scope of responsibility.
AP3 (Applicant): And the Nuremberg tribunal, as well as other post-war trials, were very, very specific about this issue, stressing that the responsibility for war crimes, for killing innocent prisoners of war, was not limited only to state responsibility, but also individuals were responsible for such atrocities.
AP3 (Applicant): We also disagree that there is a retroactive application of the convention as suggested by Minister Matuszkin.
AP3 (Applicant): In my argumentation, and this part of argumentation is elaborated in the memorandum, we addressed these questions in details, identifying the case law of the Permanent Court of International Justice and the International Court of Justice, and the distinction I mentioned in my address between the origin of some rights and the origin of dispute.
AP3 (Applicant): The root of a dispute must be located after the ratification period, but the origin of rights can be located in the pre-ratification period, if they are of continuous nature, of autonomous nature, of detachable nature, as it is with the investigative obligations in case of killings.
AP3 (Applicant): We also stress in our observations, in our memorandum, the significance of the case law of the Inter-American Court of Human Rights.
AP3 (Applicant): The Inter-American Court was confronted with many massacres committed by state agents, and this case is relevant for the temporary questions or questions related to the competence ratione temporis of the judicial institutions, and the Inter-American Court did not require any, any new material, new element surfacing after the ratification period.
AP3 (Applicant): We also very respectfully draw the attention of the Court to the Gomez-Lund case of the Inter-American Court of Human Rights, in which the triggering act of a massacre of 70 people was located before the entrance of the Inter-American Convention into force, but was adjudicated in 2010, so 40 years after the killings.
AP3 (Applicant): So this case law is very, very relevant, with all respect deserved, also for the European Court of Human Rights.
AP3 (Applicant): As to the Ukrainian list, I will only stress that I'm not a historian, but looking at the materials in the attachment to the letter of the Russian Federation government of the 17th of January this year, I discovered.
Josep Casadevall (JudgeP): Mr. Matyushkin, please.
GR1 (Government): Mr. President, let me try two short remarks.
GR1 (Government): First one, let me object the evaluation of so-called Ukrainian cut-in list, which we heard now from a respectable representative of applicant because it was independent investigation of Ukrainian authorities.
GR1 (Government): Ukraine is independent state, member of Council of Europe, and not the participant in this procedure.
GR1 (Government): That's why we don't think that evaluation of significance of this document should be done in frames of this procedure, historical or legal.
GR1 (Government): Secondly, we welcome the fact that respectable representative of Polish government in her speech actually confirm and share our position that no investigative activity took place in 2002 on the basis of this Ukrainian list of person which Russian authorities got from Ukrainian authorities because we think that this point is very important from the point of view of evaluation of obstacles from criteria rata temporis in this case.
Josep Casadevall (JudgeP): Thank you very much.
Josep Casadevall (JudgeP): We have now come to the end of the hearing.
Josep Casadevall (JudgeP): I thank the parties for their interventions.
Josep Casadevall (JudgeP): The court will now deliberate on the case.
Josep Casadevall (JudgeP): The judgment will be delivered later.
Josep Casadevall (JudgeP): The parties will be informed of the date of the delivery.
Josep Casadevall (JudgeP): I declare the hearing closed.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Jeronovičs against Latvia.
Dean Spielmann (JudgeP): The application was lodged with the court on the 26th of July, 2010, under Article 34 of the Convention by Latvia National, Mr. Viktors Jeronovičs.
Dean Spielmann (JudgeP): The application was allocated to a section of the court pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Dean Spielmann (JudgeP): The application was communicated to the government on the 9th of October, 2012.
Dean Spielmann (JudgeP): On the 3rd of February, 2015, a chamber of the fourth section decided to relinquish jurisdiction in favor of the Grand Chamber.
Dean Spielmann (JudgeP): On the 7th of April, 2015, the president of the Grand Chamber granted leave to the Helsinki Foundation for Human Rights of Poland to submit written comments as a third party by virtue of Rule 44, Paragraph 3 of the Rules of Court.
Dean Spielmann (JudgeP): The governments are represented by their agent, Ms. Kristīne Līce, assisted by Ms. Renāte Rūse
Dean Spielmann (JudgeP): and Mr. Alēns Mickevičs, advisors.
Dean Spielmann (JudgeP): The applicant is represented by Ms. Inese Nikuļceva,
Dean Spielmann (JudgeP): counsel.
Dean Spielmann (JudgeP): I also welcome a delegation of Serbian judges who are on a study visit to the court.
Dean Spielmann (JudgeP): Ms. Līce for the government will speak first,
Dean Spielmann (JudgeP): and then Ms. Nikuļceva for the applicant.
Dean Spielmann (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Serbian has been authorized for the benefit of the judges from Serbia.
Dean Spielmann (JudgeP): I call Ms. Līce.
GR1 (Government): ladies and gentlemen, the present case originates from the refusal of the Lasven authorities to reopen discontinued criminal investigation into the ill-treatment of the applicants that happened 17 years ago.
GR1 (Government): In the following statements, I will therefore offer general comments on the notion of reopening, and I will then apply these general comments to the facts of the present case.
GR1 (Government): But first of all, I would like to briefly restate these facts and recall the course of the events in the present case.
GR1 (Government): In April of 1998, that is 17 years ago, the applicants allegedly was ill-treated by the police officers.
GR1 (Government): According to the conclusions of the forensic medical experts, the applicants sustained minor bodily injuries, mainly scratches.
GR1 (Government): Following this incident, a criminal investigation against the police officers was launched.
GR1 (Government): But in 2001, that is three years later, the investigation was discontinued at the pretrial stage due to the lack of corpus delicti in the actions of the police officers.
GR1 (Government): From now on, I shall refer to this investigation as the discontinued criminal investigation against the police officers.
GR1 (Government): In November of 2001, the applicants submitted a first application to this court invoking a violation of Article III of the Convention.
GR1 (Government): The applicants alleged that he had been ill-treated by the police officers.
GR1 (Government): And he also alleged violation of procedural aspect of Article III, stating that the excessive delays that occurred during the discontinued criminal investigation clearly revealed a lack of will of the investigative authorities to find out the truth, and if necessary, punish the responsible police officers.
GR1 (Government): From now on, I shall refer to this application as the first application to the court.
GR1 (Government): This first application was communicated to the government in 2007.
GR1 (Government): Having examined the facts of the case on 30th of April 2008, the government submitted the unilateral declaration where it's acknowledged inter alia the violation of Article III and Article 13 of the Convention in respect of the discontinued criminal investigation.
GR1 (Government): The government also proposed to the applicant compensation in the amount of 4,500 euros.
GR1 (Government): On 10th February 2009, the court accepted the government's unilateral declaration and decided to strike out the applicant's complaints under Article III and Article 13.
GR1 (Government): Following this decision of the court, that is to strike out the applicant's complaints, the applicants requested the latter authorities to reopen this continued criminal investigation because of newly discovered circumstances.
GR1 (Government): The applicant argued that the unilateral declaration submitted by the government constitutes such newly discovered circumstances.
GR1 (Government): On the same grounds, the applicant likewise sought reopening of the criminal proceedings that led to his conviction.
GR1 (Government): Both these requests were refused.
GR1 (Government): In April of 2010, the applicant submitted a second application to this court alleging that by refusing to reopen both the discontinued criminal investigation and the criminal proceedings that resulted in the applicant's conviction, Latvia has failed to fulfill its obligations under Article III, Article VI, and Article 13 of the Convention.
GR1 (Government): On 9th of October 2012, the court rejected as manifestly ill-founded the applicant's complaints about alleged violation of Article VI with respect to the refusal to reopen the criminal proceedings resulting in applicant's conviction.
GR1 (Government): And for this reason, the present case concerns only the discontinued criminal investigation into the applicant's ill-treatment and only alleged violation of procedural aspect of Article III and 13 of the Convention.
GR1 (Government): In light of these facts, the applicant's present complaint can be summarized in the following terms.
GR1 (Government): The applicant alleges that the government's unilateral declaration accepted by the court should be regarded as newly disclosed circumstances within the meaning of the relevant domestic legislation and that refusal to reopen criminal investigation constitutes violation of procedural aspect of Article 13.
GR1 (Government): In addition, the applicant's complaints that despite the acknowledgment by the government of the breach of his rights under Article III of the Convention, the state authorities, contrary to Article 13, have failed to properly investigate his ill-treatments, depriving the applicant of the remedies.
GR1 (Government): In other words, the applicant's claims that the government was obliged to reopen the discontinued criminal investigation.
GR1 (Government): The government disagrees.
GR1 (Government): Now that I have established the facts of the case and the scope of the applicant's complaints, I will proceed with outlining the government's position.
GR1 (Government): But the author find it necessary to recall that under the Convention, there is no right to reopening of the proceedings where the final decision exists.
GR1 (Government): And I refer you to the decision in the case of Eder versus Germany.
GR1 (Government): That's 13th of October, 2005.
GR1 (Government): Instead, in the Convention system, reopening of proceedings is addressed in the context of the execution of court's judgments, where the state parties are free to choose the means to ensure full and effective execution, to remove the negative consequences of the violation, and to prevent similar violations from reoccurring.
GR1 (Government): I wish to particularly emphasize that even in the context of execution, the reopening is regarded as an exceptional measure.
GR1 (Government): I refer you to the recommendation by the Committee of Ministers, number R, 2002.
GR1 (Government): And in this regard, recall that for the purposes of execution of court's judgments, reopening has to be decided on a case-by-case basis, taking into account the gravity of the violation and possible negative consequences of such reopening, considering that any reopening of a case where a final decision exists is, in fact, an exception to the principle of legal certainty.
GR1 (Government): Therefore, a state cannot be obliged to reopen the domestic proceedings in every case where the court has found violation of the Convention in respect of state concerns.
GR1 (Government): Stating otherwise would negate negotiation of exceptional measure and would disproportionately interfere with the rights of others under Article VI of the Convention.
GR1 (Government): Before proceeding further, however, I wish to underline that the Latvian legislation clearly permits reopening of criminal proceedings following both the court's judgments and decisions.
GR1 (Government): Pursuant to the relevance provision of the criminal procedure law, one of the grounds for reopening of criminal proceedings in connection with newly disclosed circumstances are, and I quote from the law, findings of an international judicial authority that the domestic ruling which has entered into force does not comply with international law abiding for Latvia.