ICCPR Case Digest

CCPR/C/127/D/2912/2016

Communication

2912/2016

Submission: 2016.10.27

View Adopted: 2019.11.05

K. K. and others v. Russian Federation

Claim of ill-treatment due to failure to investigate Katyn massacre, inadmissible as insufficiently substantiated and ratione temporis

Substantive Issues
  • Effective remedy
  • Extrajudicial executions
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 14
  • Article 17
  • Article 19
  • Article 2.3
  • Article 6
  • Article 7
Full Text

Facts

The authors are two Polish nationals who claimed that the Russian Federation has violated their rights under articles 6; 7; 14; 17 and 19 in conjunction with article 2(3). 

In 1939, Soviet troops invaded Eastern Poland and around 250,000 Polish soldiers, security guards and State officials were detained. During April and May 1940, some 21,857 persons were executed, and only 395 detainees were released. The authors alleged that numerous relatives of theirs were executed during the massacre (later known as the Katyn massacre).

An investigation was opened in 1992 however was discontinued in 1993 following a motion filed on the basis that all perpetrators were deceased. Following this, the authors instituted two sets of proceedings in Russia, firstly on the rehabilitation of their relatives who had been killed, and secondly on the discontinuation of the investigation into the killings. Both were dismissed and later appeals were also dismissed. 

The authors claimed that the Russian investigation into the Katyn massacre did not meet the basic requirements of an effective investigation, in violation of their rights under article 6 (the right to life) in conjunction with article 2(3). Further, they claim that they were not given victim status, which means they could not participate in the investigation nor have any access to information.

The authors also submitted that the treatment they recieved from the Russian authorities amounted to a violation of their rights under article 7 (freedom from ill-treatment) of the Covenant. The authors also noted that the facts submitted can be interpreted as a violation of articles 14, 17 and 19 of the Covenant.

Admissibility

The Committee noted that the present case represents factual circumstances which pre-dated the ICCPR  coming into force by 36 years, and as such can only apply if a possible violation of the Covenant exists post this date, and a victim of such has been established. As such, the Committee found that given the significant passage of time since 1940 and the absence of a formal acknowledgment by the State party of the violation of the rights of the authors’ relatives in the interim, the Committee cannot conclude that in 1992, after the entry into force of the Optional Protocol for the State party, it still had a continuous obligation to investigate the 1940 killings.

In this manner, the Committee found itself precluded ratione temporis from examining the authors' claims regarding the lack of effective investigation into the killing of their relatives under article 2(3) in connection with article 6 of the Covenant. 

Regarding the author's claim under article 7, the Committee noted that while acknowledging the tragedy and pain the authors have lived with for many years, the decisions of the authorities of the State party, which did not clarify the exact circumstances of death of their relatives and rejected their rehabilitation requests, were taken more than 60 years after the killings in question and were unlikely to generate genuine uncertainty in the authors’ minds about the fate of their dead relatives.

In this manner, the Committee found this claim insufficiently substantiated for the purposes of article 2 of the Optional Procol and therefore inadmissible.

Separate Opinions

Joint opinion of Committee members Ilze Brands Kehris and Arif Bulkan (partly dissenting)

  • Committee members Ilze Brands Kehris and Arif Bulkan refused to join the majority on their finding regarding the inadmissibility of the claim under article 7, on the basis that the Covenant protects mental stress as well as physical.
  • On the basis that the reopening of the investigation, and subsequent failure to properly conduct an effective procedure, would have caused significant mental stress on the authors, members Ilze Brands Kehris and Arif Bulkan argued they would find a violation of article 7 of the Covenant. 

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