Janowiec and Others v. Russia, Nos. 55508/07 and 29520/09, ECtHR (Grand Chamber), 21 October 2013

Procedural acts of investigative nature and the establishment of the historical truth. Jurisdiction of the ECtHR in relation to events occurred before the entry into force of the Convention.

Art. 2 ECHR
Art. 3 ECHR 

1. In case of forced disappearances, there is a violation of Art. 3 ECHR not only in cases where the respondent State is responsible for the disappearance itself. In addition, Art. 3 ECHR can be breached if the authorities do not address the victims  and their families’ requests to access the relevant information. Moreover, a violation occurs if the authorities obstruct the investigations, leaving the families alone in bearing the brunt of the efforts addressed to uncover the facts. In this case, there has been no violation of Article 3 of the ECHR. 

2. The reference to “procedural acts” within the meaning of Art. 2 and Art. 3 ECHR must be understood within the framework of criminal, civil or disciplinary proceedings. These operate to the exclusion of other types of investigations that can be conducted for other purposes, such as establishing a historical truth. 
(The case concerns the Massacre of Katyn occurred in 1940: during the upheavals of the WW2, the Soviet army killed more the 21.000 Polish soldiers, and buried them in mass graves in the Katyn forest. In 1990 Gorbachev recognized the responsibility of the Soviet leadership; in 2004 the investigations were interrupted and the decision was subject to state secrecy. 

This is a key-case in respect of the criteria to establish the jurisdiction of the ECtHR for conventional violations that occurred before the entry into force of the Convention in respect of one of the Contracting States. 

1. If a substantive violation of the right to life takes place before the entry into force of the Convention in respect of one of the Contracting States (the “critical date”), Art. 2 ECHR may be considered applicable with respect to the obligation of the State to conduct an investigation on the facts and to assure measures of accountability. In this case, there has been no violation of Art. 2 ECHR. 

2. In case of procedural obligations connected to events that occurred before the “critical date”, in order to establish the jurisdiction of the ECtHR, the three criteria developed in the Šilih v. Slovenia (GC, app. no. 71463/01, paras 162-163) shall apply. These are: the existence of procedural acts or omissions which occurred after the entry into force of the Convention; the presence of a genuine connection between the violation of Art. 2 ECHR and the entry into force of the Convention (the time-range between the facts and the critical date shall be less than 10 years); the presence of a non-genuine connection could still be enough to attract the jurisdiction of the Court, if it is necessary to guarantee the effective protection of the founding values ​​of the Convention. In this case, there has been no violation of Article 2 of the ECHR.