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The Katyń Crime before the European Court of Human Rights
74. In such situations the Court finds that it is competent ratione temporis to examine the procedural aspect of Article 2, even though it was not competent with regard to the substantive aspect of that Article.
75. The Government believe that application of the above principles to the instant case should
lead to the conclusion that the death of the applicants’ relatives was unquestionably the result of actions by State officials and that the obligation to conduct an investigation in the given instance was autonomous in character, unconnected with the original interference with the rights of the applicants’ relatives resulting in their death. The need to conduct an independent assessment of the investigation, divorced from an assessment of the substantive aspect of Article 2 in the instant case, which due to the Court not being competent ratione temporis cannot be examined by the Court, is indicated by the fact that the investigation had been initiated proprio motu, many years after the events of 1940, and, as admitted by the Russian authorities themselves, with the basic purpose of accurately determining the circumstances of those tragic events. According to the Russian authorities, the investigation was discontinued in connection with the death of the persons involved in those events. In view of the above circumstances, the procedural obligation stemming from Article 2 of the Convention should be treated in the instant case as autonomous in character and scope. Accordingly, the fact that the Court is not competent ratione temporis to examine the substantive aspect of Article 2 of the Convention should not prevent it from assessing the fairness of the investigation. In view of the above, the Court is competent ratione temporis to examine the part of the investigation conducted after the Russian Federation became bound by the Convention, i.e. after 5 May 1998 as well as the proceedings connected with the investigation, initiated afterwards and relating to other issues, such as ascertainment of the death and rehabilitation of the victims in accordance with Russian law and the matter of access to the case files.
76. The Court asked the parties whether the investigation carried out by the Russian authorities
into the death of the applicants’ relatives had been adequate and efficient, as required by Article 2 of the Convention. In this regard, the Polish Government wish to submit the following position.
77. The obligation to protect life in accordance with Article 2 of the Convention, examined in
conjunction with the general obligation of States to ensure that every person within their jurisdiction enjoys the rights and freedoms guaranteed by the Convention, requires, inter alia, in instances where loss of life resulted from the use of armed force, that an effective official investigation be conducted (Cf. i.a. Kaya v. Turkey, op.cit. § 10, Bazorkina v. Russia, judgment of 27 July 2006, appl. no. 69481/01, §§ 117-119). In order for an investigation concerning the unlawful killing of a person by State officials to be considered efficient, a number of conditions need to be met. And so, persons responsible for the investigation and its conduct must be independent of the persons who were involved in the events that resulted in death ( Cf. i.a. Güleç v. Turkey, judgment of 27 July 1998, appl. no. 21593/93, Reports 1998-IV, §§ 81-82, Őgur v. Turkey [GC], judgment of 20 May 1999, appl. no. 21954/93, §§ 92-92, ECHR 1999-III). An investigation must also be efficient in the sense that it is possible to determine in its course whether the use of force was justified in the given circumstances. The investigation must also allow the identification and punishment