Volyn - crime without perpetrators and punishment part 3

Possible to file a complaint against the families of Poles murdered in Volyn to the European Court of Human Rights

The tardiness of the state and the deficiency of its real will in ending criminal proceedings concerning a crime in which many victims were killed was the subject of the European Court of Human Rights ruling in Strasbourg on the Janowiec case against Russia concerning Katyń Crime. The European Court of Human Rights is an global court ruling on complaints against violations of the rights and freedoms contained in the Convention on Human Rights and Fundamental Freedoms and its Additional Protocols.

Similarly to the families of the victims of Katyń Crime before the European Court of Human Rights (ECHR) the resolution of the complaint against Ukraine could besides request the families of victims of the genocide in Volyn because, according to the publication by Ireneusz Kamiński entitled “Ukraine in the case-law of the European Court of Human Rights”: “Ukraine was in the second group of post-communist states which joined the Council of Europe and the European Convention of Human Rights (Convention) in the second half of the 1990s” [https://europeistika.uj.edu.pl/documents/3458728/07f6a836-d5c2-430a-8898-71c9baee8b21].

Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that the Court may accept complaints from any person, non-governmental organisation or group of individuals who considers that it has become a victim of a violation of the rights contained in the Convention. However, specified a broad list of entities which may lodge a complaint with the ETPC is subject to restrictions in Article 35 of the Convention, which makes the acceptance of the complaint subject, inter alia, to the exhaustion of all the remedies provided for in interior law (the complaint may be lodged no later than 6 months after the date of the final decision), to the complainant having suffered a serious injury as a consequence of a breach of the rights laid down in the Convention. The provisions of the Convention which make the right to a complaint subject to "significant injury" imprecise and imprecise, making it essential to scope for the publication of the Convention for the Protection of Human Rights and Fundamental Freedoms. Volume II. Commentary on Articles 19-59 and the Additional Protocols under Leszek Garlicki, which comments on Articles 34 and 35 of the Convention: "Article 34 of the ECHR requires the complainant to be a "victim" of a violation of any of the rights or freedoms guaranteed by the Convention, i.e., or there would be interference of public authority in the sphere of its rights and freedoms, or that those rights and freedoms would be limited by the authorities' failure to fulfil their affirmative obligations. The essence of this request is that there is simply a adequate direct link between the complainant and the alleged infringement.” (p. 132). Of course, the violation of the Convention, which may be prosecuted by the Families of Victims of Genocide in Volyn, will not be a specified crime of genocide committed by Ukraine, but preventing the parties from obtaining a criminal settlement in Volyn. In the event that the closest Poles murdered in Volyn, due to age or health, could not participate in criminal proceedings or proceedings before the European Court of Human Rights, violations of the Convention could besides be held by members of their families as indirect victims, which is acceptable before the ETPCz: “In any cases, an individual whose rights have not been straight infringed may lodge a complaint against infringements of the Convention against a loved 1 (indirect victim). This applies primarily to members of the immediate household (married, parents, siblings, children) and to any 3rd parties (e.g. concubines). It does not substance whether the complainant is treated as an heir by national law, it is crucial that the relation between the complainant and the deceased is close. (...) In the event of the victim's death, 2 scenarios are possible depending on the minute of the incident. If the victim has died before the action was brought, then, by way of exception, it is possible for members of the closest household to the Court to initiate proceedings (indirect victims), provided that the infringement afraid Articles 2 [right to life — B.L] and 3 [not to torture — B.L] ECHR. The second possible script is that the applicant died in the course of the proceedings before the Court. In specified a situation, the Court will usually let the proceedings to proceed if the heir or another individual close to the applicant declares his or her interest in this matter." Commentary on Articles 19-59 and Additional Protocols under ed. Leszek Garlicki Warszawa 2011 pp. 137-139].

Similarly to the complaint of the Katyń Families against Russia, the Families Murdered in Volyn should participate in the ongoing criminal proceedings in Poland or Ukraine (possibly, they should submit a announcement of the anticipation of committing a crime against them and indicate that they are victims of the crime) and then, in the event of refusing to initiate a Ukrainian investigation, prove by the European Court of Human Rights that they were deprived of the right to a fair and impartial examination of their case under Article 6 of the European Convention on Human Rights by an independent court. Based on the case of Janowiec v Russia, the denial of genocide in Volyn by Ukrainian prosecutors, for example, in the decision to refuse to initiate an investigation or its remission, could justify the charge of inhuman and degrading treatment of victims, i.e. the families of the victims by Ukraine. The analogous action of the Russian Federation prosecutor's office was a violation of the European Convention on Human Rights, due to the fact that "the Katyń Crimes have so been negated as an established historical fact, which is an analogous action - with all proportions - to negation of the Holocaust and another Nazi crimes" [https://katyn.ipn.gov.pl/cat/history/fight-o-truth/catin-in-strasburg/3658,Catinese-prior-European-Tribunal-Człowieka-in-Strasburg]

In turn, the refusal to exhume Poles murdered in Volyn constitutes a violation of Article 8 of the Convention, which was justified in the Katyn complaint as follows: “Two charges concern the violation of Article 8 (the right to private and household life). Firstly, the secrecy of the Russian Katyn documentation prevents relatives from knowing the destiny of their loved ones, the circumstances of their death, and in any cases even the burial sites."

https://catyn.ipn.gov.pl/kat/history/walk-o-truth/catin-in-strasburg/3658,Catinese Skargi-before-European-Tribunal-Rights-Man-in-Strasburg.html

In bringing the above considerations to the background of the Ukrainian genocide in Volyn, it should be noted that:

1. The families of the Victims of Genocide in Volyn cannot claim compensation before the ETPC for the death of their loved ones, but only for preventing the Ukrainian and Polish state from obtaining in court a solution to the criminal liability and compensation of direct perpetrators,

2. Members of the nearest household of the Murdered People should be able to participate in ongoing and effective criminal proceedings against perpetrators both in Poland and Ukraine,

3. If they have been granted the position of the victim or if the prosecution has wrongly refused them, they may lodge a complaint with the ETPCz

4. in the event of the applicant's death in the course of proceedings before the ETPCz, his rights in proceedings already pending may be exercised by members of his immediate family, whether or not they are heirs to the deceased.

Of course, apart from the legal regulations set out above, a serious real problem may be known from the media to link the judges of the European Court of Human Rights to the foundations belonging to George Soros https://pch24.pl/co-links-homolobby-tribunal-rights-of-men-i-georgea-sorosa-determination-ordo-iuris/. The supposition that the European Court of Human Rights will not, in deciding any case, be guided by political reasons may besides prove to be naive to the families of genocide in Volyn.

The anticipation of bringing an action before the court for violation of the party's right to examine a case in the preparatory procedure without undue delay.

In September 2004, the Act of 17 June 2004 on a complaint against a breach of the party's right to examine a case in a preparatory procedure or supervised by the prosecutor and judicial proceedings entered into force without undue delay. The Act, of course, applies in the territory of Poland, and on its basis, a complaint may be filed against the inaction of the IPN prosecutor conducting proceedings on genocide in Volyn since 1991, but not even on the most shameful behaviour of law enforcement authorities and judicial authority in Ukraine.

Article 3(4) of the Act grants the right to complain to the victim even if he was not a organization to the investigation, e.g. the prosecutor did not establish that he was entitled to that status. In the case of genocide in Volyn, the victims are undoubtedly those who, as a consequence of the genocidal action of UPA and the cooperating Ukrainian civilian population, have lost their assets and suffered injuries due to the fact that their legal interests (proprietary property, health) have been straight affected by the crime, so they have the right to complain of the violation of their right to settle their case in the proceedings conducted by the prosecutor even if they were not organization to the ongoing investigation.

The position of the closest Poles who were murdered by Ukrainian nationalists is somewhat more complicated, due to the fact that they are not victims within the meaning of Article 49 of the Code of Criminal Procedure. The individual whose legal interests (life) have been straight affected by the crime is, virtually reading Article 49 of the Code of Criminal Procedure, himself murdered, and thus the rights of his loved ones have been violated only indirectly. However, the victim's household may become a substitute for the investigation (injured): “The particularity of the victim’s victim besides manifests itself in the anticipation of entering into the law of the victim by the nearest individual or dependants of the victim in the event of his death (Article 52). Therefore, the concept of a substitute organization is distinguished erstwhile the individual closest to or dependent on the victim assumes the rights of the victim, who died before acquiring the position and the fresh party, erstwhile the entry into the powers of that entity follows the death of the individual already injured, i.e. after the decision to initiate the procedure or to accede to the activities referred to in Article 308 § 1 (see T. Grzegorczyk, J. Tylman, Polish proceedings, 2007, p. 281).’

The anticipation of participation of the closest individual who has lost his or her life as a consequence of the crime seems consistent with both the fundamental sense of justice, intent (the closest individual may supply valuable information regarding the act, participate in the conduct of evidence, e.g. ask questions to witnesses, and in their behalf may be ordered compensation under Article 46 of the Criminal Code), as well as with widely known media information, that the Families of the Victims of Smolensk Disaster are organization to the prosecution's investigation of its causes. Similarly, Families of Poles murdered in Volyn in proceedings conducted by the Prosecutor of the IPN are parties and should be able to exercise the procedural rights of the party. Upon accession to the ongoing criminal proceedings, they shall be granted, as a organization under Article 3(4) of the Law on Complaints against a breach of the party's right to examine a case in preparatory proceedings conducted or supervised by the prosecutor and judicial proceedings without undue delay, the anticipation to lodge a complaint with the court if the proceedings are conducted longer than required by an explanation of the facts and legal circumstances. The organization should file a complaint with the prosecutor conducting the proceedings on a protracted basis, and it shall be recognised by a court superior to the court which would have jurisdiction to hear the case (Article 5(4) of the Complaint Act on violation of the party's right to hear the case...).

Many years ago, in 2015, the current justice of the Constitutional Court Piotr Pszczółkowski, as a proxy for part of the families of Smolensk Disaster Victims, asked the rhetorical question: “I ask myself, if we aspire to be a civilized country, do you know another country in Western Europe, where waiting for 4 years and 4 months does not associate people with tardiness” https://independent.pl/Polish/69247-case-smolenska-zamie-sie-European-tribunal-is- a decision-family-victory-after-sn/69247#assessment69247 The rhetorical question remains, what would justice Pszczółkowski now call our country?