How Could It Go So Wrong? Reformatio in Peius before the Grand Chamber of the ECtHR in the case Janowiec and Others v. Russia (or Polish Collective Memory Deceived in Strasbourg)

During Perestroika, Russian authorities admitted publicly that, during Stalinism, a single order led to the extrajudicial execution of 26,000 Polish nationals (in what became known as the “Katyń forest massacre”). In 1990 Russia commenced criminal investigations, but they were discontinued and results were classified as secret in 2004. Following years of silence under communism, families of the victims demanded information from the Russian authorities, without results. The ECHR entered into force in Russia in 1998. This article analyzes the case Janowiec and Others v. Russia, brought before the Strasbourg Court by the relatives of the victims of the Katyń massacre. The applicants maintained that Russia violated the ECHR by discontinuing the investigation and failing to account for the fate of prisoners. In their opinion, Article 2 (right to life), and Article 3 (prohibition of torture and inhuman treatment) had been violated. This article compares the reasoning of the Court in the Chamber (2012) and Grand Chamber (2013) rulings. The latter produced a reformatio in peius with respect to the applicants’ interests. Grand Chamber ruled it had no competence either over the atrocity or over the subsequent improper treatment by Russian authorities. With this verdict, it deprived the applicants of the only claim upon which the Chamber had earlier ruled in their favour.