BARANOWSKA: The right to the truth

In the recent decades, the concept of “the right to the truth” has become established in the judicial practice of international human rights tribunals. It was developed in the context of enforced disappearances in the countries of South America but has also proved useful in the process of dealing with the past in Europe, for instance, in the case of accounting for the crimes of the Franco regime. In Poland, there were attempts to apply this concept to the case of the Katyń massacre.

History knows many cases of forced disappearances, for example, the practices used by Nazi Germany or the Soviet Union. However, this phenomenon was named only in the 1960s, when it was applied on a wide scale by regimes in countries of South America. The original Spanish term desapariciones forzadas was translated into English as enforced disappearances and denotes a violation of human rights through the imprisonment of a person by state officials or groups acting in collaboration with the state while information regarding the fate of this person is purposefully kept secret.

Enforced disappearances violate the human rights of not only the person missing but also of their family members. They do not know if their relative is alive or not. Sometimes they spend several decades searching for their loved ones, often involving the subsequent generations in these activities. The efforts undertaken by the families of the disappeared in order to discover the truth about their disappearances were the impulse for the development of the concept of the “right to the truth”[i]. According to the international convention, which was entered into force in 2010, the right to the truth in the case of enforced disappearances applies to all who suffered as a result of the enforced disappearance and relates to the fate of the missing person, the circumstances of their disappearance, and the results of the conducted investigation[ii]. In this context, “the right to the truth” means the state’s obligation to provide information about the circumstances of the occurrence of serious violations of human rights, which may refer to events taking place in the present as well as in the distant past. While the use of this term is increasingly more frequent, there are several doubts as to the scope of this law and the possibilities of enforcing it[iii].

The long search: from the fight for information on the fate of persons disappeared during the Spanish Civil War and the Franco regime

During the Spanish Civil War (1936–1939) as well as Franco’s regime (1939–1975), many enforced disappearances occurred. There is no official list of people missing: victim organizations quote a figure of 114,266 people between 1936 and 1951, but this does not include the 30,960 children forcibly taken away from republican families[iv]. Due to political reasons, the fate of the disappeared persons remains unknown; the vast majority of bodies have been neither exhumed nor identified; there were no investigations nor any trials against those responsible for the disappearances; and no system of compensations was ever established. Meanwhile, the investigation of enforced disappearances in areas controlled by the Republicans began already in 1940, shortly after the end of the civil war[v].

Exhumations of Franco’s victims were conducted by the families of the disappeared, which undertook the first of such attempts shortly after the death of the dictator in 1975, and subsequent ones in 2000.[vi] The Historical Memory Law adopted in Spain in 2007 does not obligate the government to search for disappeared persons, but only to cooperate with persons seeking their disappeared relatives and provide them with information. Moreover, the autonomous communities of Spain are responsible for executing this law and have adopted various approaches. For instance, Andalusia accepted complete responsibility for conducting exhumations, while other regions have not taken any actions[vii].

In the first decade of the 21^st century, the families of disappeared persons tried seeking justice in Spanish courts, which was eventually made impossible by the Supreme Court[viii]. Considering the impunity of the perpetrators of the enforced disappearances, the families of the disappeared in Spain addressed Argentinian courts with an inquiry for the application of universal jurisdiction. In exceptional cases, a state can apply criminal law to individuals accused of committing a crime regardless of the citizenship of the perpetrator and the victim and regardless of where the crime was committed. The cases of the Spanish families were accepted and the Argentinian court asked Spain for the extradition of twenty people suspected of perpetrating the so-called enforced disappearances during the Franco regime, among other charges – the Spanish government rejected this request. Although the accused were not convicted, the proceedings in Argentina led to the interrogation of many witnesses, and subsequently, in January 2016, to numerous exhumations in Spain[ix]. Thus, the cases in Argentine initiated by the families of persons disappeared in Spain led to discovering the remains of some of the disappeared. 

Efforts undertaken by families of victims of the Katyn massacre

Almost 80 years after the Katyn massacre, the families of persons executed by the People’s Commissariat for Internal Affairs (NKVD) are also striving to obtain complete information about the fate of their relatives. After several decades of denying its participation in these events, the USSR admitted in 1990 that the Katyn massacre was a crime of Stalinism, though not all information relating to it has been made available. Moreover, some of the actions of the Russian authorities suggest that Russia does not accept full responsibility for this crime after all. For instance, in 2008 when a Russian court rejected an appeal to the decision refusing the relatives of the persons killed in Katyn the status of victims, it argued, among other things, that the fate of these persons was unknown and there was no proof that they lost their lives as a result of an abuse of power[x].

The Katyn massacre fulfills all the criteria of the definition of enforced disappearances: people were imprisoned by representatives of the state, following which this state kept information about their fate secret, placing them outside the protection of the law. Interestingly, the Russian authorities sometimes have treated these persons as “missing”[xi]. Although the relatives know that the Katyn victims were shot, the exact circumstances of their death are not always known, and the results of the investigation conducted in Russia were classified. This is why in 2007 and 2009 some of the families decided to bring two applications to the European Court of Human Rights, which had already at that time settled several cases related to enforced disappearances, mainly from Turkey.

Due to the fact that the Katyn massacre occurred before Russia adopted the Convention on Human Rights in 1998, the court would only be able to examine if the actions of the Russian authorities after that time were in accordance with international standards. However, the court decided that it could not do so since such a considerable amount of time had passed between the crime and the adoption of the convention by Russia[xii]. It should be mentioned that in accordance with the standards for investigations in cases of violations of the right to life, authorities should seek to determine the circumstances in which the disappearances occurred, establish and announce the circumstances of death of the victims, and make available the investigative procedures to the families of the disappeared persons – which was not done by the Russian authorities in case of the Katyn massacre.

In practice, the European Court of Human Rights made it impossible for the families of Katyn victims to seek justice before the court. The families could also file applications to the UN Human Rights Committee, but before doing so, they would have to launch a new case in Russia and exhaust the legal possibilities on the national level. The UN Human Rights Committee would examine if the way the cases were proceeded in Russia was in accordance with the International Covenant on Civil and Political Rights.

Another possibility for obtaining information on the Katyn victims is to adopt an approach similar to that used by the families of the disappeared in Spain, that is asking courts in a different country to apply universal jurisdiction. However, this would require the families to indicate persons still alive and responsible for these crimes, which would of course constitute a significant challenge. Even with the adoption of such a solution, accessing the information held by the Russian authorities would require their cooperation. The partial success of the procedure conducted in Argentina by the families of Spanish victims was to a large extent due to the fact that Spain collaborated with the Argentinian court (although to a limited extent, because it did not agree to the extradition of the suspects).

Conclusion

Based on the Spanish example, we see how concepts elaborated in international law may be useful for increasing standards of protection in countries in which severe violations of human rights occurred many decades ago. The victims of such violations – in this case the families of disappeared persons – are in a difficult situation when states that perpetrated these violations signed international agreements guaranteeing human rights only after these violations. Nevertheless, both international judicial practice, as well as other institutions, like universal jurisdiction, allow for more effectively demanding knowledge on the subject of crimes committed in the past.

It is worth underlining that groups of victims learn from each other and try to copy solutions which were adopted with success elsewhere. For example, the families from Spain used structures elaborated thanks to the efforts of Argentinian families of disappeared persons. Similarly, in cases related to enforced disappearances in the European Court of Human Rights, the applicants would often refer to solutions used in the Inter-American Court of Human Rights. However, as the example of the Katyn families shows, solutions used with one group of victims may not always be applied in a different context – international courts always examine the particular circumstances of the individual case.

Grażyna Baranowska – Doctor of Law and lecturer at the Poznań Center for Human Rights of the Institute of Legal Studies of the Polish Academy of Sciences. Author of the monograph Wymuszone zaginięcia w Europie. Kształtowanie się międzynarodowych standardów zapobiegania i egzekwowania odpowiedzialności państw (C. H. Beck 2017), she is devoted to legal aspects of enforced disappearances in Europe.

The article was first published in “Res Publica Nowa” nr 3/2017 and translated into English with support from the Polish Ministry of Science and Higher Education’s research dissemination funds (contract no. 692/P-DUN/217).

Tr. Aleksandra Małecka

[i]           Sevanne Garibian, “Ghosts Also Die. Resisting Disappearance through the ‘Right to the Truth’ and the Juicios por la Verdad in Argentina”, Journal of International Criminal Justice 2014, vol. 12, p. 515–538.

[ii]           On the right to the truth in the context of enforced disappearances: Maria Fernanda Perez Solla, Enforced Disappearances in International Human Rights, McFarland, Jefferson / London 2006, p. 91–101; Yasmin Naqvi, “The right to truth in international law: fact or fiction?”, International Review of the Red Cross 2006, vol. 862, p. 245–273; Recht auf Wahrheit. Zur Genese eines neuen Menschenoechts J. Brunner, D. Stahl (ed.), Wallstein Verlag, Göttingen 2016.

[iii]          Y. Naqvi, “The right to truth in international law: fact of fiction?”, International Review of the Red Cross 2006, vol. 862, p. 245–273. On the origins of “the law to the truth” see. P. Naftali Crafting, “Right to Truth” in International Law: Converging Mobilizations, Diverging Agendas?, Champ penal / Penal field, Vol. XII (2016), DOI: 10.4000/champpenal.9245.

[iv]          These are numbers quoted by the Spanish Supreme Court on November 15, 2008, after: Ursula Urdillo, “Impunity for enforced disappearances in contemporary Spain: the Spanish search for truth”, Interdisciplinary Journal of Human Rights Law 2011/12, vol. 1, p. 43.

[v]           Ibidem, p. 45.

[vi]          Ibidem, p. 50–51; see also M. Davis, “Is Spain Recovering Its Memory? Breaking the Pacto del Olvido”, Human Rights Quarterly 2005, vol. 27.

[vii]          Report of the Working Group on Enforced or Involuntary Disappearances from the visit to Spain, July 2, 2014, A/HRC/27/49/Add.1, par. 21, 25 and 28.

[viii]         Samantha Salsench and Linares, “Francoism Facing Justice. Enforced Disappearances before Spanish Courts”, Journal of International Criminal Justice 2013, vol. 11 (2), p. 464–469.

[ix]          Universal Jurisdiction Annual Review 2016. Make way for Justice. TRIAL, FIBGAR, ECCHR, FIDH, 2016 p. 10.

[x]           Ruling of the Grand Chamber of the ECHR from October 21, 2013 in cases 55508/07 and 29520/09 Janowiec and others v. Russia, par. 57–58.

[xi]          This change of approach from the Russian side was one of the reasons for which the applicants cited cases from the European Court of Human Rights in the context of forced disappearances, see. Ireneusz Kamiński, Właściwość czasowa (ratione temporis) Europejskiego Trybunału Praw Człowieka w Strasburgu w sprawach dotyczących prawa do życia – uwagi na kanwie „skarg katyńskich”, [in:] Europejska Konwencja Praw Człowieka i jej system kontrolny – perspektywa systemowa i orzecznicza, ed. M. Balcerzak, T. Jasudowicz, J. Kapelańska-Pręgowska, Katedra Praw Człowieka, WPiA UMK, Toruń 2011, p. 342–345. In many other appeals during the proceeding in the ECHR, it was known that the disappeared were already deceased, which did not prevent classifying the situation as a “disappearance” and recognizing the appellants as victims of a violation of Article. 3 of the European Convention on Human Rights.

[xii]          Ruling of the Grand Chamber of the ECHR from October 21, 2013 in cases 55508/07 and 29520/09 Janowiec and others v. Russia, par. 144.

Borys  Jastrzębski