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23.03.2006

Victims of the Katyń Massacre refused rehabilitation

   

Commentary by Aleksandr Guryavov.

As already reported on this site, the Chief Military Prosecutor’s Office of the Russian Federation is refusing to recognize the Poles murdered at Katyń as victims of political repression. Several dozen Polish families whose relatives were shot at Katyń by the Soviet Union’s NKVD have addressed demands for such an acknowledgement to be made.

We publish a commentary from the Head of the Polish Commission of the International Historical, Educational, and Human Rights Association “Memorial”, Aleksandr Guryanov.

"... In Russian law there is no procedure for recognizing the status of a “victim of Stalin’s repression”. The Prosecutor’s Office deals with rehabilitation on the basis of a law from 1991, and following the application of individuals who suffered in Soviet times.  One may refer to their decision when approaching a Russian court. Those who were repressed have the right to small, basically symbolic, amounts of financial compensation.

Russian Prosecutors have over many years applied a narrow, strictly formal interpretation of the concept “rehabilitation”, taking it to be “the reinstatement of rights lost as the result of an unjust sentence”  passed by a court or other institution with the authority to pass sentences in Soviet times.

In Stalin’s USSR the right to pass sentences was held, in addition to usual courts and at various periods, special tribunals, military tribunals, special panels of judges under the NKVD, as well as the notorious “troika” , that is special courts made up of three people which Stalin used in 1937 – 1938 to carry out the major purges.

If somebody was issued a sentence by any of these bodies, the person may be “rehabilitated”.  In any other cases the Russian Prosecutor’s Office turns down application for rehabilitation.

During the time when the Katyń Massacre took place, in the Soviet Union sentences could only be passed, as well as in the courts,  by special panels of judges under the NKVD.  Yet the Polish Officers were shot on the basis of a decision taken by Stalin and the Politburo of the Central Committee of the All-Russian Communist Party (Bolshevik) from 5 March 1940.

This decision was in contravention even of the Soviet law of that period. From a formal point of view it was not a sentence, and therefore – according to the Russian Prosecutor’s Office – it cannot be annulled, i.e. the victims cannot be rehabilitated.

A few weeks ago the Prosecutor General used similar arguments in order to refuse to rehabilitate the family of Tsar Nikolai II, murdered by the Bolsheviks in 1918.

In the middle of the 1990s there was success in rehabilitating two Poles who had been interned during the Second World War. They had also been interned without a court sentence, but the Prosecutor’s Office did not interfere. Unfortunately, that case did not set a legal precedent for subsequent rulings. 

“Memorial” has for a long time been trying to bring about a change in the interpretation of the law on rehabilitation or a supplement to it in order to make an extremely limited and narrow reading impossible”.

 

Statement with regard to the Katyń Massacre and information regarding its investigation

6 March 2006

On 28.12.2006 Instytut Pamięci Narodowej [The Institute of National Remembrance] received via the Polish Embassy in Moscow the stated position of the Chief Military Prosecutor’s Office of the Russian Federation as of 18.01.2006 with regard to the possibility of victims of the Katyń Massacre being covered by the provisions of the Law of the Russian Federation of 18.10.1991 (amended on 22.12.1992) “On the Rehabilitation of Victims of Political Repression”.

Since the middle of the nineties, the Polish Embassy has registered dozens of applications from Polish citizens – relatives of the victims of the Katyń Massacre, to which the Russian side consistently responded that they could only be considered after the investigation being carried out by the Chief Military Prosecutor’s Office was concluded. The Russian investigation was terminated on 21.10.2004. Its results were not made available to Poland despite applications made in this case. The Russian Prosecutor justifies this by claiming that the majority of the more than 180 volumes of the investigation and the final resolution are covered under a secrecy clause.

In his letter of 23.11.2005 addressed to the Polish Ambassador, the Russian Prosecutor refused to allow the widow of a Polish Officer murdered at Katyń access to the final resolution on the conclusion of the investigation, then in the letter from 18.01.2006 outlined the reasons why this officer and “others cannot on the grounds mentioned be rehabilitated”.  This extraordinary stand is based on the assertion that the Law “On the Rehabilitation (of Victims of Political Repression)” allows for the rehabilitation of people who were subjected to repression for political reasons (underlined in the original).  The letter goes on to claim “whereas, in the course of the initial criminal investigation, unfortunately it was not established on the basis of which article of the Criminal Code of the RF (in the 1926 version) the said individuals were prosecuted, since the documentation was destroyed”.

The position of the Chief Military Prosecutor’s Office of the Russian Federation is at odds with the contents of the instructions from 05.03.1940 signed by Stalin and members of the Politburo, which were carried out in the Katyń Massacre. In these instructions it is stated that the Poles were held “in camps of the NKVD of the USSR for war prisoners and in prisons of the western part of Ukraine and Belorussia … are sworn enemies of the Soviet regime, filled with hatred for the Soviet system”.  For this reason it is instructed that the cases „of hardened and unreformed enemies of the Soviet regime ... both those of the 14700 individuals in prisoner of war camps, and the cases of 11000 individuals arrested and being held in prisons in the western part of Ukraine and Belorussia be considered in special sessions and the ultimate penalty – execution by firing squad be applied”.  It is instructed in this document that “the cases be considered without calling those arrested and without charges being brought, a decision on the conclusion of the investigation and document with the charge”.

The contents of these instructions from 05.03.1940 indicate unambiguously and without any doubt whatsoever that the Katyń Massacre was an act of the most terrible political repression. Consequently the argument of the Chief Military Prosecutor’s Office of the Russian Federation that in order to establish this it would be necessary to determine on the basis of which article of the Criminal Code of the RF (in the 1926 version) the murdered Poles „were prosecuted” is in logical contradiction with the above-mentioned instructions for carrying out the killings without presenting those sentenced to be shot with any charges based on the provisions of the Russian Criminal Code, and also without a decision on the conclusion of the investigation and document with the charge against them.

”The position of the Chief Military Prosecutor’s Office of the Russian Federation effectively closes the door to joint action by prosecutor’s offices and the Institute of National Remembrance on agreed settlements and legal assessments of the Katyń Massacre.  The refusal to apply the provisions of the Law “On Rehabilitation …” to the victims of the Katyń Massacre and the grounds given for such a position may however be viewed as dishonouring the memory of the Polish victims and distressing members of their families.  It is staggering that the documentation from the Russian investigation into the Katyń Massacre of 1940 should still remain secret in 2006.  The IPN is therefore calling on the Chief Military Prosecutor’s Office of the Russian Federation to make all documents from the investigations, as well as the final resolution, public.

With this state of affairs, the main aim of the Polish investigation, besides establishing all living members of the families of the victims who are entitled to the status of people who suffered through the Katyń Massacre, is to formulate and defend in detail both the historical and legal assessment of this terrible crime.

The assessment of the Katyń Massacre for Poland will always be the test of truth and good will in Polish-Russian relations.

 

Dr hab. Janusz Kurtyka  Prof. Witold Kulesza
Head of the IPN  Director GKŚZpNP

(translated from Polish) 

On the investigation into the Katyń Massacre

The decision to begin an investigation into the Katyń Massacre  was taken on 30.11.2004. The investigation was based on a general legal analysis of the facts, bearing in mind that the Massacre was a war crime, as well as a crime against humanity in its gravest form – that of genocide. Before the decision to undertake the Polish investigation was made, the position of the Chief Military Prosecutor’s Office of the Russian Federation was presented to the President and the Prosecutors of the Instytut Pamięci Narodowej  [Institute of National Remembrance] during talks held in Moscow on 4 August 2004.  The Russian Prosecutor’s Office did not recognize the criminal and legal assessment of the Katyń Massacre as presented by the Director of the Main Commission. It argued that after 17 September 1939, 240 thousand Pole were in Soviet captivity. Of this number, in accordance with the decision of 5 March 1940, signed by Stalin and members of the Politburo, 22 thousand Poles were murdered.  Such a number of victims could not therefore serve as justification for a criminal legal categorization of the crime as one of genocide.

At the same time it was stated that the concept of genocide had been first introduced into international criminal law in 1948 in the Convention on the Prevention and the Punishment of the Crime of Genocide, and that it could not therefore apply to actions committed earlier.

The Russian side did not provide any answer of substance to the statement of the Director of the Main Commission which noted that during the Nuremberg Trials the Russian Prosecutor, Y. Pokrovsky, in his address on 12.02.1946, presented the Katyń Massacre, then attributed to the Germans, as a crime worthy of condemnation on the basis of international criminal law, such as the Statute of the Nuremberg Tribunal.  In the prosecution conclusion, signed also by the Russian Prosecutor, in qualifying the mass murder committed against “Jews, Poles and Gypsies”, the term “ludobójstwo” [“genocide”] is used[1].

Other issues presented by the Polish side were also not touched upon, such as the legal classification of the Katyń Massacre, based on the results of the Russian investigation, as well as the issue of the influence of military orders and instructions from State authorities on criminal liability of the organizers and direct perpetrators of the crime.

It was on the contrary stated that it was “irrational” to expect that perpetrators of the crime still alive should be brought to justice.  At the same time the Russian side declared its readiness to present the Polish side with authorized copies of all volumes of the case, with one hundred and several dozen being promised (by the middle of the nineties the Poles had been handed unauthorized photocopies of 93 volumes).

Despite five appeals from the Institute of National Remembrance (INR), the said promise was not kept. Instead the INR from 10 – 21 October 2005 was given the opportunity to see 67 volumes of the case not classified as secret out of a total of over 180 volumes. They were not allowed to take copies of these documents.

The examination of the volumes presented did not increase our knowledge of the Katyń Massacre and of the results of the Russian investigation. Despite a repeated request, we were also not given the opportunity to see the contents of the Ruling from 21 October 2004 terminating the Russian investigation [the ruling was in fact from 21.09.2004 – translator]

Since the beginning of the Polish investigation, the testimony of 1497 witnesses has been gathered. This is primarily from family members of those murdered, however there is also some evidence from direct witnesses of the events – from an inmate of the Special Camp in Starobelsk, Jozef Lokuciewski, who was released from the camp in November 1939, inmate of the Kozielsk Camp, Bogdan Kowalski, freed at the beginning of December 1939, and also a prisoner of the Kozielsk Camp who survived, the priest  Zdzislaw Peszkowski.

In the first instance, witnesses are interviewed who are already very old – the wives of those murdered, the victims’ brothers and sisters, their children and other living relatives. It should be noted that a significant number of those interviewed are elderly people who have difficulty getting around. In such situations, their evidence is taken in their own homes.

The range of the investigation carried out also covers murders of the Polish citizens whose remains were discovered in a mass grave at plot 19 – 20 in the Dniprovsk district near the village of Bykovnya outside Kyiv, and also the murder of Polish citizens whose remains were found in 1988 during exhumation work in Kuropaty outside Minsk.

In February 2005 we received 77 pages of authorized copies of documents from the Prosecutor General of Ukraine. Among them was a protocol of the questioning of a witness, Leonid M., who confirmed that in July 1940, the Polish Military Prosecutor, General Stanislaw Lubodziecki, had been held in the Kyiv NKVD prison on Volodymyrska Street, and also that Polish officers and civilians had been kept in Lukyanov Prison in 1940.

The documents handed over there include also authorized extracts from two expert studies carried out within the framework of investigative activities of the Military Prosecutor’s Office of the Northern Region of Ukraine (number 50-0092), concerning mass executions of individuals from 1937-1941 whose bodies were then buried in mass graves at plot 19 – 20 in the Dniprovsk district near the village of Bykovnya outside Kyiv.  Access was obtained to the Political Archives of the German Ministry of Foreign Affairs in Berlin where the Prosecutors from INP from 19 – 22 July 2005 were able to study documents which had up till then been unknown, and received copies on microfiche. Responses are awaited from the Prosecutor General of Ukraine to the latest requests for information. The search for documents is also continuing in foreign archives.

6 March 2006

The original of this document is available on the website of Instytut Pamięci Narodowej under the title «Komunikat w sprawie Zbrodni Katynskiej oraz informacja o stanie sledztwa».

 

Reference information about the rehabilitation of victims of the Katyń Massacre

1. The Katyń Massacre refers to the mass execution from April to May 1940 of almost 22 thousand Polish citizens held in different labour camps and prisons.

The number includes:

14552 Officers of the Polish Army and police officers, seized in September 1939 by the Red Army and held in three special NKVD prisoner-of-war camps:  Kozielsk Camp: 4421 murdered and buried at Katyń; Ostashkov Camp:  6311 executed in Kalinin and buried in Mednoye; Starobelsk Camp: 3820 shot and buried in Kharkiv);

– 7305 people arrested and imprisoned in prisons of the in the western part of the Ukrainian and Byelorussian Soviet Republics.

2. Lists of names (name, patronymic and surname, date of birth and military rank) of the prisoners of war executed are held by the Main Department dealing with prisoners of war and individuals interned [Russian: GUPVI] of the NKVD and kept in the Special Archive in Moscow (now forming part of the Russian State Military Archive). In April 1990 copies of the lists were handed to the President of Poland, General Jaruzelsky, together with an official Soviet acknowledgement that the executions had been carried out by the NKVD of the USSR (TASS Report from 13 April 1990). The lists were soon published in Poland in both Polish and Russian.

Note: It is not stated on these documents that the people listed were shot. Formally speaking they are instructions for handing over groups of prisoners of war (each with about 100 – 300 people) from the Kozielsk Camp into the hands of the Chief of the Department of the NKVD for the Smolensk region; from the Ostashkov Camp – into the hands of the Chief of the Department of the NKVD for the Kalinin region, and also one single list of those being taken from the Starobelsk Camp. There is only indirect evidence that in reality these people were executed, although the evidence is convincing (official correspondence of the NKVD while the operation was being carried out with dates, numbers of instructions and statistical data about the fulfilment of these orders which coincide with the numbers of people on specific lists, the results of exhumation and the identification of remains at  Katyń in Spring 1943, and in the nineties, testimony of the former Chief of the Department of the NKVD for the Kalinin region, Soprunenko, and others).

3. In 1990 a criminal case was launched by the Prosecutor of the Kharkiv Region (First on 22 March with regard to the discovery of a mass burial in the forest park zone in Kharkiv, and on 20 August, in relation to Beriya, Merkulov, Soprunenko, Berezhkov and other NKVD officers, as well as by the Prosecutor’s Office of the Kalinin Region (on 6 June), with regard to the fate of the Polish prisoners of war held in the Ostashkov Camp who disappeared without trace in May 1940.  These cases (or only the case of the Kharkiv region Prosecutor?) were handed to the Chief Military Prosecutor of the USSR, and on 27 or 30 September were accepted for implementation.  The Chief Military Prosecutor set up an investigative group headed by A.V.Tretetsky.

4. On 14 October 1992 the Decision of the Politburo of the Central Committee of the All-Russian Communist Party (Bolshevik) from 5 March 1940  on the execution of the Polish prisoners, as well as other documents from “special package No. 1” were made public and passed to Poland. It became clear then for the first time that those executed had not only been prisoners of war, but also inmates of prisons in the western regions of the Ukrainian SSR and Byelorussian SSR.  The Decision of the Politburo from 5 March 1940 ordered the execution of 14700 prisoners of war and 11 thousand prisoners. From a note written to Khrushchev by Shelepin on 3 March 1959, it is clear that approximately this number of prisoners of war were shot, however of the number of prison inmates the number actually executed was 7305.  The reason for the “incomplete implementation” is not known.

5. On 5 May 1994, in Kyiv, the Deputy Head of the Security Service of Ukraine, General A. Khomich, handed the Deputy Prosecutor General of Poland, S. Snieżko, a copy of the list of names (name, patronymic and surname, date of birth and number of the execution order) of 3435 inmates of prisons in the western regions of the Ukrainian SSR (“Memorial” is in possession of a photocopy of this). The list was immediately published in Poland and became known as the “Ukrainian list”.

6. «The Belarusian list” has still not appeared.  If the “Shelepin” figures for the numbers of executed prisoners are correct, and if the “Ukrainian list” published is full, then the “Belarusian list” should contain 3870 people. At the present time we therefore have the personal information about 17987 victims of the Katyń Massacre, while 3870 victims (inmates of prisons on the western regions of the Belarusian SSR) can still not be named.  Only the places where the murdered prisoners of war were buried (Katyń, Mednoye and Kharkiv) are known, that is, the graves of 14552 people.

7.  On 13 June 1994 the Head of the investigative group of the Chief Military Prosecutor’s Office, A. Y. Yabloko (who succeeded A. V. Tretetsky), passed a decision to terminate the criminal case under Article 5, point 8 of the Criminal Procedure Code of the RSFSR (due to the death of the accused),  while in the decision Stalin, members of the Politburo Molotov, Voroshilov, Mikoyan, Kalinin Kaganovich, Beriya with other heads and employees of the NKVD and those who carried out the executions are declared guilty of crimes set down in Points “a”, “b”, and “c” of Article 6 of the Charter of the International Military Tribunal (IMT) at Nuremberg (crimes against peace, war crimes, crimes against humanity, respectively), and also of the genocide of Polish citizens. Specifically this classification was given by the Soviet Union in 1946 when submitting the Katyń case for review by the IMT which was then forced to refuse to include the Katyń case in its prosecution conclusion against the Nazis.

However the heads of the Chief Military Prosecutor’s Office and the Prosecutor General of the Russian Federation revoked Yablokov’s decision and instructed another prosecutor to make a further investigation.

8. In the year 2000 Polish-Ukrainian and Polish-Russian memorial complexes were established in the places known to hold the graves of victims of the  Katyń Massacre: on 17 June in Kharkiv (in the forest park zone), on 28 July 2000 – in Katyń, and on 2 September - in Mednoye.

9. On 21 September 2004 the criminal case under Point 4 of Part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation was terminated by the Chief Military Prosecutor of the RF due to the death of the culprits.  A “number of specific high-ranking officials of the USSR” were declared guilty, their actions being classified under Point “b” of Article 193-17 of the Criminal Code of the RSFSR (exceeding the authority of those in charge of the Workers and Peasants’ Red Army having grave consequences under particularly aggravating circumstances.

On 11 March 2005, the Chief Military Prosecutor, Savenkov, gave a press conference at which he declared the list of those guilty to be a state secret. The decision to terminate the criminal case, and (some) documents mentioned in the 36 volumes of the criminal case bear  the stamps “secret” or “top secret”.  In 80 volumes one comes upon documents with the stamp “for official use only”, while in 67 volumes there are no stamps at all. It was these 67 volumes that the Polish Prosecutors were allowed to see (but not allowed to copy) in autumn 2005.

10. In November 2005 there was the first letter we know of from the Chief Military Prosecutor’s Office refusing to rehabilitate a specific victim of the Katyń Massacre. The grounds given for the refusal were that according to the law, rehabilitation is envisaged for individuals who suffered repression on political grounds, and the Article of the Criminal Code under which the said person had been charged had not been established.



[1]  The Polish used does indeed mean “genocide”, but I was unable to locate the original document.  What constitutes “genocide”, and what “mass murder” remains a very difficult area (translator’s note)

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