Decision to commence investigation into Katyn Massacre

PRESS RELEASE

On 30 November 2004, the Departamental Commission for the Prosecution of Crimes against the Polish Nation in Warsaw issued a decision to commence investigations, case no. S 38/04/Zk, into the “mass murder, by shooting, of not less than 21,768 Polish citizens, for the purpose of liquidating a part of the Polish national group, during the period between 5 March and an unspecified date in 1940 in Moscow, Kharkov, Smolensk, Katyn, Kalinin (now Tver), and other locations on the territory of the Union of Soviet Socialist Republics by its state functionaries acting on instructions from the authorities of their state, which was then allied with the Third Reich, the victims being:

  • soldiers of the Polish Army and Border Defence Corps, officers of the State Police and of other Polish state services - prisoners of war taken by the Red Army and accommodated in "special prison camps" of the NKVD in Kozelsk, Starobelsk and Ostashkov,

  • civilians arrested for being, among other things „(...) intelligence agents and gendarmes, spies and saboteurs, former landowners, factory owners and officials (...)” and placed in prisons on the Eastern Territories of the Republic of Poland occupied by the USSR,

as a result of the implementation of the criminal resolution by the Politburo of the Central Committee of the All-Union Communist Party (Bolsheviks) reached in Moscow on 5 March 1940, and as a result of a violation of binding war rights and customs, especially the provisions of the IV Hague Convention of 18 October 1907 on the rights and customs of land warfare and the Geneva Convention of 27 July 1929 on the treatment of prisoners of war,
this being an offence under: art. 118 § 1 of the Criminal Code of 1997, in conjunction with art. 123 § 1 points 3 and 4 of the Criminal Code of 1997, in conjunction with art. 1 point 1 of the Decree of 31 August 1944 on the exercising of punishment for Nazi-Fascist criminals guilty of the murder and torment of the civilian population and prisoners, and for traitors to the Polish Nation, in connection with art. 11 § 2 of the Criminal Code of 1997, in connection with art. 2 par. 1 and art. 3 of the Act t of 18 December 1998 on the Institute of National Remembrance –Commission for the Prosecution of Crimes against the Polish Nation.”

Regarding the subject of the notification, first of all it is necessary to present the genesis of the events which culminated in the issue of the decision by the ACP (B) Central Committee Politburo on 5 March 1940, and subsequently in the death of thousands of Polish citizens.
An important stage in the rapprochement that had been occurring between the USSR and the Third German Reich since August 1938 was the Non-Aggression Pact, signed in Moscow on 23 August 1939 by the foreign ministers of the above two countries – Vyacheslav Molotov and Joachim von Ribbentrop (the so-called Ribbentrop – Molotov pact). In a secret additional protocol signed at the same time, the USSR and Third Reich demarcated their “spheres of influence” in Eastern Europe. The border between these spheres divided Polish territory along the line of the Narew, Vistula and San rivers.
The Third Reich was the first to claim "its" sphere of interests, invading Poland on 1 September 1939. On the same day, the USSR commenced military preparations to attack the Republic of Poland. The Red Army crossed Poland’s border on 17 September 1939.
Several days after the invasion, the Soviets proposed to its German ally the final liquidation of the Polish State (the Ribbentrop – Molotov pact left its further existence as an open question). The German side agreed to such a solution, resulting in the signing of another pact between Germany and the USSR on 28 September 1939 – the treaty on friendship and borders. This pact established the border between the state interests of its signatories along the San, Bug, Narew and Pisa rivers.
The Soviet diplomatic moves were accompanied by military action against the armed forces of the Republic of Poland. As a result, some 250,000 Polish soldiers were taken into Soviet captivity. Some of them were released, and some escaped, but 125,400 prisoners were placed in NKVD prison camps in Kozelsk, Ostashkov, Starobelsk, Putivl, Yuzha, Oranki, Kozelshchina, and elsewhere.
The first three camps possessed “special status,” i.e. they were set aside for officers, policemen, senior state and military officials, persons responsible for state security, and military settlers.
On the basis of the ACP (B) Politburo resolution of 2 October 1939 and subsequent orders by the USSR NKVD Prisoners-of-War Administration, during October and November 1939 42,500 private soldiers, inhabitants of so-called Western Ukraine and Western Belorussia, were released home;42 492 private soldiers , inhabitants of these parts of Poland which were occupied by the Third Reich were transferred to Germans, and some 25 000 were sent to build Nowogród Wo³yñski – Lwów road. In addition, about 15,000 prisoners were concentrated in the “special camps” in Kozelsk, Starobelsk and Ostashkov.
Those imprisoned in Kozelsk, Starobelsk and Ostashkov were subjected to mass propaganda intended to change their negative attitude towards communism and the USSR. However, it did not bring the results that were expected. Prisoners continued to display patriotic attitudes and an attachment to religion, and they also attempted to form conspiratorial organisations in camps.
The Soviet authorities did not behave in a uniform manner to those kept in the “special camps.” They behaved in a particular manner towards the prisoners in Ostashkov, deciding to make them face the NKVD Special Conference, a non-judicial body which issued verdicts by administrative means. By the end of January 1940, the cases of over 6,000 prisoners had been referred to the Special Board. By the end of the following month, the first 600 sentences had been handed down, involving from 3 to 6 years of labour camp in the Kamchatka
Similar procedures were not applied to the prisoners in the camps in Kozelsk and Starobelsk.
In the end, these procedures were also discontinued towards the prisoners in Ostashkov: at the end of February 1940, no more sentences were issued because a whole new concept of solving the “problem” of Polish prisoners of war in the USSR had emerged.
According to a proposal presented to ACP (B) secretary Josef Stalin by USSR people’s commissar for internal affairs Lavrentii Beria on 5 March 1940, the prisoners inside the “special camps” were to be shot as “avowed enemies of Soviet authority, filled with hatred of the Soviet system.” At the same time, L. Beria also proposed the shooting of 11,000 out of the 18,632 prisoners held in prisons in the so-called western oblasts of Ukraine and Belorussia. The NKVD chief also described these as “hardened, incorrigible enemies of Soviet authority.”
The chief motive for this criminal proposal was a realisation that the prisoners expected liberation in order to join the struggle against Soviet authority.
L. Beria’s proposal was approved in a resolution adopted by the ACP (B) Politburo on 5 March 1940.
The extermination of the prisoners in the “special camps’ in pursuance of the above resolution started on 3 April 1940, when the first “death transport” was dispatched from the camp in Kozelsk. The prisoners in this camp were taken by rail to the station at Gniezdowo near Smoleñsk, and from there by prison wagons to the place of execution inside the Katyn Forest. They were executed by pistol shots in the back of the head. The bodies were buried in previously dug trenches. Not less than 4,410 prisoners from the camp in Kozelsk died.
The murder of the prisoners from Starobelsk commenced on 5 April 1940. Individual groups of prisoners were sent by rail to Kharkov and placed in an internal NKVD prison there. The victims were executed by pistol shots below the back of the head. The bodies were buried in trenches in region 6 of the forest-park zone near the village of Pyatikhatka near Kharkov. Not less than 3,739 prisoners from Starobelsk were executed.
The prisoners in Ostashkov were removed from the camp to the NKVD prison in Kalinin from 5 April 1940 onwards. They were killed by shots to the back of the head in a specially prepared cell. The bodies were buried in the village of Mednoye. Not less than 6,314 prisoners from this camp died.
For various reasons, 395 persons were excluded from execution and placed in the camp at Yukhnov.
A change was made to that part of the ACP (B) Politburo decision of 5 March 1940 regarding prisoners: instead of the planned 11,000 prisoners, 7,305 were shot, of whom 3,435 came from the prisons in so-called Western Ukraine and the remaining 3,870 from prisons in so-called Western Belorussia.
In the 1990’s, lists of the persons held in prisons in so-called Western Ukraine and shot in pursuance of the decision of 5 March 1940 were released (the so-called Ukrainian Katyn List). But so far it has not been possible to discover similar lists of prisoners held in Western Belorussia and killed on the basis of this decision (Belorussian Katyn List). According to the current hypothesis, which is to be verified during the investigations, the prisoners from so-called Western Ukraine were murdered in prisons in Kiev, Kharkov and Kherson. The prisoners from so-called Western Belorussia were supposedly killed inside Minsk prison. Possible evidence of this are objects of Polish origin unearthed in the 1980’s and 1990’s during exhumations in Bykovnia and Kuropaty.
In the light of the above historical findings, it is an indisputable fact that on 17 September 1939 the USSR, in contravention of international law, carried out an act of aggression against Poland, and during the subsequent period of lawlessness deliberately took the lives of thousands of Polish prisoners of war and civilians, this constituting a war crime and a crime against humanity.
The incursion of the Soviet forces onto Polish territory on 17 September 1939, constituting the start of war, placed its participants under a duty to adapt to the rules of military law, including treaty obligations and the principles of international customary law. The soldiers captured by the Red Army were entitled to the status of prisoners of war, and thus to the full protection created for prisoners of war, including the protection provided under the IV Hague Convention of 18 October 1907 on the rights and customs of land warfare and under the Regulations included therein, and the Geneva Convention of 27 July 1929 on the treatment of prisoners of war, which codified the basic customary principles of military law. In 1939, the Republic of Poland was a party to both these conventions. However, the fact that the USSR was a party neither to the IV Hague Convention and the Regulations appended thereto, nor to the Geneva Convention, did not release that country from the duty to respect the universal principles of international customary law, which existed side by side with treaty provisions. In the light of doctrine and international jurisdiction including the Verdict of the Nuremberg International Military Tribunal, the fact that a certain country was not a party to the above conventions did not excuse its citizens who had perpetrated war crimes or crimes against humanity from criminal responsibility for their crimes.
Therefore, there is no doubt that the murder of Polish prisoners of war in 1940 was an unlawful act within the meaning of international law because it was a glaring violation of art. 4, 23c and 50 of the Regulations regarding the laws and customs of land warfare appended to the IV Hague Convention of 18 October 1907 on the laws and customs of land warfare, and a violation of art. 2, 46, 61 and 63 of the Geneva Convention of 27 July 1929 on the treatment of prisoners of war – therefore it was a violation of legal instruments which, because they had been recognised as generally binding principles of international law, were applicable to the whole of international society in 1940, and therefore to the Soviet Union as well. In the light of the above it is also completely justified to say that the extermination of the Polish prisoners of war was a war crime in the strict sense of the term, within the meaning of art. VI b of the Charter (Statute) of the International Military Tribunal, set up in pursuance of an international Agreement to investigate and mete out punishment for the chief war crimes of the European Axis and signed in London on 8 August 1945 by Great Britain, the United States of America, USSR and France i.e. a violation of military laws and customs.
However, the murders of the Polish civilian population by NKVD functionaries implementing the resolution of 5 March 1940 comply fully with the meaning of a crime against humanity as defined in art. VI c of the abovementioned Charter of the International Military Tribunal, which encompasses “murder, extermination, enslavement, deportation and other inhuman acts against any civilian population before or during a war, or persecution on account of politics, race or religion in the perpetration of any form which falls within the competence of the tribunal or in connection with it, whether or not the crime was in compliance with law of the country in which it occurred."
The principles of international law adopted in the Statute of the Nuremberg Tribunal and subsequently expounded in the verdict by that Tribunal were confirmed in the UN General Assembly resolution no. 95(1) of 11 December 1946. Furthermore, that resolution declared that genocide is a crime against international law, contrary to the spirit and objectives of the United Nations, and condemned by the civilised world. The subject of genocide was expounded in the Convention on the prevention and punishment of the crime genocide, adopted by the UN General Assembly on 9 December 1948. In art. II and III it lay down the definition of genocide and the punishable forms thereof, and placed the parties under an obligation to make it enforceable by introducing suitable provisions to their domestic legislation.
Because of the circumstances of the Katyn Massacre, i.e. the fact that it was planned down to the very last detail by the highest party and state authorities of the USSR and carried out by the state apparatus under their authority, and on account of the scale and cruelty of the extermination of thousands of innocent people and the motives of the perpetrators, there is justification in considering the permissibility of applying the qualification of genocide within the meaning of art. 11 of the convention of 9 December 1948. The selection of persons for extermination was also characterised by the fact that they formed part of the intellectual elite of the Polish Nation which, under the appropriate conditions, could assume leadership. The physical elimination of these people was meant to prevent the rebirth of Polish statehood based on their intellectual potential. Therefore the decision of elimination was taken with the intention of destroying the strength of the Polish Nation and liquidate its elites. Therefore one can conclude that the murder of Polish prisoners of war and Polish civilians by the NKVD was dictated by a desire to liquidate part of the Polish national group. Hence, this action assumed the status of genocide as described in art. II of the Convention on the prevention and punishment of the crime of genocide. The view whereby the extermination of Polish citizens is an act of genocide was also expressed in the USSR’s stance during the trial of Nazi war criminals before the Nuremberg Tribunal after the end of World War II. On the 59th day of that trial, Prosecutor Yuri Pokrovskiy, deputy chief Soviet counsel for the prosecution, presented the Katyn Massacre as an atrocity that had taken the lives of 11,000 Polish victims and said that this Massacre was subject to the judgment of the International Military Tribunal in Nuremberg. Hence, such a stance by the Russian side was based on a recognition of the murder as a crime that falls within the scope of the International Criminal Tribunal on account of its seriousness, in other words a crime which, on accounts of its particular nature and the circumstances in which it was perpetrated, should be judged according to international criminal law.
Reaching conclusions on the basis of Polish criminal law, it should be stated that the current state of the law provides the basis on which to pursue criminal proceedings into the Katyn Massacre. For this deed was directed against Polish citizens, which is considered a satisfactory basis on which to apply Polish criminal sanctions by earlier criminal codes (art. 5 of the Criminal Code of 1932, art. 114 of the Criminal Code of 1969), and by the current Criminal Code (art. 110 § 1 of the Criminal Code of 1997). Furthermore, the killing of any prisoner of war and any civilian was prohibited both under the terms of Polish legislation (art. 225 § 1 of the Directive by the President of the Republic of Poland of 11 July 1932, Criminal Code) and under the terms of Soviet legislation (art. 137 of the Criminal Code of the RSFSR, effective as of 1 January 1927). Therefore, the so-called condition of dual illegality is fulfilled, art. 110 § 1 of the Criminal Code of 1997 and art. 111 § 1 of the Criminal Code of 1997, which allows the Polish authorities to investigate and punish the perpetrators of crimes against the interests of the Republic of Poland or against Polish citizens even if the perpetrators are foreigners and their deeds were committed abroad. It should also be said that under the terms of art. 114 § 1 of the Criminal Code of 1997, the fact that criminal investigations into the Katyn Massacre were previously conducted by the Chief Prosecutor’s Office of the Russian Federation is no obstacle to the initiation and conduct of investigations into the same deed by the Polish law-enforcement authorities.
When determining the legal qualification of the Katyn Massacre, it must be realised that the basis of this legal qualification was provided by the terms of art. 118 § 1 and 123 § 1 point 3 and 4 of the Criminal Code of 1997, which are the equivalent of the provisions contained in the international conventions on the punishment of war crimes and crimes against humanity and which fulfil Poland’s obligations to adapt her domestic law to the standards of international law. Thus, the fact that the Katyn Massacre is an act of genocide results in the adoption of the legal qualification under art. 118 § 1 of the 1997 Criminal Code, whose wording fulfils Poland’s commitments under the UN Convention of 9 December 1948 on the prevention and punishment of the crime of genocide. Whereas because the Katyn Massacre is also a war crime, the provisions of art. 123 § 1 point 3 and 4 of the 1997 Criminal Code, which protect prisoners of war and the civilian population of occupied territory, shall apply to it.
Furthermore, the conduct of the USSR state officials who implemented or realised, at every administrative level, the decision of 5 March 1940 to exterminate Polish prisoner-of-war and civilians is a fulfilment of the message of art. 1 point 1 of the Decree of 31 August 1944 on the exercising of punishment for Nazi-Fascist criminals guilty of the murder and torment of the civilian population and prisoners, and for traitors to the Polish Nation because these perpetrators participated in the killing of civilians and prisoners of war „for the benefit of the authorities of the German state or its ally.” The acceptance of this qualification is justified by the nature of relations between the Third Reich and the USSR before the outbreak of World War II and during the extermination of the Polish prisoners of war and civilian population, these relations being based on the bilateral agreements concluded between the two states in August and September 1939. In 1940, the USSR and Third Reich were states that were allied to each other and cooperating with each other.
It remains an indisputable fact that the murder of the prisoners of war in the prisoner of war camps in Ostashkov, Starobelsk and Kozelsk, and of the civilians held in prisons in so-called Western Ukraine and Belorussia was ordered by members of the political and state leadership of the former USSR and that the direct perpetrators of this murder were officials serving at various posts in the USSR NKVD. Therefore, in view of the circle of people suspected of committing this murder and the purpose for which they undertook this criminal act, it appears totally justified to qualify the atrocity not just as a war crime, crime against humanity, and a crime penalised under art. 1 point 1 of the August Decree; but also as a communist crime within the meaning of art. 2 par. 1 of the Act of 18 December 1998 on the Institute of National Remembrance –Commission for the Prosecution of Crimes against the Polish Nation. There is no doubt that the persons responsible for the atrocity, both those who issued the order and those who carried it out, were officials of the communist state – the Union of Soviet Socialist Republics.

December 1, 2004


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