106. Applying those requirements to the case at hand, the Chamber found that (1) the mass murder of Polish prisoners by the Soviet secret police had the features of a war crime, but that (2) in the period after 5 May 1998, no piece of evidence of a character or substance which could revive a procedural obligation of investigation or raise new or wider issues had been produced or uncovered. It concluded accordingly that there were no elements capable of providing a bridge from the distant past into the recent post-ratification period and that the special circumstances justifying a connection between the deaths and ratification had not been shown to exist.
155. It is undisputed – and the NKVD’s “dispatch lists” furnish documentary evidence to that effect – that in late 1939 and early 1940 the applicants’ family members were in custody in Soviet territory and under the full and exclusive control of the Soviet authorities. The Politburo’s decision of 5 March 1940 stipulated that all Polish prisoners of war being held in the NKVD camps, without exception, were liable to extrajudicial execution, which was carried out by the Soviet secret police in the following months. Mass burials of prisoners wearing Polish uniforms were uncovered in the Katyn Forest as early as 1943, following the German takeover of the territory. A note written in 1959 by the head of the KGB, a successor to the NKVD, acknowledged that a total of more than twenty-one thousand Polish prisoners had been shot by NKVD officials. The families stopped receiving correspondence from the prisoners in 1940 and have not received any news from them ever since, that is, for more than seventy years.
156. Having regard to these factual elements, the Court concludes that the applicants’ family members who were taken prisoner in 1939 must be presumed to have been executed by the Soviet authorities in 1940.
160. Finally, it remains to be determined whether there were exceptional circumstances in the instant case which could justify derogating from the “genuine connection” requirement by applying the Convention values standard. As the Court has established, the events that might have triggered the obligation to investigate under Article 2 took place in early 1940, that is, more than ten years before the Convention came into existence. The Court therefore upholds the Chamber’s finding that there were no elements capable of providing a bridge from the distant past into the recent post-entry into force period.
161. Having regard to the above considerations, the Court upholds the Government’s objection ratione temporis and finds that it has no competence to examine the complaint under Article 2 of the Convention.