· The Judiciary
· Human Rights Defenders
· Victims of Repression
· Moscow City & Moscow Region
The Supreme Court of the Russian Federation has issued a ruling in a case brought by Memorial concerning access to the archives of investigations of victims of political repression.
On 26 January 2011, the Supreme Court of the Russian Federation considered the petition by the International Memorial Society
to change the procedures regulating access to the archives of investigations and filtration cases that have been closed. The meaning of the demands made by Memorial is the following. At present these cases, kept in both state and departmental archives, can be accessed only with the utmost difficulty. Right of access to them is given to those who were victims of repression and their relatives. Access for others before the expiry of the 75-year period from the day of the end of the case is possible if there is a notarized power of attorney from the person concerned in the case, or their relatives.
This procedure was established on 25 June 2006 by the Ministry of Culture and Mass Communications of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation and the Federal Security Agency of the Russian Federation, with the issuance of Decree No. 375/584/352 “On confirmation of the Regulations on the procedure for access to materials, maintained in state archives and in the archives of state bodies of the Russian Federation, of closed criminal and administrative cases in relation to persons who have been victims of political repressions and also cases involving filtration and inspection”.
In November 2010 Memorial submitted a petition to the Supreme Court of the Russian Federation in which it asked that the following points of the above mentioned Regulations should be recognised as inoperative:
– the paragraph of the second sub-point ‘i’ of point 6 of the following content:
“Other persons can be permitted access to the materials of the case, before the expiry of 75 years from the moment of creation of the documents, with the written consent of those rehabilitated or of those in relation to whom the filtration and inspection procedures were carried out, and after their death – of their heirs – on the basis of a corresponding statement or petition if documents are presented confirming their identity, and also a power of attorney drawn up in accordance with the requirements of the law, from the persons rehabilitated, or the persons in relation to whom the filtration and inspection cases had been conducted or their heirs ".
– point 9 of the following contents:
"9. Documents containing information with personal data about persons in relation to whom there had been no investigation, but about whom there is information in the materials of the case, cannot be given to a person wishing to obtain access before the expiry of the term established by the law of the Russian Federation. This limitation can be removed if the conditions are observed concerning removal of any personal data from the copies of documents of the above mentioned persons provided capable of identifying the person”.
Both of these points violate the right of citizens, guaranteed by the Constitution, to freely receive and to distribute information, and introduce limitations on access to archival documents
, that is not provided for by any federal law. According to Article 11 of the "Law on Rehabilitation" (1991), in addition to relatives and their descendants, access for other persons to the cases in question is regulated in accordance with a procedure laid down by the law governing archives. The law “On archives in the Russian Federation” (2004), in Section 3 Article 25, introduces a limitation on access only with regard to materials that contain information about the personal or family private life of a citizen, and information creating a threat to his security; and as set out in Part 2 of the same Article with materials that constitute state secrets.
Moreover, among the indicated categories of cases, access to which is limited by the Regulations of 2006, the majority consist of documents that do not contain any secrets protected by federal law. But the Regulations of 2006 automatically closes the whole case to researchers, in this way violating their right of access to information that is not forbidden by law to obtain and disseminate. In other words, a departmental act has placed a ban on a researcher obtaining access to a certain type of cases. There are millions of such cases in the archives – as many as there are people who have been subject to political repression.
In the view of Memorial, categorizing an instance of political repression as a kind of secret (state, personal, family and so forth), as a kind of event or circumstance of private life, contradicts the meaning of rehabilitation, since, by definition, this presupposes the restoration of the good name and reputation of a person, something that is impossible to do in secret, covertly from society. The restoration of reputation can of its nature be nothing other than a public process, directed towards the protection of individual rights and it in no way can enter into conflict with other individual rights.
The court hearing of the Supreme Court of the Russian Federation opened on 26 January 2011 at 10:00 am.
The judge was N. S. Romanenkov. The International Memorial Society was represented by I. Pavlov, D. Sukhikh and N. Petrov.
During the court hearing, in answer to the suit of Memorial, representatives of the Ministry of Culture, the Ministry of Internal Affairs, the Federal Security Agency and the Ministry of Justice addressed the court. They recognized that:
а) criminal and administrative cases that have been closed in relation to persons subjected to political repression and rehabilitated according to the law of the Russian Federation, including the materials of appeal, judicial review and rehabilitation procedures, if such are in appendices to the cases;
b) criminal cases of groups of persons in so far as they concern rehabilitated persons;
c) filtration and inspection cases involving Russian (Soviet) citizens who were taken prisoners of war or were encircled, and were temporarily on occupied territory, forced to work in Germany or other countries of Europe, and repatriated during the Second World War, the post-war period and also re-emigrants;
d) filtration and inspection cases of foreign citizens, persons without citizenship who were captured and encircled, who were temporarily on occupied territory, forced to work in Germany or other countries of Europe and repatriated during the Second World War, the post-war period and also re-emigrants;
– are part of the Archives of the Russian Federation and come under the purview of the Federal Law "On Archives in the Russian Federation".
At the same time, all representatives of the Ministry of Culture, the Ministry of Internal Affairs, the Federal Security Agency and the Ministry of Justice affirmed with one voice that any document of the cases indicated above would contain information that involves individual and family privacy, and the representative of the Federal Security Agency placed special emphasis on the fact that in all the cases there is information the dissemination of which could threaten the security of citizens. However, no evidence was presented.
Memorial presented evidence to the court. For the consideration of the court, a book was presented containing photographic copies of procedural documents: decisions on arrests, records of orders when an arrested person was received by a place of detention, copies of decisions of the Special Sessions of the Ministry of State Security of the USSR. The indicated documents contained no information access to which is limited by Article 25 of the law "On Archives in the Russian Federation".
Moreover, at the petition of Memorial, letters written by government departmental archives (of the Ministry of Internal Affairs and of the Federal Security Agency) containing refusals, made by reference to the Regulations of 2006, to provide information about, and access to, archives and records of investigations were added to the materials of the case. In this way it was shown that the contested norms of the Regulations obstruct Memorial from carrying out those purposes laid down in its charter concerning the search for, and dissemination of, information about political repressions.
The Supreme Court of the Russian Federation ruled that the suit of the International Memorial Society be dismissed.
The International Memorial Society intends to appeal against this decision.Nikita Petrov
,Chair of the International Memorial Society