Russian Court Denies Wallenberg Family Request

In July 2017, Marie Dupuy, Raoul Wallenberg’s niece, filed a lawsuit in Moscow’s Meshchansky Region Court against the Federal Security Service (FSB), the KGB’s successor, seeking access to documents she believed could shed light on Wallenberg’s fate. On her behalf Ivan Pavlov, legal representative of the Dardel/Dupuy family (Team29, St. Petersburg, Russia), filed the application. To the press, he said: “The Wallenberg relatives demand that the Russian special services should give access to the originals of the Wallenberg documents, as well as provide their uncensored copies.”

In the application (translated from the Russian by Dr. Birstein), Mme. Dupuy stated why she appealed to the court:

I am a relative (niece) of Raoul Wallenberg, a Swedish diplomat who saved the lives of tens of thousands of Budapest Jews in the last year of World War II.

Raoul Wallenberg and his driver Vilmos Langfelder were arrested in January 1945 by the Soviet troops that occupied Budapest, after which, during 1945-1947, they were kept by the Soviet state security organs in the Moscow investigative Lefortovo and Internal (Lubyanka) prisons.

A detailed description of the archival documents that might give some light to Wallenberg’s fate followed:

In order to clarify the circumstances surrounding the stay in the above-mentioned prisons Raoul Wallenberg and those who were imprisoned in these prisons at the same time (information about which may also shed light on the details of Wallenberg’s fate), I need to familiarize myself with the following materials that are kept in the Central Archive of the FSB of Russia:

1. With all pages of Registers of Calls for Interrogations of Prisoners in Lefortovo and Internal (Lubyanka) prisons for 22 and 23 July 1947: in Lefortovo, of interrogations on July 22, 1947 from 21:00 to 24:00, and in Internal Prison, of interrogations on July 22, 1947 from 18:00 to 24:00, and on July 23, 1947, from 00:00 to 19:00.
2. With the record of the receipt of Raoul Wallenberg’s possessions in the Register of Taking Prisoners’ Possessions in Internal Prison on March 2, 1947, the left and right pages. Previously released copies of this record did not contain all the columns on the left page (there is no column “Number of Items”) and the copy of the right page is fuzzy).
3. With the record in the Register of Transfer of Prisoners from Lefortovo Prison on February 26, 1947 (from 15:00 to 23:00). In this entry, under No. 142 there is a record of the transfer of Wallenberg and his cellmate Willi Roedel from Lefortovo to MGB Internal Prison. In the previously provided copy, the line with the name Wallenberg is crossed out, but something is written in the column “Signing in taking prisoners”, and this text is unreadable. In the case of Roedel, the second line of this record was concealed during the Xerox copying.
4. With the entry in the Register of Transfer of Prisoners from Lefortovo Prison on March 1 (or 2), 1947. The entry No. 151 represents a record of the transfer of Wallenberg from Lefortovo to MGB Internal Prison of the MGB. The first line of the entry is blacked out, while on the second line there is a note “with Prison File.” Previously, only a copy of a fragment of this page without a date on it was provided. Also during Xerox copying, the third line was concealed, on which, possibly, there is a continuation of the record. There is also no complete case number in the right-hand column, so it remains unclear whether it refers to the Wallenberg case.
5. With the entry in the Registers of Calls for Interrogations of Prisoners in Internal Prison, dated March 11 (?), March 1947. Although the page begins from this record of Wallenberg’s summoning (recorded as “No. 33, Wol’nberg R. G.” and A. Kuzmishin called him), there is no date on the page, and, therefore, it is hard to say whether the interrogation actually took place on March 11, 1947.
6. With the entries in the General Alphabetical Register of Prisoners of Internal Prison:

for 1945, records for Wallenberg and Langfelder, dated February 6. Earlier copies of these archival records were not provided, only information of their contents was given;

for 1947, records for Wallenberg on March 1 or 4 (the exact date of his transfer from Lefortovo is unclear), and for Langfelder on July 22 (the entry is crossed out). Previously, copies of these archival records were not provided, only information of their contents was given.

7. With the entries in the “General Alphabetical Register of Prisoners of the Lefortovo Prison” for 1945, on March 18 for Langfelder (the record is crossed out) and for Wallenberg, on May 31 (crossed out). Previously, copies of these archival records were not provided, only information of their contents was given.

I believe that these archival documents can be provided to me without exception, since they do not contain information of limited access.

After this, there was also a request to provide copies of all documents:

On the basis of Article 29 of the Constitution of the Russian Federation, Articles 3 and 8 of the Federal Law “On Information, Information Technologies and Information Protection”, Articles 1, 4, 8 of the Federal Law “On Providing Access to Information on the Activities of State Bodies and Local Self-Government Bodies”, Article 24 of the Federal Law “On Archival Affairs in the Russian Federation”, I also ask you to provide copies of […] archival documents [a list of the listed above documents was repeated].

The Russian lawyer Daria Sukhikh (Team29, St. Petersburg) represented Marie Dupuy by proxy.

Interestingly, in the official registration of the case No. 02а-0549/2017 on the website of Moscow courts, dated August 7, 2017, Elsa M. D., and not Marie Dupuy is given as the administrative plaintiff. Evidently, the court officials were confused by the name Elsa Marie Dupuy.

On August 17, 2017, the first court session took place. Shortly after it began, the judge Irina Afanasieva of the Meshchansky Region Court postponed a preliminary hearing until September 18. Daria Sukhikh, a lawyer for relatives of Wallenberg (St. Petersburg’s Team29), commented: “An FSB representative came to the courtroom without a prepared legal position and therefore the court was unable to set the date for the hearing and postponed the preparatory hearing.” She added that the FSB needed more time to familiarize itself with the case materials.

At the next hearing on September 18, 2017, the judge Afanasieva denied Mme. Dupuy’s request. Ivan Pavlov and Daria Sukhikh represented Mme. Dupuy in the court. Daria Sukhikh described what happened in the court:

We [lawyers Ivan Pavlov and Daria Sukhikh] met with the FSB’s lawyer [Colonel of Justice Sergei Churikov] near the courtroom and he gave us his legal written position (“Objections”) on two pages. Actually, it was extremely general and made little sense [see my translation below – V. B.].

The hearing began not at 14:00 (2:00 pm), as scheduled, but later, at 15:30 (3:30 pm) since the judge decided to listen our case at the end of the day, after all other cases.

At the beginning of hearing, Ivan and I decided at first to find out more detail about the FSB’s position on the case because it was so poorly presented in the written “Objections”, and then to ask the judge to postpone the discussion since we needed time to prepare our additional arguments against FSB’s objections. 

During our questioning and their answers, the main two FSB’s points were: 1) Marie had already received documents about R. Wallenberg from the registers (meaning copies of documents), and 2) They cannot give us full pages of documents because they contain personal secret information about third persons on these pages. 

We asked FSB many questions about how they can prove that they have previously given something to Marie and what they gave, what information about other persons the registers contain, why they think that this information contains personal secrets and what are legal grounds for this statement and so forth. We did not receive a full answer to any of our questions.

We made a few petitions to the court. We asked the court the following:

• To order the FSB provide to the court copies of documents that they had earlier provided to Marie Dupuy (as they said);
• To order the FSB provide to the court information about the content of the registers and what information about third persons are in these documents;
• To order FSB provide the names of third persons from who we should take permissions according to the FSB statement;
• To postpone hearings for preparing our additional argumentation.

The judge denied all our petitions. 

It was obvious that the judge was in a hurry to make her ruling. This was a little bit surprising because at the previous short hearing she did not demonstrate a desire to make a quick decision. 

At 19:00 (7:00 pm) the judge Afanasieva announced her decision to deny our lawsuit. 

I have participated in several court cases against the FSB, but I’ve never seen such violation of procedural rights of the plaintiff, as happened today. It seems this case was VERY sensitive for the FSB, because from the beginning of the hearings the judge was prepared to refuse our application and she really looked not independent during the hearings and while denying our petitions.

We don’t want to give up. Now we need to wait for the judge’s written decision for 1-2 weeks, in which we will see the full argumentation of the judge’s ruling. After this we will continue our work and will prepare an appeal of the judge’s decision.

To the press, Ivan Pavlov stated that the FSB did not answer all the requests in the application. And the FSB argument that the disclosure of documents containing secrets of personal and private life is possible only 75 years after the creation of the documents is not convincing. For the information in question, this term expires in 2020 and 2022: “We do not want to wait another three years, because during this time the authorities can invent something else to hide these data.” He added that lawyers “learned something” from the speech of the FSB representative: “He also studied all these documents. For example, he counted the number of names on the lists. We will use this knowledge in preparing our new requests. ”

According to the transcript of the session, a long dispute was, in particular, around the FSB motivation to refuse access to the archival documentation. As the motivation for denial, the FSB representative Churikov mentioned “the private life” of a prisoner. He stated: “The presence in prison [of a person] could be generally considered as the private life of the prisoner.” Ivan Pavlov rebuffed: “While describing the meaning of the term ‘private life’, the [Russian] Constitutional Court noted that information about the private life is the area of human activity that relates to an individual, concerns only him and is not subject to control by society and the state.” Following this definition, the life in imprisonment could not be considered as “the private life.” Churikov refused to answer Pavlov’s question about whether he agrees or disagrees with the definition of “private life” given by the Constitutional Court.

It is necessary to note that according to the reviews of Afanasieva’s work as a judge on the Russian Internet, she is considered a very poor professional. But as for the hearing on September 18, 2017, and her “independent” decision, one needs to take into consideration that during the hearing, there were two glossy FSB calendars for the year 2017 in the court room with the date September 18 marked. One had a photo of the FSB building at the Lubyanka Square in Moscow on the front page (see photo on this page), and the other was decorated with a portrait of Felix Dzerzhinsky, the founder of the CheKa/KGB. Possibly, these small gifts reminded her what kind of decision she should make.

The lawyers Ivan Pavlov and Daria Sukhikh need to submit an appeal on the judge decision by October 18, 2017.

Below is my translation of the FSB “Objections” (V. B.):

---

TO: Meshchansky Region Court, Moscow

129690, Moscow, 32 Friedrich Engels Street, bdg. 1

(to: Judge I. I. Afanasieva)

FROM: Representatives of  the Federal Security Service of  the Russian Federation

(Administrative Defendant)

Elsa Marie Dupuy

(Administrative Plaintiff)

OBJECTIONS

to the Administrative Application of E. M. Dupuy

on the Recognition of an Illegal Decision

In the Meshchansky Region Court in Moscow, there is an administrative case initiated under the administrative claim of Elsa Marie Dupuy, maintaining that the decision of the FSB of Russia to refuse to provide archival information, and the obligation to familiarize her with archival documents and to provide her with full uncensored copies of the documents, is illegal.

The FSB considers the requests should be denied.

1, According to Part 6 of Article 18 of the Federal Law “On Providing Access to Information on the Activities of State Bodies and Local Self-Government Bodies” (hereinafter referred to as the Law), requesting information on the activities of state bodies and local self-government bodies within thirty days from the date of its registration, stipulated by the legislation of the Russian Federation.

It can be seen from the materials of the case that on March 16, 2017, the representative of E. M. Dupuy by proxy D. N. Sukhikh appealed to the FSB of Russia with requests for knowledge and provision of archival information.

These requests were considered within the period established by the Law and the administrative plaintiff was answered (No. 10 / A-1489 of April 5, 2017).

Therefore, the administrative defendant followed the time for consideration of requests for information.

2.In accordance with Part 2 of the Constitution of the Russian Federation, public authorities and local government bodies, and their officials are obliged to ensure everyone the opportunity to familiarize themselves with documents and materials directly affecting his rights and freedoms, unless otherwise provided by law.

The Federal Law “On Archival Matters in the Russian Federation” (hereinafter referred to as the Law on Archival Matters) regulates relations in the field of organization, storage, acquisition, accounting and use of documents of the Archive Fund of the Russian Federation and other archival documents, irrespective of their forms of ownership, and establishes exhaustive grounds, when access to archival documents of a person may be limited (Article 25).

The restriction on access to archival documents containing personal data, in the absence of consent for acquaintance of a citizen or his heirs, contained in part 3 of Article 25 of the Law on Archival Affairs, is aimed at protecting the rights of citizens guaranteed by part 1 of Article 23 and part 1 of Article 24 of the Constitution of the Russian Federation, and cannot be regarded as violating the constitutional rights of a person requesting to read and distribute an archival document (information).

The administrative plaintiff in the requests of March 16, 2017, asked to familiarize her with archival documents and to provide their uncensored full copies.

The requested archival documents contain personal data concerning third parties, which is the basis for restricting access to them in accordance with Part 3 of Article 25 of the Law on Archival Affairs.

With keeping this in mind and guided by articles 175-178 of the Code of Administrative Proceedings of the Russian Federation, we ask the Meshchansky Region Court of Moscow to deny the requests of E.M. Dupuy.

Representatives of the Federal Security Service of the Russian Federation

(by proxy)

[Signed] S. V. Churikov

[Signed] S. Ye. Potapov