On February 20, 2018, the Moscow City Court considered an appeal of Mme. Marie Dupuy, the niece of Raoul Wallenberg, against the decision of the Meshchansky Regional Court (Moscow). On September 19, 2017 the Meshchansky Court rejected a lawsuit filed by Mme. Dupuy against Russia’s Federal Security Service (FSB) demanding access to particular documentation at the FSB Central Archive that may provide light on what happened to him in Moscow security services prisons after the 1945 arrest and if he allegedly died in July 1947. A collegium (board) of three judges considered the appeal: Denis Shapovalov presided, Regina Mikhailova and Anna Tikhanskaya were the collegium members. Interests of Mme. Dupuy (Administrative Plaintiff) were represented by the lawyers Ivan Pavlov, head of the St. Petersburg association of lawyers “Team 29”, and Daryana Gryaznova, a member of the same “Team 29.” As in the Meshchansky Regional Court, Colonel of Justice Sergei Churikov from the FSB Contract-Legal Directorate represented the FSB (Administrative Defendant).
The court hearing was opened at 5:00 pm instead of 3:00 pm, and the delay was because of hearings of the previous cases took more time than was expected. The hearing of Mme. Dupuy’s case continued for an hour instead of 10 minutes.
At the beginning of the session, judge Tikhanskay read the appeal. It consisted of two points:
- To recognize as illegal the decision of the FSB of Russia to refuse to provide archival information to Elsa Marie Dupuis, expressed in the form of letter No. 10 / А-D-1489 from 05/04/2017.
- To require the FSB of Russia to provide Elsa Marie Dupuy with the opportunity to review the following archival documents kept in the Central Archive (CA) of the FSB of Russia.
After this, eight documents were listed, which Mme. Dupuy expected to receive access to and of which she requested to make uncensored copies. Of them, copies of five documents have never been presented by the FSB, and the other three were presented in the heavily redacted by the FAB format. Only in 2008-2009 the FSB released information about the existence of six of these records only in 2008-2009, much later than the Swedish-Russian Working Group (1991-2000) published its final report entitled “Raoul Wallenberg. Report of the Swedish-Russian Working Group” in January 2000.
Three of these records, about which the FSB reported in 2008 and 2009 without presenting copies, are especially important for the Wallenberg case. One concerns an interrogation of Wallenberg’s driver Vilmos Langfelder and his cellmate Sandor Katona on the evening of July 22, 1947, in Lefortovo Prison, another concerns the interrogation of Prisoner no. 7 and Wallenberg’s cellmate Willy Roedel the same evening, but in Internal (Lubyanka) Prison, and the third concerns the interrogation of Prisoner no. 7, Langfelder and Katona that started in early hours of July 23, 1947, and continued until 6:30 pm. As a comment to these interrogations, in 2009 FSB archivists wrote:
While analyzing once again the records of the calls of the prisoners of Internal Prison […] R. Wallenberg, V. Langfelder, S. Katona and V. Roedel [for interrogation] on 22 and 23 July 1947 by S. N. Kartashov [head of the MGB department in charge of the Wallenberg case – V.B.], we came to a definite conclusion about the fate of these persons.
The record [Prisoner] no. 7 with a high degree of probability can only refer to R. Wallenberg. At the same time, we kept in mind that after this date there is no record about calls for interrogation of prisoners no. 7, as well as of V. Langfelder and S. Katona, by officers of S.N. Kartashov’s department.
In other words, according to the 2008-2009 FSB information, on July 23, 1947, at 1:30 am Kartashov began interrogating Wallenberg (as Prisoner no. 7), then at 2:15 am Langfelder was brought to Kartashov’s office, and at last, at 2:35 am also Katona was brought to the same Kartashov’s office. The interrogation of all three prisoners continued until 6:30 pm. It seems this was the last interrogation of all three prisoners since FSB archivists couldn’t find records with these three names in later records. This information is extremely important per se, but it also undermines the reality of death of Wallenberg on July 17, 1947, according to the so-called Smoltsov Report, released by the Soviet authorities in 1957.
Although in 2008 FSB archivists released a redacted copy of a page with the names of Langfelder and Katona, the repeatedly refused to provide a copy of the same page with the record for Prisoner no. 7, who allegedly was Wallenberg. One can only guess if some censored, as well as unreleased records contain parts that the FSB doesn’t want to be known. After having appealed to the FSB and Russian leadership, Mme. Dupuy had no choice as to submit a lawsuit against the FSB.
In contrast to the first appeal filed to the Meshchansky Regional Court, this time the requested documents were described in detail, including page numbers of original records. This was done in answer to Churikov’s previous claim that without such details the requested documents could not be found.
At the end, the appeal suggested that the FSB would release copies of full pages of the requested documents with the names of persons connected with the Wallenberg case, but with redacted names of Soviet “third parties.”
However, the point of issue of the Moscow City Court was not Mme. Dupuy’s requests, but the legality of the ruling of the first instance Meshchansky Regional Court. According to the transcript of this session, provided by the “Team 29”, speeches by Mr. Pavlov and Ms. Gryaznova were short and focused on the illegality of the first instance court ruling. Ms. Gryaznova stated:
The court of first instance incorrectly interpreted the provision of the Federal Law “On Archival Affairs of the Russian Federation” [dated October 22, 2004] without considering the legal position in the decisions and definitions of the Constitutional Court, which are obligatory for execution by any court. In the decision of the first instance court, the court repeatedly uses the phrase “personal data of third parties” that is absent in the legislation. There is no such a legal term. The law “On Archival Affairs” restricts access to archival documents only if they contain information about the personal or family secret of a citizen.
However, the legal position of the Constitutional Court is that the “private life” is a part of the person’s life that concerns the individual only, and is not the matter controlled by the society and the state […]
Obviously, the names [of the “third parties”] contained in the requested archival documents do not constitute any secret, since they are at that time, as well as now, a subject of control by both the public and the state.
Mr. Pavlov added:
The Code of Administrative Court Procedure […] says that the Administrative Defendant must prove the legality of the decision. [Clearly], the Administrative Defendant needed to […] present to the first instance court a proof that the documents requested by [Mme. Dupuy] contain information about personal and family secrets of the [third] citizens, their private life, as well as information that threatens their security. […]
The [first instance] court treated facts the following way: “The answer sent to the Administrative Plaintiff states that such information is present in the requested archival materials.” But this answer was signed by the Administrative Defendant! […] The court accepts unfounded statements […] coming from a defendant who must prove the circumstances to which he refers! We’ve challenged the answer, and we were told [by the court]: “The answer is correct, because this is the answer to this and that.” This is wrong! […]
The private life of a person is that part of life that is not subject to control by society and the state. My principal asked for pages from call logs for interrogations, registration of prisoners and things, general alphabetical journals of prisoners. Obviously, these documents do not contain information about the personal and family secrets of the citizen.
The second main point of the lawyers was the following:
The next reason for refusing to provide information is that if the previously requested information was provided to a user, that is that it was provided to Elsa Maria Dupuy. The requested information was not previously provided to her and the Administrative Defendant provided no evidence that Elsa Maria Dupuy received the requested information. Therefore, since Elsa Maria Dupuy followed all the requirements that the current legislation demands for the procedure for sending the request, the refusal to provide the requested information by the defendant is illegal, which was not taken into consideration by the first instance court and led to the adoption of the wrong decision. We ask the ruling of the first instance court to be cancelled and to satisfy the demands of the Administrative Plaintiff.
Mr. Churikov answered with a long, very wordy speech which is hard to understand in Russian. According to the plaintiff’s lawyers, in vain the judges interrupted Mr. Churikov several times. Churikov made a few statements. Here are the main of them.
First, he claimed that “the FSB of Russia is not the legal successor of the MGB [Soviet State Security Ministry], [and] our [FSB’s] arguments that the archival information that is being requested is the property of the Russian Federation, and we are only the keepers of this information.” Clearly, a general succession of Soviet and then Russian security services was the MGB/KGB/FSB.
Second, Churikov claimed:
The investigative actions, for example, with Raoul Wallenberg, were conducted by the Main Directorate of Counterintelligence “SMERSH” of the Defense Commissariat of the Soviet Union. Not the MGB did it. In this respect, apparently, the FSB is considered as the heir of the repressive apparatus, but we are not heirs, we are only information keepers. […] We did not make records in these registers, we did not keep these people arrested without trial and investigation, which we tried to explain this in the first instance court.
In other words, according to Churikov (and, obviously, FSB), the fact that in 1946 “SMERSH” was included in the MGB as its 3rd Main Directorate and since then, Soviet military counterintelligence remained (and remains) part of the MGB, KGB, and FSB, means nothing. In fact, as it is known from archival documents, after “SMERSH” became part of the MGB, the same investigators and the same department as before continued the investigation into the cases of Wallenberg and Vilmos Langfelder.
Churikov stated that in the first instance court he explained that the FSB “did not refuse answering the Plaintiff about archival information. The archival information was provided to the plaintiff, but the documents that contain is, were not, and the plaintiff was informed that the archival documents contain information relating to third parties.” In other words, according to Churikov, the FSB reported the contents of documents, but can’t show the documents themselves because of the “third parties.”
As for the “third parties”, Churikov stated: “The Administrative Plaintiff was provided with information that the archival documents contain “personal secrets”, information concerning third parties.” He insisted that “arrested without a criminal case” and “being in prison” is personal information. As an example, he added that the plaintiff is requesting information that could discredit the honor and dignity of third parties. “You want to publish that he was in Lubyanka Prison, and his heir is alive now. A neighbor might think: Since the MGB arrested him, it means that he was guilty. Not every relative will want such information to be published.” He also declared that the plaintiff’s layers considered the publication of the “third parties” names possible “only because you think that the Administrative Plaintiff is a relative of a famous person.” Besides the absurdity of the statement that being arrested and kept in prison is “personal information” of a prisoner, it’s unclear why Churikov decided that the main goal of Mme. Dupuy’s request for documentation is their publication.
In the Meshchansky Court Churikov claimed that all documents Mme. Dupuy requested were mentioned the 2000 report of the Swedish-Russian Working Group that existed from 1991-2000, while, in fact, the FSB reported about the documents Mme. Dupuy requested for, in 2008-2009, in the City Court Churikov fixed the previous dates. He declared: “I am ready to provide an inventory of documents from 2016, the documents that between 1993 and 2014 were given to the Swedish side via the [Russian] Foreign Ministry and personally for publication.” Both 1993 and 2014 are wrong. Censored copies of the most important documents were released by the KGB representatives to the Working Group in 1991, not 1993. By January 2000, the official Working Group finished its work, and from 2005 to 2014, two independent researchers, Ms. Susanne Berger and myself, corresponded with the FSB Central Archive via the Swedish Embassy in Moscow. We have never represented “the Swedish side,” and we personally received in 2008-2009 FSB information about the documents uncensored copies of which Mme. Dupuy requested for.
Churikov continued: “I can present again the work of this commission [i.e., the Working Group – V. B.], which contains all the exhaustive information that are contained in these archival documents.” In the conclusive part of the court session he repeated this statement: “You won’t deny that this book, “Raoul Wallenberg. Report of the Swedish-Russian Working Group”, was examined by both you and the court of the first instance. I can show you another book published in Moscow.”
He also added: “I am ready to prove that between 1993 and 2014, we had released 216 copies of archival documents in this book, directly in person in Stockholm or through the Ministry of Foreign Affairs. Therefore, the argument that we are hiding something, that we did not provide something is not justified and you [i.e., the plaintiff’s lawyers – V. B.] have not proven. ”
In fact, in the City Court Churikov did not present anything, neither the inventory of 216 copies of documents from 2016, nor the Working Group report, or the second book, which title he even did not name. And the Working Group report was published in 2000, and could not cover the documents, information on which the FSB released in 2008-2009.
Unfortunately, the court did not order Churikov to present the inventory, the Working Group Report, and the second book. In other words, the court was not interested in seeing any proof of FSB’s statements.
In conclusion, Ms. Gryaznova stated:
It does not matter whether the FSB is a legal successor or not a successor, […] since the eighth federal law says that the authority must provide information, including that which it only keeps. As we understand, the Administrative Defendant is in possession of the information that Mme. Dupuy requests, therefore, it must be provided. The Administrative Defendant repeatedly stated while debating that he would present more than 200 pages, and they [the FSB] had already provided Plaintiff with it, and all of it had been published. If so, let’s show it to us! […]
If the Administrative Defendant says that this information has been published somewhere, he had to provide it, it is an obligation, in accordance with Article 247 of the Code of Administrative Proceedings. […] The Administrative Defendant has not proven any of the circumstances which he referred to in his objections and debates. And on this basis the FSB’s refusal is completely illegal. This information should be provided.
A very short remark. In the wordy speech of my colleague on the opposite side, one detail attracted my attention. It’s a fact that numerous archival materials were given to the Swedish side. I just want to remind you that my client is a Swiss citizen. And, by the way, as for your thesis that she is going to publish something in the European Union, I’ll remind you that Switzerland remains a neutral country. Always on that it stood.
As well as what is the approach of our procedural opponents in general: “We have already given it [the information], so we should not give anything again.” […] There is a certain contradiction in logic. You have already given it once, why then do you hide it, hand it over again. Especially since you gave it to one side, but absolutely another person is requesting for it now, and this person is now communicating with you, including trying to get from you those documents that you have given once.
After this the court left for the advisory room, and, after returning to the court room announced a decision to leave the ruling of the first instance court unchanged, and the appellate complaint, without satisfaction.
Mr. Pavlov and Ms. Grayznova are waiting for a written decision of the City Court. After receiving it, they are planning to make the next appeal to the Presidium of Moscow City Court.