Absurdity and Reality
A month has passed since the detention of Ruslan Zabily, Director of the National Memorial Museum of Victims of the Occupation Regimes “Tyurma na Lonskoho”, his 14-hour interrogation, the removal of memory drives, the search and removal of a number of documents from the museum itself to check to see if they contain state secrets, and the initiating of a criminal investigation “over the preparation by an SBU [Security Service] employee to divulge information constituting a state secret, that is, under the crime envisaged by Article 15 § 1 and 328 of the Criminal Code. At the same time information was posted on the SBU website stating that “It has been established that SBU employee R. Zabily in order to pass it on to third parties unlawfully gathered information constituting a state secret. On 8 September 2010 on his arrival from Lviv to Kyiv he was detained with this information. At present the circle of people whom the said information was intended for is being ascertained.
In the first 10 days after this there were press conferences, statements from SBU management and the archivists deprived of their documents, demonstrations around the entire country, collective letters in support of Zabily from historians both western and from within Ukraine, and the instruction by the President to transfer the Museum from the SBU to the Institute for National Remembrance. Nothing has changed. The Museum with its Director is peacefully working with the documents which remain. There has been no criminal investigation work according to Zabily and his colleagues. None of what was first removed has been returned. This is despite the fact that it is totally unfathomable what state secrets of independent Ukraine could be sought in such documents removed as the 1940 version of the UkrSSR Criminal Code; numerous documents from the Second Polish Republic of the 1930s (orders, reports from woewoda departments of the State police; criminal files against members of UVO [Ukrainian Military Organization] and OUN [Organization of Ukrainian Nationalists], etc; recordings from 2009-2010 with recollections of UPA [Ukrainian Resistance Army] fighters and Ukrainian dissidents made by staff of the Museum. The situation is truly absurd. How long does an expert analysis take to find out whether the documents contain state secrets when it is a priori clear that documents of the Soviet period about political repression cannot contain secret information as per the 1994 Law on State Secrets? If they had, God forbid, found even one document stamped “secret” or “top secret” among Ruslan Zabily’s documents, they would have immediately informed of this and he would have already been charged. Yet this has not happened.
The situation requires at least brief legal commentary. Documents of the Soviet period contained in the SBU archives have the stamps “secret”, “top secret”, “personal” and others. According to Article 34 of Ukraine’s Constitution, “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”
The stamps “secret”, “top secret” and others restricting access to information from Soviet times are not defined by any Ukrainian law at all. They were introduced in the USSR by Instruction No. 0186 which was itself secret and not on open access. Normative acts of the Soviet period are only valid in Ukraine where they do not run counter to the Constitution. Instruction No. 0186 clearly breaches it and cannot be applied in Ukraine. Therefore refusals to provide information and access to archival files with Soviet stamps restricting access are entirely unlawful.
It should be expected that information needing to remain secret should have long since received such status pursuant to the 1994 Law on State Secrets. Any assertion that Soviet documents regarding political repressions are secret is absurd. The refusal to give access to such documents on the grounds of their Soviet stamps is quite simply unlawful. The criminal investigation under Article 328 of the Criminal Code due to Article 15 § 1 shames not only the SBU, but the reputation of Ukraine itself.
At a briefing on 17 September the Head of the SBU, Valery Khoroshkovsky stated among other things, that “going by a description of the document, which is in Russian, so allow me to say a couple of words in the language of the original: “List of people involved in the case”. Here 203 people are mentioned, and perhaps there are people still alive. There are there relatives, they have to give their consent to this.. there is material from 73, 75, 78. These people are among us now. And I am not certain that they wish somebody to publicly hold this information in an unlawful manner.”
Note, Mr Khoroshkovsky is talking about an entirely different issue, about restriction of access to declassified archival documents. It was about this that other SBU employees spoke at briefings, and not a word about divulgence of state secrets. So maybe it’s time to put an end to this, to terminate the criminal investigation on plans to divulge state secrets given the absence of elements of the crime and return the archivists the information removed? And turn to discussion of an important and complex problem – what should be the balance between the right of the public to have access to archival documents and the right to privacy of those who figure in these documents when the latter do not for whatever reason wish access to be open.
Archival documents about political repression often contain information which the Security Service does not wish to be divulged: the names and other personal details of those who took part in persecution – investigators, experts, witnesses, prosecutors, judges, lawyers, pieces of information about operational officers, etc. Here the question arises of how warranted it is to deny access to confidential information about a person who took part in repression. After all each person has the right to know the names of those who take part in their persecution and the people as a whole have the right to the truth, including the maximum information about the activities of the repressive regime. The people have the right to have those guilty of human rights violations identified.
In most post-communist countries the said conflict between freedom of information and the right to privacy is decided in favour of freedom of information. This was the case in Germany, Poland, Hungary, the Czech Republic and other countries, however each had their own special features and exceptions. For example, the Constitutional Court in Hungary stated that the right of citizens to access to their own dossiers “does not belong to the right of the victim to know who was carrying out surveillance over them”.
Here the right of the victim to restriction of access to his or her dossier in the overwhelming majority of countries overrides the right of the public to use the data for their historical research. In the given case the conflict is resolved in favour the right to the victim’s privacy. In Ukraine there are not just isolated cases where the victims of political repression or their descendents have banned in full or in part access to their archival-criminal files.
The author cites a depersonalized example of an archival document to show why a ban on circulation of a declassified document might arise. It is basically a report sent to the First Secretary of the regional committee [obkom] of the Communist Party about a meeting under a nationalist flag. It explains that measures aimed at compromising the person are being taken, describing some of them. The author is the head of the local KGB.
The author says that such an example convincingly demonstrates why the right of the victim to restrict access to his own dossier should prevail over the right of access to it. Neither the former dissident referred to in it, nor his “contacts” would perhaps wish this document to be published and circulated. It is entirely possible that the mention in it of “intimate contacts” is a lie invented in order to antagonize the young people, the Head of the KGB division does after all speak of measures to compromise the person before his contacts. We know that the KGB resorted to such revolting practices tin their activities against human rights activists, fabricating criminal cases, spreading defamatory and foul rumours about marital betrayal, about people denouncing one another etc. This is why some dissidents explain their request to close access to their archival criminal case, there being a lot of lies there. One can understand their position however in my view commentary to archival documents would simply be needed to reinstate historical truth. At some stage the period for which access is restricted will end and the descendents of dissidents will have the file with documents in which foul things were written about their ancestors and there won’t be anybody to defend them.
In contemporary politics we constantly run up against such situations where a politician has had mud slung at him, through wrenching up facts about his private life. The author mentions a recent case which since he himself says it is an invasion of privacy, it seems best not to give in detail since the reader is unlikely to have heard of it. He stresses that it does not matter whether the documents and video are authentic or not.
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