Problems with access to information on political repression in the SBU Archives
The Central Branch Archive of the SBU [State Security Service] in Kyiv and its divisions in the Crimea, Sevastopol, and in 24 regions [oblasts] contain a large number of documents from Soviet times about political repression and politically-motivated surveillance – more than 1.5 million volumes. In Kyiv there are more than 109 thousand containers of documents, in 26 regional archives – more than 735 thousand. Some of the documents have still not been sorted out. The earliest documents date to 1919, the latest – 1991.
The absolute majority are labelled “Secret”, “Top secret”, “Personal” or with other stamps. Up till recently the vast majority of these documents remained secret and were not shown to anybody. Even researchers with access to State secrets complained that it was extremely difficult to receive documents for their work in the SBU Archives.
Some of the archival files were nonetheless open. In accordance with the Law on the Rehabilitation of Victims of Political Repression, passed still in Soviet times, in April 1991, access to archival criminal files of victims of political repression who had been rehabilitated was available to the victims themselves, their relatives, and if permission was given by the victims or their relatives – to researchers. These collections were passed from the SBU archives to those in the regions. However access where the victims had not been rehabilitated was not granted although there were no legitimate grounds for refusing access.
We would note that the practice of refusing access to classified archival material of Soviet times was, following the adoption of the Constitution, entirely illegal. After all, Article 34 of the Constitution states that: “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.”
Stamps such as “secret”, “top secret” and others restricting information from Soviet times are not defined by any Ukrainian law. They were introduced in the USSR through Instruction No. 0186 which was itself secret. Normative acts from Soviet times are valid in Ukraine only where they do not run counter to the Constitution. Instruction No. 0186 clearly infringes the Constitution and cannot be applied in Ukraine. Refusal to provide access to information with stamps from Soviet times is therefore unlawful.
It was clearly necessary to review all documents classified secret by the Soviet regime and make open that data which it was senseless or unnecessary to classify further in independent Ukraine, and to stamp “secret” or “top secret” in accordance with the Ukrainian law on State secrets. In all countries of Central and Eastern Europe there are norms in the new laws on State secrets envisaging the review of old information classified by communist regimes. Unfortunately there is nothing like this in the Ukrainian Law on State Secrets, passed in January 1994. This process of systematic review of the old Soviet legacy was partially initiated by the Presidential Decree No. 37/2009 from 23 January 2009 “On the declassification, making public and study of archival documents linked with the Ukrainian liberation movement, political repressions and Holodomor in Ukraine.” In accordance with this Decree a special sector was created in the SBU archives on reviewing archival documents of Soviet times. During 2009 more than 16 thousand archival documents were declassified. This is clearly only a small part of the huge number awaiting review. According to the Head of the Archives Volodymyr Vyatrovych it makes up only 2-4% of the total, and the review will be continued.
This process poses many questions for archivists, both in terms of content and procedural issues. The archival documents often contain a lot of information which security services do not want to make public – the names and other personal details of those who took part in the repressions, snippets of information about investigative officers and plans. Such data is confidential information about a person or secret. According to Article 16 of the Law on the National Archival Collection and archival institutions, access to such documents is restricted for 75 years unless otherwise envisaged by law. On the basis of this norm, the archives refuse to grant access to the document as a whole, violating the well-known principle of freedom of information: “the information is to be classified, and not the document”. This practice must be changed. Archivists should provide access to the open access part of the document, making a copy of it, and blotting out the data not to be divulged.
Yet here the question arises of how justified in general is it to refuse access to confidential information about a person who took part in repression. After all each victim has the right to know the names of the people who persecuted him or her, and the public have the right to the truth and particularly to maximum information about the activities of a repressive regime. They have the right to identify people guilty of human rights abuse. We should note that the Law on State Secrets does prohibit the classifying of information about human rights violations and abuse by State bodies and their officials. The more general principle of habeas data should apply – each person has the right to know archival data collected on him or her. This right also applies to officers of the Security Service. If the person has died, the right is extended to their relatives, who should also have the right to information about the fate of a person who disappeared as the result of Security Service activities.
In most post-communist countries this collision between freedom of information and the right to privacy is mainly resolved in favour of freedom of information. This has been the case in East Germany, Poland, Hungary, the Czech Republic and other countries, however each has their own specific features and exclusions. For example, Hungary’s Constitutional Court decreed that the right of access to ones own file “does not pertain to the right of a victim to know who carried out surveillance on him or her”.
Whether the public has the right to know the names of official and unofficial employees of the Security Services of repressive regimes has also been decided differently with most countries condemning repressive practice and not wanting to allow their repeat or the use of information about the participants in the repressions in the future have passed some kind of law on lustration. This consists of banning former
official and unofficial employees of communist Security Services from occupying certain posts in the new state. They include the principle that the new security services must not use files and information created by communist security services since national security of a democratic state is not the same as that of a communist state. Information about people carrying out public functions which indicate past activities violating the principle of the rule of law, for example, as officers of communist security services, are of considerable public interest which outweighs their right to privacy. Lustration laws differ in procedure and the level of access to the names and files of former security service officers – from open names (Germany and the Czech Republic) to classifying such information as a State secret and banning its divulgence (Poland, Estonia).
The right of the victim to restrict access to his/her file in the vast majority of countries outweighs the public’s right to use such information for historical research. It is not infrequent in Ukraine for the victims of political repression to prohibit totally or in part access to the files of their relatives.
In Ukraine the main mass of cases of operation officers records and agent files were destroyed and a considerable part of the archival files was taken in 1989-1991 to the Central KGB Archive in Moscow, and therefore the issue of lustration is largely of a theoretical nature. Nonetheless a large weight of existing files, the interests of victims of political repression and Ukrainian society as a whole require the removal of stamps of secrecy of the Soviet regime, a change in legislation on access to information, State secrets, archives and practice in their application, as well as resolution of all issues arising during this process.
Yevhen Zakharov and Alexandra Matvyychuk, PhD student of Kyiv State University endeavoured to discuss this at the seminar on Freedom of Information and Access to Archives for employees of 26 regional SBU archives in Kyiv on 9 December. This was the Kharkiv Human Rights Group’s first attempt to compare international standards of freedom of information with legislation and practice regarding access to archives before such an audience.
When asked why relatives of those rehabilitated were only allowed to copy material from the archival files of a non-procedural natures, the archivists rushed to explain that one must not circulate the names of investigators, experts, witnesses, prosecutors, judges, lawyers and so forth. This was intruding into their private life and prohibited by law. They after all had descendants who would find it unpleasant to learn that their grandparents had taken part in political persecution. In response to the argument that it was also important for the victims and their relatives to know who had persecuted them and how specifically they had intruded in their private life, it was stated that the information was secret in accordance with Articles 4.1 – 4.6 of the “List of items constituting a state secret” and which must not be circulated. The objection that the List mentioned refers to operational activities of the 1990s and 2000s, of operational activities of independent Ukraine, not of officers of the Cheka/GPU/NKVD and KGB from the 1920s to 1980s, was rejected by one archivist on the grounds that the methods of operational work now and in Soviet times were similar and therefore the information must not be divulged. Another argued that there would be no new people willing to be unofficial agents if they divulged the names of secret officers from before. A third argued that security services throughout the world have always kept their agents secret and that such divulgence would destroy the security service. One even asked “who needs such a security service that persecutes its citizens for their convictions?”
There was no comprehensible answer given to why non-rehabilitated victims of political repression are not provided access to their criminal files. In the main they said it was practice, and that if there was an order to provide access, they would fulfil it. Volodymyr Vyatrovych said that since there were no laws prohibiting access to this material, it should be open and handed over on request. Access should also be available for relatives, just as with the files of those rehabilitated.
The archivists reacted with antagonism to arguments as to why refusing to provide information from documents with Soviet stamps restricting access. As well as the arguments already voiced about it being unacceptable to divulge state secrets, two others were heard: “The SBU and FSB (Russian Security Service” have a mutual agreement to not divulge state secrets. The FSB is the successor to the KGB and therefore, by revealing the state secrets of the KGB, you are violating this agreement. You need to agree this each time with the FSB.” The second new argument was that there are many joint secrets of Ukraine and Russia on defence issues.
Yevhen Zakharov responded that if the FSB planned to celebrate the 90th anniversary of the founding of the Russian security service, was the successor to the KGB and took on the responsibility for all the crimes of the Soviet security services, this was the internal affair of the Russian Federation, and in no way obliged the SBU, which was in no way the successor to the KGB, to retain all state secrets of Soviet times. For that they had created a special sector whose staff were to re-examine Soviet secret material and decision which could be divulged and which came under the Ukrainian Law on State Secrets.
Mention of lustration aroused strong rejection and irritation from the participants. It was clear that they could not even imagine this being possible in contemporary Ukraine. The exception was seen in young members of staff of the sector on declassifying archival material of the Kyiv Archives, who listened with interest to our arguments.
The seminar showed that staff of the regional SBU archives know little about the work of their colleagues in Central and Eastern Europe and are not yet psychologically ready for change. Even if they receive an order to work in another manner, they will have difficulty changing their views, and therefore such meetings, aimed at developing a culture of openness inherent in European countries, are vital.