Case Summary and Outcome

The Russian Cassation Chamber of the Supreme Court upheld a decision from a lower court that regulations which restrict access to information about historical criminal investigations were constitutional. The matter had been brought by a non-governmental organization working on the history of political repression in the USSR. However, although the Court noted that limitations to the right to access to information existed in Russia, it also referred to the Federal Law on Archive-Keeping in the Russian Federation which states that archival documents may be withheld from public disclosure only if they contain information which could infringe upon a citizen’s private life.

This case analysis was contributed by Right2Info.org.

Facts

In 2006, the International Memorial Society (Memorial), a non-governmental organization in Russia which seeks to defend the memory of political victims in the Union of Soviet Socialist Republics (USSR) whose members are historians specializing in the history of political repression in the USSR, challenged the constitutionality of Regulations which had made it extremely difficult to access archival materials concerning victims of repression.

The Regulations applied to various forms of information including decrees by investigating officers, transcripts of interrogations, evidence of offences/crimes, as well as court decisions and other documents issued by investigating authorities and courts. In particular, the Regulations prohibited access to materials for 75 years from the date of discontinuation of administrative, criminal, filtration and check cases. These cases had been initiated by Soviet authorities after World War II in relation to persons captured and repatriated by fascists to determine whether such persons were foreign spies or agents, and the Regulations therefore made it especially difficult to access information in the case files of administrative and criminal procedures against people for political reasons.

In contrast, the Federal Law on Archive-Keeping in the Russian Federation states that archival documents may be withheld from public disclosure only if they contain information comprising personal or family secrets or information concerning a citizen’s private life.

The court of first instance had ruled that limitations on the right to access of information, when that information comprises personal or family secrets or information concerning a citizen’s private life, exist in Russian federal law, and had rejected Memorial’s argument that the Regulations were unconstitutional. Memorial then approached the Supreme Court.

Decision Overview

The Supreme Court was required to determine whether the Regulations were unconstitutional on the basis that they unjustifiably limited the right to access to information.

The Court examined the scope of the Regulations, and explained that article 6 of the Regulations allows parties to cases, their relatives, heirs, representatives and government persons to seek access to archived and resolved criminal or administrative cases. In addition, the article allows “other parties” to access these archived documents even before the general limitation of 75 years have passed but only with written permission of the person whom the documents concerned, or their heirs. The 75-year limit is also mentioned in the 2004 Federal Law No 125-FZ on “Archive-Keeping in the Russian Federation” which states that access to archived documents which contain family or private secrets of a person or that may pose harm to the person’s security is limited for 75 years from the date of the issuance of the documents.

The Court undertook an analysis of the other laws which address access to information. Article 11 of the Russian Federal Law No. 1761-1 from 1991 which concerned “rehabilitation of victims of political repressions” stated that a rehabilitated person or his/her relative, with the permission of the rehabilitated person, has the right to access archived administrative or criminal case documents, which concern them. The 2006 Federal Law No 149-FZ on “Information, information technology and protection of information” permits limitations to access to information to protect the constitutional system, morals, health, the rights of persons, and defence of a country.  That law also splits information into two types: publicly accessible information, and information that is limited by Federal Law.

The 2009 Federal Law No 8-FZ on “Access to Information on the Activities of Government and Self-Governing Bodies” outlined the principles underpinning access to information. The Court stressed that the key principle of access to information in relation to government activities includes not only openness and transparency but also the respect for the rights of others, and the inviolability of private life, and private or family secrecy.

Having examined the relevant legal provisions, the Court held that the first instance Court was correct in emphasizing that limitations on the right to access of information – when that information includes personal or family secrets or information concerning a citizen’s private life – exist in Russian federal law.

The Court also agreed with the first instance Court’s rejection of Memorial’s argument that the Regulations were unconstitutional in that they limited access even to filtration and check case documents that did not contain private information or family secrets since the documents still included information that demanded a written permission of a person whom the case concerned or their heir. However, the Court did not define what information requires such permission.

The Court clarified that the the limitations imposed by the Regulations apply only to archived documents which include personal or family secrets or information about a citizen’s private life, and highlighted that the Regulations do permit access to the documents to persons who fall outside of the “other persons” category.

On this basis, the Court upheld the lower Court’s decision.