aaus-list @ ukrainianstudies.org -- [aaus-list] Further on Ruslan Zabily, state secrets,and archival research
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- From: "Oxana Shevel, Prof." <oxana.shevel@tufts.edu>
- Date: Sun, 12 Sep 2010 23:46:38 -0400
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With their permission, I am
reposting comments by Oleksandr Melnyk and Jeffrey Burds from Facebook
on the case of Zabily and the issue of state secrets and archival
research. As non-historian, I found it most informative.
-Oxana
>>>
Oleksandr Melnyk: ok,
I am not a lawyer either, so i might be oversimplifying some of these
things. IMHO, there are several intertwined problems here.
Jeffrey Burds: Oxana and Alex--there is a very interesting
article at RFE: http://www.rferl.org/content/Ukrainian_Security_Service_Launches_Criminal_Case_Against_Lviv_Museum_Head/2153814.html
I find your presentation most interesting, Alex. But in my experience,
I found that things were not quite so accessible in earlier days,
despite changes in the law. Foreign historians working on sensitive
themes have not always enjoyed the same level of access that you do.
And there has been a tremendous amount of deliberate falsification
through redaction of document publications. So that this is not so much
a black-white issue as you imply.
As for declassification?
Most declassifications are categorical and general, and do not follow a
close review of every document. And yet, declassification was only the
first hurdle in past years. Archivists have been self-appointed
guardians of the gates, and have done a lot to restrict access on the
local level regardless of the laws.
All that said, detaining any scholar
without cause and interrogating him for 14 hours is a deeply disturbing
development.
Oleksandr
Melnyk:
I was responding to Oxana's specific question about the legal
underpinnings of the process. The directors of the archives obstructing
access to declassified documents is a separate question.
You certainly know more about declassification
process than I do, but, IMO, categorical declassification of the
security service documents is potentially much more problematic than
the categorical declassiification of documents of other institutions.
A
hypothetical situation: they declassify the materials on war crimes.
Let's say there exists a protocol of interrogation of some German guy
who during the occupation served as chief of SD or Gendermerie in let's
say Chernihiv or Zhytomyr. In the course of investigation, the NKGB
interrogators would no doubt ask about his local agents and secret
informers (they always did). He, of course, would give names and places
of residence.
A possible scenario: someone gets hold
of the protocol and reproduces it in the local newspaper or some other
publication. Potential
repercussions could be difficult to predict--e.g. somebody could try to
take revenge (if the person were still alive) or relatives of the
alleged informer could sue SBU for slander, etc etc. Yes, this sounds
like a pretty fantastic scenario, but I would be willing to bet money
security service officials keep such scenarios in mind (otherwise that
75 years rule would not be a legal norm).
Jeffrey Burds: Good
points. But in my experience, and in the experience of several scholars
working on similar themes, the archival authorities turn to the MVD or
KGB/SBU as holding vedomstvo or administrative ownership over certain
files. These files, as
you know, are usually sewn together. So some representative of said
agency appears, looks at 2-3 files, and not even every document in
those files, and then issues approval for blanket release of thousands
of pages of documents at a time. And thank God for this!!! Because so
much slips through this process.
As for your point? Ukraine
seems to parallel Russia here: files may be classified for, say, 30
years. But "materialy lichnogo proiskhozhdeniia" (materials of a
personal nature) fall under the rubric of prava lichnosti, rights of
privacy, and are sealed by law for 75 years. now these rights are FAR
more restrictive than in the west. For instance, one archivist told me:
"A grandson has the right NOT to know that his grandfather was a
rapist." So that they keep sealed criminal files for 75 years as
"materials of a personal nature."
Such interpretations lend a high degree
of arbitrariness to archival research and access.
-
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The most important legal documents regulating the archival domain in Ukraine today are the laws "On Information", "On State Secrets" and "On National Archival Holdings". The law "On information" in principle gives the right of access to documents that contain no "state secrets" and no "confidential information."
The Article 16 of the Law "On National Archival Holdings " allows the third parties to access "confidential information" only AFTER 75 YEARS.
Here is the exact wording:
"Доступ до документів Національного архівного фонду, що містять конфіденційну інформацію про особу, а також створюють загрозу для життя чи недоторканності житлагромадян, обмежується на 75 років від часу створення цих документів, якщо інше не передбачено законом. Раніше зазначеного строку доступ здійснюється з дозволу громадянина, права та законні інтереси якого можуть бути порушені, а в разі його смерті - з дозволу спадкоємців."
The latter article is at the center of the lustration controversy, but if interpreted broadly, it can also block access to some other materials--like case files of NKVD officers purged in 1937-1938, as well as those of individuals tried for "treason" and war crimes during WWII and not "rehabilitated" thereafter.
Between 1990 and 2005 a series of decrees obligated Ukraine's state and party archives to declassify Soviet era documents, which they by and large did (Here is the link to all the normative documents regulating the archival domain: http://www.archives.gov.ua
If my memory does not fail me, close to 98% of holdings of Ukraine's state archives had already been opened before Yushchenko assumed office. The remaining 2% were "confidential" materials.
DA SBU, however, is a horse of another color. Due to the nature of the activities of the security service, the archives of the SBU naturally contain a much larger share of "confidential" information than do party and state archives. Security services everywhere generally do not like to release information that could shed light on the nature of their operations. In the case of Ukraine this tendency has been aggravated by the political conservatism of the SBU apparatus and their willingness to identify with the legacy of the ChK-GPU-NKVD-NKGB-KGB and Soviet historical narratives (apparently to this day many SBU officers informally describe themselves as "chekists").
Kravchuk and Kuchma took this for granted. And while both embraced some form of historical revisionism, neither attempted to open the archives of the security service. Then came Yushchenko. Much has been written about his historical politics and largely negative consequences thereof for the Ukrainian society and its democratic development. I generally don't disagree with many of such estimates, though I am not too sympathetic to attempts to portray the approach to the politics of history by Yushchenko and his cadres (Vyatrovych and others) as essentially equivalent to that of Soviets.
Some things to keep in mind:
a) Many key materials on the OUN and UPA allowing engagement with dark sides of Ukrainian integral nationalism are actually located not at the DA SBU--e.g. the archive of the OUN itself is at TsDAVOVU and has for years been open to historians. Same goes for TsDAHOU and regional archives. Had Yushchenko closed these archives, then the charge of monopolizing archival access would hold water. But that was simply not the case. Also, the documents accessible at the DA SBU do not always portray the OUn and UPA in unquestionably positive light (in other words, one has to keep clear the distinction between the massif of declassified documents and their political usage by the ideologists, which could be and often was extremely selective).
b) one simply can't make everything public without breaking the existing law (see above)--unless the parliament passes the new one that radically changes the rules of "confidentiality" (Seems unthinkable to me at the moment).
Somebody therefore has to read these files and make a decision as to which files can be legally declassified. The problem is we are talking about tens of thousands of files and millions of pages of documents. Staffs of the SBU archives are not very large even in Kyiv, not to mention in the regions. Even assuming they work full time on declassification (impossible), it would take years to lay a significant percentage of them open ( V.Vyatrovych recently stated that only 10% of the SBU collections are currently declassified).