No issue from the archive – Kommersant

On January 29, the Moscow City Court rejected an appeal in the lawsuit of 82-year-old US citizen Nadezhda Efremova, who is trying to obtain the criminal case of Boris Menshagin, convicted of collaboration during the Great Patriotic War, claiming that this is her father. Previously, the FSB archive refused to give Ms. Efremova documents, saying that Mr. Menshagin had not been rehabilitated. Lawyer Marina Agaltsova intends to appeal the refusal to the Supreme Court, and, if necessary, to the Constitutional Court. She points out that Boris Menshagin was convicted under a criminal article, which does not imply rehabilitation. The law, according to her, does not directly prohibit the disclosure of cases of unrehabilitated people, but the FSB’s interpretation bars access to them forever.

In July 1941, German troops occupied Smolensk and appointed local lawyer Boris Menshagin as burgomaster. In this position, he, in particular, organized the Jewish ghetto, where 1,400 people died. During the German retreat, Boris Menshagin and his family left the city. His wife and daughter were able to reach the United States, and the former burgomaster was detained in June 1945 in Karlovy Vary, Czech Republic. In 1951, he received 25 years for treason and served his sentence in full. After his release, Boris Menshagin lived in a home for the disabled, where he died in 1984. His daughter, US citizen Nadezhda Efremova, tried several times to contact her father, but all letters were returned without response. Having lived to an old age, she decided to “comprehend her father’s life” and turned to lawyer Marina Agaltsova for help.

Mrs. Efremova wanted to get acquainted with the criminal case of Boris Menshagin, which is stored in the FSB archives. The situation was complicated by the fact that she did not have any documents directly proving the relationship.

In January 2022, Marina Agaltsova contacted the FSB Central Archives. A month later, the department responded that Boris Menshagin’s case had been declassified, but access to it was limited. The FSB referred to Article 25 of the Federal Law “On Archival Affairs”, the Law “On the Rehabilitation of Victims of Political Repression” and “Regulations on the Procedure for Access to Materials Stored in State Archives and Archives of State Agencies of the Russian Federation, terminated criminal and administrative cases against persons subjected to political repression, as well as filtration and inspection cases.” Scientists call the latter document the “triple provision”, as it was adopted by a joint order of the Russian Ministry of Culture, the Russian Ministry of Internal Affairs and the Russian FSB in 2006.

“Article 11 of the Law on Rehabilitation states that rehabilitated persons and their relatives “have the right to familiarize themselves with the materials of terminated criminal and administrative cases and receive copies of documents.” But the FSB and the courts conclude that the cases of those unrehabilitated should remain closed. And even relatives cannot familiarize themselves with them,” says Ms. Agaltsova. “Clause 5 of the “triple provision” states that it does not regulate issues of access to materials for unrehabilitated people. But then it is said that in such cases an archival certificate is issued. Based on this clause, the FSB archives and the courts refuse to familiarize themselves with the cases of unrehabilitated people and issue only an archival certificate on them. As a result, access to materials for those who have not been rehabilitated is effectively closed forever.”

The lawyer again contacted the FSB Central Archive. She recalled that Boris Menshagin was convicted as a war criminal and his actions are of an ordinary criminal nature, which means he cannot be rehabilitated as a victim of political repression. However, the FSB again refused, duplicating the arguments of the first letter.

In November, the lawyer filed a lawsuit against the Russian FSB and the FSB Central Archive in the Meshchansky District Court of Moscow. But in February 2023, the court refused to issue the case: “The above legal provisions do not provide for the right of citizens to familiarize themselves with the materials of criminal and administrative cases with negative conclusions on the rehabilitation of persons involved in them.” In addition, the court noted the absence of documents indicating the family connection between Nadezhda Efremova and Boris Menshagin.

Agaltsova’s lawyer filed an appeal with the Moscow City Court. In her opinion, the Meshchansky court “applied the wrong law,” since neither the Federal Law “On the rehabilitation of victims of political repression” nor the “triple provision” apply to the war criminal Boris Menshagin. The lawyer recalled: on August 29, 2016, the Supreme Court found that paragraph 5 of the “triple provision” does not apply to materials of criminal and administrative cases “with negative conclusions about the rehabilitation of persons involved in them.” In 2019, a similar position was expressed by the Supreme Court in its cassation ruling on the claim of Georgiy Shakhet. As Kommersant wrote earlier, Mr. Shakhet challenged the Ministry of Internal Affairs’ refusal to have access to the case of his grandfather Pavel Zabotin, who was executed in 1933 for a common crime, not a political one. As a result, the Supreme Court allowed Mr. Shahet to familiarize himself with the criminal case of his relative. And in 2022, the Constitutional Court indicated that the provisions “do not establish an indefinite ban on familiarization with archival materials of criminal cases containing information about unrehabilitated persons.”

Marina Agaltsova told Kommersant that she intends to appeal the refusal to the Supreme Court, and, if necessary, to the Constitutional Court. According to her, after Georgiy Shakhet’s lawsuit was won, human rights activists and historians hoped to open access to materials of unrehabilitated people. However, this did not happen, the lawyer says, the FSB and the courts continue to deny access to such materials.

Mrs. Agaltsova is confident that in the case of Boris Menshagin, the ban is not only illegal, but also absurd: “He is a war criminal, a Nazi collaborator, who himself admitted to the extermination of Jews in Smolensk when he was burgomaster there. The fight against Nazism is possible only when the whole truth about the atrocities of the Nazis and collaborators is known, which means the opening of all archival documents. But it turns out that the FSB does not want to open data on Nazi crimes.”

Archives researcher and author of the book about Stalin’s repressions “Spasskaya Beauty” Sergei Prudovsky told Kommersant that back in 2020 he tried to get from the FSB access to the criminal cases of NKVD employees convicted of participating in Stalin’s repressions: “Their cases should contain testimony about how the investigation was carried out, how testimony was obtained, how their testimony was falsified. This is very important for understanding how the mechanism of terror worked.” However, he was refused for the same reasons as Georgy Shakhet and Nadezhda Efremova. The researcher went all the way to the Supreme Court, but never achieved the disclosure of the required archive. Mr. Prudovsky emphasizes that the case of Boris Menshagin is important for countering the falsification of history: “Many years have passed since Menshagin’s conviction, yet for some reason the authorities do not want to give access to his case. Menshagin is a criminal, no one denies this. His file is important because it must contain his explanation of why he acted as he did. We need first-hand information, but we don’t have it.”

Emilia Gabdullina