Last week, ARTICLE 19 submitted an amicus brief to the European Court of Human Rights in ‘the right to truth’ cases against Russia. In the amicus, we argue that protection of the right to information under Article 10 of the European Convention of Human Rights encompasses the right of relatives of victims of gross human rights violations and researchers to access historical archives about past atrocities.
The case, Dupuy and Others v. Russia, concerns a group of applicants alleging various types of interference with their right to access to information about past human rights violations (‘the right to truth’). For example, one of the applicants is Marie Dupuy, the niece of Swedish diplomat and Holocaust hero Raoul Wallenberg who went missing in late 1940. She has been unable to obtain information from the archives of the Russian Federal Security Services (FSB) about the fate of her uncle. Another applicant is International Memorial, a non-governmental organisation that examines the history of political repression in the Soviet Union, seeking access to archival materials concerning victims of the Soviet repressions.
Based on an overview of international and comparative standards, ARTICLE 19 shows that the right of victims, their families, researchers, and society at large to know the truth about past human rights violations, including those committed during former authoritarian regimes, falls under the remit of the right to freedom of expression, guaranteed by Article 10 of the European Convention of Human Rights (the Convention). There is growing acceptance that archives are more than just repositories of information and that they have an active role in defending human rights. General access to archives is a means of justice and accountability and creates collective memory around atrocities, hopefully preventing the future repetition of grave rights abuses. We also outline what courts should consider when assessing whether the denial of access complies with the right to freedom of expression, recognising that restrictions on access to information could be justified in certain circumstances.
In the amicus brief, ARTICLE 19 shows that the right of victims and their relatives to access information from historical archives has been firmly recognised and enforced at the national level around the world, including in the majority of the Council of Europe member states. For instance, in Germany, every individual has the right to view the records that the Ministry for State Security collected about them, to find out whether they were subject to surveillance by the state security service, and to prevent this data from being used against them.
As for researchers accessing archives, the amicus brief argues that blanket denials of access to archival information about past human rights violations to researchers are incompatible with Article 10(2) of the Convention. Access to historical archives to a broader public can only be justified in cases where the denial has clear basis in the law, the denial is justified under one of the exceptions listed in Article 10(2), and is necessary and proportionate to the aim sought. Any exceptions, such as those made on the grounds of national security, must be balanced with the overriding public interest in the disclosure of information regarding gross violations of human rights.