Legislation

Legislative framework

After the restoration of Estonia’s independence on 20 August 1991 and the decision of the Government of the Republic of Estonia to discontinue the activity of the KGB in Estonia (26 August 1991), negotiations began with the USSR KGB for the termination of the ESSR KGB and also for handing its archival materials over to the Republic of Estonia. According to the agreement signed on 9 October 1991 by the Prime Minister of Estonia, the chairman of the USSR KGB, and the chairman of the ESSR KGB, the signatories were obligated to trilaterally form a special committee for handing over the archival materials, and the archival collections that were to be handed over were designated.

In October of 1991, the director of the Estonian Archival Board Peep Pillak also presented a public demand for KGB materials to be transferred to the national archive, which was being reorganised at that time. Yet another year and a half passed before the order issued by the Government of the Republic of Estonia on 19 April 1993 prescribed the transfer of KGB materials from the Police Board’s archive to Estonia’s national archive system. The Estonian Archival Board formed a committee for launching the takeover process. The employees of archives were involved in carrying out an inventory check on the materials that were to be transferred. By the end of 1993, most of the archival collections of the ESSR Committee for State Security together with their accompanying  finding aids had been brought to the depositories of the Estonian National Archives Branch Archive (Communist Party Archive) in Tallinn.

In summary, the KGB handed only a small portion of its archive over to the Republic of Estonia. The complete composition and preservation of the ESSR KGB archive and of documentation that had not yet been archived at that time is unknown at the present time. The most valuable part of what has been handed over to the Estonian state nevertheless makes it possible to research communist crimes at their high point in the 1940s and 1950s, and to ascertain the fates of their victims and identify the individuals who committed crimes against humanity. In addition another small quantity of KGB foreign intelligence files concerning Estonia was transferred to the National Archives of Estonia from the Estonian Government Office in 1997. How the Estonian authorities came into possession of these files is not precisely known. Currently, a total of 114,431 files of KGB documents and collections of photographs are preserved in 19 National Archives’ collections.

In Estonian society, matters associated with KGB documents preserved in Estonian archives have lost their sensational aura. People have arrived at the belief that major exposés can no longer come from those documents, and have largely come to terms with the fact that individuals were extensively involved in covert collaboration with the KGB. A relatively similar per- ception of the credibility of KGB documents as historical source material prevails among Estonian historians, which allows these documents to be used in research work while carefully apply- ing source criticism.

Institution in charge of the archival records

According to the Estonian Archives Act (2011), access to every archival record preserved at the National Archives is open to all, if restrictions established in the Public Information Act, the Personal Data Protection Act, the State Secrets and Classified Information on Foreign Affairs Act, or in other legislation do not extend to it.
Requirements concerning the protection of personal data that have become tougher year after year have started regulating access restrictions on materials containing personal data concerning third parties in a more clear-cut manner.  e Personal Data Protection Act (passed in 1996, 2003 and 2008) has gone through a noteworthy evolution over the years. One of the aims of the wording of the new Personal Data Protection Act (IKS)8 that went into e ect in 2008 was to regulate the processing of personal data for research and statistical purposes, which had previously not been provided for (IKS § 16).  The general principle of the act is that the processing of personal data is allowed only with the consent of the data subject (IKS § 10). Without consent, it is permissible to process the data of those individuals since whose death over 30 years have passed (IKS § 13).  The implementation of the principles established by the new legislation extended the number of KGB archival collections subject to access restrictions.  us at the current time, only 4 KGB collections, of a total of 19, can be used without restrictions.
The basis for access restriction is IKS § 4 section 2, which defines so-called “sensitive personal data” among the overall body of personal data. These are:

1. data revealing political opinions or religious or philosophical beliefs, except data relating to being a member of a legal profession in private law registered pursuant to the procedure provided by law;
2. data revealing ethnic or racial origin;
3. data on state of health or disability;
4. data on genetic information;
5. biometric data (above all fingerprints, palm prints, eye iris images and genetic data);
6. information on sex life;
7. information on trade union membership;
8. information concerning commission of an o ence or falling victim to an offence before a public court hearing, or making of a decision in the matter of the offence or termination of the court proceeding in the matter.

Information on the existence and conditions for use of archival records with restricted access is public. All archival material in Estonia, including materials of the former KGB, can be found via the online Archival Information System National Archives of Estonia and Tallinn City Archives. KGB and Ministry of Internal Affairs archival collections can be found in the National Archives directory of collections. KGB and ECP materials are physically preserved in the City of Tartu in modern depositories, which were completed along with the main building of the National Archives in 2016.

According to the procedure established at the National Archives, restriction of access is initially applied to the collection as a whole, yet in issuing materials to researchers, decisions are made based on individual files. In order to gain access to KGB archival records to which access is restricted, the researcher must give grounds for his need for access and the National Archives must verify the researcher’s need for access, which may derive from his occupational tasks or research interest. For this the researcher submits an application for an access permit. If the researcher’s right to access information derives from legislation (fulfilment of occupational tasks, perusing information concerning oneself, perusing with the written consent of the data subject, or other such circumstance), the grounds provided can be minimal and the archive does not implement a deliberation of the decision. In all other cases, a description of the research theme and the expected result that is as detailed as possible must be presented in the application, because the National Archives decide on providing access by way of deliberation.

In summary, in Estonia a rather bureaucratic model of access to KGB materials is now applicable.

Legislative framework

The German Democratic Republic Ministry for State Security’s operational activities had been stopped due to many district administrations having been occupied by angry citizens at the beginning of December 1989 and due to the Berlin Central Administration having been seized by demonstrators and occupants on January 15th 1990. Following January 15th 1990 when these documents were taken over, this archive was submitted to the GDR State Archive Administration and the buildings were guarded by the police and Civil Committee members.

The Ministry for State Security’s  files already played an important role during the Peaceful Revolution and the subsequently led fierce debate regarding the files being opened and finally, when the Socialist Unity Party (SED) dictatorship was reappraised. It was right that people warned about focusing too much on the Ministry for State Security and its files as the Ministry for State Security was no independent actor but a Socialist Unity Party power instrument. 

The goal was to unlock the knowledge about power structures, address openly the injustice and make the information accessible which is indispensable for reappraising, thus turning around the purpose for which they were originally intended and used. The timely opening and use of the secret police files without any archive blocking period furthermore represented a legal challenge as this situation meant getting onto hitherto unknown societal-political territory of which there had been no historical example. The Stasi Records Act (Stasi­Unterlagen­Gesetzes, hence the abbreviation StUG) of 20 December 1991 laid down the foundation for a comprehensive reappraisal by using the Stasi files which is a process that has not been completed yet.

The Ministry of State Security’s central search mechanism was a huge index card system. The central card  files contained information collected by the Ministry for State Security, which was regarded as interesting – be it for whatever reasons.  These card files listed people (the so-called F 16),  files (the so-called F 22), code-names (the so-called F 77) as well as streets and important objects (the so-called F 78).  The fact that it was possible to take over these files in a virtually undamaged shape played a decisive role for the subsequent use of the archive for reappraisal purposes. Today, this card file classification forms the central search method applied for finding out whether a person was monitored by the Ministry for State Security and whether there are files on this person.
 

The overall volume of the rescued documents from the former Ministry for State Security was comprised of:

• Documents: approximately 111 so-called  file kilometers, with approximately 41 Mio. index cards
• Filmed documents: if converted, this would correspond to approximately 47 km
• Sacks with torn documents: 15,000 of which containing reconstructible documents
• Audiovisual media (photographs,  lms, videos, audio tapes): approx. 1.7 Mio.
• Furthermore several computer files, as the Ministry for State Security had been using IT since the 60s as well.

This meant that people had to deal with one of the largest archives in Germany.

Institution in charge of the archival records

The Ministry for State Security archives became the agenda of the Federal Commissioner for the Records of the State Security Service (der Bundesbeauftragte für die Stasi­Unterlagen der ehemaligen DDR, hence BStU) who was elected for a 5-year period (eligible for a maximum number of 2 periods) by the Bundestag (Federal Parliament). Yet they remained decentralized, located at their hitherto sites in Berlin and the former Regional Administrations. The BStU is not subject to a subject-specific supervision, but only to legal supervision by the federal government (§§ 35 ff. StUG). As far as fundamental issues are concerned, he is advised by an advisory committee (§ 39 StUG), the members of which are appointed by the federal parliament and individual federal states.
As the main issue this act stipulates that the BStU has the exclusive competence to store and take custody for the Stasi-files, which is closely linked with the duty of disclosure and duty to hand over all external Stasi-files (§§ 7 ff. StUG) as well as the use of these files exclusively for the purposes speci ed in the act, i.e. the use is strictly bound to a specific purpose (§§ 4 subs. 1, 29, 32 subs. 4 StUG).

The rush of applicants that arose in January 1992 surpassed all prognoses. By March 1992, already 200,000 applications had been filed and in 1995, there were already more than one million. In 2016, an overall number of 64,000 applications were filed.

With regard to the future of the Stasi-files the German Bundestag (parliament) decided on 9. 6. 2016 to promote and consequently support the reappraisal of the Socialist Unity Party dictatorship and to take care that the existing access options according to the StUG will be maintained in the future. This decision was preceded by a recommendation of 5. 4. 2016 by an expert commission assigned by the German Bundestag. This recommendation says that the Stasi file archive is to be incorporated into the German Federal Archives (Bundesarchiv), while still retaining a certain organizational independence and remaining on its historical site in Berlin.

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Legislative framework

At the end of the 1990s, as a closing act of the transition period,the first bill was presented in Parliament, enabling insight into the Securitate archives. The bill was pushed forward by Peasant Party Senator Constantin Ticu Dumitrescu, a former victim of the communist dictatorship and chairman of the Association of Former Political Prisoners. The institutional model for this initiative was the German Federal Commissioner for the Records of the State Security Service of the former German Democratic Republic. After suffering several amendments to the content and form, the bill was passed by lawmakers in December 1999 as Act No. 187, “concerning one’s access to his/her own files and the disclosure of the Securitate as political police.” Albeit not conceived by the same intent as Ticu Dumitrescu’s original bill, an act passed during the presidential term of liberal-democrat Emil Constantinescu enabled the formation of the National Council for the Study of the Securitate Archives (Consiliul Național pentru Studierea Arhivelor Securității – CNSAS) in 2000. The CNSAS was intended as an informal lustration agency similar to the Bulgarian Dossier Commission, but during its almost twenty years of activity the mandate and scope of activities of the CNSAS have gone through changes to its legal parameters and the political environment surrounding the institution.

The CNSAS was created as a budgetary organ supervised by the parliament and directed by an 11-member board, the members of whom were and still are delegated either by political parties, churches, or other public institutions for six-year terms. The law charged the new institution with preventive screening and disclosure of public servants with a past of collusion with the communist state security. It also charged the CNSAS with the management of access to individual files of former victims and scholars, and with the gradual takeover of the former political police’s archived sources for academic and educational purposes.

Only in 2003 did the Social Democrat cabinet agree to increase the external storage capacity of declassified materials handed over to the CNSAS by the post-1989 security services (Romanian Information Service / Serviciul Român de Informații – SRI; Foreign Intelligence Service / Serviciul de Informații Externe – SIE; and Military Archives and Documentation Service / Serviciul Arhive și Documentare Militară – SADM).

On February 28, 2005 the Supreme Defence Council (CSAŢ) issued a resolution to ask for the urgent transfer of 12,000 rm. of documents in addition to the 700 rm. of documents transferred by the SRI to the archives in the previous five years. Urgency decree (Ordonanța de Urgență – OUG) No. 149 dated November 10, 2005 set out new provisions to guarantee the regular business of the institution. Further documents were transferred to CNSAS in 2007; when the quantity of documents handed over to the archives reached 20,000 rm., the CNSAS could fully comply with obligations set out in the institution’s founding act.

A major conflict concerning the attributions of the CNSAS erupted in early 2008, upon a lawsuit about the alleged involvement with secret services of Senate vice-chairman Dan Voiculescu. Attorney Sergiu Andon, chairman of the Lower House requested the review of Act 187/1999 for compliance with the constitution. Constitutional Court Resolution No. 51 of January 31, 2008 declared the unconstitutionality of the 1999 act establishing the CNSAS and of the subsequent government decree that regulated its activities. The liberal government of Călin Popescu-Tăriceanu prevented a full setback by quickly passing two complementary emergency decrees. With the decisive support of the prime minister’s security policy advisor, public intellectual Marius Oprea, Parliament unanimously passed Act No. 293/2008 in December that year. The act is still in effect and sets the framework for the institution’s operation.

The documents taken over from the Romanian Foreign Intelligence Service (SIE) are structured in the same manner as those of the counter-intelligence (eg. former Securitate) archives. Both possess an “intelligence” archival fond (Fond Informativ), a “network” fond (Fond Rețea), and a “documentation” fond (Fond Documentar). The files of military counter-intelligence have not yet been systematically processed by the CNSAS staff.

Institution in charge of the archival records

The National Council for the Study of the Securitate Archives is the authority that administrates the archives of the former communist secret services in Romania and develops educational programs and exhibitions with the aim of preserving the memories of victims of the communist regime. One of the most important public achievements of the CNSAS has been the ability for individual access to state security files.

Eligible individuals entitled by law can get access to relevant files concerning their security past. However, research conditions are far from ideal due to several factors, such as the small size of the research room, or the excessive workload of archival staff. Professional researchers and individual citizens asking for their own file have to wait for longer periods, and this might especially hurt those belonging to the elder generations, in their right to access relevant documents. Time-consuming procedures for the identification of former informants and/or officers is another potentially disadvantageous factor for elderly applicants. The CNSAS does not possess an integrated catalogue that could provide guidance on which documents are still with their former stakeholders (special services and/or other branches of the public administration), thus one applicant may not receive, upon his first request, all the documents pertaining to him.

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