Von Dardel v. Union of Soviet Socialist Republics

Decision Date15 October 1985
Docket NumberCiv. A. No. 84-0353.
Citation623 F. Supp. 246
PartiesGuy VON DARDEL, on his own behalf and on Behalf of his half brother, Raoul Wallenberg, and Sven Hagstromer, Legal Guardian of Raoul Wallenberg, on Behalf of Raoul Wallenberg, Plaintiffs, v. UNION OF SOVIET SOCIALIST REPUBLICS, Defendant.
CourtU.S. District Court — District of Columbia

COPYRIGHT MATERIAL OMITTED

Anthony D'Amato, Northwestern University School of Law, Chicago, Ill., Joseph W. Dellapenna, Villanova University School of Law, Villanova, Pa., Jerome G. Snider, Davis Polk & Wardwell, Washington, D.C., Guy Miller Struve, Jo R. Backer, John G. Rich, Whitney L. Schmidt, Davis Polk & Wardwell, Murray S. Levin, Alan K. Cotler, Erik N. Videlock, Martha A. Toll, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for plaintiffs.

MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

In this proceeding declaratory and injunctive relief and damages are sought against the Union of Soviet Socialist Republics ("Soviet Union" or "USSR") for the unlawful seizure, imprisonment and possibly death of Raoul Wallenberg, a Swedish diplomat. The complaint is brought on behalf of Wallenberg by Guy Von Dardel, his half brother, and Sven Hagstromer his legal guardian. Guy Von Dardel and Sven Hagstromer are Swedish citizens. Hagstromer was appointed guardian of Wallenberg's legal interests by the District Court in Stockholm, Sweden.

The plaintiffs allege that in 1945, Raoul Wallenberg was arrested in Budapest, Hungary by representatives of the Soviet Union and that since then he has suffered imprisonment and possibly death. At the time of his arrest he was acting at the initiation of the United States government in an attempt to save the Jewish population in the Budapest ghetto from deportation to Nazi extermination camps. If these allegations are true, they violated Wallenberg's diplomatic immunity, the laws and treaties of the Soviet Union and the United States, and the law of nations.

BACKGROUND1

During the course of World War II, the United States Government, in an effort to save from extermination by the German Nazis the thousands of Jews then domiciled in Hungary, sought the assistance of Sweden, a neutral nation. This was an effort that the United States could not undertake alone. Because the United States was at war with Hungary, its diplomatic presence was withdrawn. Raoul Wallenberg agreed to join the Swedish Legation in Budapest, and to otherwise cooperate with the efforts of Sweden and "to act at the behest of the United States." Joint Resolution of Congress declaring Raoul Wallenberg to be an honorary citizen of the United States, Pub.L. No. 97-54, 95 Stat. 971 (1981) ("Joint Resolution").2

Granted full diplomatic status by Sweden, and funded by the United States, Wallenberg arrived in Budapest, Hungary, in July 1944. While stationed there, he served as Secretary of the Swedish Legation and was entitled to full diplomatic immunity. In the next six months, until his arrest by Soviet officials, Wallenberg saved the lives of nearly one hundred thousand Jewish persons providing them with funds and other means of support provided by the United States. While in Budapest he became the counterforce to the notorious German Nazi — Adolf Eichmann. His efforts to save Hungary's Jews from extermination were described in a Senate Report:

He printed and issued thousands of Swedish protective passports of his own design. He purchased and rented scores of houses in Budapest, declared them to be Swedish Embassy property and equipped them with Swedish flags, and protected and cared for the refugees he gathered within these safe houses. Risking his own life time and time again, Wallenberg followed the "Death Marches" and went daily to the deportation trains where he literally pulled people out of the clutches of the Nazis. And, when the Nazis decided to blow up the ghetto in Budapest and all its inhabitants with it, Wallenberg confronted the Nazi leaders (Adolf Eichmann), threatened to see to it personally that they were hanged as war criminals if they proceeded with their plan, and thus prevented its execution.

S.Rep. No. 97-169, 97th Cong., 1st Sess. at 2 (1981) ("Wallenberg Senate Report").

Hungary was later overrun by the Soviets and in early 1945, Wallenberg was arrested by their occupation forces in Budapest. From that time forward, his precise whereabouts and his status within the Soviet Union have not been ascertained. In a note dated August 18, 1947 and delivered to the Swedish Embassy in Moscow by Soviet Foreign Minister, Andrei Ya Vyshinsky it was asserted that "as a result of a thorough investigation it has been established that Wallenberg is not in the Soviet Union and he is not known to us." Affidavit in Support of Plaintiffs' Motion for Default JudgmentGuy Miller Struve, cocounsel for plaintiffs (June 17, 1984) Ex. D ("Struve Affidavit").

Ten years later, however, in response to renewed diplomatic inquiries based on the testimony of persons released from Soviet prisons that Wallenberg was still alive, Deputy Foreign Minister Andrei A. Gromyko admitted that Wallenberg had been a prisoner in the USSR. He further stated that while imprisoned, Wallenberg had died of natural causes on July 17, 1947. In a note dated February 6, 1957, delivered to the Swedish Embassy in Moscow, Gromyko described the detention of Wallenberg, and the misinformation which made the detention possible, as "criminal activity," and attempted to fasten the blame for it upon Viktor S. Abakumov, a former Minister of State Security who died in 1953.

Raoul Wallenberg was apparently among other persons detained in the area of the military operations of the Soviet forces. At the same time it may be considered indubitable that the subsequent detention of Wallenberg, and also the incorrect information about him which was given by certain former leaders of organs of state security to the Ministry of Foreign Affairs of the USSR over the course of a number of years, were the result of criminal activity of Abakumov. As is known, in connection with the grave crimes committed by him, Abakumov, acting in violation of the laws of the USSR and striving in every possible way to inflict harm on the Soviet Union, was condemned and shot by order of the Supreme Court of the USSR.
The Soviet Government sincerely regrets what has occurred and expresses its deep condolences to the Government of Sweden and also to the relatives of Raoul Wallenberg.

Struve Affidavit, supra, Ex. F, pp. 2-3.

However, between 1954 and 1981, a steady flow of reports from former Soviet prisoners indicate that Wallenberg did not die as claimed in the Gromyko note. To the contrary, the reports suggest that Wallenberg remained alive and in the defendant's custody after 1947. Joint Resolution, supra.

There is insufficient evidence before the Court to support a definitive finding as to whether at this time, Wallenberg is dead or alive. While the USSR has continuously represented that Wallenberg died in 1947, those representations are inconsistent with and at odds with credible and uncontroverted evidence presented by the plaintiffs in this proceeding and they are rejected. On basis of the record here presented, the Court finds that the Soviet Union has always had knowledge and information about Wallenberg; that it has failed to disclose and has concealed that information; and that otherwise, defendant's representations are suspect and should be given little, if any, credit. If alive, Wallenberg would be 72 years of age and he would have been held in custody for nearly 40 years.

The complaint in this proceeding was filed with this Court in February 1984. A request for documents relevant to the issue of jurisdiction was filed along with the complaint. The summons, complaint and discovery request, together with a notice of suit and Russian translations of the documents, were regularly processed through the United States Department of State. The packet of documents was then delivered to and served upon the Soviet Ministry of Foreign Affairs in Moscow in accordance with the Foreign Sovereign Immunities Act ("FSIA" or "Act"), 28 U.S.C. § 1608(a)(4). On May 1, 1984, a certified copy of the diplomatic note evidencing service of the documents was filed by the Department of State with the Clerk of this Court.

The defendant's time to answer or otherwise respond to the complaint expired on June 1, 1984. The Soviet Union did not respond to either the complaint or the document request. On April 19, 1984, the Soviet Ministry of Foreign Affairs returned all of the documents to the United States Embassy in Moscow, together with a note asserting absolute sovereign immunity from suit in non-Soviet courts. Struve Affidavit, supra, ¶¶ 4-6 and Ex. B.

Under the circumstances, it is appropriate to consider the plaintiff's application for a default judgment. In the discussion which follows, the Court will address first, the questions of jurisdiction, venue, and statute of limitations. It will then address the merits of the litigations and an analysis of the issues arising under the substantive law. This Court's factual findings are supported by a satisfactory, substantial, and well documented record.

JURISDICTION AND VENUE

Several sections of Title 28 United States Code allow this Court to exercise jurisdiction over this action. Under Section 1330(b) of the Foreign Sovereign Immunities Act, personal jurisdiction is present when the defendant may be found in the United States, through its agents and instrumentalities, and because defendant has been duly served with process pursuant to 28 U.S.C. § 1608(a)(4) (Struve Aff., supra, ¶ 3 and Ex. A). Because this is a civil action arising under the "laws, or treaties of the United States," subject matter jurisdiction under FSIA is appropriate pursuant to Sections 1330(a) and 1331. Letelier v. Republic of Chile, 502 F.Supp. 259, 266 (D.D.C.1980). Additional reasons to support this conclusion are...

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