The opinion of the court was delivered by: PARKER
Barrington D. Parker, United States 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.
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 Because the United States was at war with Hungary, its diplomatic presence was withdrawn.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").
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 Judgment -- Guy Miller Struve, co-counsel 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.
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, PP 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.
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, P 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 discussed ante at p. 11. Finally, this Court may exercise subject matter jurisdiction over this proceeding under the Alien Tort Claims Act, 28 U.S.C. § 1350 because it is a "civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 813-14 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985), opinion Bork, J.; Letelier, 502 F. Supp. at 266.
Venue is appropriate in the United States District Court for the District of Columbia because the defendant is a foreign state, 28 U.S.C. § 1391(f)(4).
The Foreign Sovereign Immunities Act, 28 U.S.C. § 1602
The Act provides the district courts with subject matter jurisdiction over civil cases against foreign governments where immunity is not appropriate under its terms. 28 U.S.C. § 1330(a). Moreover, where the requirements of subject matter jurisdiction have been met and proper service has been made, the Act operates to create personal jurisdiction over the foreign government defendant. 28 U.S.C. § 1330(b).
The absence of immunity thus establishes both subject matter and personal jurisdiction over a case against a foreign government. See, e.g., Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp. 849, 851 (S.D.N.Y. 1978).
In 1976, Congress had a twofold purpose for enacting the Foreign Sovereign Immunities Act: (1) to liberalize the law of immunity by adopting and codifying the doctrine of "restrictive" immunity, and (2) to assure consistent application of the law of sovereign immunity by eliminating the participation of the executive branch of the government so as to "assure litigants that . . . decisions are made on purely legal grounds and under procedures that insure due process." H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 7 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 6604, 6606 ("House Report"). To accomplish these objectives, the Act established a set of legal standards governing claims of immunity in civil actions against foreign states. These standards were explicitly intended to incorporate established principles of international law regarding the immunity of sovereigns. House Report, at 14, 1976 U.S. Code Cong. & Ad. News at 6613.
According to the drafters of the FSIA, "sovereign immunity is an affirmative defense which must be specially pleaded, [and] the burden will remain on the foreign state to produce evidence in support of its claim of immunity." House Report, supra, at 17, 1976 U.S. Code Cong. & Ad. News at 6616. Thus, the burden of demonstrating that immunity exists rests upon the foreign state. See, e.g., Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378 (5th Cir. 1980). In the absence of an appearance by the defendant, however, the Court must make an independent determination that it has subject matter jurisdiction. See, e.g., Letelier v. Republic of Chile, 488 F. Supp. 665, 667 (D.D.C. 1980).
The plaintiff cites five independent reasons why the USSR should not enjoy immunity in this case. The Court has taken note of all these arguments but finds the first four far more compelling than the last. The reasons are as follows: First, by virtue of its decision to default, the USSR failed to raise the defense of sovereign immunity. Second, the FSIA incorporates preexisting standards of international law, under which a government is not immune for certain acts in clear violation of the universally accepted law of nations. Third, the FSIA is limited by treaties to which the United States is a party; the USSR cannot claim immunity under the FSIA for acts which constitute violations of certain of those treaties, to which the USSR is also a party. Fourth, the USSR waived immunity in this action, and is therefore not entitled to raise it as a defense, pursuant to 28 U.S.C. § 1605(a)(1). And, fifth, the actions of the USSR constitute non-commercial torts within the meaning of 28 U.S.C. § 1605(a)(5); immunity for commission of such is therefore inappropriate under the Act. A fuller discussion of the first four is set out below.
Under the FSIA, sovereign immunity is an affirmative defense that must be pleaded and proved by the sovereign defendant. These obligations were made clear in the documents which were served upon the Soviet Union. Included among them was an explanatory notice of suit and the full text of the FSIA, both with Russian translation. The transmittal note from the United States Embassy accompanying the papers underscored the procedures:
Please note that under United States law and procedure, neither the Embassy nor the Department of State is in the position to comment on the present suit. Under the laws of the United States, any jurisdictional or other defense including claims of sovereign immunity must be addressed to the court before which the matter is pending, for which reason it is advisable to consult an attorney in the United States. (Struve Aff., Ex. A.)
Moreover, because of prior involvement in FSIA litigation, the procedure is one with which the Soviet Union is fully familiar. Indeed in several reported cases in which the USSR has been a defendant since the passage of the Act, it has appeared through counsel for the purpose of contesting jurisdiction.
See Bland v. Union of Soviet Socialist Republics, 17 Av. Cas (CCH) 17,530 (E.D. N.Y. 1982); Harris v. VAO Intourist, Moscow, 481 F. Supp. 1056 (E.D. N.Y. 1979); United Euram v. Union of Soviet Socialist Republics, 461 F. Supp. 609 (S.D. N.Y. 1978); cf. In re Estate of Petro Semeniw, 78 Ill. App. 3d 570, 397 N.E.2d 64, 33 Ill. Dec. 731 (1st Dist. 1979); In re Estate of Bari Nabif, 69 A.D.2d 904, 415 N.Y.S.2d 901 (2d Dept. 1979).
However, in this proceeding, the USSR has chosen to default and to raise the issue of immunity not by a motion filed with the Court, but merely by a communication addressed to the United States Embassy in Moscow.
In Letelier, supra, 488 F. Supp. 665, 669 n.4, this Court raised the question of whether such a diplomatic assertion of immunity, in lieu of "a formal appearance or the filing of a pleading," could suffice to raise the defense of sovereign immunity. In that case, the foreign state defendant sent a diplomatic note to the Department of State challenging the jurisdiction of the Court. The Court declined to rule on the sufficiency of this method of raising the affirmative defense of immunity, because the Court found that it had subject matter jurisdiction "even assuming it has been pleaded properly." Id. at 670 n.4.