Volume 9 Number 4

Fall 2000

Feature

Freedom of Information and State Secrets
     Ivan Pavlov

In the Soviet period, the circulation and dissemination of information was regulated not by law but through various secret resolutions and instructions. At that time, the mere term "state secret" inspired dread in many citizens. A precise definition of "state secret" did not even exist. By abusing this gap in the law, the Soviet government tormented its political opposition—the dissident movement. The battle was carried on within the dramatic framework of criminal lawsuits, where the dissident was assigned the role of the accused. As such, state secrets became an additional means of persecuting the Soviet Union’s nonconformists.

During the first wave of democratization in the late 1980s, the articles of the Criminal Code concerning criminal liability for anti-Soviet activities were revoked. All that remained in the arsenal of weapons against dissidents were provisions stipulating criminal penalties for the unlawful use of state secrets. Thus it was that the empty niche, which earlier had been reserved for "antisovietchiks," began, over time, to be filled with "spies."

Until recently, it was all but impossible to defend oneself successfully against an accusation of espionage. Cases involving state secrets instantly acquired an off-limits air. Their trappings included KGB (and later FSB) investigators, a special department of the Office of the Government Procurator, a specially vetted court staff, and even a specially approved contingent of lawyers. One can imagine the atmosphere that reigned during these investigations and trials. The shifting, broad, and vague definition of what constituted a state secret made it very easy to concoct shady legal cases. And because of a strategy of postponements and the lack of clear guidelines, by the time the accused realized what was going on, his sentence had already been passed, and he found himself spending an extended period behind bars. Such was the way things worked—until recently. Even today, reactionary elements in the government try to make use of this old strategy. The Nikitin case is one example.

In Russia, legislation concerning freedom of information has been on the books only since 1993. Here is a brief history of that legislative activity:

• In July 1993, a federal law on state secrets was passed (the law was amended in October 1997);

• In December 1993, the Constitution was ratified;

• In 1995, the federal Law on Information, its Dissemination, and Protection was passed.

At present, these are the basic legal documents regulating the circulation of information in Russia. The 1993 law was the first to provide a precise definition of the term "state secret." The Constitution clarified the concept further, stating in part that the type of information considered a state secret must be defined by law and not by lower-level regulations.

In the Nikitin case, we were faced with a number of subtleties in this legal scheme. As mentioned above, the federal Law on State Secrets was approved in July of 1993, that is, prior to the ratification of the Constitution; 1993 was a cataclysmic year in Russia, with a parliamentary crisis and a coup attempt. It was under these conditions that parliament passed the law that describes the basic procedure by which various kinds of information can be categorized as a state secret. Of particular note is Art. 5, which contained a list of categories of information that could be classified as state secrets, and Art. 9, which required the president to elaborate and approve the list of information already classified as a state secret via the publication of an appropriate decree. As required by law, the decree must be accessible to the public. Thus, while it was being decided whether certain types of information constituted state secrets according to Art. 5, the law could be applied only in accordance with the presidential decree called for in Art. 9.

Following the dissolution of parliament in October 1993, however, the legislative process was disrupted, and the presidential decree appeared only at the end of 1995. So, for an extended period of time—from July 1993 through November 1995—state secrets as such did not exist in Russia. To further complicate the picture, in December 1993, four months after the law was passed, the new Constitution came into force. Article 29 proclaimed the right of every person freely to seek, receive, transmit, create, and distribute information. The new Constitution also contained the following important provisions: a person’s rights may be limited only by law (not by lesser legal acts); and the "list of information" comprising a state secret is determined by law.

But, as described above, at the moment the Constitution was ratified, no law specifying the list of information comprising state secrets was in existence. This anomaly was corrected only in 1997, when changes to the federal Law on State Secrets were adopted and Art. 5 was renamed "The List of Information Comprising a State Secret."

Thus, after October 1997, when deciding whether a particular type of information constituted a state secret, it became possible to apply the new redaction of the federal law independently, without tying it to the list approved by the presidential decree of late 1995. In other words, it was only near the end of 1997 that a clear-cut hierarchical system for classifying information as secret was established in Russia. The two essential features of the legal situation were these:

• The federal law defined the list of categories of information comprising state secrets;

• The presidential decree defined its own list, that outlined each category of secret information indicated in the law. On the basis of the president’s list, ministries were permitted to restrict access to specific information under their control.

I should also point out that, as required by law, both the 1993 and 1997 versions of the state-secrets law required the various ministries to compile their own publicly available lists of specific types of information classified as state secrets.

This, then, is how it should work, theoretically. Now I will explain how matters actually played out in the Nikitin case. In Russia today, ministries continue to live by a politics of secrecy, a policy that has nothing in common with the state-secrets law. For example, in our defense of Nikitin, we ran up against the fact that the Ministry of Defense uses its own special list of information to create its version of state secrets. Instead of enumerating specific information topics as off-limits, it is a roster of broad categories of information, which by their number and scope surpass the combined lists in the federal law and presidential decree several times over. According to these lists, literally everything is secret; any harmless bit of information can be classified as secret. On top of everything else, the ministry’s list is itself classified information!

It was, in fact, this very list that formed the legal basis of the charges against Nikitin. Two ministerial orders constituted the list of state secrets: Order 071 of 1993 and a second Order 055 of 1996, which superseded 071. Needless to say, these orders had not been published anywhere nor were they even registered with the Ministry of Justice. In spite of the fact that the accusation contained direct references to these orders, neither Nikitin nor his legal-defense team were allowed to see them. In other words, Nikitin was supposed to defend himself blindfolded. It was only in 1998, during the first hearing of the case, that the Court granted our request and ordered the federal security service (FSB) to make the secret orders available. After we became acquainted with them, it became quite clear to us why they wanted to keep the materials from us. The orders contradict the Constitution and the Law on State Secrets, not only in form but also in content. First, as I have already mentioned, they do not provide a list of specific types of information; rather, the orders set forth extremely broad categories. Second, among these broad categories exist such examples as "Information on Irreparable Losses of Military Personnel in Peace Time." This calls to mind the recent tragedy of the Kursk submarine. Information on the death of its crew was classified as a state secret—and thus provided a justification for Russia’s naval command giving such meager information about the accident. In the end, our defense strategy in the Nikitin case involved directing the proceedings away from the illegal application of the secret orders and forcing the prosecution to base its arguments on the Constitution and state-secrets law.

According to Art. 15 of the Constitution, no legal regulation of any kind may be enforced until officially published. It was precisely this provision that guided our strategy. During the period in which the events allegedly incriminating Nikitin took place (he worked on his report for Bellona until October 1995), the original version of the state-secrets law was in effect. At that time, Art. 5 contained a list of information that could be classified as a state secret if it fell under any of the categories of the list approved by the presidential decree. However, during the period when the actions occurred for which Nikitin was charged, the decree did not exist. It appeared only two months after Nikitin’s report was written. Nonetheless, the procurator used this decree, along with the ministerial orders, as the legal basis for the accusations against Nikitin. And in its final Resolution of Indictment, the prosecution applied the 1997 version of the state-secrets law in evaluating Nikitin’s actions, that is, the version of the law that appeared two years after the events in question.

In sum, the prosecution in the Nikitin case based its charges on the following documents:

• Unpublished secret documents: the two orders of the Minister of Defense;

• Retroactive legal documents: the last order of the Minister of Defense (055 of 1996), the presidential decree of November 1995, and the 1997 redaction of the federal Law on State Secrets.

In spite of the fact that we repeatedly pointed out the flaws in our opponents’ construction of their charges against Nikitin, this case—a veritable smorgasbord of constitutional violations—still managed to stretch over five years and to make its way to the highest court in the land.

Ivan Pavlov was a member of Nikitin’s legal-defense team. He is also a member of Russian Lawyers Committee in Defense of Human Rights. From 1999, he has been one of the directors of the Environmental Human Rights Center, a nongovernmental organization concerned with environmental issues in the Saint Petersburg region.

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