Access to Information Project

Publish date: April 17, 2001

Written by: Rashid Alimov

St Petersburg Environmental Rights Center is going to lodge a complaint with the Russian Supreme Court against an unconstitutional decrees of the Russian president and Defence Ministry.

St Petersburg Environmental Rights Centre is preparing a complaint to the Russian Supreme Court to repeal some regulations, hampering citizens’ right to access information. Presidential Decree no. 763 and Defence Ministry’s decree no. 055 are among these regulations.

This complaint will be carried out as a part of a project, named as Ensuring Citizen’s Free Access to Illegally Classified Information of Public Significance, Concerning Environmental Conditions, Accidents and Catastrophes, Threatening Citizen’s Security and Health, and Their Consequences.” The purpose of the project is to secure constitutional rights to open socially important information for Russian citizens.

Director of the Environmental Rights Center, Ivan Pavlov, speaks about the project and the Centre’s activities.

What is project’s background? How access to information is regulated in Russia today?

In the USSR access to information was regulated not by laws, but by various classified decrees and instructions. The scaring term ‘state secret’ was not properly defined. The state used this gap for suppression of the dissidents, and legal defence in such cases was almost impossible: cases were closed for public, with selected judges and even with selected defence attorneys.

Passed in July 1993, the Law On State Secrets determined the term ‘state secret’. The democratic Constitution, adopted in December 1993 stated that human rights can be restricted only by laws. The Constitution confirmed that list of the information pertaining to the state secret is defined by the law, not by sub-legal legislation. Also, article 29 proclaimed everyone’s right to seek, receive, produce, reproduce and distribute information freely.

But since the Law On State Secrets had passed before the Constitution was adopted, it contained a list of the data which “could be considered” as state secrets. Composition of the list of data “considered” as state secrets was entrusted to the President. Due to the parliament crisis in 1993, President Yeltsin issued the appropriate decree only in the end of 1995. Only in October, 1997, the list of the data, pertaining to state secret was introduced in the Law.

By the end of 1997 a structure of the legislation on state secrets, more or less accurate, had been introduced in Russia. The Law defines in general the categories of the classified information, the presidential decree divides the categories into smaller subgroups. The ministries have to classify specific data they have in accordance with the presidential decree.

What happens in reality?

The idea of the project emerged during the Nikitin case. We faced the restrictions on citizens’ access to environmental information. Not the Law, but departmental decrees hamper the access.

For example, the List of the Information to be Classified in the Military is enforced by Defence Minister’s order no. 055 from 1996. Instead of itemising specific data, this list includes categories, more general than the ones in the Law and in the decree. According to this list, almost everything is secret, and pretty harmless information may be considered classified. On top of everything, the minister’s list itself is secret.

This list was the legal foundation for the charges against Alexander Nikitin during the whole period of investigation. We can also add, that order no. 055 has been never published and even has not been registered in the Ministry of Justice. But article 15 of the Russian Constitution states, that decrees cannot be applied, unless officially published.

Order no. 055 was so secret, that the investigating bodies refused to let Nikitin and his defence attorneys to read it. Only in 1998 the Federal Security Service, former KGB, presented the order after the court’s demand.

We believe this order violates the Constitution and the Law On State Secret not only in its form, but in content as well. Among the categories of the order’s list, for example, are numbers of casualties in the military in the time of peace. No wonder then, that navy chiefs and the government held back the fact of the Kursk incident. The order’s regulations are hampering the access to Kursk information until now.

Does Presidential Decree no. 763 violate the Constitution?

Presidential decree no.763 issued in May 1996, concerns publishing of decrees of the government, ministries, and the president. The Decree reserves the right not to publish decrees in violation of the Constitution, on the one hand, pertaining to human and citizen rights, and on the other hand, containing state secrets.

We believe the things should be cleared out. If an act, pertaining to human rights, is published, then all the state secrets must be excluded before publishing. If a decree has to be classified, then all line items, referring to human rights, must be taken away.

Today ministries and departments are using this Decree as a cover to issue secret regulations, restricting human rights on information. We think, we have all the reasons to lodge a complaint with the court to outlaw the Decree.

How the procedure will be followed?

Before bringing it to the court, we need to carry out some preliminary work, analysing all the acts on access to information. We are going to examine court precedents on the cases, where these acts have been applied.

After that, a complaint will be lodged directly with the Supreme Court. In the complaint, we will demand to abolish several decrees, including Presidential Decree no. 763 and Defence Ministery order no. 055. The complaint will be lodged on behalf of Alexander Nikitin, because such acts were applied in his case.

I think, this work is important not only for the citizens, but also for the state. The state should learn to observe its own rights. No doubt, every state has a right to have secrets. But this right is valid only when there are clear procedures, well defined and transparent for the citizens.

This complaint is the fundament of the project, which may help us to acquire a court precedent, showing the way further, and whether Russia’s citizens have the right for information, guaranteed by the Constitution today.

How the envirogroups can use the results of the project?

This project requires several seminars for those, who is concerned about the problems of access to information. These problems are especially important for envirogroups, for their effective work.

After breakdown of the Soviet Union, the citizens began to demand the needed environmental information from the state more actively, than before. Such information is often used for carrying out independent environmental evaluations.

There is a number of precedents when ex-USSR citizens demand from the state to offset disadvantages caused to their health by nuclear accidents. But in the most cases, such demands fail. The difficulty of such arguments lies in the infringement of private interests by a state ministry or a department.

Also in the project we plan to publish a brochure, describing the way a citizen may acquire socially-important information. In this brochure we are going to integrate the experience gained in the course of the project, and to examine court precedents.

Are there connections between the Access to Information and other Centre’s projects?

Today we work on the initial stage of the project, but the complaint to the Supreme Court is almost ready. Minister’s order no. 055, mentioned in the Nikitin’s case, forms the foundation of espionage charges against Grigory Pasko, military journalist in the Russian Pacific Fleet. We hope, that the implementation of our project would echo in his case. Now our Centre does take active part in the coming Pasko trial.

Access to Information Project is fundamental for our Centre’s work. If we manage to get the answers to all our questions, put in the project, we will be able to use these answers in other projects.

At present the Centre participates in Sergey Kharitonov case. Green World organisation’s member, Mr Kharitonov, was illegally sacked from Leningrad Nuclear Power Plant for his environmental activities. Unpublished department instructions were applied in his case too.

St Petersburg Environmental Rights Centre

St Petersburg Environmental Rights Centre was founded in 1998, in the middle of the Nikitin case, when human rights defenders, journalists, attorneys and envirogroups decided to join forces to win the case. In 1999, Ivan Pavlov, one of Nikitin’s defence attorneys, became director of the Centre. Bellona rendered active assistance in founding and co-ordinating the Centre’s activities.

By the end of 2000, after Nikitin’s acquittal, the Centre began to participate in several environmental and envirorights projects. Today the Centre takes part in the Pasko case.

Along with other organisations (Citizens’ Watch, Soldiers’ Mothers and Gagarin Fundation), the Centre is working on creation of a juridical school for human rights lawyers.

The Centre takes part in creation of All-Russian Environment and Human Rights Coalition, departments of the organisation are active today in Chelyabinsk, Moscow and St Petersburg. “We are going to broaden environmental information net and to share our experience,” Ivan Pavlov said.