Russia’s Supreme Court reinstates confusion

Publish date: May 8, 2002

Written by: Charles Digges

The Appeals Board of Russia's Supreme Court said this week that an internal Defence Ministry decree on military secrets is no longer a normative legal act. This means by definition that it cannot form a basis for criminal persecution of citizens. But such definition may be alien to Russia's Security Police.

The decree served as the basis for the espionage conviction of Grigory Pasko and charges against several other alleged spies.

Lawyers and their environmentalist clients who have battled — and in Pasko’s case, continue to battle — espionage charges under Defence Ministry decree No. 055 were sanguine about the decision.

But other free speech advocates slammed the decision as a step backward, saying it was made under pressure from security officials eager to prosecute aggressive journalists and researchers.

Decision may favour Pasko

The Supreme Court’s Military Collegium had overturned the Defence Ministry decree in February, on an appeal from convicted military journalist Grigory Pasko. His St Petersburg-based attorney Ivan Pavlov said that the decree, which laid out confidential information relating to the armed services, had been used unjustly in Pasko’s case.

Defence Ministry decree No. 055 was issued in August 1996 and lays out broad terms items that constitute state secrets. Information considered a threat to national security under the decree include reporting on the loss of military hardware, technical problems of naval vessels and any information concerning radiation accidents aboard Russian vessels.

Defence Ministry officials protested the February ruling, and the Supreme Court’s Appeals Board heard their appeal on Tuesday. The judges ruled that the order was in fact valid, but that it was not a law, said Pavlov in an interview with Bellona Web.

Ivan Pavlov was on the team of the prominent St Petersburg lawyer Yury Schmidt to defend Aleksandr Nikitin, who was also accused by the Russian Security Police, or FSB, of high treason for making a report on radiation hazards in the Russian Northern Fleet. Nikitin was acquitted in 1999 of all charges.

According to Pavlov, the Supreme Court Appeals Board Tuesday reconsidered its earlier decision to throw out Defence Ministry decree No. 055 because the decree itself does not constitute a “normative legal act,” or law. In reinstating decree No. 055, the court concluded that it had no jurisdiction to adjudicate on the legality of a document which is not a law, Pavlov said.

As such, by reinstating it, Pavlov said that the court concluded that the decree does not have the legal force of a normative act.

“If it is not a normative act, you can’t accuse people of violating it and you can’t sentence them according to it,” he said.

“The basis of our appeal for Pasko’s release,” added Pavlov, “is based on this concept — that he broke no laws.” The appeal is due to be heard in late May or June, Pavlov said.

Pasko was sentenced, in accordance with Defence Ministry decree No. 055 in December 2001 to four years in prison for attending a meeting of Russian naval commanders and possessing notes he made there. Amnesty International has said that the conviction appears as a retaliation for his reports uncovering alleged environmental abuses by Russia’s Pacific Fleet, including the dumping of radioactive waste at sea. He is imprisoned in the Russian Pacific port of Vladivostok.

Nikitin, too, was pleased with the ruling. “The position of the court is good,” he said in a telephone interview with Bellona Web from Moscow. “It means you can’t refer to the Ministry of Defence decree No. 055,” when charging or sentencing defendants.

Decision may create chaos

Free speech advocates had hoped that the February court decisions would lead to the overturning of Pasko’s conviction and the release of people suspected of revealing or obtaining military secrets, including arms control researcher Igor Sutyagin and Valentin Danilov, an institute director at Krasnoyarsk State University.

But Tuesday’s rulings may deflate that hope and create confusion.

“It’s a bad day for freedom of speech and of law,” Schmidt said. “The court came under intense pressure from the Defence Ministry and the FSB. They got what they wanted.”

Although the decree is no longer a normative legal act, the FSB and prosecutors can still argue that they can refer to it. Russia’s Law on State Secret and the Presidential Decree on this matter set a framework for data, which can pertain to state secrets, whereas decrees in various ministries expand that framework to detail the general provisions in federal laws.

“They can say that they are just referring to the decree but use the federal laws,” says Ivan Pavlov. Everything, according to Pavlov, would depend on how a judge who is considering an individual case understands the legislation. If he understands it according to the general principles of law, then the yesterday’s Supreme Court decision has created a deadlock for prosecution, Pavlov added.

“Prosecution cannot use just the federal laws on state secrets because they just set frames. On the other hand, prosecution cannot use the decree either because from now on it is not a normative act,” he said.

What human rights defenders most fear was voiced by Defence Ministry lawyer Konstantin Rusanov, who hailed Tuesday’s decision. He said that the reinstated order No. 055 could not be used against civilians but could be used against Pasko, because he was a military serviceman, according to the Interfax news agency.

Military servicemen can communicate with foreigners

Defence Ministry officials also appealed another February ruling by the Supreme Court’s Military Collegium, which had overturned a Soviet-era decree No. 010 that was also cited in Pasko’s verdict. On Tuesday, the appeals board dismissed that appeal, confirming that the 1990 decree No. 010 was invalid. That order forbade servicemen and all others with access to state secrets from contacting foreigners when off-duty.