Spy mania in russia - Международная Юридическая фирма «Трунов, Айвар и партнеры»

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Spy mania in russia

I.L. Trunov, lawyer, Doctor of Juridical Science, Professor


~Today there are different views on the protection of the state secrets.
~The current state secret protection system is to a large degree an inheritance from the totalitarian regime and is conceptually unable to be effectively used in a democratic market economy. This situation allows wide manipulations of the concept of state secret . Scientific progress critically depends on the free flow of information among scientists who must be able to cooperate internationally and to participate in the scientific process without fear of prosecution. Today the sphere of science and engineering is to a large degree a subject of the Russian state secret. According to the Russian Presidential Decree № 1203, signed on 30 November 1995, «Approving List of Information Classified as State Secrets» (in the last edition), «information on scientific and technical achievements, on technologies that might be used to develop fundamental new items, technological processes in various branches of economy, achievements of the nuclear science, fundamental new items, technologies should be classified as secret. Information revealing the guidelines for the development of dual-purpose equipment and technology, programs and research and (or) design projects for the development or modernization of this equipment and technology should be classified as secret». It also includes chemistry, biotechnologies and high-effective technological processes, and etc. A general complex security system and departmental barriers are reasons of that even in the military-industrial complex the best achievements cannot freely circulate, depending on hidden borders; it is an obstacle for the development of competitive economy, profitable at the international level of financial and industrial groups, and large industrial structures. The appearance of the small science-intensive business is complicated in future.
Another point of view. The concept “state secret” consists of huge financial assets and means, work of many generations of scientists, of educational institutions, of scientific research institutes, experimental bases, infrastructure and etc. Today the development of scientific discoveries demands large state-financial investments, the money which the state take from pensioners, children’s educational institutions, and etc. for the sake of tomorrow, as tomorrow’s well-being inseparably connected with investments into scientific and technical process today. The protection of the state secrets is one of the most important directions of the activity of the state authorities. The questions concerning the state secrets, its protection, and also problems of breach of state secrecy have been urgent at all times. Russia spends large budgetary funds on security and protection of its secrecy. Protected by the state important information (state secrets) about defensive capacity’s situation in the country, about its foreign policy, economic, intelligence, counterintelligence and scientific and technological potential attracts foreign intelligences. The Russian Federation is under pressure coming also from political institutes of the foreign states, which aim is to weaken the control over preservation of capital-intensive components of the state secrets. The current situation points out the strengthening of activities concerning the protection of the state secrets.
~The analysis of the legislation on the state secrets, existing in Russia and other countries is given below.
~In comparison with the legislation of Germany, the definition of «state secrets» is wider in Russia.
~The state secret (art. 2 of the Federal law of the Russian Federation «On State Secret») – protected by the state information about the military, foreign policy, economic, intelligence, counterintelligence, and undercover investigative activities of the state, disclosure of which can jeopardize the security of the Russian Federation; furthermore «security – activities involved in protecting a country against internal and external threats (art. 1 of the Federal law of the Russian Federation « On Security»)».
~The German definition of state secrets—“facts, objects or knowledge, which is only accessible to a restricted circle of people, and which must be kept secret from a foreign power in order to avoid the danger of a severe disadvantage for the external security of the Federal Republic of Germany”. The difference consists that in Germany it legislatively protect from harm to external security, and to classify information as the state secrets it is necessary, that their breach could inflict heavy harm to security.
There exists more a general definition of the notion of state secret. The Dutch legislation, which specifies only “information classified in the interest of the State or of its allies, [including] any object from which such information may be derived, or any such data.” Taking such a form it is very difficult to discern ex ante what exactly will be considered “in the interest of the State or of its allies,” and who such allies are and what their interests are. Whether “knowledge by non-authorized persons” might in some conceivable way “damage or put in risk the security and defence of the State.”
~In Russia there is information in the public domain classified as the state secrets, for example, information on rocket or chemical arms, announced by the Soviet representatives in the United Nations or informed during negotiations to representatives of the USA and other states or allies in the subsequent published (the definition of “allies” demands a special analysis) in various editions. According to the law of Germany unlike Russia, information that is in the public domain cannot be classified as a state secret. The Parliamentary Assembly of the Council of Europe recommends: «the Information that is already in public domain, cannot be classified as a state secret, and divulging such information cannot be punished as espionage, even if the person collects, sums up, analyses and comments on such information ».
~The Great Britain has imposed court injunction on the publication of newspaper articles reporting on the contents of a book (“Spycatcher”) that contained secret information on the British special services according to the national security reasons, but the book was readily available abroad and if desired the acquisition of this book was possible with delivery by mail. Later the European Court of Human Rights found such an injunction as disproportionate, and recognized that the Great Britain violated article 10 of the European convention.
~There are reproaches concerning the Russian law enforcement authorities and court, existing in the country and coming generally abroad. According to the current situation, the special Resolution of the Parliamentary Assembly of the Council of Europe «On spy mania in Russia» was accepted in 2007. A series of high-profile espionage cases against scientists, journalists and lawyers in Russia were analyzed. It found violation of the fundamental principles guaranteeing the fairness of trials in cases, unjustified restriction of freedom of expression and of information, proceeding had a long-term character, broad terms of preliminary conclusion, the principle of equality of the parties was broken, judicial sessions were closed, that did not strengthen assurance of the public in its justice, rigidity of the pronounced sentences in the form of imprisonment not coinciding with the practice of other member countries of the Council of Europe.
~Absolutely sharp remarks, but it would be better to notice, that it is not a prerogative of “espionage” cases, it is a universal phenomenon in all categories of criminal affaires. Crisis of the criminal policy of Russia is well-known and gives “avalanche” of complaints in the European Court, but the Russian avalanche of complaints is not the biggest in comparison with European countries and the crisis of the criminal policy is not only a Russian problem. More cardinal offers concerning up to abolition of criminal law, incompatibility of the present criminal policy with human and citizen rights, are arisen from the developed countries .
~The facts of bulk selling at cut prices of the capital-intensive scientific secret developments from Russia are well-known. Our strategic stock of colored metals is sold abroad at cut price. Smarter individuals, possessing secret information, have begun to patent abroad the discoveries developed in bowels of the Soviet military-industrial complex. For example, the native of Russia has obtained two patents of the USA on confidential developments of “propulsive jet engines for supersonic flights” and etc.
~Court proceeding concerning espionage cases, that periodically take place, do not clear up situation. For example, Mr. Shayler, a former secret agent of the Great Britain, who had published details of his work, was handed a sentence; a German court accused Mr. Shirra, a journalist who had published information from leaked BND files; the authorities of Germany, Switzerland and Italy recently attempted to prosecute media editors, journalists and other “whistleblowers” for alleged breaches of official secrecy, in particular in the context of recent reports on unlawful CIA activities concerning confidential prisons development and violation of rights of the suspected in terrorism (Resolution the Parliamentary Assembly of the Council of Europe 1507 (2006) and Recommendation 1754 (2006)).
~The Russian legislative list of information classified as state secrets bases on the listed system, to be more exact – on listed pyramid, so the open and published Law «On State Secrets» and the List contain only categories of information constituting the state secrets, instead of information that is a state secret, both the Law and the List do not establish degree of information secrecy. The classified and complete lists are represented «by the interdepartmental commission on protection of the state secrets formed according to the offers of state authorities and according to the open List of information, the confidential List of information is formed also by “state power authorities” (unlike the interdepartmental commission) within its competence «it develops lists of information which must be classified» art.9 of the Federal Law of the Russian Federation «On State Secrets». According to the Constitution of the Russian Federation the List of information classified as state secrets is defined by the Federal Law (p. 4 art. 29), instead of an interdepartmental commission or an executive power.
~The concept nulla poena sine lege, fixed in article 7 of the European Convention on Human Rights provides – States have legitimate interest in the providing of zones of secrecy in sensitive areas. But the decision on where and how to characterize this zone, cannot be confidential. Additional lists of information classified as state secrets should be in the public domain.
~Any normative legal acts on the rights, freedom and duties of a person and a citizen, cannot be applied, if they are not published officially in the public domain (p. 3 art. 15 of the Constitution of Russia). The legislation of Portugal and Lithuania on state secrets demands accurately that the lists developed by the state authorities, have been published, dependence of lists on unavailability to the public actually transforms the law on state secrets itself into the state secret. Some states – France, Switzerland (the military penal code) and the former Yugoslavian Republic, Macedonia, the CIS countries – have the similar scheme of law on state secrets as in Russia. Their general law on state secrets provides wide, more or less detailed categories of state secrets, demanding, that other organizations (administrative authorities, ministries and etc.) to provide more detailed list of classified information. During the analysis of the legislation regulating the state secrets of different states, I felt some prejudiced against Russia and certain correlation between the accurate regulation of state secrets in some states and absence of serious capital-intensive developments.
~The law of Russia «On State Secrets» absolutely fair mentions several times the responsibility for illegal or unreasonable classification, but states nothing about the mechanism of such a responsibility of officials.
~One of the activity directions of Federal Security Service of Russia is protection of state secrets, which employees can be potential suspected of disclosure. Problems of development, control and criminal prosecution of suspected persons, disclosing information, should not be imposed on the employees of the same department. Russia pledge to change the legislation in its respect, but it has not been done till now (see: the Resolution of the Parliamentary Assembly of the Council of Europe 1455 (2005), section 13. х. a.). There is a certain hope of formation of united investigating committee of Russia and abolition of the split departmental investigating committees. Time goes, but Russia lives still in hope and expectation. Legislation’s gaps, denying any thought of negligence, of stupidity of officials or departmental protection of esprit de corps in prejudice of the state interests are not true. It is possible, that such situation explains criminal cases against scientists, who were not employees at special services and had no access to the confidential information, there are high-profile proceedings, and colleagues are in safe. Leakage information classified as a state secret will become known much later if it becomes known at all, after all it is confidential and only initiated employees know about it.
~The money trees covered with the shadow of the state secrets grow in the Russian Armed forces. The crop is gathered by generals using the gaps in Law. The army is a state within a state. The army officials cover the abuse of authorities with military secrets, realizing the schemes of considerable financial crime.
~Significant problem of the Russian law is divergence and lack of legal clarity. Effective interaction of a citizen and a state is impossible, if the citizen has no idea about his (her) own legal status, rights and duties, corresponding rights and duties of other persons, powers of bodies of public authorities, and also about what legal judgment his her activities would receive in those or other situations. The principle of legal certainty links bodies of public authorities of all levels and it is directed toward the achievement of two basic interrelated aims: to provide rational stability and clearness of legal regulation, to create and provide trust of private persons in the law and the state. Uncertainty of the legal norm concede possibility of the unlimited judgment in the process of law enforcement and leads to abuse of power, so – to the violation of principles of equality and the supremacy of the statute law as such equality can be provided only upon condition of equal understanding and interpretation of rule by all persons, who can enforce law.
~The European Court of Human Rights has noted more than once that restriction of general rights can be considered as applicable in case if a person, having acquainted with a norm and having retained a lawyer or having referred to judiciary practice, cannot clearly understand consequences of the actions. The essential threat for legal clearness is represented by much general words, absence of interpretation of key terms or other different interpretations of the same terms consisting the national legislation, the national legislation should answer the standard of “legality” presented by the Convention, a standard, which demands that the legislation to be accurate enough to allow a private person, – if it is necessary, after appropriate recommendations – to evaluate consequences, as result concrete actions (see The decision of the European Court on the case “Khudoyorov against the Russian Federation” (Khudoyorov v. Russia), complaint N 6847/02).
~In the law «On State Secrets» there is a considerable quantity of estimated concepts, as, for example: «special physical installations, secure and high-security objects, military-political situation, strategic raw materials (art. 5), it classified information concerning foreign policy and foreign economic activity: foreign policy and foreign economic activities of the Russian Federation, its premature dissemination could do damage to state security (art. 5); the high ranking officials (art. 7); emigrants (art. 21), and etc.». There is no accurate legislative definition and regulation of such issues as: what high treason means, what disclosure of the state secrets is, who is responsible (subject of crime), what criminal intent is, and when there is no corpus delicti at all. Paragraph 3 of article 4 par 8 and art. 8 p. 3 of the Law “On State Secrets” № 5485-1, 21 July 1993. The order of definition of extent of harm which could be done, and rules of rating of the mentioned data to this or that level of sensitivity are established by the Government of the Russian Federation».
~But for a long time methods which allow defining the extent of harm (large-scale, very large-scale and etc.) depending on level of sensitivity (special importance, top secret, confidential) have not been expected. Its absence leads to the exposure of state secrets. One of the basic qualifying features of such crimes as high treason (art. 275 of the Criminal code of the Russian Federation) and espionage (art. 276 of the Criminal code of the Russian Federation), is harm that can’t be defined because of “slowness” of officials. Slowness is connected with responsibility of officials themselves that also depends on harm’s size. Article 7 states: “Officials, who had taken decision to classify information as state secrets or to include them as persons, who possess such information classified as state secrets, bear criminal, administrative or disciplinary responsibility depending on the extent of financial and moral damage, caused to a society, a state and citizens. Level of the information sensitivity classified as the state secrets, should correspond to severity level of a harm which can be done to the security of the Russian Federation as the result of the classified information disclosure. There are three degrees of information sensitivity classified as the state secrets, and corresponding to these levels the following definitions: “classified or restricted”, “top secret” and “secret” (the Federal Law of the Russian Federation № 5485-1 art. 8).
~It is inadmissible to classify information «on the expenses of the federal budget connected with law-enforcement activity in the Russian Federation» (the Federal Law of the Russian Federation № 5485-1 art. 5). In the conditions of outlined crisis of the criminal policy of Russia in the society the number of persons brought to trial for commission of crime, crime growth during the inflation of criminal law-making and increasing expenses of the federal budget, presence of negative consequences of the operation of the criminal law in sphere of demographic processes, growth of expenses concerning law-enforcement activity to the detriment of culture, education lead to the level fall of morals.
~Another not less important question – the information with a definition «for administrative use» which huge volume contains in the scientific and technical, legal, information documentation, dissertational researches, instructions, rules, and etc. There is no other normative act that regulates the order of use, closing terms, or possibility of sale of such information. The information can be sold with impunity or not, or it is a prize-winning bonus for special subject, that has access to such information, some kind of non-material stimulation. Many high-ranking officials of law enforcement authorities and not only have defended the so-called closed dissertations in the closed dissertational councils that deprives the society of the opportunity to estimate quality and depth of discoveries of public figures, possible abuse of official powers, plagiarism, or the significant contribution to science.
~The inadmissible situation when any person, who has no access to the classified information, can find in the public domain confidential information which he or she cannot define as confidential because of confidential List, having disclosure it, bears the criminal responsibility according to the Russian legislation.
~It is obviously necessary:
~1) To make an amendment to the law «On State Secrets of the Russian Federation № 5485-1» – «information is not classified as state secrets if it is already in the public domain to an uncertain number of persons».
~2) The Government of Russia should develop methods of definition of the notion of harm caused to the security of the Russian Federation as the result of disclosure of information classified as the state secrets.
~3) The Government of Russia should develop open methods of information use with definition «for administrative use».
~4) It needs expert estimation of the legislation regulating the state secrets on corresponding to the requirement of legal clearness, with the further amendments, for the purpose of elimination of estimated concepts, concrete definition, for its accordance to the international rule of law and elimination not an identity of the law and the right.
~5) It is necessary for executive authorities to publish all Lists of information classified as state secrets concerning rights, freedom and duties of a person and a citizen of Russia according to the Constitution of Russia.

~Unfortunately, today because of gaps of a law-maker the answer to many important questions depends on the discretion or mood of law enforcement authorities and court, instead of accurate and single definitions in the law. Corruption takes roots, as a rule, in the food solution of legal uncertainty. Possibility to qualify act «free», clearing of punishment of one by unreasonable condemnation of others, statistical well-being and career growth, the reporting about disclosing of the “great” crimes connected with the state secrets. The officials who are on guard of the state secret, don not understand all importance of the duties and necessity of observance of all protective measures. The legal base regulating protection and security of the state secrets is far from perfect and requires completion. Russia should bring the standard base regulating the state secrets in the accordance with the generally recognized principles and norms of the international law and the international agreement of the Russian Federation and the Constitution of the Russian Federation.

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