4 November 2021
by Leonid Nikitinsky, columnist for Novaya Gazeta, member of the Presidential Human Rights Council, laureate of the Moscow Helsinki Group Prize, interviews human rights lawyer Ivan Pavlov, currently living in Georgia
New guidelines on classified documents reinforce the established practice of arbitrarily assessing what constitutes ‘damage to national security’
On 30 October, Mikhail Mishustin approved new guidelines for rating state classified information according to its degree of secrecy. Who else to talk to about this if not the lawyer Ivan Pavlov, who has represented the accused in many criminal cases related to state secrets, and who now himself is wanted by the authorities and currently resides in Georgia.
Ivan Pavlov: Mishustin’s resolution makes some changes to the 1995 document that was signed by Viktor Chernomyrdin. This established the principles that the federal authorities used to assemble lists of information that constituted top state secrets, as well as the guidelines for rating such information according to its degree of secrecy. The new version of the resolution retains only the rating guidelines, since all departmental lists have long been assembled and enacted by the corresponding directives. I think that the increased attention to this document in the news is only due to the fact that criminal cases related to state secrets are becoming more and more frequent.
— Why then was a new document needed?
Ivan Pavlov: I think this question should not be addressed to me and or even Mishustin, but to the FSB. After all, it is this intelligence agency that is the main law enforcement agency with regard to state secrets. In my opinion, with the help of this amendment, the FSB is getting rid of the regulations contained in the previous version, which hadn’t been implemented in practice anyway.
That is to say, a good law is being brought into line with bad judicial and law enforcement practice.
The fact is that the previous version contained provisions according to which the authorities were obliged to develop regulatory methods that determine quantitative and qualitative indicators of ‘harm to security’ due to the unauthorized dissemination of information categorized as state secrets. This provision was of crucial significance, since it was a kind of safeguard against arbitrarily categorizing any kind of specific information as a state secret. But so far, no such regulatory and procedural guidelines have been adopted. In practice, this led to the fact that the specialists whom the FSB had recruited to conduct evaluations for ‘espionage’ cases did not have any objective evaluation criteria, but were instead only guided by their own, very subjective opinion. The experts’ ‘rule of thumb’ approach to determining what constituted state secrets was criticized in almost every court case in which I had to participate.
According to the new version of the regulation, government bodies are no longer obliged to develop quantitative and qualitative indicators for ‘harm to security’. Thus, the state decided to follow a path that was easy for itself – to change the rules and exclude from them those cumbersome provisions that make it difficult to prosecute under articles as such treason, espionage and illegal receipt of state secrets.
— It became known that your client, Ivan Safronov, was charged with selling the Motherland’s secrets in 2015 to the political scientist Voronin for only $248.
Ivan Pavlov: And he, in turn, allegedly forwarded Safronov’s information to German and Swiss intelligence who, on the basis of this communication, allegedly, were able to draw conclusions about the Russian Armed Forces’ operations in Syria. Firstly, I have no doubt that Ivan will be able to provide the open sources from which he obtained this information. Secondly: enemy intelligence were able to draw their conclusions in this way or they did draw such conclusions? And then what happened? What, in fact, was the harm to our national security?
Translated by Tyler Langendorfer