20 September 2021
Ivan Pavlov, lawyer and laureate of the Moscow Helsinki Group prize, explains, in an interview with Novaya gazeta columnist Leonard Nikitinsky (who is also a member of the Presidential Council for Human Rights and a laureate of the Moscow Helsinki Group prize), how any information in Russia can be categorised as a “state secret” and how this “secret” can turn people into foreign agents.
The Ministry of Justice has asked that the administrative claims filed against Open Media journalists Maksim Glikin and Yulia Yarosh, who have been designated as “foreign agents”, be moved from a district court to Moscow City Court on the grounds that information on the “foreign financing” they received is classified as a state secret. Novaya Gazeta has sought comment from lawyer Ivan Pavlov, an expert on secrets who himself has temporarily (he hopes) left Russia in connection with his prosecution for disclosing “investigative secrets” in the case against journalist Ivan Safronov.
Ivan, when the television channel Dozhd was designated as a “foreign agent”, the Human Rights Council organised a meeting with a representative of the Ministry of Justice. He explained that the role of the Ministry of Justice is “purely technical”: it adds a media outlet or journalist to the register of “agents” based on reports from two departments: Roskomnadzor and Rosfinmonitoring. He partly clarified information from the former, but refused to do so with regard to financing, citing secrecy. At the time, I thought he was talking about trade secrets…
Our legislation on the regulation of state secrets lacks all transparency and is designed in such a way that any information can be classified as secret. Almost every department has detailed lists of information to be classified. These outline the categories of information that are considered to be state secrets. The problem is that these lists are approved by secret orders and are not published anywhere. The only people who are allowed to see the lists are those with access to state secrets, and usually only those lists that have been approved by their own department. It is therefore not uncommon for a ministry or federal agency not to know what another department considers to be a state secret.
As for Rosfinmonitoring’s “secrets”, I believe that this department receives information from the intelligence services, mostly likely the FSB, which, in turn, receives information in the course of investigative, counterintelligence or intelligence activities. Documents with such information are initially prepared with some form of classification and passed from one department to another in accordance with the rules for handling state secrets. That is why the representative of the Ministry of Justice refused to comment on the information when he met with members of the Human Rights Council.
Cases involving state secrets are heard by higher courts rather than district ones. Hence the case has been moved to the Moscow City Court. In practice, an administrative plaintiff can only be represented by someone with the status of a lawyer, from whom the court is obliged to get a signed agreement on the non-disclosure of state secrets.
It is unlikely that this has anything to do with trade secrets, since these safeguard the interests of private individuals (Dozhd or Glikin or Yarosh). Hiding these people’s own trade secrets from themselves would be absurd.
But what secrecy is involved in the fact that these journalists, let’s say, participated in a foreign conference whose organizers paid for their tickets?
Consider Presidential Decree No. 1203 of 30 November 1995, Paragraph 85, which states that state secrets may include: ‘information revealing the forces, means, sources, methods, plans or results of operational and investigative [law enforcement] activities…’. The Ministry of Justice itself, the FSB or the Interior Ministry, as well as some other agencies mentioned in this paragraph, can fill out their own departmental lists (which are classified, I remind you) with their own specific detail.
This smacks of a real spy novel. Let’s say that the FSB secretly sent, say, some Petrov and Boshirov or other to, say, Odessa, to transfer 100 hryvnia each to Glikin and Yarosh …
Of course, this is absurd and aimed only to make it more difficult for people to defend themselves in court. Most likely, there is no sensitive information in these documents, and they use Paragraph 85 just to put a frightening ‘Classified’ stamp on a document. And those whose rights have been violated by their inclusion in the ‘foreign agent’ list can only wonder what those who made the decision to include them in the register had in mind. I’ve been involved in dozens of cases in Russia related to state secrets, and it was always defined in a similar arbitrary way.
Ivan, now we’ve managed to get hold of you, do tell our readers where you are and how you got here. It’s not a secret?
I’m in Tbilisi and I am not making a secret of it. I chose Georgia for several reasons: first, I didn’t have any visas and I don’t need one to come here. My mother was born in Tbilisi, my grandfather is buried here and I lived in Georgia for several years when I was a child with my relatives. Besides, I have a lot of friends here and many lawyers that I know. It was very important for me to keep professional ties. I hope to go back to Russia as soon as there will be the right conditions for me to continue my work as a lawyer, but for now I will be more useful to my clients giving consultations from here, from a distance, than in Russia. I was forbidden to use any means of communication and the Internet by the decision of Basmanny court in Russia. The pre-trial restrictions imposed on me prohibited any communication with witnesses in the criminal case. And when the investigator questioned Ivan Safronov as a witness in my criminal case, it made any communication with him in Lefortovo impossible.
In addition, the investigators did not hide their desire to find something more and initiate new criminal charges against me. For example, in early July several documents from the Safronov case file, which had been confiscated from me during the search, were sent to experts at the FSB Institute of Forensic Science to check them for the presence of any biological traces (such as fingerprints) of other people. That is, the investigators were looking for anything that would indicate that I had disclosed a state secret in order to bring a more serious charge against me. Of course, all these suspicions were nonsense and I did not divulge state secrets to anyone. But I understood this maneuver as another signal pointing in the direction of the international airport, and began to pack my bags.
As far as I understand, Team 29 was disbanded even earlier?
Such an organisation has never been registered, but when they started to associate us with an organisation in the Czech Republic recognised as “undesirable”, we announced self-liquidation so as not to expose ourselves or those who have helped us by disseminating information or making donations. Of course, informal connections between like-minded people have remained and, over time, we will figure out how and in what forms to continue our work. Naturally, you recall that the number 29 in the title refers to both the article of the Constitution on the prohibition of censorship, and to chapter 29 of the Criminal Code of the Russian Federation: “High treason, espionage, disclosure of state secrets”. We will continue our activities, aimed firstly towards openness within the judicial system, in combating stupid people – but the right people – to fight for freedom “with secrets”. I am not a politician, I am a lawyer, and I will return to Russia as soon as possible, when it is possible to work there. Currently, this is impossible for me, my decision to leave was forced.
Were you allowed to fly from St Petersburg without obstruction?
Yes, this was apparently the aim, and to some extent is even humane. I have no doubt I was followed. I had to not only pack my bags and transport things but also travel a lot and meet with other lawyers in order to transfer client cases to them, of which there are about a dozen at varying stages. I booked a one way ticket on 1st September, 4 hours before departure. They watched me right from morning that day, standing next to the entrance and on the street. When my wife and I took a taxi, we were followed by at least two police cars – friends punched the numberplates into a database and it turned out that no such numbers exist. On the benches and in front of the check-in desk at the airport, athletic young men wearing comfortable shoes and man bags sat in plain view, not really hiding. They escorted us to the gangway, as they say. It was somewhat unnerving, but they let us fly off and did not even prevent the transport of our dogs.
Oh, what are their names?
Two labradors, a girl named Easy and a boy named Hard. I hope that we will return to Russia in the same configuration.