RUSSIAN SUPREME COURT REBUFFS DEFENSE MINISTRY ON SECRETS.

Russian human rights advocates celebrated two major legal victories this week, as the country’s Supreme Court struck down a pair of secrecy laws that authorities have used over the past several years to construct highly dubious treason cases against a group of Russian citizens involved in defense and security work. The treason cases have drawn the attention of human rights groups around the world, and one–conducted against the forty-year-old former Navy captain and journalist Grigory Pasko–has increasingly become a political embarrassment for the Kremlin.

Indeed, it was Pasko, whose defense team had filed the complaints with the Supreme Court, who appeared to be the biggest immediate winner of the court’s decisions. Pasko was first arrested in November 1997 on accusations of having passed secret information to the Japanese. He is now back in prison following a July 2001 court decision that reversed an earlier acquittal. But Russian legal experts suggested this week that others who are also now sitting in prison, including the respected Russian defense analyst Igor Sutyagin and a Russian businessman–Viktor Kalyadin–involved in defense production could also profit from the court’s rulings. Kalyadin’s defense team was also involved in filing the complaints with the Supreme Court that were ruled on this week. It was less clear, however, whether two other Russians facing similar charges will benefit similarly from this week’s rulings. They are Valentin Danilov, a senior scientist accused of passing secrets to the Chinese, and Valentin Moiseev, a former high-ranking Russian diplomat who has been imprisoned since 1998 on charges that he passed classified information to the South Korean government.

The first law struck down by the Military Collegium of the Russian Supreme Court was Order No. 55, which was issued by the Defense Ministry in 1996 and which served to classify as state secrets more than six hundred items of defense-related information. The court ruling was based on the twin facts that the Defense Ministry had never registered Order No. 55 with the Justice Ministry, as it had the legal obligation to do, and that the substance of the law had never been made public. On that last point the court was distancing itself from a Soviet-era practice of using secret laws to prosecute citizens for passing information that they could not have known was classified as secret.

On February 13, one day after the Supreme Court’s Military Collegium ruled against Order No. 55, the same body also struck down another Soviet-era practice, this one embodied in a 1990 Defense Ministry order that forbade Russian military personnel with access to state secrets to have any contact with foreign citizens unless that contact occurred as part of their official duties. The court ruled that this Defense Ministry order–actually Article 70 of decree No. 010–violates the right to privacy safeguarded in the Russian constitution. By law the Defense Ministry has ten days to appeal the court’s February 13 ruling, just as it has ten days to appeal the ruling of a day earlier, but military officials were unclear as of yesterday as to whether they would do so.

This week’s two quick and successive legal victories for Pasko’s defense team were something of a surprise, and triggered some immediate speculation that the Kremlin may have a hand in the Supreme Court’s decisions. A leading Russian human rights activist, for example, was quoted by the daily Vremya Novostei on February 13 as saying that “To all appearances, the FSB (Russia’s Federal Security Service) is not breathing down the necks of judges. It is possible that this is the president’s achievement, because the FSB obeys him.” The same activist suggested that Putin’s move had been motivated by public sentiment over Pasko’s case, and by the fact the case “is damaging the image of the Russian government abroad.”

If the Kremlin was involved in this week’s decisions, then it would appear to mark a change of strategy by the Russian president. Putin is himself a career intelligence officer and served for a time in the late 1990s as FSB director. It was under his leadership that the organization began to move against so-called nuclear whistleblowers–the first was Aleksandr Nikitin, a naval officer who helped to chronicle the Russian Northern Fleet’s mishandling of nuclear wastes–and Putin’s accession to the Russian presidency was accompanied by what observers have described as the flowering of a new “spy mania” in Russia. By that they meant the FSB’s increasingly heavy-handed effort to use treason investigations and charges as a way to intimidate Russian citizens with access to sensitive defense information and thereby to chill their contacts with foreign colleagues and organizations. It is impossible to determine whether Putin was personally involved in this campaign, but Russian sources have produced some quotes suggesting that the Russian president is anything but a friend to those environmentalists and others who have sought to uncover some of the military’s more suspect practices. As head of the FSB, for example, Putin accused environmental organizations and charities of sometimes serving as covers for intelligence operatives. As president he reportedly told lawmakers that “every person who has contact with foreigners should be scrutinized” (Moscow Times, November 17, July 26, 2000).

If the Supreme Court’s decisions this week marks a potentially important–and perhaps even landmark–step forward in the area of Russian judicial reform, it is still not clear what their precise impact will be on the case involving Grigory Pasko. The former Russian captain remains in jail awaiting an appeal that is expected to be heard next month. His legal team and supporters, meanwhile, did highlight one negative factor in this week’s court decision. The ruling that rendered Order No. 55 void was not made retroactive to 1996, when the order was issued, but took effect only from the date on which the ruling was announced. Pasko’s team will apparently appeal that point, given that it could prove crucial to their case. It is unclear, however, how the court will respond.

Legal jockeying has now begun, moreover, over the degree to which the government’s case against Pasko (and, indirectly, against some of the others accused of treason) actually rests on the two Defense Ministry orders struck down this week. Not surprisingly, prosecutors have claimed that the orders in question played only a marginal role. The defense team and some human rights advocates, on the other hand, are arguing that the government’s case, always weak, has now been left without a legal leg to stand on. Observers in Russia and in the West will be watching closely to see how the Supreme Court rules on this point, and also to try to determine whether the decision rendered is based on legal merits, or whether it is more reflective of political moods in the capital (Moscow Times, New York Times, Vremya Novostei, Reuters, www.bellona.no, February 13; Washington Post, February 13-14; The Telegraph, February 14).

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