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Constitutional Court supports Memorial Society on acccess to archives

14 January 2013 

Source: (info)
The Constitutional Court of the Russian Federation has announced its decision in the case of a complaint brought by Memorial historian Nikita Petrov. The ruling concerns access to the majority of publicly significant archived documents which were classified over 30 years ago. The Constitutional Court's ruling provides strong grounds for the declassification of documents in federal and regional archives.

According to the Law "On state secrets", keeping information classified for a term longer than 30 years is only possible in exceptional circumstances. The FSB and Supreme Court considered that this rule did not enter into effect until 2023, referring to the fact that the law came into force on 21 September 1993.

"However the Constitutional Court confirmed that the classification period has already effectively ended for archives of USSR state secrets," wrote Anna Pushkarskaya in Kommersant.

The deputy chair of the Memorial Centre for Research and Education Nikita Petrov took his case to the Constitutional Court in spring of last year after he was prohibited from seeing three decrees issued by the MGB of the USSR for conducting research into the activities of agents authorised by the NKVD-MGB in Germany in the years 1945-1953.

In the course of the hearings at which the historian asked that the refusals by the Federal Security Service (FSB) be ruled unlawful and that they be obliged to declassify the documents concerned, Moscow City Court and the Supreme Court supported the FSB while ignoring Article 13 of the Law "On state secrets", which states that the period of classification must not exceed 30 years.

As already mentioned, the classification period may be extended only in exceptional circumstances.

In this case, an agency does not have the right to extend the classification period of a document which it has classified; only the Interagency Commission for the Protection of State Secrets can do this.

The Commission is currently headed by presidential adviser Sergei Grigorov, while the president himself directs the Commission's activity.

The FSB did not have the Commission's permission to extend the classification of the documents in question. This means that the documents' 30 year classification period has already ended, and thus that the FSB lacked legal grounds to refuse to declassify the documents.

It is notable that the Moscow City Court judge upheld the argument put forward by the FSB, who were convinced that the classification time limit did not apply to archive materials classified before 21 September 1993 (when the Law "On state secrets" came into force).

The FSB essentially tried to block researchers' access to archive funds. By their logic, the rule for the declassification of secrets will become applicable in 2023 at the earliest, and there is no classification time limit at all for documents from the USSR and the first three years of post-soviet Russia.

This would have made the overwhelming majority of archive documents from the Soviet period inaccessible.

Historian Nikita Vasilievich Petrov petitioned the Constitutional Court to rule that the interpretation of the Law "On state secrets" used in the case was unlawful and that the practice of courts and agencies based on this interpretation was unconstitutional.

The Constitutional Court followed the letter of the law in this case, which is extremely important for the preservation of historical memory.

In its decision the Constitutional Court highlights that the disputed rule literally states that the 30 year classification period applies in relation to information designated a state secret "both before and after [the Law "On state secrets"] enters into force."

Memorial historian Nikita Petrov's interests were represented at the Constitutional Court by jurists from the Petersburg Freedom of Information Foundation. They now intend to seek a review of the ruling by courts of general jurisdiction on the basis of the Constitutional Court's ruling.

Historians researching state terror in the Soviet period point out that the ruling of the Constitutional Court provides strong grounds for their demands that documents in federal and regional archives be declassified. This represents another significant victory in the defence of our right to information.

Historian Nikita Vasilievich Petrov. 2012. Photo: