Ivan Pavlov: "On 28 May 2015 Vladimir Putin signed a Decree making information about military losses during special operations in peacetime a state secret. The connection between this Decree and the situation in south-east Ukraine is obvious. The purpose for which it was signed is also transparent: to stall any attempts at objective reporting of the conflict that might conflict with the official version.

Journalists working in the conflict zone may become victims of the legal uncertainty surrounding the Decree. The law does not define 'special operations', which are conducted without publicity and "without a declaration of war." To understand what constitutes a state secret, and what is open source information, becomes problematic, and a journalist risks becoming the target of criminal prosecution for unwittingly disclosing state secrets.

This Decree is questionable from a legal standpoint. This is why we are challenging it in Russia's Supreme Court. The class action lawsuit has been joined by the journalists and public figures Arkady Babchenko, Vladimir Voronov, Svetlana Davidova, Pavel Kanygin, Ruslan Leviev, Timur Olevsky, Grigory Pasko and Lev Shlosberg.

It is worth noting that Putin's Decree of 28 May, in and of itself, is only part of the problem. It amends clause No. 10 of a decree issued by President Boris Yeltsin's, who 20 years ago, during the first Chechen campaign, designated information on casualties in wartime as classified. We believe that this was also done unlawfully.

Until recently we have not felt any pressing need to challenge the rule that was brought in by Yeltsin, since no declaration of war has never been made (and, we hope, will not be declared this time either). But the Decree of 28 May, which extended the label of 'confidential' to include information on casualties in peacetime, was the last straw for us. So, now, the end result is that we are going to the Supreme Court with a statement contesting the 10th clause concerning the 'List of information classified as state secrets', approved by Yeltsin in 1995 and supplemented by Putin in late-May 2015 (hereinafter, the 10 clauses).

We are presenting two arguments before the Supreme Court contesting the 10th clause.

Argument One

In classifying casualties in wartime and peacetime, both Yeltsin and Putin exceeded their authority.

According to the Russian Constitution, the right of citizens to freely seek, receive and impart information may be limited only at the level of Federal law. Article 5 of the law 'On State secrets' provides a list of information that may be classified as secret. This includes certain information related to the military: the contents of strategic and operative planning, documents on military administration, on plans for the development of military forces, on the location of forces and so on. The list contained in Article 5 is exhaustive. There is no mention of casualties in this list.

Meanwhile the law ‘On State secrets’ does not give the President powers to extend the list of classified information. Moreover, a Decree is not a law, but a by-law, and cannot establish additional restrictions.  

Article 9 of the law ‘On State secrets’ provides that on the basis of Article 5 of the same law the President confirms the so-called ‘List of information considered to be a state secret’, a list that is determined by government bodies empowered to classify certain information in terms of the categories indicated in the law. The President’s list is determined by the appropriate authorities but cannot introduce new categories of secret information or widen the limitations laid down by the law ‘On State secrets’.

Argument Two

Information about extraordinary events cannot be classified as a State secret

Article 7 of the law ‘On State secrets’ does not permit information about extraordinary events that threaten the security and health of citizens, and their consequences, to be classified as a State secret. Military action and the conduct of special operations as a result of which people are killed can with certainty be described as extraordinary events. We believe that the relatives of military service personnel will agree with us.

Those who disagree with us often cite foreign experience, taking the view that ‘in the West everything is secret too’. I can cite a number of examples to show that this is not correct.

In the USA all information about losses in all wars and military operations (since 1775) is published, including with regard to current conflicts. For example, one can find out how many people died in the operation Enduring Freedom in Afghanistan. In Great Britain information of this kind is the responsibility of the Joint Casualty and Compassionate Centre. The website of the Ministry of Defence of the country also publishes ongoing information about losses. In the event that an operation is conducted in secret, the name of the individual special services member is published, without details of the unit to which they belong. In Israel there is no similar practice of publishing statistics about losses, however journalists can always freely obtain such information from the Ministry of Defence.

We consider that challenging the 10th point of the Decree on classifying military losses is an extremely important task. The existence of this norm gives the authorities a prerogative over the truth, and this is an unhealthy and dangerous tendency.

Ivan Pavlov
St. Petersburg