‘The Kremlin gets a monopoly on truth’ A lawyer sets out to challenge Putin’s decree classifying Russian military deaths

On May 28 2015, President Vladimir Putin issued a decree classifying all information on Russian military deaths during peacetime. This information is now considered a state secret. Two weeks later, on June 15, lawyer Ivan Pavlov (who defended Svetlana Davydova and specializes in treason cases) sent a statement to Russia’s Supreme Court. He plans to show that the president can’t classify this sort of information of his own accord. This class action lawsuit has garnered support from journalists and civic activists. Meduza asked Pavlov to write about the arguments he is presenting to the Supreme Court against the decree.

On May 28, 2015, Vladimir Putin issued a decree classifying information on military casualties in peacetime that occur during special operations a state secret. The link between this decree and the situation in southeast Ukraine is obvious. The reason it was signed is also transparent—to stamp out any attempts to objectively cover the conflict in a way which contradicts the official version of events.

Journalists working in the conflict zone could become victims of the legal ambiguity of the decree. Under Russian law, there is no legal definition of a “special operation,” and they are carried out under a secret regimen “without a declaration of war.” It’s becoming difficult to understand where the line is drawn between a state secret and freely available information. Journalists risk ending up in the middle of criminal investigations for inadvertently revealing state secrets.

This decree is vulnerable from a legal point of view. This is why we’re contesting it in the Supreme Court. Our class action suit has been signed by renowned journalists and civic actors.

It’s important to note that Putin’s decree as such is only part of the problem. It amends Point 10 of President Boris Yeltsin’s decree, issued 20 years ago during the First Chechen War, that classified information on casualties during wartime. We believe that Yeltsin’s decree is also unlawful.

Until recently, we had no real pressing need to dispute the rule Yeltsin introduced, as far war has not been declared (and we hope it won’t be). But the May 28 decree, which added peacetime casualties to the list of classified information, was the last straw for us. This is why we’re appealing against point 10 of Yeltsin’s decree – “List of information considered a state secret.”

We are presenting two arguments against Point 10 for review in the Supreme Court.

Argument 1

Both Yeltsin and Putin exceeded their authority by classifying losses in war and peacetime

According to Russia’s constitution, the right of citizens to freely search for, receive and distribute information can be curtailed only at the level of federal law. Article 5 of the federal law “On State Secrets” gives a list of types of information that are classified. This includes information in the military sphere, such as details of strategic or operational plans, documents on the military’s chain of command, on plans for building up the armed forces, on deployment of armed forces, and so on. The list from Article 5 is comprehensive. Military casualties are not mentioned in it.

In addition, the law “On State Secrets” does not grant the president the authority to expand the list of information considered a state secret. A presidential decree isn’t law, it’s a sort of by-law, and it cannot set up additional constraints. Article 9 of the law “On State Secrets” indicates that on the basis of Article 5, the president can confirm the so-called “list of information considered a state secret.” These are defined by the relevant state authorities that are given the power to classify information that falls within the categories laid out in the law. Thus, presidential power extends to defining the competent state authorities, but does not extend to introducing new categories of secret information expanding the limits set up by the law “On State Secrets.”

Argument 2

Extraordinary events can not be made state secrets

Article 7 of the law “On State Secrets” does not allow information about extraordinary events, threats to the security or health of citizens, or the consequences of such, to be listed as state secrets. Military actions and special operations, which can result in human casualties, can definitely be considered extraordinary events. We think that the relatives of serving soldiers would agree with us.

Opponents often point to foreign precedents. “Everything is classified in the West too.” I can give a few examples here which show that this is not the case.

In the USA, all information on casualties in all wars and operations (starting from 1775 all the way up today) is published. For example, you can easily find out how many people died in “Operation Enduring Freedom” in Afghanistan.

In the UK, the publication of this kind of information is managed by a government agency called the Joint Casualty and Compassionate Center. Information on losses is also published on the website of the Ministry of Defense. In secret operation cases, these organizations reveal the name of the soldier without further details of their detachment or where they served.

In Israel, there is no practice of automatically publishing statistics on casualties, but journalists can freely obtain such information from the Defense Ministry.

We consider challenging Point 10 of the presidential decree classifying casualties extremely important. The existence of this norm gives the authorities a monopoly on truth, and this is an unhealthy and dangerous trend.