10.07.2020

The Russian State Security Service (FSB) chose a good time to hide from public scrutiny

By Ivan Pavlov

Earlier this year, Russian President Vladimir Putin signed a law that introduces far reaching  changes to Russia’s constitution. The changes – which were approved earlier this month by a majority of the Russian electorate –  further broaden presidential powers and will allow Putin to remain in office until 2036. They are  intended to strengthen Russia’s sovereignty, by forbidding the loss or cessation of any of its territories, for example, and by emphasizing the primary position of Russian law vs international law. The new law, which has already been approved by the Russian Parliament, was originally to be voted on in a national referendum  scheduled for April 22, 2020. Due to the corona virus pandemic the vote was postponed until July 1st.  In the run-up to the vote, numerous other laws have been passed, that – taken together – critics say  essentially  amount to a coup by Russian authorities. These laws, the critics argue,  are designed to dramatically strengthen the power of Russian police and state security agencies, while seriously undermining citizens’ rights. They include, for example, important recent changes to  the rights and duties of Russia’s police force.

In an article published on April 10, 2020 in the Russian newspapers Novaya Gazeta  Ivan Pavlov, an attorney working in St. Petersburg Russia and an expert in constitutional law,  outlined how the Russian secret services use the distractions caused by the current public health crisis to  promote the  dangerous erosions of civil liberties and democratic processes. (Note from the editor)

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Currently, the battle against the corona virus is on everybody’s mind. This is not surprising, if one takes into consideration the extent of the pandemic and the global economic crisis.  Against this background, however, it has become quite difficult to draw public attention to other issues that only recently were at the very top of the public agenda. Is this not the best moment for the Russian authorities to quietly introduce initiatives that normally would cause a wave of public discontent and protest?

For example, on April 2, a draft presidential decree was published on the official website for draft legal regulations. It has a long title: “On Introducing Changes in the List of Information about Activities of the Federal Security Service of the Russian Federation Posted on the Telecommunications Network Internet, Originally Approved by the Decree No. 1075 of the President of the Russian Federation dated August 10, 2011”.

The announcement of the planned changes caused a rather weak reaction in the Russian media, prompting only a few casual mentions, and the emphasis was not on the most important points.

Of course, a draft decree regulating the openness of the executive branch is currently not the most important topic for discussion. But the pandemic will end sooner or later, and the decree, which was to be discussed publicly until April 16, 2020 will remain with us for a long time. The draft has now been updated, based on the proposed changes and work is currently under way to finalize the text. However, no changes have yet been accepted into it. The latest changes in the public domain are dated July 1, 2014.

So, what is it we should be thinking about, before it is too late?

The FSB has never met the  mandated criteria of openness that have been in place since 2003.

I would argue that this draft decree is simply an attempt to bring the law in line with current  law enforcement practice, which constitutes a violation of the constitutional right of citizens to access information about the activities of the Russian government authorities and the possibility of exercising this right through the use of information technology.

According to the proposed draft, it is not considered mandatory to place the following information on the official FSB websites:

– The FSB structure;

– Information about the tasks and functions of the FSB’s regional units;

– Information about the FSB leadership, with the exception of the first, middle (patronymic) and last names;

– Information about the establishing of mass media organizations and their funding;

– internal administrative orders (vedomstvennye normativno-pravovye akty in Russian)

– Draft laws, presidential decrees, government decrees and FSB rules affecting citizens’ rights and freedoms;

– Information about ruling by the courts of the illegality of the [FSB] internal orders;

– Information about international activities (FSB international agreements);

– Information about the trips taken by FSB leaders and their participation in official events;

– Public procurement information;

– Information about the work and conclusions of the internal anti-corruption commissions.

The following points on this list deserve special attention:

1. Internal administrative orders

The fact that they will become less accessible if the draft is adopted is objectively bad.

The public will not be able to familiarize itself with the legal rights granted to the special service on the FSB website, which means it will not be possible to assess the legitimacy of the FSB actions. This can lead to permissiveness of such practices.

According to the current legislation, the internal legal order (“acts”) must be officially published. Laws affecting the rights and freedoms of Russian citizens cannot be applied in practice if they have not been officially published. This rule is enshrined in Article 15 of the first chapter of the Russian Constitution, The Fundamentals of the Constitutional System, which emphasizes the importance of access to legal information.

For the official publication of the internal regulations of various authorities, including the FSB, there is an official site of legal information on the Internet, where one can still find legal orders  of  the FSB. However, the FSB initiative to release itself from the obligation to place internal regulations on its official website could be the first step towards the complete closeness of its legal information.

2. Drafts of federal laws

The desire of the Russian security authorities to hide their legislative drafting activity is understandable. The fact is that all siloviks [members of security services, police, and armed forces], as a rule, promote the most unpopular initiatives in society, aimed at restricting the rights of citizens. Remember, for example,  the “Yarovaya law” (a pair of Russian federal bills passed in 2016, amending a pre-existing counter-terrorism law. The amendments included an expansion of authority for law enforcement agencies, new requirements for data collection and mandatory deciphering in the telecommunications industry, and a ban on the performance of “missionary activities” in non-religious settings). The  petition against this law gathered more than 600,000 signatures, and a series of protest rallies took place across the country.

Despite the fact that formally the draft law was authorized by a State Duma deputy (Irina Yarovaya), according to my information its development was carried out on order and under the control of special services.

Now the law enforcement agencies have decided to legitimize such practices and make their own legislative initiatives, if possible, unnoticed, in order to easily implement them. Even before we did not know what bills the FSB lobbied for, and now this restriction of public knowledge is going to be mandated by a presidential decree.

3. The work and conclusions of the internal anti-corruption commissions

The wish to conceal this information is dictated by the FSB desire to conceal facts of illegal activities of its corrupt employees.

But it is precisely this information which the public has a special interest in. At the same time, according to the Federal Law on Access to Information on the Activities of State and Local Governments, all agencies are required to publish this information. So, why should an exception be made for the FSB?

Power authorities like to follow formal rules, so the laws that make them do something inconvenient are an irritant. And for such a special service as the FSB, this is a significant irritant, because it has never adhered to the rules governing access to information.

The FSB has no tradition of transparency. The siloviks need this new decree to enable them officially not to comply with the requirements (of disclosure), which are inconvenient for the agency, but are important for  the Russian society, as a preventive measure of protection against the arbitrary actions of the special services.

But it is necessary to consider one more extremely important point in this story. At first, some information that was previously mandatory to be disclosed to the public can now be transferred into the category  “provided upon request”. This may well serve as a simple precursor for designating the information entirely secret shortly after.

In other words, one can expect that after the adoption of this new draft decree, another decree will follow which will stipulate that all the above information concerning the FSB activities will become totally inaccessible for  Russian citizens, not only on the Internet, but also via the usual written requests addressed to the agency.

This means that, as it is being completely closed, the agency will be able to operate without any public control, significantly expanding the arsenal of its capabilities to limit the rights of Russian citizens.

 

IVAN PAVLOV is an attorney and resides in St. Petersburg, Russia. He is the founder and chief counsel of Team 29, a group of leading constitutional lawyers and journalists whose work focuses on issues related to freedom of information and press freedoms.

Translated from the Russian by Dr. Vadim Birstein


For further reading

http://www.kasparov.ru/material.php?id=5EABF9A10B1DC   (in Russian)

https://lenta.ru/articles/2020/04/23/newpolice/

https://www.sueddeutsche.de/politik/russland-putin-verfassung-1.4837394

 

 

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