Autor/Autorin
Earlier this year, Russian President Vladimir Putin signed a law introducing far-reaching changes to the Russian constitution. The amendments – which were approved by a majority of the Russian electorate earlier this month – extend Putin’s powers and allow the president to remain in office until 2036. They aim to strengthen Russia’s position of power by, for example, prohibiting the loss or abandonment of any of its territories and stipulating the supremacy of Russian law over international law. The new law, which has already been approved by the Russian parliament, was originally to be put to a vote in a national referendum planned for 22 April 2020. Due to the coronavirus pandemic, the plebiscite was postponed to 1 July. In the run-up to the referendum, numerous other laws were passed which, according to critics, ultimately amount to a coup by the Russian authorities. These laws, critics argue, aim to dramatically strengthen the authority of the Russian police and state security agencies while seriously undermining the civil rights of citizens. This includes, for example, important new changes to the rights and duties of the police in Russia.
In an article published in the Russian newspaper Novaya Gazeta (New Newspaper) on 10 April 2020, Ivan Pavlov, a lawyer and constitutional law expert working in St. Petersburg, described how the Russian secret services are using the distractions caused by the current health crisis to further the dangerous erosion of civil liberties and democratic processes. (Editor’s note)
At the moment, the fight against the coronavirus is omnipresent. This is not surprising given the scale of the pandemic and the global economic crisis. Against this backdrop, however, it has become difficult to focus public attention on other issues that were at the top of the agenda just a short time ago. Is this not the best time for the Russian authorities to quietly launch initiatives that would normally trigger a wave of public anger and protest?
For example, on 2 April, a draft presidential decree was published on the official website for draft legislation. It has a long title: „On the introduction of amendments to the list of information on the activities of the Federal Security Service of the Russian Federation (FSB) published on the Internet (in the telecommunications network), originally approved by Decree No. 1075 of the President of the Russian Federation of 10 August 2011″.
The announcement of the planned changes caused a rather weak reaction in the Russian media, with only a few casual comments, and the emphasis was not on the most important points. Of course, a draft decree regulating the transparency of the executive branch is not the most important topic of discussion at the moment. But the pandemic will end sooner or later and the decree, which was to be publicly discussed by 16 April 2020, will be with us for a long time to come. The draft has now been updated based on the proposed changes and work is currently underway to finalise the text. However, no changes have yet been made. The last publicly available changes date from 1 July 2014.
The FSB has never met the mandatory criteria for transparency that have been in place since 2003 . I would also like to argue that this new draft decree is merely an attempt to bring the law into line with current law enforcement practice , which is a violation of the constitutional right of citizens to access information about the activities of Russian government agencies and the possibility of exercising this right through the use of information technology. With the current draft law, it will no longer be mandatory to post the following information on the official FSB websites:
– the structure of the FSB;
– information on the tasks and functions of the FSB’s regional units;
– information on the FSB’s senior staff, with the exception of first, middle (patronymic) and surnames;
– information on the establishment of mass media companies and their financing;
– internal administrative orders (vedomstvennye normativno-pravovye akty in Russian)
– Draft laws, presidential decrees, government decrees and FSB rules concerning the rights and freedoms of citizens;
– information on court decisions on the illegality of the [FSB’s] internal orders;
– information on international activities (international agreements of the FSB);
– information on FSB executives travelling and participating in official events;
– Information on public procurement;
– Information on the work and results of the internal anti-corruption commissions.
The following items on this list deserve special attention:
The fact that they will be less accessible with the adoption of the new law is objectively bad.
The public will no longer be able to familiarise themselves with the legal rights granted to the special services on the FSB’s website. This means that it will not be possible to effectively verify the legitimacy of the FSB’s actions. This may lead to the general acceptance of such practices.
According to the applicable legislation, the internal legal order („the internal rules and regulations“) must be officially published. Laws and regulations affecting the rights and freedoms of Russian citizens may not be applied in practice until they have been officially published. This rule is enshrined in Article 15 of the first chapter of the Russian Constitution, „ The Foundations of the Constitutional Order“, which clearly emphasises 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 legal information website on the Internet, where FSB legislation can still be found. However, the FSB’s initiative to release itself from the obligation to publish internal rules and regulations on its official website could be the first step towards the complete closure of access to internal legal information by the FSB.
The desire of the Russian security services to conceal their activities as authors of draft laws is understandable. The fact is that all siloviks (members of the security services, police and armed forces) usually promote the most unpopular initiatives in society aimed at restricting citizens‘ rights. Recall, for example, the „Yarovaya Law “ (two Russian federal laws passed in 2016 that replaced an already existing law on counter-terrorism). The amendments included an expansion of the powers of law enforcement agencies, new provisions for data collection and mandatory decryption in the telecommunications industry, as well as a ban on carrying out „missionary activities“ in non-religious environments. The appeal against this law gathered more than 600,000 signatures and a series of protest rallies were held across the country.
Although the draft law was formally approved by a Duma deputy (Irina Yarovaya), according to my information it was drafted on behalf of and under the control of the special services.
Now the law enforcement agencies have decided to legitimise such practices and, if possible, to draw up their own legislative initiatives unnoticed in order to pass them more easily. Even before this new initiative, we did not know which draft laws the FSB was lobbying for, and from now on this restriction of public information will be officially imposed by presidential decree.
The desire to conceal this information is driven by the FSB’s intention to hide the illegal activities of its corrupt employees. But it is precisely this information in which the public has a particular interest. At the same time, according to the Federal Law on Access to Information on the Activities of State and Local Governments , all authorities are obliged to publish this information. So why should an exception be made for the FSB?
Bodies of power like to abide by formal rules, so the laws that force them to do something unpleasant are a nuisance. And for a service as specialised as the FSB, this is a considerable nuisance because it has never complied with the rules on access to information.
The FSB has no tradition of transparency. The siloviks need this new decree to officially enable them not to fulfil the demands (of disclosure), which are inconvenient for the agency but important for Russian society, as a preventive measure to protect against arbitrary actions by the special services.
But it is necessary to consider one more extremely important point in this story. First of all, certain information that previously had to be made freely available to the public can now be moved to the „to be made available on request“ category. This may well serve as a (first) precursor to declaring the information completely secret a short time later.
In other words, it is to be expected that the adoption of this new draft regulation will be followed by another regulation stipulating that all the above-mentioned information on the FSB’s activities will become completely inaccessible to Russian citizens, not only on the Internet, but also via the regular written requests addressed to the agency.
This means that the agency will be able to operate without any public scrutiny, as it will be completely shielded from the outside world, which significantly expands its arsenal of possibilities to restrict the rights of Russian citizens.