Has the State Secret a Maximal Term?

On March 19, an application to the Constitutional Court was filed on behalf of Nikita Petrov, a Russian historian, against the actual practice of implementing Article 13 of the Law “On the State Secret”. The Article states that maximal term for information classification as state secret should not exceed 30 years. However, state bodies and archives believe this term is not applicable to archive materials classified before the Law enforcement in September 1993. The Constitutional Court will now decide if such an interpretation complies with the Russian Constitution.

In 2010, Nikita Petrov, PhD, a well-known Russian historian and Deputy Chair of the Memorial Scientific Research Center, studying Soviet state security bodies’ activities in Germany in 1945-1953, asked the Federal Security Service (FSB) to declassify a number of Orders of the USSR Ministry for State Security (MGB). The FSB refused, having explained that its own expertise had revealed information comprising state secret in the documents in question (we wrote about this here).

Later, Petrov submitted a number of requests for declassification of other Orders issued by the MGB in 1951-1953 but the FSB refused to declassify most of them, too.

Petrov applied to court instances, asking to oblige the FSN to declassify the documents in question since their 30-year classification term defined by the law had expired long ago and only the Inter-Departmental Commission for State Secret Protection could decide on its prolongation but the FSB had got no decision of that kind.

However, the FSB officials provided a rather unexpectable argument in court: in theit opinion, the Law “On the State Secret” approved and enforced in September 1993 should cover only documents issued later since the law is not retroactive. Following such a logic, any document classified before 1993 (including 1945-1953) can be classified for indefinite term unless the FSB itself would not decide to declassify them.

Court instances accepter the FSB’s argument and rejected all claims from Petrov. In two cases, courts stated explicitly that the 30-year classification term defined by the Law “On the State Secret” from 1993 should not cover documents of 1945-1953.

Thus, the court case have revealed serious problems in interpretation of the actual law on the state secret: now, it is interpreted against historians and other archive users since access to the vast majority of archive data could be closed for them for good.

To overcome this, Nikita Petrov, supported by the FIF lawyers, filed an application to the Constitutional Court. We hope that the Court could give correct direction to the law enforcement practice.

Topical Links:

• FIF Litigation Register: The case on refusal to declassify MGB Orders of 1945-1950

• FIF Litigation Register: The case on lawfulness of the FSB expertise conclusions on state secret presence in the MGB Orders of 1945-1950

• FIF Litigation Register: The case on the FSB decision to classify the MGB Orders of 1951-1953 as state secret

• FIF Litigation Register: The application to the Constitutional Court