"Law and Security", the journal

Issue 1 (10), March 2004

State Secret Institution as State Function for Society and Person

A.V.Ustinkov, Senior Lecturer of Criminal Law and Criminal Procedure Department, Russian FSB Academy, Candidate of Sciences in Law

In modern Russia state secret institution has become an independent phenomenon, which does not have much in common with real life. Being carried away by regulation of state secret turnover, accesses, making lists and other issues of technology we forgot about the main thing. State secret is removal of information from free circulation. Institution of state secret and all the technology of its circulation is a function of state with regard to society and person. Speaking in terms of algebra society and person are arguments. Protection of their interests (ensuring of their safety) justifies the existence of state secret itself.

In other words institution of state secret at least must not interfere with normal development of society and economy. Today it apparently does.

First of all, the institution of state secret encompasses obviously excessive areas of social life. This is due to certain explicable historical reasons. First, Russia inherited the system of total secrecy from the USSR which was probably effective during "the cold war". Second, during the first years of Russia's independence the institution of state secret included information stamped "classified" which had not been such before.

The present state secret institution significantly hinders from effective information exchange.

State secret institution grades public control over governmental bodies activities. It is easier for an unfair official to classify the information concerning his of her improper decisions than to make it public.

State secret institution is a quite an expensive entertainment: "the first" departments, security services, filing clerks, special courier sections, thousands of tons of paper, bonuses to wages etc. Has anyone tried to estimate if the system is economically rational?

State secret institution replaces many other legal institutions. For example, proprietary right towards "secured" enterprise is sometimes restricted by the fact that the new owner lacks access to state secret. Or sometimes the question is raised about the necessity to allow access and register it for an attorney with regard to a certain criminal case.

Thus we should strive for ensuring of the fact that state secret institution was not a burden for normal development of society and economy, so that it did not harm but help.

How can we achieve it?

First of all, we should significantly narrow the range of matters relating to state secret. The present swelling of the information being the subject of state secret, except economic costs, results in a number of adverse consequences.

1. Too great amount of classified information make state secret not something exclusive but an ordinary thing. The essence of state secret as special data important for all the state, society and person is lost.

It is very difficult to explain to an ordinary Russian citizen why this or that information is subject to their classification. This is not about a certain "list of information"; it is about the data essence. That is why ordinary courts and even more so the juries negatively react to the references to data lists requiring to reason the necessity to classify the information, and in the end they often claim it unreasonably classified.

"Swelling" of information being the state secret results in it negligent treating by the admitted person. "Secret bearers" also can not explain to themselves why the information is classified. In their secret- ensuring activity they are not personally motivated by belief that divulging of the information is harmful for all of us, for their friends, neighbors, the society as a whole.

2. "Swelling" of state secret results in selectivity of responsibility for breaking of the rules of its treatment. There are no measures and means to react to each violation; only the ones which attracted the attention of law-enforcement machinery are punished.

3. The great amount of state secret allows to conceal the "local secrets" as being the part of it: regional secrets, commercial secrets etc. The scheme when an enterprise or a section of ministry secret is stamped "classified", the secret of all the ministry - "top secret", and the secret of superior bodies - "special importance" is not earnest. In this scheme according to the general rule the only the information with stamp "special importance" occurs to be a real federal secret.

4. "Swelling" of state secret allows numerous governmental bodies to classify information which may not be originally secret. For example, in accordance with the List of information relating to state secret, "the information disclosing the forces, means and methods of conduction of investigation with regard to criminal cases concerning crimes affecting the basis of constitutional system and security of state, peace and safety of mankind... "1 is subject to classification. What is the special search held in case of espionage investigation?

Cardinal narrowing of range of information being the state secret is the barest necessity. The criterion is evident: only such information may be referred to state secret which disclosure is utterly dangerous for society or person. This is the real state secret, not just a stamp in upper right-hand corner of a document. In other words, the protection of the most important interests of society and person constitutes a basis of material (qualitative) criterion of ability to attribute some data to state secret. Practical importance of the criterion lies in effective and adequate (to essence of information) use of such costly tool as the institution of state secret2.

If to apply the criterion to the present amount of state secret only the data of special importance and some of top secret information will remain a real secret. Exclusion of secret and some of top secret information from state secret institution does not mean that the former ones will not be protected any more. Such data shall be given the status of commercial/ bank secret, confidential information, information of administrative use or similar.

Cutting down the range of information being the state secret, i.e. giving it the content which is adequate to the name, will, first of all, require teaching campaign and simultaneous alteration of law about state secret. The aim of the campaign will be the presentation of new capacity of state secret to people. In order to avoid associations with present state of affairs and exclusion of historical analogies, probably, the term "state secret" must be changed into "strategic" or "national" secret. The renaming will allow to position the new state secret not just an upgrade of an old "product" but as a new one.

Significant Provisions of State Secret Law

The purposes of state secret law is to fix the criteria of referring of this or that information as such as well as criteria of declassification and detailed regulation of such information circulation.

On the whole, the present system of law concerning state secret does not conflicts with the declared purposes (mentioning in RF constitution, frame law "About state secret" which is based on it. laws and by-laws elaborating on the provisions of the former two ones). At the same time while the acceptable skeleton the practical content is not quite successful.

First of all, state secret law more and more becomes the private main of administrative law. In this connection the regulating devices attributable to other law branches are understood as co-subordinated to administrative law, as executing devices of its provisions. Such approach is fundamentally wrong as it lowers the level of social relations connected with state secret circulation. For example, law "About state secret" stipulates restrictions of constitutional rights of citizens (right to freedom of movement, right to private liberty etc.) This law contains the norms of law of employment (bonuses to the persons with access to state secret etc.), outlines of criminal law norms (liability for gross violations of circulation rules). Thus state secret law is of inter-branch character and is entitled to be attributed to federal (common) law, but not to administrative law. At the same time administrative law and respective administrative-law order plays the most significant role in regulation of state secret circulation.

In order to ensure positioning of state secret institution of federal one, quite simple alteration of legislation is necessary. Frame law "About state secret" should include only the notion of state secret as well as criteria of classification and declassification of information. Procedure of secret circulation (i.e., generally, administrative law connected routine) shall be isolated as a separate law. The future law concerning the level of legal control over state secret circulation shall be placed on one level with, for example, Criminal Code of the Russian Federation.

Second, state secret law has become a bulky construction: more than 120 laws and statutory acts of federal level regulate secret circulation. A great number of sources excludes acceptable codification and inevitable gives rise to competition. That is why in courts every now and then questions are raised about broad or ,vise versa, too narrow interpretation of provisions of law "About state secret" in this or that departmental instruction. That is why many norms remain "inactive" (there are already "anti-norms"- antidotes with regard to them), and some get into hit parades (there are no legal restrictions for their implementation). That is why average executors are apt to classify any information (detailed study of lists and discrepancies between them allows to stamp "classified" or like almost any information). Thus state secret law needs to be simplified.

Third, significant segments of state secret law are made "for a certain department" (this was extensively touched upon above), i.e. they do not reflect nation-wide interests.

Besides the discourse about the structure of state secret law also two issues of technological level deserve to be paid attention to. In spite of their apparent triviality and mediocrity they became severe obstacles on the way of effective application of the existing legislation.

First, the term "access to state secret" is evidently replaced by the term "admission to state secret". The procedure gained victory over essence; executors are often punished not for infringement of treating real state secret, but for breach in the course of handling of documents stamped "classified" in the upper right-hand corner. Undoubtedly, setting of material criterion of state secret when trying to impose a penalty for violation of its handling shall not be formal.

Second, tendency to unify the procedure of state secret access gaining by means of admission granting is observed. The scheme of admission granting is evidently not suitable for the category of people who require access to state secret just because they hold a position or are engaged in an activity. Possible attempt to refuse them in granting admission is a too severe violation of constitutional guarantees, political and economic stability. Here the matter concerns elective offices (the RF President, members of RF Federal Assembly, heads of administrations of RF entities, members of RF Supreme Council etc.), some non-elective supreme offices (Minister, Deputy Minister), attorneys, justices of the peace etc. It would be the same inexpedient to restrict realization of proprietary right by means of lack of admission. Separate procedure adding up to the followings hall be envisaged for such categories of people. When assignment (election) to such a position, engagement in such activity the person automatically gains admission to state secret, thereof he or she knows beforehand. Probably, certain categories of people, for example, attorneys, shall be taken receipts about non-disclosure when familiarization with state secret. Besides that the traditional scheme of granting admission does not suit for the people who became the holders of state secret by chance. For example, witnesses of search in the course of which information of state secret was found, firemen, fighting fire at a "secure" enterprise etc. A posteriori it is inexpedient to file their admission. Subject to their understanding of the secret they shall be taken a non-disclosure receipt, and a mild liability shall be envisaged by RF Criminal Code for infringement of the obligation stated in the receipt.

Thus alteration of state security law will not require not only reaching of conformity of legal regulation to key interests of society and person, first of all, by means of narrowing of range of data forming state secret. It will also require more careful attitude towards positioning of issues of secrets protection among various branches of Russian law as well as striving for minimization of technical and legal mistakes. The law shall become refined, adjusted, well-defined and simple.

Criminal Law Components of State Secret Institution

Criminal law shall establish liability only for really socially dangerous acts with regard to state secret.

We consider that is case of criminal law alteration for the purposes stated above the should based upon the following provisions:

1. System of security (protection) of state secret is built so that to ensure that the secret did not become the property either of foreign enemies of the Russian Federation and hostile elements inside the Russian Federation. This expresses understanding of state secret as a state function towards society and person.

2. System of security (protection) of state secret shall be regulated by means of various branches of law and only the most dangerous actions with regard to state secret constitute crimes. Thereby we will succeed in justification of criminal penalty for violation of rules of state secret treatment before the public as well as to make a basis for implementation of principle of punishment inevitability.

3. System of criminal law protection of state secret shall pay attention to the most dangerous acts with regard to state secret treatment irrespective of the fact if the actions are made by lawful or unlawful holder of state secret. The area of criminal law regulation shall include all the "chain" of illegal actions towards state secret (obtaining of state secret, collection, keeping, transfer, disclosure, sale, commercial or other use etc.) in their the most dangerous form. Currently only certain links of the chain are regulated by criminal law (illegal obtaining of information of state secret; divulging of data of state secret; loss of documents of state secret etc.) And such regulation is oriented to legal holder of state secret. Illegal holder can not become liable, foe example, for sale of state secret to Russian criminal structures or use of secret information for speculative enrichment.

4. System of security (protection) of state secret shall strictly differentiate liability depending on the three factors: 1) how great the danger of state secret divulging for society and person is; 2) if the person gained the access to state secret legally or illegally; 3) if he/she committed the crime on purpose or not. Now there is no such differentiation in RF Criminal Code, and courts independently try to take into account the factors in the course of punishment prescribing.

5. System of security (protection) of state secret shall correlate with the system of criminal law protection of other secret (commercial, bank, adoption etc.). Unfortunately it occurred to be that RF Criminal Code takes more care of commercial and bank secret than of state one. First of all, types and amounts of punishments are comparable although illegal actions with regard to state secret are obviously more dangerous than with any other one. Besides that just in the course of circulation of commercial and bank secret, criminal liability concerns almost all the links of the chain typical for their circulation.

Thus the approach to understanding of state secret and the law regulating its circulation requires reforming.

Notes:

1. The list of information attributed to state secret // Decree by the President of the Russian Federation of 30 November 1995 No 1203.

2. We consider that systems of evaluation of strategic risks are suitable for metric calculations.

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