THE FORBIDDEN ZONE

Environm ental Inform ation Denied in Russia

London November 2006

ARTICLE 19 ‡ 6-8 Amwell Street ‡ London EC1R 1UQ ‡ United Kingdom Tel +44 20 7278 9292 ‡ Fax +44 20 7278 7660 ‡ [email protected] ‡ http://www.article19.org

ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

2 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

TABLE OF CONTENTS

ACKNOWLEDGEMENTS...... 5

INTRODUCTION...... 7

1 ACCESS TO ENVIRONMENTAL INFORMATION – INTERNATIONAL STANDARDS ...... 9

1.1 The Right of Access to Environmental Information ...... 9

1.1.1 The Rio Declaration and the Aarhus Convention...... 9

1.1.2 Access to Information as a Human Right...... 11

1.2 The Content and Meaning of the Right of Access to Information ...... 13

1.3 Restrictions on Access to Information ...... 14

2 AN INEFFECTIVE LEGAL FRAMEWORK ...... 16

2.1 Guarantees on Freedom of Information ...... 16

2.1.1 Mechanisms for Accessing Information...... 16

2.1.2 Open Government and Public Participation...... 17

2.1.3 Legal Guarantees of Environmental Information...... 18

2.2 Restrictions to the Right to Information...... 19

2.2.1 The Law on Information, Information Technology and Protection of Information of 2006...... 21

2.2.2 The Law on State Secrets and the Criminal Code...... 21

2.2.3 Secret Decrees ...... 22

2.2.4 Decree 763...... 23

2.2.5 Failed Attempts to Adopt a Freedom of Information Law...... 23

2.2.6 Comments on the Legislation...... 24

3 THE PRACTICE: A WEAK DEMOCRATIC COUNTERBALANCE..27

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

3 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

3.1 A Passive Public ...... 27

3.2 A State-controlled Media...... 29

3.3 Journalists’ Limited Awareness...... 30

3.4 Public Officials’ Limited Resources ...... 31

4 THE IMPACT ON ENVIRONMENTAL INFORMATION ...... 32

4.1 Failure to Proactively Disseminate Environmental Information...... 33

4.2 Violation of Procedure...... 34

4.3 Denial of Information ...... 34

4.4 Case Studies...... 36

4.4.1 Submarine Accidents...... 36

4.4.2 The Moscow Theatre Siege ...... 36

4.4.3 The Nuclear Industry...... 37

4.4.3.1 The Mayak Facility...... 37

4.4.3.2 Nuclear Dumping...... 40

4.5 Spies or Environmentalists? Human Rights Defenders under Threat...... 41

4.5.1 Grigory Pasko...... 43

4.5.2 Aleksandr Nikitin ...... 45

4.5.3 Igor Sutyagin ...... 47

4.5.4 Nikolai Shchur...... 49

4.5.5 Valentin Danilov and others...... 49

4.5.6 Harassment of Environmental NGOs...... 50

5 CONCLUSIONS AND RECOMMENDATIONS ...... 52

5.1 Recommendations ...... 53

6 TABLE 1. PROVISIONS ON INFORMATION in RUSSIAN LAW.....56

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

4 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

A CKNOW LEDG EM ENTS

This report was compiled by Federica Prina, ARTICLE 19’s Europe Programme Officer for Russia and Central Asia. Part of the background research and writing was carried out by Sian Thomas and Vera Kislova. The section on “Access t Environmental Information - International Standards” was written by ARTICLE 19 Legal Officers Daniel Simons and Peter Noorlander. Comments were provided by ARTICLE Executive Director Agnès Callamard and Peter Noorlander. The report was edited by Neil Durkin.

ARTICLE 19 would like to express its gratitude Greenpeace Russia, the Bellona Foundation (St. Petersburg Office), the Commission on Freedom of Information (Moscow), Ecojuris (Moscow), the NGO ‘Fatiha’ (Chelyabinsk), Transparency International (Russia Chapter) and the Mass Media Defense Center (Voronezh).

ARTICLE 19 would also like to thank the British Foreign and Commonwealth Office for its financial support, which made the preparation of this report possible.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

5 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

6 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

INTRODU CTION

During the long era of State control in the Soviet Union, any flow of information from State bodies to the public was primarily regulated through classified decrees and extra-legal norms. Coupled with the absence of a clear definition of ‘State secret’, this led to confusion and ignorance, as well as abuses of secrecy regulations for the repression of dissidents through closed and unfair trials.1 Although much has changed since that time, post-Soviet Russia has inherited a culture of secrecy that still permeates Russian society.

A drive for access to environmental information effectively began with the 1986 Chernobyl explosion.2 Although radioactive contamination had been one of the most secretive and politically sensitive categories of information during the Soviet period, the Chernobyl disaster and the 1989 sinking of the nuclear-powered submarine Komsomolets3 brought to the fore the severity of the Soviet nuclear industry’s health and environmental threats, both nationally and internationally. As a result, not only were Soviets able to obtain more information on radioactive contamination, but the world also became aware of nuclear issues in the Soviet Union, as some information began to filter through to the international community.4

The highest point of openness was in 1994, when both foreign experts and Russian NGOs were allowed access to Russian nuclear sites. The early 1990s also saw a greater involvement of NGOs in dealing with environmental issues, which led to international support for environmental projects.5 In addition, around this time many Russians started demanding compensation for damage to their health caused by nuclear accidents – albeit in many cases unsuccessfully.6

Yet, around the mid-1990s, the Russian authorities tightened the free flow of information once again. Access to nuclear sites became limited and the case against environmental whistleblower Aleksandr Nikitin, which started in 1996, sent a chilling signal to the

1 Alimov, R, “Access to Information Project”, Bellona Foundation, 17 April 2001, http://193.71.199.52/en/international/russia/envirorights/info_access/20094.html. 2 Ecojuris , Violation of Environmental Rights of the Russian Citizens. Materials for the Report to the Human Rights Ombudsman of the Russian Federation, March 2002, p.53. 3 The Chernobyl incident was surrounded by secrecy during the Soviet Union. Declassified KGB archives published on the Internet site of Ukraine’s Security Service reveal problems with the nuclear plant prior to the 1986 explosion. A report from 1984 notes deficiencies in the reactors and poor quality of part of the equipment. There are also references to an incident at the plant in 1982 during which small doses of radiation were released. Systematic safety breaches during construction works between 1976 and 1979 are also documented. BBC News, “Secret Chernobyl Archives Released”, 22 April 2003, http://news.bbc.co.uk/2/hi/europe/2965375.stm. According to Soviet nuclear engineer Grigory Medvedev, the catastrophe as Chernobyl-4 in April 1986 had been preceded by more than ten serious accidents at other nuclear plants in the USSR, but information about them was hidden from all but senior energy sector officials. WISE NC ‘Chernobyl Precursor Accident Kept Secret’ 22 June 1990, http://www10.antenna.nl/wise/index.html?http://www10.antenna.nl/wise/334/3342.html. 4 Kudrik, I et al, The Russian Nuclear Industry. The Need for Reform, 2004, p. 12, http://bellona.no/bellona.org/english_import_area/39126. 5 Kudrik, I et al, note 4, p.12 6 Alimov, R, “Access to Information Project”, note 1.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

7 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION scientific community.7 This effectively thwarted efforts of civil society and democratic forces to bring about transparency, including in the environmental sphere.

Currently, acute scarcity of information is particularly worrying given the grave environmental problems in the Russian Federation (Russia), ranging from air pollution, carbon dioxide emissions, oil and natural gas extraction pollution, radioactivity and nuclear waste. Although environmental awareness has increased in recent years, the drive for economic growth has often prevailed over environmental protection. This has at times resulted in the lowering of environmental standards to attract investors. The European Union, in its “Communication from the European Commission. EU-Russia Environmental Co-operation”,8 noted that current environmental problems cause serious health hazards - such as illnesses and poisoning from heavy metals and toxic materials - leading to a significant decline in life expectancy. According to statistics compiled by well-known Russian scientist Alexei Yablokov, on average 300,000 people a year die in Russia due to unfavourable environmental conditions.9

It was not only openness that was short-lived following the Soviet Union collapse. After an initial enthusiasm for the newly-gained civil freedoms that characterised the early 1990s, in the second half of the decade democratic tendencies were reversed, and Russia once again gravitated towards a closed and undemocratic leadership. The Federal Security Bureau (FSB), the KGB’s successor, played a key role in blocking and then reversing new positive tendencies towards openness, possibly with a view to preventing the exposure of old KGB secrets. Although during the glasnost period the KGB had been discredited as a tool for Soviet repression, the FSB enjoyed a renaissance in the mid-1990s, enhanced by the rise to power of former intelligence officer Vladimir Putin. Many Russians had by then become disillusioned with the ideals of democracy and started to experience nostalgia for the Soviet era. The FSB was able to occupy the vacuum left by the old KGB, and, like its predecessor, to operate as a supra-legal institution without adequate judicial oversight.10 Moreover, President Putin appointed several FSB and intelligence services officers to senior positions in the government, presidential administration and regional administration.11

All of the aforementioned generally led to an increasing opacity of government institutions and an inability of people in Russia to exercise their right to public oversight and participation in decision-making. This report examines the effect that these dynamics had on the flow of information, particularly in the environmental sphere. Chapter 1 outlines international standards on freedom of information, including in relation to the environment. Chapter 2 examines the Russian legal framework for obtaining information from public bodies, including special provisions on environmental information. Chapter 3 assesses the current situation with regard to freedom of information in Russia, while Chapter 4 focuses specifically on hindrances to access to environmental information. Chapter 5 provides conclusions and recommendations to the Russian authorities for greater transparency of the institutions.

7 Kudrik, I et al, note 4, p.12. 8 COM(2001) 772, 17.12.2001. 9 Quoted in Pasko, G, “Now We Can Sleep. Soundly?”, Ekologia i Pravo, Issue No.16, Bellona Foundation, 28 October 2004, http://bellona.no/bellona.org/english_import_area/international/ecopravo/ed/35787. 10 Human Rights Watch, Russia’s Spy Mania. A Study of the Case of Igor Sutyagin, Human Rights Watch Briefing Paper, October 2003, p.7, http://www.hrw.org/backgrounder/eca/russia/. 11 Yasmann, V, “Spymania Returns to Russia”, 13 April 2004, Radio Free Europe/Radio Liberty, http://www.rferl.org/featuresarticle/2004/04/4c58cae8-20af-4f94-8f83-96bb24de8b6d.html?napage=1.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

8 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

1 A CCESS TO ENVIRONM ENTA L INFORM ATION – INTERNATIONA L STA NDA RDS

1.1 The Right of A ccess to Environm ental Inform ation The right to access environmental information is well-developed in international law. ‘Traditional’ human rights treaties such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) guarantee access to environmental information as part of the right to private and family life, as well as part of the ‘overall’ right to freedom of expression and information; and in the last decade, additional declarations and treaties, such as the ‘Aarhus Convention’, have been agreed on specifically to guarantee the right to access environmental information.

1.1.1 T he Rio D eclaration and the Aarhus Convention

The international community has recognised access to environmental information as key to environmental governance, to the involvement of civil society in protecting the environment and to the protection of individuals against environmental hazards. Principle 10 of the 1992 Rio Declaration on Environment and Development (Rio Declaration) states, unambiguously:12

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

The Rio Declaration was the result of the 1992 United Nations Conference on Environment and Development, and was signed by 172 States including Russia. It was taken as the starting point for a legally binding international treaty on access to environmental information, to be negotiated within the framework of the United Nations Economic Commission for Europe but open to world-wide ratification.13 The result was the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,14 commonly known as the ‘Aarhus Convention’, after the city where the treaty was signed. This treaty has now been ratified by 40 States, including virtually all of Russia’s neighbours, and by the European Community.

12 Available at: http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163. 13 Although negotiated under the auspices of the United Nations Economic Commission for Europe, the Convention is open to ratification by all UN Member States, as well as by regional economic integration organisations. 14 UN Doc. ECE/CEP/43, adopted at the Fourth Ministerial Conference in the “Environment for Europe” process, 25 June 1998, entry into force 30 October 2001.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

9 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Articles 4 and 5 of the Aarhus Convention place State Parties under a series of important obligations. First, they must make sure that they have up-to-date environmental information. The Aarhus Convention recognises that much information relevant to the information is held by private entities, such as heavy industry, and Article 5 of the Convention requires States to set up mechanisms to collect this information. Article 5(1) requires States to ensure that public authorities have up-to-date environmental information that is relevant to their functions. This means, for example, that a ministry in charge of exploitation of natural resources must collect environmental data relevant to activities like oil drilling, and that a government department dealing with heavy industry must collect pollution figures from these industries. Article 5(1) places an additional requirement on States to collect information from private entities, such as businesses, regarding any activities undertaken by them that might affect the environment.

Second, the Convention obliges States to make the most important categories of environmental information directly available to the public. Article 5(3) requires States to publish proactively the following information:

(a) reports on the state of the environment; (b) texts of legislation on or relating to the environment; (c) policies, plans and programmes on or relating to the environment, and environmental agreements.

As far as possible, this information should be made available online. In addition, Article 5(1)(c) stipulates that, in the event of an imminent threat to human health or the environment, States should provide any information they have and which might help the public to take measures to prevent or mitigate the harm arising from that threat.

Article 5(4) requires States to publish national environmental reports at least every four years; Article 5(7) adds that States must also publish the facts (and analyses of facts) which it considers relevant and important in framing major environmental policy proposals; Article 5(8) goes on to require States to take measures to ensure that product information is available so that consumers can make informed choices; finally, Article 5(9) requires States to establish pollution registers.

Third, the Aarhus Convention provides that any person has the right to access environmental information on request, without having to give any reason for their request.15 To this end, States must ensure that public authorities provide information on the kind of information they hold, and the process by which it can be obtained, and public officials must support the public in seeking access to information.16 Requests are ordinarily to be responded to within a month.17 Fees may be charged but must be ‘reasonable’;18 and access may be refused only in limited circumstances.19

Article 9 of the Aarhus Convention requires the establishment of an independent body with the power to review refusals of requests for environmental information. Taken as a whole,

15 Article 4. 16 Article 5(2)(b). 17 Ibid., Article 4(2). 18 Ibid., Article 4(8). 19 Ibid., Article 4(3)(7). For more on refusals, see below.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

10 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION the Aarhus Convention provides a strong guarantee of the right to access environmental information.

In 2003, a follow-up instrument to the Aarhus Convention was signed, the ‘Kiev Protocol on Pollutant Release and Transfer Registers’ (the ‘Kiev Protocol’). The Protocol, which was adopted by 36 States and the European Community at a meeting of the parties to the Aarhus convention on 21 May 2003 in Kiev, aims to “enhance public access to information through the establishment of coherent, nationwide pollutant release and transfer registers...” It requires States to establish a pollution release transfer register which:

• is publicly accessible through the Internet, free of charge; • is searchable according to separate parameters (facility, pollutant, location, medium, etc.); • is user-friendly in its structure and provides links to other relevant registers; • presents standardised, timely data on a structured, computerised database; • covers releases and transfers of at least 86 pollutants covered by the Protocol, such as greenhouse gases, acid rain pollutants, ozone-depleting substances, heavy metals, and certain carcinogens, such as dioxins; • covers releases and transfers major sources of pollution such as thermal power stations, mining and metallurgical industries, chemical plants, and waste and waste- water treatment plants; • accommodates available data on releases from diffuse sources (e.g. transport and agriculture); • has limited confidentiality provisions; and • allows for public participation in its development and modification.

The Protocol is open for signature to all States, including States that are not a party to the Aarhus Convention itself.

Although Russia is a founding member of the United Nations Economic Commission for Europe, it has signed neither the Aarhus Convention nor the Kiev Protocol.

1.1.2 Access to Inform ation as a H um an Right

Separately from specific environmental information treaties such as the Aarhus Convention, international law guarantees the right to access information as part of the ‘overall’ right to freedom of expression and information and as part of the right to respect for private and family life. Pioneered in the national law of countries as diverse as Sweden20 and Colombia,21 the right to freedom of information was recognised in the first session of the United Nations’ General Assembly as “a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated.” 22

Subsequently, freedom of expression and information has been guaranteed globally through Article 19 of the Universal Declaration of Human Rights and Article 19 of the ICCPR.23

20 The Swedish Freedom of the Press Act, 1766, which now forms part of the Swedish Constitution, decreed that “every Swedish citizen shall have free access to official documents.” 21 Code of Political and Municipal Organization, 1888. 22 UN General Assembly Resolution 59(1), 14 December 1946. 23 UN General Assembly Resolution 2200A(XXI), adopted 16 December 1966, in force 23 March 1976.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

11 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

The latter, which is a legally binding treaty, ratified by more than 150 States, including Russia, states:

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any media of his choice.

The right to access information held by public authorities, sometimes referred to as ‘freedom of information’, has been acknowledged as a crucial element of the right to freedom of expression. The UN Special Rapporteur on Freedom of Opinion and Expression has stated that, “the right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems.”24 The Special Rapporteur further developed his commentary on freedom of information in his 2000 Annual Report to the Commission on Human Rights, noting the fundamental importance of this right not only to democracy and freedom, but also to the right to participate and the realisation of the right to development.25 The UN Human Rights Committee, the body established to supervise implementation of the ICCPR, has also frequently urged States to enact freedom of information legislation.26 The Inter-American Court of Human Rights recently Stated unambiguously that freedom of expression, which includes the right to seek and receive information, “protects the right of every person to request access to the information under the control of the State.”27

Under the ECHR ,28 the regional human rights treaty ratified by Russia, the right to access environmental information is enforced primarily through Article 8, which protects the right to private and family life and peaceful enjoyment of the home.29 The European Court of Human Rights (the Court) has ruled that environmental pollution will generally affect people’s well-being and is therefore relevant to the protection of private and family life, under Article 8. For example, in Guerra and Ors. v. Italy30 the Court ruled that the failure of the authorities to provide information concerning pollution caused by a factory near the applicants’ home violated their right to private and family life. Although there had been no active State interference with the applicant’s right to respect for private and family life, the Court ruled that Article 8 imposes a positive obligation on the State to ensure the enjoyment of that right which includes the obligation to provide information. Two years later in McGinley and Egan v. The United Kingdom,31 the Court followed its decision in Guerra and confirmed that the ECHR granted a right of access to the relevant

24 Report of the Special Rapporteur, Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 14. 25 Report of the Special Rapporteur, Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 42. 26 See, for example, its Concluding Observations on Ireland (UN Doc. CCPR/C/79/Add.21, 28 July 1993); and on Azerbaijan (UN Doc. A/49/40, 27 July 1994). 27 Claude Reyes and Others v. Chile, 19 September 2006, Series C No. 151, para. 77 (Inter-American Court of Human Rights). Unofficial translation from the Spanish judgement. 28 Adopted 4 November 1950, in force 3 September 1953. 29 Although early developments placed the right to access environmental information under Article 10, a freedom of expression provision similar to Article 19 of the ICCPR, jurisprudential quirks have resulted in it being placed under Article 8. 30 Guerra and Ors. v. Italy, 19 February 1998, Application No. 14967/89 (European Court of Human Rights). 31 McGinley and Egan v. The United Kingdom, 28 January 2000, Application Nos. 21825/93 and 23414/94 (European Court of Human Rights).

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

12 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION information.32 The case concerned a situation where the applicants had been exposed to radiation during nuclear testing in the Christmas Islands and claimed a right of access to records regarding the potential health risks this exposure had created.

Building on these developments, the Committee of Ministers of the Council of Europe, of which Russia is a member, in 2002 adopted a Recommendation on the right of access to information, urging States to “guarantee the right of everyone to have access, on request, to official documents held by public authorities.”33 1.2 The Content and M eaning of the Right of A ccess to Inform ation Freedom of information, including the right to access environmental information, has been recognised as a fundamental right in various international conventions and declarations n the many national laws on freedom of information that have been adopted – especially in the last two decades34 – and in the policies and guidelines of intergovernmental organisations.35 What is the content of the right to information?

The UN Special Rapporteur on Freedom of Opinion and Expression has laid down a number of general principles regarding the right to freedom of information in his 2000 Annual Report,36 elaborating nine crucial elements of the right:

[T]he Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles. Among the considerations of importance are:

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; “information” includes all records held by a public body, regardless of the form in which it is stored;

- Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public;

- As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government;

- A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions

32 The Court did not find a violation, however: the respondent government had complied with its obligations by providing a process by which access to the relevant information could be obtained, but which the applicants had not used. 33 Recommendation R(2002)2 of the Committee of Ministers to member states on access to official documents, Principle III. 34 See Banisar, D, Global Survey of FOI Laws, accessible through http://freedominfo.org. 35 Many international financial institutions and other IGOs now have disclosure or freedom of information policies. 36 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 42.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

13 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

should be narrowly drawn so as to avoid including material which does not harm the legitimate interest;

- All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s);

- The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself;

- The law should establish a presumption that all meetings of governing bodies are open to the public;

- The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it;

- Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body.37

These nine elements, or principles, are crucial to good freedom of information legislation and the UN Special Rapporteur has recommended that all States should enact legislation in line with these principles.

1.3 Restrictions on A ccess to Inform ation International law recognises that freedom of information is not an absolute right; in certain, narrow circumstances it will be legitimate for a State to withhold information. For example, the police may hold some information which, if it is released, would harm their ability to prevent and detect crime, and the military may legitimately withhold certain information whose release would cause serious harm to its ability to defend the country. However, restrictions must pass a strict, three-part test, derived from Article 19 of the ICCPR:

(1) the information relates to a legitimate aim listed in the law; (2) disclosure threatens substantial harm to that aim; and (3) the harm to the aim is greater than the public interest in having the information.38

A refusal to release information is legitimate only if all three of these conditions are met.

The first part of the test limits the purposes for which information may be withheld. The Aarhus Convention makes it clear that access to environmental information may be refused only if absolutely necessary to protect the following interests:

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law; (b) International relations, national defence or public security;

37 Ibid., at para. 44. 38 The Public’s Right to Know: Principles on Freedom of Expression Legislation, London: ARTICLE 19, June 1999, Principle 4, http://www.article19.org/docimages/512.htm.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

14 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature; (d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed; (e) Intellectual property rights; (f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law; (g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or (h) The environment to which the information relates, such as the breeding sites of rare species.

The Aarhus Convention stresses that these restrictions must be interpreted narrowly, so as to allow for the maximum possible degree of disclosure:

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.39

The second part of the test requires that disclosure would cause real and demonstrable harm to the protected interest; not that it simply ‘relates to’ the interest or that it would cause hypothetical or minimal harm.

The third part of the test, known as ‘public interest override’ is of particular importance; it ensures that where information causes harm to a protected interest – say, the privacy of a government minister – it must nevertheless be released if it discloses corruption or other wrong-doing.40 This principle is explicitly included in both the Council of Europe Recommendation referred to earlier41 and in the Aarhus Convention.42

39 Aarhus Convention, Article 4(4). 40 Such as information on health, safety, the environment, wrongdoing and maladministration by public authorities. 41 Note 33. 42 Note 14.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

15 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

2 A N INEFFECTIVE LEG A L FRA M EW ORK

2.1 G uarantees on Freedom of Inform ation

Despite the fact that there is no specific freedom of information law in Russia, several strong guarantees for the provision of environmental information to the public do exist, setting high standards in this area. However, there are serious obstacles to their implementation: many of these provisions are ignored or abused, gravely undermining any free flow of information.

2.1.1 M echanism s for Accessing Inform ation

The general right of freedom of information is enshrined in Russia’s 1993 Constitution. Its Article 29(4) States:

Everyone shall have the right to seek, get, transfer, produce and disseminate information by any lawful means.

In addition, Article 24(2) places an obligation on the State authorities and local self- governing bodies to ensure that everyone has the right to receive information held by the authorities and directly affecting his/her rights, unless the law stipulates otherwise.43

As Russia still has no freedom of information law, the basic mechanisms for the provision of information upon request are scattered across different pieces of legislation, and particularly the Law on ‘Information, Information Technology and Protection of Information’ and in Law No. 59 ‘on ‘The Order of Consideration of Appeals of the Citizens of the Russian Federation’ (Law on Citizens’ Appeals).44 Article 12 of the latter stipulates that a reply to an information request is to be provided within 30 days, with the possibility of a prolongation of another 30 days in exceptional cases.45

43 The article states: The bodies of state authority and the bodies of local self-government and the officials thereof shall provide to each citizen access to any documents and materials directly affecting his/her rights and liberties unless otherwise stipulated under the law. The term ‘appeal’ covers proposals, requests, statements, complaints and others addressed to State bodies by citizens. 44 The Law on ‘Information, Information Technology and Protection of Information’ was adopted by the State Duma on 2 May 2006, to come into effect 180 days after its official publication. The Law on Citizens’ Appeals can be found on http://www.rg.ru/2006/05/05/obraschenie-doc.html. It replaces the Order of Consideration of Proposals, Statements and Complaints of the Citizens’, adopted in 1968, and amended in 1980 and 1988. For more information on the Law on ‘Information, Information Technology and Protection of Information’, see Section 2.2.1. 45 The 1968 Law (note 44) contained the same provisions.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

16 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

The Law on ‘Mass Media’ contains mechanisms for the provision of information to journalists.46 Its Article 40 provides for information requests by a media outlet to be answered within seven days.47 Moreover, the article establishes that a refusal to provide information has to be prescribed by law, and reasons for a refusal must be supplied within three days from the filing of the information request.

2.1.2 O pen G overnm ent and Public Participation

Progressive provisions for public participation are included in the 1995 Law on ‘Environmental Impact Assessment’, stating that an impact assessment has to be carried out before the initiation of any industrial activity potentially impacting on the environment.48 The assessment should include a public hearing and consultation with the public. In addition, pursuant to Article 68 of the Law on ‘Environmental Protection’, everybody has a right to environmental inspection, including the right to inspect polluting companies.

Provisions on public participation, public hearings - on public interest matters - and the proactive dissemination of information are also included in the Law on ‘the General Principles of the Organisation of Organs of Self-governance’, which came into force in 2006. Article 8 of the Law on ‘Information, Information Technology and Protection of Information’ (Law on Information Technology) states that a person has the right to obtain any kind of information affecting his/her rights and freedoms from State bodies. Article 10(3)(4) of the recently repealed Law on ‘Information, Informatisation and Protection of Information’ (Law on Informatisation) contained a public interest override, for which Article 13 set out a corresponding obligation on the State bodies to disseminate information in the public interest.49 However, the public interest override was not included in the Law on Information Technology, which replaced the Law on Informatisation in 2006.

In May 2003 Government Decree No.98 on ‘Guarantees of Access to Information about the Activity of the Government of the Russian Federation and the Federal Organs of Executive Powers’ (Decree 98) entered into force.50 The decree obliges State bodies to regularly

46 Law No. 2124-1 on ‘Mass Media’ was adopted in December 1991. 47 The law is available in Russian at http://www.medialaw.ru/laws/russian_laws/txt/2.htm and in English at http://www.medialaw.ru/e_pages/laws/russian/massmedia_eng/massmedia_eng.html. The seven-day period may be prolonged if necessary, following a notification to the media outlet. 48 However, on 20 September 2006, the Russian Duma approved in its first reading the draft Law on ‘Amendments to the City Planning Code and Other Regulations’. The draft Law was being considered in its second reading in November 2006, and there were attempts on the side of the Duma to push the legal initiative through as quickly as possible. The draft Law would change several federal laws - including the laws on ‘Environmental Impact Assessment’, on ‘The Protection of the Population and Territories against Natural and Technological disasters’, on ‘The Continental Shelf’ and on ‘The Destruction of Chemical Weapons’ -, substantially reducing the list of documents to be made available for environmental impact assessments (EIAs), and encompassing virtually all activities that can generate damage to the environment. This, among other things, would make it impossible for civil society to carry out EIAs. In addition, the draft Law would eliminate the environmental checks in the period of construction of complexes such as factories and nuclear power stations, as well as private dwellings, and eliminate public hearings in such cases. This would reduce the transparency of these activities. 49 Article 13, on ‘Guarantee of Information Supply’, stated that State bodies must “create generally accessible information resources on matters of the activity of these organs and organizations subordinate to them, and also, within their competence, widely supply information in the area of citizens' rights, freedoms and duties, their security, and other matters of public interest.” [italics added] 50 It was adopted in February 2003. The text is available at http://www.transparency.org.ru/doc/Decree98_01252_5.doc

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

17 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION disseminate information on their activities through the Internet and other means. It includes 53 categories of information that should be made public, relating mostly to the State bodies’ internal structure, activities and outputs. These encompass information on: legislative activities and draft laws; agendas of and materials for meetings; information on implementation of international treaties; budgets and accounts; petitions submitted by citizens; and emergencies - which may include emergencies of an environmental nature, such as possible nuclear explosions.51 People also have access to draft laws through the Duma website, www.duma.gov.ur. In principle, meetings are open, yet in practice one cannot enter a government building without official invitation or registration, which is dependent on the will of the particular authority.

2.1.3 Legal G uarantees of Environm ental Inform ation

Russia has strong provisions, at least nominally, directly relating to information on the environment. In particular, environmental legislation includes:

a) a prohibition to classify information on the environment; b) a requirement to disseminate information on environmental hazards; c) a prohibition to conceal information. a) Information on the Environment Cannot be Made Secret

Among the provisions of particular significance is Article 8(4)(2) of the Law on Information Technology, prohibiting the inclusion of information on the environment in the category of ‘closed’ information.52 Similarly, Article 7 of the Law on State Secrets prohibits the classification of information on emergency situations and catastrophes, threatening the security and health of the citizen, as well as information on the state of the environment. Government resolution No.35 on ‘The List of Information that Cannot be a Commercial Secret’ also states that commercial secrets cannot include information on environmental pollution and that is harmful to people’s health. This is reiterated at Article 5 of the July 2004 Law on ‘Commercial Secrets’.53 b) Requirement to Disseminate Information

Russian legislation requires information on environmental hazards to be disseminated, and foresees penalties for those officials who do not comply with these provisions. In particular, Article 42 of the Russian Constitution states that:

Everyone shall have the right to a favourable environment, reliable information about its condition and to compensation for any harm caused to his or her health of property by violations of environmental regulations [italics added].

51 The provision specifies that this relates to “information on the state of protection of the population and territories from emergencies and measures taken for ensuring their safety, on predictable and occurred emergencies …”. 52 The list of information that cannot be made ‘closed’ (Article 10(3)) includes: documents containing information on emergency situations, ecological, meteorological, demographic, sanitary, epidemiological and other information required to ensure the safe functioning of populated localities and production facilities, and the safety of citizens and of the population as a whole. 53 Law No.98. Article 5 repeats the list of information that cannot be made a commercial secret and prohibits the inclusion of information on the environment in the category of ‘closed’ information.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

18 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Moreover, the Law on Environmental Protection establishes the right to receive timely, complete and reliable information on the state of the environment, including on levels of pollution, and measures for its protection.

Article 10 of the 1996 Law on ‘The State Regulation of Genetic Engineering Activity’ further states that “information about safety of genetic engineering activity shall be available to the public.”

Other access to information provisions include Article 42 of the 1991 Law on ‘The Social Protection of Citizens who were Subjected to Radiations as a Result of the Chernobyl Catastrophe’, guaranteeing the receipt of information on issues relating to the Chernobyl disaster, such as the level of radiation in affected areas. Article 13 of the Law on ‘The Use of Atomic Energy’ guarantees the right to information on the safety of nuclear installations. Article 23 of the Law on ‘The Security of the Population from Radiation’ guarantees the right to receive from any organisations using ionising emissions information on radiation levels and other safety issues. Article 19 of the Law on ‘The Protection of Citizens’ Health’ and Article 8 of the Law on ‘The Sanitary-Epidemologic Well-being of the Population’ provide for the right to regular information on factors impacting on people’s health and potential environmental hazards. Article 18 of the City Planning Code establishes the right to information on the state of the environment and its anticipated changes in relation to architectural developments. Lastly, the 1999 ‘Rules on the Presentation of the Declaration of Industrial Safety of Dangerous Production Units’ stipulates that the relevant declarations can be made available.54 c) Prohibition to Conceal Information

Article 41(3) of the Constitution prohibits the concealment of information that harms human life and health:

Concealment by officials of facts and circumstances posing hazards to human life and health shall involve liability in conformity with the federal law.

Concealment or distortion of information on “circumstances endangering human life and health” is also criminalised by Article 237 of the Russian Criminal Code. The penalty prescribed in such cases is up to two years’ imprisonment for people ‘duty-bound’55 to provide this type of information. Harsher penalties are envisaged for public officials. Yet, although cases of concealment of information have been documented, there have been no cases brought against public officials under Article 237.

2.2 Restrictions to the Right to Inform ation

Despite the above provisions, the absence of a law on freedom of information means that there is no single, overarching procedure to obtain information from public bodies in

54 However, this has to follow the approval of the executing power. Ecojuris, note 2, p.52. 55 Employees whose responsibilities include the provision of information on emergencies (e.g. directors of nuclear plants).

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

19 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Russia. Access to information provisions are scattered throughout various laws and regulations, one often contradicting the other, some of which providing a strong right of access, and others limiting it.56

Russia has also not ratified the Aarhus Convention, nor are there plans for its ratification, despite the fact that it has been ratified by a majority of countries in the Commonwealth of Independent States.57 In addition to stating that information on the environment should be available to the public, the Aarhus Convention makes it legally binding upon the member States to ensure public participation in decision-making on matters related to the environment, as an important aspect of the right to information. The failure to ratify it contributes to the Russian public having few opportunities to participate in the relevant decision-making processes.

Environmental issues are under the purview of two separate State bodies:

• The Federal Service for Ecological, Technological and Atomic Supervision (Rostecnadzor), under the Prime Minister’s supervision; and • The Federal Service for National Resources Supervision (Rosprirodnadzor) under the Ministry of Natural Resources.

The artificial split of responsibilities for environmental protection between the two bodies - one of the outcomes of administrative reforms initiated in 2004 - means that there is no unified and comprehensive system that, among other things, can guarantee access to environmental information.58

Very little information filters through Rostecnadzor.59 A very bureaucratic institution, it is responsible for monitoring the operations of private companies and has the right to impose fines in case of misconduct.

Environmental disasters are under the responsibility of yet another body, the Ministry of Emergency Situations (Emercom). Emercom, wary of creating general panic in emergency situations, has at times failed to provide comprehensive information on environmental disasters. For example, following an explosion in a factory in Jihin, China, in November 2005, polluted water reached the Amur River in Russia. A proportion of the 100 tonnes of benzene and other toxic chemicals spilt into the river had been trapped on the frozen river banks and were released during the spring thaw. The 580,000-strong population of Khabarovsk was left unable to use river water for cooking and drinking as a result.60 However, Emercom refused to warn the public of the level of water contamination, indicating instead that the water was clean.61

56 See Table 1. 57 Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Ukraine. 58 Interview with Greenpeace Russia, 5 May 2006. 59 Ibid. 60 AsiaNews, “More toxic pollution from China’s Songhua River reaching Russia”. In March 2006 China announced plans to spend 10 billion yuan ($1.2 billion) to clean up the Amur River (called Songhua in China) but the plans may take up to five years to be implemented. 61 Interview with Greenpeace Russia, 5 May 2006.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

20 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

2.2.1 T he Law on Inform ation, Inform ation T echnology and Protection of Inform ation of 2006

Although the law deals generally with the use of information resources, rather than with information requests, it includes some freedom of information provisions, stating that the regulation of information, information technology and protection of information is based on:

• The freedom to seek, obtain and disseminate of information (Article 3(1)); • The access to information on the activities of State bodies (Article 3(3)).

However, the right provided in Article 3(1) is restricted by a requirement, included in the same paragraph, to seek, obtain and disseminate information “in a legal manner”, while the right enshrined in Article 3(3) can be enjoyed with the exception of certain “situations determined by federal laws”.

In the law information is divided between ‘open’ and ‘closed’ (with restricted access) (Article 5.1). ‘Closed’ information can either be ‘information classified as State secret’ or ‘confidential information’ (Article 9). ‘State secrets’ relate to information on the State itself - particularly information on the military, foreign policy and intelligence -, while confidential information includes categories such as commercial secrets and personal data.62

2.2.2 T he Law on State Secrets and the Crim inal Code

State secrets, together with confidential information, are grouped under the category of ‘closed’ information and regulated by the 1993 Law on State Secrets.63 The law, however, only includes a list of information that ‘may be considered’ State secrets, while the overall list was compiled by the President. This list was completed in 1997, former President Boris Yeltsin having finalised the relevant decree only at the end of 1995.64

In spring 2006, a decree signed by President Putin raised the number of categories of State secrets from 87 to 113,65 despite the fact that the Constitution mandates that new categories of State secrets can only be introduced by federal law (Article 29(4)).66

Russia has made information concerning oil a State secret. April 2002’s Decree No.210 provides a list of natural resources that are classified, including “information on the balance

62 Savintseva, M, Access to Information in Russia, Transparency International, June 2006, p.2, http://www.transparency.org.ru/doc/ACCESS_TO_INFORMATION_IN_RUSSIA_2006_01252_6.doc. 63 The Law on State Secrets was partially modified in October 1997 and November 2003. 64 Decree No. 1203 of the President of the Russian Federation on ‘Approval of the List of State Secret Information’, 30 November 1995. 65 Strangely, the decree is called Decree on ‘The reduction of the list on State Secrets’. 66 It states that “the list of information constituting State secrets shall be established by Federal Law”. This provision is in contradiction with Article 4 of the Law on State Secrets, which gives the President the authority to establish the list of information constituting State secrets. Overall, the President enjoys wide discretionary powers in relation to State secrets and national security. Pursuant to Article 90 of the Constitution, the President has the authority to issue decrees on any subject – including State secrets. The President also appoints the members and heads the Security Council (Soviet Bezopasnosti), a constitutional organ for the protection of society’s and the State’s vital interest.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

21 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION and subsurface reserves of oil and gas dissolved in oil”.67 Furthermore, in November 2003, Article 5 of the Law on State Secrets was amended68 to include information on oil in the list of State secrets - this time not only on oil reserves, but also on a range of oil-related information, such as methods of extraction, transport, production and consumption.

Article 283 of the Criminal Code, on ‘Divulging State Secrets’, stipulates that the disclosure of State secrets is punishable with imprisonment for a period of six months to four years (paragraph 1). In exceptional circumstances, in which disclosure led to serious consequences and was due to carelessness, imprisonment may be imposed for up to seven years. Clearly, these provisions, with their extremely severe punishments, cause public officials to err on the side of caution when considering information requests.

2.2.3 Secret D ecrees

Restrictions on the right to freedom of information are also based on ‘secret’ decrees. Until recently, the primary example was the notorious ‘List of Information to be Classified in the Military’, enforced through Defence Minister Order No. 055 of 1996 (Decree 055), which contained blanket bans on broad categories of information. Decree 055 provided the legal basis for high-profile environmental information cases including those of Aleksandr Nikitin, Grigory Pasko and Viktor Kalyadin.69 In 2002, it became known that Decree 055 was no longer valid and that it had been replaced by a different secret decree. Although its exact content is unknown, it is expected to be similar to Decree 055.

Decree 055 might have widened the list of State secrets contained in the Law on State secrets;70 however, this can only be a conjecture as Decree 055 always remained secret. Only excerpts were published, during the Nikitin and Pasko trials, after courts requested their disclosure so as to enable the accused to prepare their defence.71 Although the decree primarily contained provisions relating to State employees, it could also apply to the general public in case of further dissemination once classified information had reached the public domain.

In 2001, the Supreme Court annulled 10 points of the decree following a complaint by Aleksandr Nikitin and his lawyer. A separate complaint by Grigory Pasko and Viktor Kalyadin led to the annulment of the decree altogether in February 2002. When that decision was overturned following protests by the Defence Ministry, Nikitin and his lawyer re-submitted the complaint. However, in May 2002, the Supreme Court refused to consider it, pointing to the fact that Decree 055 had been annulled by the Defence Ministry and replaced by another decree.72 Like the old decree, the new one is classified, its existence being made public only through Nikitin’s complaint.73 Although the Supreme Court decision clarified that Decree 055 was no longer in force, Nikitin’s lawyers remained

67 Sutyagin, A, “Classified oil”, Bellona Foundation, 6 May 2004, http://193.71.199.52/en/international/russia/envirorights/33716.html 68 Through Federal Law No. 153. 69 See Section 4.6. 70 Human Rights Watch, note 10. 71 Ibid. 72 Digges, C, “Russian Supreme Court: Rejects Complaint against Secret Decree”, 9 September 2002, Bellona Foundation, http://www.bellona.no/en/international/russia/envirorights/nikitin/25655.html# 73 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

22 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION concerned that it may be used in cases that took place while it was still in force.74 The threat of the application of the new decree, whose content is completely unknown, also poses serious concerns.

2.2.4 D ecree 763

Presidential Decree 763, issued in May 1996, states that the government and the President reserve the right not to make public any information that violate the Constitution and information on human rights when these contain State secrets. Hence, a document on human rights can be made public only when all State secrets have been excluded from the document.75

2.2.5 Failed Attem pts to Adopt a Freedom of Inform ation Law

REPEATED FAILURES TO ADOPT A FREEDOM OF INFORMATION LAW

1993 - Decree on ‘Additional Guarantees of the Citizens’ Rights to Information’

1997 - A draft law is adopted in the first reading but no more readings take place

2002 - A second draft law is removed from the Parliament’s agenda

November 2004 - a draft is submitted by some State Duma MPs but is later dismissed

April 2005 - a draft is submitted by the Ministry of Economic Development and Trade and was pending in late 2006

There have been attempts to pass a special freedom of information law, although they have so far proven unsuccessful. Former President Boris Yeltsin’s signing the 1993 decree on ‘Additional Guarantees of the Citizens’ Right to Information’ initiated the development of a freedom of information law in Russia. Drafting and lobbying for this purpose was carried out by civil society, and particularly the newly-established NGO Commission on Freedom of Information. Although the first draft law passed the first reading as early as 1997, subsequent readings never took place, with the Duma dismissing the draft as too vague. The second attempt to pass a freedom of information law failed in 2002 after the first reading, and the draft was removed from the parliamentary agenda for unknown reasons.76 In 2004 and 2005, new drafts were prepared; of these, a draft submitted by the Ministry of Economic Development and Trade was considered by the government at the end of June 2005 and further action on it was still pending in late 2006. During 2006, consideration of freedom of information legislation was overshadowed by the adoption of the Law on

74 Ibid. 75 Alimov, R, “Access to Information Project”, note 1. 76 The official version is that funds for the implementation of the law were unavailable. Some believe this to have been a pretext. Interview with the Committee for Freedom of Information, 6 May 2006.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

23 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

‘Personal Data Protection’ and the Law on ‘Information, Information Technology and Protection of Information’.

Regional initiatives to regulate access to information have been more successful. In August 2002, the Kaliningrad oblast was the first to adopt a freedom of information law, on the ‘Procedure for Disclosing Information by Government Bodies in the Kalingrad Region’. The law states that: official information should be published in the media; people must have direct access to documents held by State bodies; and there must be public access to meetings of governmental bodies. Similar laws were passed or drafted in, amongst others, Nizhny Novgorod, Novosibirsk, Tomsk and Krasnoyarsk. In addition, Moscow adopted Law No.20 on ‘Guarantees on the Accessibility of Information on Moscow State Bodies Activities’.

2.2.6 Com m ents on the Legislation77

In the absence of a specific freedom of information law, the few freedom of information provisions in existence are insufficient to guarantee the full enjoyment of the right. The existing provisions do not contain a principle of maximum disclosure, establishing a presumption that all information held by public bodies is subject to disclosure, and that this presumption may be overcome only in very limited circumstances.78 This principle encapsulates the basic rationale underlying the very concept of freedom of information. Instead, the Law on Information Technology by differentiating between ‘open’ and ‘closed’ information, negates the principle that all information should be public, subject only to narrowly-defined exceptions. Moreover, this and other legal texts place an emphasis on ‘protection’ of information, effectively reversing the presumption of maximum disclosure to a presumption of secrecy.

Secret provisions on State secrets are particularly worrying. People cannot be expected to comply with provisions to which they have no access. These provisions are also in direct violation of both Russian and international law. The Russian Constitution itself states at Article 15(3):

Laws shall be officially published … No regulatory legal act affecting the rights, liberties or duties of the human being and citizen may apply unless it has been published officially for general knowledge.

Similarly, pursuant to Articles 8 and 10 of the ECHR, all restrictions to the right of freedom of expression have to be ‘prescribed by law’. This means that the law or regulation on the basis of which access is refused must be accessible, including by being published.

The extremely severe penalties envisaged under Article 283 of the Criminal Code in case of disclosure of State secrets, which may lead to imprisonment for up to seven years, are also not in line with international standards in this area. Officials should be protected from sanctions where they have, reasonably and in good faith, disclosed information pursuant to a freedom of information request, even if it subsequently transpires that the information is not subject to disclosure. Otherwise, the culture of secrecy which envelopes many governing

77 See the end of the document for specific recommendations to the Russian State on legal reform. 78 The Public’s Right to Know, note 38, Principle 1.See also Aarhus Convention, Article 4(1) and Recommendation (2002)2 of the Committee of Ministers of the Council of Europe, Principles III. See Section 1.1. For legitimate exemptions to the general right to freedom of information, see Section 1.3.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

24 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION bodies will be maintained as officials may be excessively cautious about requests for information, to avoid any personal risk.79 In addition, although Article 283 should apply only to public officials, it has also been applied to ordinary citizens.80

Also of concern are the normative texts that impose bans on broad categories of information, such as (old) Decree 055 in relation to military matters and, presumably, the new secret decree replacing it.81 The UN Special Rapporteur on Freedom of Opinion and Expression has stated that the right to free expression and information can be restricted to protect national security only in the most serious cases of a direct political or military threat to the entire nation.82 In addition, there should be a strong nexus between the information and the threat to national security.83 Another important principle that is excluded from Russian practice is that of public interest override: even if it can be shown that the disclosure of information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm.84 The Law on Information Technology stipulates that State bodies must provide people with information only when this affects their rights and freedoms. Russian legislation also does not provide for ‘whistleblower’ protection, despite the fact that ‘whistleblowers’ fulfil an important function in society, by making available information of crucial interest to the public.85 Instead, in Russia, ‘whistleblowers’ have been severely penalised, as the cases featured in this report demonstrate.86 The legal mechanisms available to obtain information are complicated, chaotic and not user-friendly, as well as being interspersed in several pieces of legislation. This negatively affects not only the requesters but also public officials: difficulties in understanding and correctly interpreting the legislation lead to its sporadic implementation. This is exacerbated by a vagueness of numerous provisions and contradictions between different pieces of legislation.87

Making secret oil-related information is perhaps a consequence of the fact that, according to recent figures, Russia’s oil reserves, amounting to 60 million barrels, are relatively modest when compared to those of other oil-rich countries.88 The provisions resulting from

79 The Public’s Right to Know, note 38, Principle 8. 80 For example, against geologists disclosing the results of their environmental research. See Section 4.6.6. 81 See Section 2.2.3. 82 Report of the Special Rapporteur, Mr Abid Hussein, pursuant to Commission on Human Rights Resolution 1993/45, reference E/CN.4/1995/32, 14 December 1995, para.48. 83 ARTICLE 19, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, London, 1996. 84 The Public’s Right to Know, note 38, Principle 1. Also see Section 1.1. 85 This principle provides that individuals should be protected from any legal, administrative or employment- related sanctions for releasing information on wrongdoing. ‘Wrongdoing’ in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It also includes a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing. The Public’s Right to Know, ibid., Principle 9. 86 See Section 4.3. 87 For example, between federal law and regional law, and between environmental legislation and other laws. - e.g. City Planning Code and the Federal Law on Municipalities 88 Sutyagin, A, “Classified oil”, Bellona Foundation, 6 May 2004, http://www.bellona.no/en/international/russia/envirorights/33716.html

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

25 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION the adoption of Decree 210 and, in particular, the 2003 amendment of the Law on State Secrets, are excessively broad.89 As a consequence, people have been deprived of basic information concerning the oil industry and potential environmental hazards resulting from it, in violation of the Russian constitution.

In addition, as freedom of information provisions do not apply to private companies, people cannot easily obtain information on issues related to waste or oil produced by private industries. Much of the environmental information that has an impact on the public is from private companies generating pollution. In Russian law, there are no obligations on private bodies to release information to the public. Although the general global practice is that access to information obligations do normally apply to public bodies,90 public interest considerations override restrictions to the general right to freedom of information, including commercial secrecy. This means that private companies should be open about their activities inasmuch as they have an impact on the public. Moreover, the European Court of Human Rights links the right to environmental information to the right to enjoy one’s private and family life, and stresses that the State has a positive obligation to ensure respect for the right.91 This clearly includes a requirement to legislate to ensure that private companies provide information on any potential environmental risks they create. In addition, private companies have a moral obligation to comply with the ethical rules of corporate social responsibility.

89 See Section 2.2.2. 90 ‘Public bodies’ should be understood broadly, and include private bodies carrying out public functions. 91 Guerra and Ors v Italy, note 30.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

26 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

3 THE PRA CTICE: A W EA K DEM OCRATIC COU NTERBA LA NCE

3.1 A Passive Public

The scarce implementation of access to information provisions is not only due to a number of public officials choosing to ignore them. There are currently few information requests as people are frequently not aware of their right to information, or show little interest in exercising it.92 According to a survey by the NGO Commission on Freedom of Information, 15% of people in Russia would like to receive more information but are not prepared to actively seek it.93 Only 18% of those surveyed actively pursue information on issues of interest – through independent research which may include the submission of information requests to the public -. 36% of respondents only sometimes seek such information and the rest rarely or never do so. Efforts to actively seek information in Russia appear to have actually decreased between 1997 and 2004, indicating a general passivity and over-reliance on State-controlled media.

Moreover, 23-25% of people have frequently been refused information, with the number of those refused being higher in larger cities. This is probably due to a higher amount of requests being submitted in urban areas. Yet the reasons for denial have changed over the years: in 1997 the most frequently cited reason for refusing access to information to individuals in Russia was the absence of requested information, whereas in 2004 it was a prohibition on disclosure by those in charge.94

Only 10-15% of the population regard themselves as being highly informed about public matters and only 6-10% consider themselves highly informed about the activities of governmental bodies. Those living in big cities deem themselves to be the least informed, perhaps due to a greater awareness of the hindrances to the free flow of information in Russia. 43% of Moscow’s citizens think that information presenting the government in an unfavourable light will be withheld from them.95

According to another survey by the Commission on Freedom of Information, the media in Russia is a fundamental source of information, with television being the principal source, followed by newspapers, radio and magazine. The Internet is considered to be a less reliable source of information than the broadcasting and print media, with only 2% of those surveyed considering the Internet to be trustworthy.96

92 Interview with Commission on Freedom of Information, 6 May 2006. 93 The Commission on Freedom of Information, presentation at “Mechanisms for the Realisation and Protection of the Right to Freedom of Expression”, Becasovo, Moscow, 6-10 February 2006 (event organised by the Mass Media Defence Centre and ARTICLE 19). The Commission on Freedom of Information has been conducting monitoring on access to information since 1996. 94 Commission on Freedom of Information, note 93. 95 Ibid. 96 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

27 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Yet the Internet can be instrumental in providing more effective information systems. There were 22 million Internet users in Russia in 200597 - out of a population of 141.5 million -, and this figure is rapidly growing. However, although some public institutions have computerised systems, particularly in urban areas, others have scant resources.98 To counter this, in 2002 the national 10-year programme Electronic Russia was started, to enhance opportunities for seeking and imparting information, including e-governance and access to Internet resources.99 In 2006, all government structures had websites; however, their development is hindered due to limited resources and poor management.100

In 2005, Yuri Skobin, lawyer of the NGO Institute for the Development of Freedom of Information, started a legal action on the failure of public bodies to properly maintain their websites. Skobin sued six governmental agencies for violation of Decree 98 and the constitutional right to information. Decree 98 obliged all governmental agencies to establish a website by 1 January 2003, yet, over two years after this date, 14 of the 89 federal agencies still did not have websites.101 The Kranogvardeisky court rejected the complaint on the basis that the applicant had not provided proof that the websites did not exist. However, the Health and Social Development Ministry, possibly as a result of the law suit, publicly committed to the establishment of a website.102

There is a significant level of informational disparity between different segments of the population and also between regions. The areas that experience most secrecy are the 42 entities known as ‘closed cities’ (or ZATOs), where approximately two million people live.103 Under the Soviet Union, closed cities were established to host nuclear plants and their employees, operated under a top-secret regime, and were not reported on maps. In recent years, cities were finally mapped, but they remain isolated and under an autocratic leadership. The outside media still does not have access to the cities, while the local media is underdeveloped and lacks independence. The net result is that ‘closed’ city authorities exercise near-total control of the information flow in and outside these entities.104 Much of the abuses of environmental laws by local public officials, and other cases of maladministration, are unknown to the people inside and outside the closed cities. Russians still have to pay a fine for crossing the border into the ‘closed cities’ without special permission. Given that the closed cities have been employed for nuclear research, they also tend to be the areas in which pollution is at its highest.

For example, Snezinsk (formerly known as Chelyabinsk-70, in the Urals) and Sarov (formerly known as Arzamas) were used as centres for nuclear weapons research during the

97 Internet World Stats, Russia. Internet Usage and Marketing Reports, http://www.internetworldstats.com/euro/ru.htm. 98 In 2006, in some public institutions 99% of employees had access to a network, while in others as few as 3% did. Savintseva, M, note 62,p.7. 99 Provisions for the use of websites to provide information on public bodies are contained, inter alia, in Decree No.98 (including a list of information categories to be placed on public bodies’ websites - see Section 2.1.2) and Law No.20 on ‘Guarantees on the Accessibility of Information on Moscow State Bodies Activities’. 100 Savintseva, M, note 62, p.9. 101 Skibinski, S, “Court to Mull Lack of Web Information”, the St. Petersburg Times, 20 May 2005, http://www.sptimes.ru/index.php?action_id=2&story_id=3596. 102 Ibid. 103 Kutepova, N, “The Closed Cities. Ozersk, Chelyabinsk County”. Bellona Foundation, 9 January 2003, http://bellona.no/bellona.org/english_import_area/international/russia/nuke_industry/siberia/mayak/27864 104 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

28 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Soviet period. The level of secrecy was such that those who worked in these cities were even prevented from communicating their location to their own relatives.105 Snezinsk is still surrounded by barbed-wire perimeter fences and special permits, which are notoriously hard to get, are required to have access to the city. 3.2 A State-controlled M edia

Despite the fact that media is the main source of information in Russia, it fails to fulfil the population’s information needs. The main reasons for the media’s fragility and the absence of impartial discourse include financial constraints and political corruption, rendering the media dependent on sponsors and transforming it into a tool in the hands of clans, politicians and oligarchic groups. In particular, officials refuse to view the media as an independent critic and often regard it as a subordinate body aimed at furthering particular political goals. Meanwhile, generally difficult economic conditions are themselves exacerbated by the low purchasing power of the population, which often lacks the funds to pay for quality information - in the form of newspapers for example -, making it harder for the media to survive in a free market economy. Reliable and efficient mechanisms for the guarantee of freedom of expression are also absent. Low professional standards of journalism due to poor training also frequently result in only very limited quality investigative journalism.

In Russia there is no pluralistic expression in the media, with no public service broadcasting or a diverse range of media outlets. In recent years the media has been subjected to increased government control, following legal suits against media tycoons Boris Berezovsky and Vladimir Gusinsky. These resulted in the Russian television channels with the largest audiences being brought under the control of the authorities (NTV, Channel One and RTR) or closed (TV-6).106 Among the stations that are directly Kremlin-funded is English-language satellite station Russia Today. It was created in 2005 with the aim of providing “global news from a Russian perspective”.107

Meanwhile, there have been cases of journalists being harassed, attacked, killed or ‘disappeared’, particularly when reporting from or about Chechnya. Russian media reporting on the events in Chechnya is particularly prone to bias, whilst information on politically sensitive issues such as the Moscow theatre siege is effectively restricted.108

The media has reported little on environmental issues, whilst in some cases it has vilified environmental activists and NGOs, including by accusing them of espionage. For example, the national media largely ignored the mass protests in several Russian cities in 2006 against the proposed construction of an East Siberia-Pacific Ocean Pipeline next to the world’s largest lake, Lake Baikal, an environmentally unique water source near the Siberian

105 Nilsen, T, “Siberian Environmentalist in Court – Again”, Bellona Foundation, http://www.bellona.org/english_import_area/international/russia/envirorights/info_access/13122. 106 BBC Country Profiles: Russia, http://news.bbc.co.uk/1/hi/world/europe/country_profiles/1102275.stm. 107 Ibid. 108 Media outlets that made the ‘wrong’ decisions under the Moscow theatre siege suffered the consequences; the television station Moskovia was taken off the air for several hours under anti-extremism legislation for its publication of terrorists’ statements, while the Ekho Moskvi website was threatened with closure until it withdrew the text of an interview with the hostage-takers. From “Russian Crisis Management Communications and Media Management under Putin”, Working Papers, 85, Dept. of East European Studies. See Section 4.5.1.1 for information on the Moscow Theatre Siege.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

29 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION city of Irkutsk.109 Instead, some of media outlets linked the Baikal environmentalists to Western intelligence services.110 At the same time, NGOs have had little opportunity to defend their position in the media, leading to one-sided reporting.

The media has been used to create the image of foreigners as spies and of NGOs in the service of foreign intelligence services. One high-profile case was the ‘spy scandal’, involving the British Embassy in Moscow in early 2006, widely covered by the Russian media. This coverage overwhelmingly portrayed British diplomats as spies despite the fact that no conclusive evidence had been supplied by law-enforcement officials. These phenomena are particularly worrying as a close nexus has been alleged between foreign ‘spies’ and Russian scientists working on freedom of information issues with national and international NGOs.111 In addition, President Putin has been able to gain popular support for his autocratic rule and create national cohesion by spreading anti-Western messages in the State-controlled media, as well as by repeatedly linking Chechens to terrorism.

3.3 Journalists’ Lim ited A w areness

According to recent surveys, 30% of journalists are frequently refused access to information from State organs and private bodies.112 This figure has risen from 1997, when it was 24%. The number of journalists who claim that they have been refused access to information, albeit rarely, is 60%.113 Only 20% think that they are regularly provided with the information they request, and these are primarily journalists reporting on sport and fashion.114

In general the quickest and easiest route for journalists to obtain information is the use of personal contacts rather than the application of access to information legislation or litigation.115 In addition, restrictive rules for accreditation regularly means that journalists are effectively denied information, once again forcing reporters into falling back onto a use of personal contacts to prevail over an efficient freedom of information regime based on the transparency of the institutions.

Feeble protests on behalf of journalists generally go unnoticed and many regional journalists are in fact altogether sceptical about the idea of freedom of speech. The

109 Greenpeace, “Baikal – New Hope”, 21 April 2006. http://www.greenpeace.org/russia/en/press/releases/baikal-new-hope. Lake Baikal is the largest in the world, with 20% of the world’s fresh water. It also is the oldest (25 million years) and deepest (1,700 m) lake in the world, and has the highest level of biodiversity. UNESCO World Heritage, “Lake Baikal”. http://whc.unesco.org/pg.cfm?cid=31&id_site=754. In May 2006 it was announced that the pipeline would run 350 – 400 km from Lake Baikal rather than next to it. Greenpeace stated that they would be confident of this pipeline course only after it was published, and following public meetings on this issue. Greenpeace, “The Siberian-Pacific Oil Pipeline Will Run 350-400 km from Lake Baikal”, 30 May 2006. 110 Greenpeace, “Baikal – New Hope”, ibid. 111 See Section 4.3. 112 Interview with the Committee for Freedom of Information, 6 May 2006. 113 Ibid. 114 Ibid. 115 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

30 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION majority of journalists are even persuaded by the view that the State has a right to interfere in affairs of the media.116

3.4 Public Officials’ Lim ited Resources

Between 1996 and 2004, law-enforcement agencies rejected 35-40% of requests for information. In addition, during the same period, the number of information requests that were rejected without any form of explanation nearly doubled.117

Obstacles to access to information are not exclusively linked to a disinclination by public officials to provide information to the public. In many cases, public officials have not been provided with the training needed to implement access to information provisions, despite their complexity. In addition to legal texts, public officials need guidelines and internal regulations on the practicalities of the actual implementation. Assistance from lawyers is limited, also due to the fact that there are few lawyers specialising in environmental law and freedom of information.118 Moreover, this is complicated by the fact that legislation has not been static, but constantly evolving. Any amendment to the legislation leads to new needs for training and internal rules of procedures.119 For example, in 2006 freedom of information-related provisions of the Law on ‘The General Principles of the Organisation of Organs of Self-governance’ came into force. Public officials expressed concern at the paucity of training opportunities to enforce the new provisions. In some cases, public officials have requested assistance to specialised NGOs for advice in the interpretation and implementation of the law.120

A traditional culture of secrecy has also meant that there is little incentive from superiors to translate into practice provisions on access to information. Another issue is the limited co- operation between civil society and the media and public officials, which may be caused by a generalised mutual distrust. There have been few attempts at constructive dialogue between these groups. Exceptions are projects initiated by local civil society such as the Commission on Freedom of Information - to bridge the gap by bringing together public officials and media in public events, and the development of joint strategies to enhance transparency of various institutions. In other projects, public officials have received training from civil society on the organisation of public hearings and press conferences to more efficiently publicise their activities and decision-making processes. Some such projects have yielded positive results, particularly at a local level, with the cultivation of personal relationships of trust. However, such examples are rare, and there is a clear need for the Russian authorities to take a more proactive role in creating positive conditions for transparency of the institutions, including in the environmental sphere.

116 Seventy per cent of journalists. Survey by the Commission on Freedom of Information. 117 Ibid. 118 Among the few exceptions is the environmental organisation Ecojuris, which, among other things, provide advice to public officials on the implementation of environmental freedom of information provisions. 119 Communication with Ecojuris, 9 June 2006. 120 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

31 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

4 THE IM PA CT ON ENVIRONM ENTA L INFORM ATION

Although people in Russia are, overall, more informed than during the Soviet period, including in environmental and health issues,121 there are still many restrictions on people’s right to environmental information. This has an adverse impact on people’s right to live in a clean environment.

Despite existing guarantees on access to environmental information, the environmental organisation Ecojuris believes that “limited access to [environmental information] constitutes one of the most common violations of citizens’ environmental rights” in Russia.122 Information on the environment has been particularly restricted since the mid- 1990s and only few journalists write about environmental issues. Many journalists fear the consequences of their actions or patently act to please their financial supporters.

One of Ecojuris’ studies shows that among the main reasons for people’s generalised lack of access to official environmental information are:

a) The State authorities fail to disseminate environmental information that should be proactively made available to the public; b) Information is provided in a manner that is in violation of the established conditions and procedures, or in an incomplete or distorted form; c) The authorities fail to provide information upon request (refusal or concealment of information).

The banning of Georgian wine and water imports into Russia is symptomatic of the lack of comprehensive environmental information. In March 2006, Russia banned imports of Borjomi mineral water from Georgia - in addition to a prior ban on the republic’s wines and on wines from Moldova - for ‘public health reasons’.123 The head of Russia's chief public health watchdog, Gennady Onishchenko, said inspectors had found that Borjomi failed to meet water purity standards. He cited numerous documentation problems that made it difficult to tell genuine Borjomi from illicit copies as the key reason for the ban. However, no precise information on the health hazards posed by the wines and water was made available.124 Many believe that the decision to ban imports from Georgia was politically- motivated, given diplomatic tensions between Georgia and Russia.

There have been obstacles to civil society’s participation in environmental impact assessments, despite the guarantees in the Law on ‘Environmental Impact Assessment’. For example, in 2005, the Begovoi municipality rejected an application for a public impact assessment on Transneft’s Pacific Ocean oil pipeline presented by Greenpeace. The

121 Interviews with NGOs Greenpeace Russia, Techa and Fatiha, May 2006. 122 Ecojuris, note 2, p.50. 123 BBC News, “Russia Bans Georgian Mineral Water”, 5 May 2006, http://news.bbc.co.uk/2/hi/europe/4976304.stm. 124 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

32 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION municipality registered Greenpeace’s application only in September 2005, after Greenpeace took the matter to court.125 More generally, public participation is also frequently limited, with various authorities routinely refusing to release the details of impact assessments, authorities limiting themselves to the publication of the assessments’ overall results. Yet without the impact assessments’ detailed documents themselves, decisions that affect the environment cannot be challenged in court.

For example, people in Chelyabinsk oblast were initially prevented from challenging the decision to allow the ‘Mayak’ Nuclear Complex to process nuclear waste from Hungary without the subsequent recovery of radioactive waste.126 Despite the likely adverse impact it would have on the people living in the area, the order and the grounds for the decision were not published. It took a Supreme Court judgement, on 26 February 2002, to finally make the relevant documents public.127

4.1 Failure to Proactively Dissem inate Environm ental Inform ation

The Constitution, the Law on Information Technology and other legal documents establish that information on the environment should be provided proactively by Russia’s authorities, without the public needing to request it.128 However, State bodies regularly fail to comply with these provisions. Reports on the state of the environment are published, on average, with a delay of over a year, or not at all.129

In 2005, the NGO Institute for Information Freedom Development stated that no ministry fully complied with the Decree 98, obliging governmental agencies to publish information about themselves.130

There are also delays in alerting the public in emergency situations seriously threatening people’s health. Delays of several days have occurred in informing the public of health hazards, for example on the radiation levels following the 2000 Kursk accident,131 and on emissions of radioactive iodine by the reactors of the Kurchatovsky Institute in Moscow in February 2002.132

Even when information is made available, the State often makes only a very limited effort to ensure that it reaches the general public, even in serious cases of illness and pollution, including incidents involving radioactive contamination. For example, there have been occasions where information has been printed in specialised scientific publications rather

125 Greenpeace, “Public Assessment of Transneft’s Pipeline Registered”, 12 September 2005, http://www.greenpeace.org/russia/en/news/public-assessment-of-transneft. 126 Decision of October 1998, No. 1483-r. On Mayak, see Section 4.5.2.1. 127 Ecojuris, note 2, p.51. 128 See Section 2.1.3. 129 An exception seems to be Gazprom, which regularly publishes reports on the impact of its activities on the environment. Ecojuris, note 2, pp.50-51. 130 See Section 2.1.2. 131 See Section 4.4.1.1. 132 Ecojuris, note 2, p .51.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

33 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION than in more popular media.133 In addition, vital information has on occasion been presented in a manner that is incomprehensible to the general public: the authorities have released detailed scientific data on the level of radioactive iodine in certain areas without providing people with other necessary information to make informed choices – i.e. without specifying what levels are above the norm, and without providing an assessment of how the presence of iodine can be harmful to human health.134 4.2 Violation of Procedure

Meanwhile, there have been violations of official procedures through delays or the supply of either incorrect or incomplete information. The authorities have been providing an initial reply to an information request, on average, only one month after its submission, despite the fact that, according to the Law on Citizens’ Appeal, full information should be provided within 30 days. Moreover, in such cases the information provided is usually incomplete, and merely consists of a standard letter, stating that the institution is in the process of locating the information, or asking the requester to supply additional details.135 Alternatively, the reply generally states that the requested information is widely available and can be found by consulting open sources, such as the institution’s website.136 In very few cases is a full response provided. Even the leading environmental NGO Greenpeace has been unable to receive any precise answers to its requests since the early 2000s.137 In some cases, high-ranking public officials have urged the authorities to provide answers to people’s requests more effectively. However, internal rules do not elaborate on the need to provide comprehensive information in a timely fashion: a standard letter, of the type mentioned above, is almost always considered sufficient.138

Moreover, there have been cases in which the authorities distorted environmental information. For example, in 1999, the Snezinsk authorities stated that there were no dangerous levels of radioactivity in the fish from the local lakes. However, the environmental group ‘Fund Ecology’, following its own assessment, revealed that the levels of radioactive content was three to four times higher than what is normally considered safe. This information was disseminated through the Russian media on this occasion, but much information is still covered up by the authorities, posing serious risks to people’s health.139

4.3 Denial of Inform ation

Despite the fact that it is a crime in Russia for public officials to conceal information that threatens people’s health, there have been numerous cases of non-compliance with these provisions. Information has on occasion also been withheld on the grounds of it being ‘for officials use’, rather than by providing a detailed justification.140

133 Ibid., p 52. 134 Ecojuris, note 2, p.52. 135 Interview with Greenpeace, 5 May 2006. 136 Interview with NGO Fatiha, 2 May 2006. 137 Interview with Greenpeace, 5 May 2006. 138 Ibid. 139 Nilsen, note 105. This case was the reason for the law suit against Nikolai Shchur, Section 4.6.4. 140 Ecojuris, note 2., p.52.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

34 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Sometimes even court orders are not sufficient to force institutions to release information. Over the years, the Institute of Nutrition of the Russian Academy of Science141 has refused to disclose documents on their research to assess the safety of genetically modified (GM) foods in Russia. This is despite the fact that, in May 2004, the Nikulinski District Court ruled that this information should be open to the public.142 The levels of public ignorance in this area are very high: according to a Greenpeace survey, one third of Russians (31%) have never heard of GM projects, and the level of education and exposure to sources of information is directly proportional to people’s rejection of GM food. Of the survey’s respondents who were aware of GM foods, 95% said that they were “strongly against or seriously concerned” about them, while 65% of them considered them unacceptable.143 Leading environmental NGOs such as Greenpeace believe that information on biological safety is being concealed from the public,144 despite constitutional guarantees for access to environmental information and a special provision stating that information about safety of genetic engineering activity must be available to the public.145 There has been no debate, for example, on scientific studies showing that some species of GM soy, maize, potato, white beet and rice currently available in Russia can cause risks to human health.146

In some cases, courts have ruled in favour of public officials in access to information cases, despite strong public interest claims in information requests and the seeming absence of valid reasons to withdraw information. This happened, for example, in a case brought to court by a human rights organisation in Cherepovets (Vologod oblast), which, between 1998 and 2002, was refused information on: results on measurements on the levels of pollution in the atmosphere; the environmental situation in Cherepovets; and mortality rates.147

In 1995, the Ministry of the Defence ordered 2,700 of 3,000 files from the 1930s and 1940s on the development and testing of nuclear weapons to remain off limits. This was despite the general rule that documents older than 30 years be open to the public. This resulted in the forced abandonment of ongoing efforts to identify areas at risk due to earlier nuclear testing, including the location of 100,000 tonnes of chemical weaponry.148 Other documents from the 1920s-1940s that remain secret include: documents on the destruction of chemical weapons in the Moscow area; the burial of mustard gas (yperite) and lewisite in the Saratov oblast; the location of old chemical weapons; and an yperite infection in Karelia.149

Moreover, despite government resolution No.35 on ‘The List of Information that Cannot be a Commercial Secret”, factories continue to conceal information relating to their toxic substance emissions.150

141 The body in charge of sanitary-epidemiological research. On the tests it conducts depends the registration of genetically modified crops. 142 Greenpeace, “Greenpeace Calls On to Tell the Truth about GM Organisms”, 26 May 2005, http://www.greenpeace.org/russia/en/news?page=3. 143 Greenpeace, “Russians Will Not Eat GM Foods”, 14 May 2005. 144 Ibid. 145 Article 10 of the 1996 Law “On the State Regulation of Genetic Engineering Activity”. See also Section 2.1.3. 146 Greenpeace, “Greenpeace Calls On to Tell the Truth about GM Organisms”, note 142. 147 Ecojuris, note 2., p.53-4 148 Ibid., p.53. 149 Ibid., p.53. 150 Ibid., p.54. Resolution 35 states that states that commercial secrets cannot include information on

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

35 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

4.4 Case Studies

4.4.1 Subm arine Accidents

The Kursk submarine accident has been viewed as a telling demonstration of the reduced capability of the Russian navy, but it also revealed clear efforts by the Russian government to suppress criticism and avoid the release of information that could potentially be politically damaging. The Kursk was a nuclear-powered submarine which sank following an explosion on board on 12 August 2000. The entire crew of the Kursk, 118 people, perished in the incident.

The government response to the Kursk incident was characterised by delay and misinformation. Offers of foreign assistance were originally declined, and a rescue attempt was not launched until two days after the accident. Press briefings were delivered at the naval base of Vidyayevo, which was problematic for media and members of the public to access. Only State television channel RTR was allowed close to the scene of the accident, and any politically damaging footage was edited out of broadcasts.151 The scale of the incident and the government’s responsibility were minimised, and very little information made available. The list of names of those on board published by a newspaper was reportedly obtained by newspaper reporters by bribing a naval officer.152

In another incident involving a submarine in 2004, the authorities reportedly downplayed the risks relating to an explosion on the Russian Delta-III nuclear submarine in the Kamchatcka region in the Far East. For several days following the explosion, the authorities denied its occurrence. It was then reported that the incident was due to a burst pipeline during routine maintenance work.153 However, independent scientists believe that the accident was much more serious in nature and that could have led to worse consequences if a sailor had not intervened, in an attempt to contain the blast that cost him his life.154 Delta-III submarines can carry up to 16 intercontinental nuclear missiles, although it is unknown whether any missiles were in the submarine during the explosion. The results of a special committee’s inquiry conducted after the accident was never released to the public.155

4.4.2 T he M oscow T heatre Siege

Information was also restricted over the high-profile Moscow theatre siege. On 23 October 2002, an armed group seized control of a crowded theatre in Moscow, taking over 900 people hostage and demanding the withdrawal of Russian troops from Chechnya. The siege

environmental pollution and that is harmful to people’s health. 151 From “Russian Crisis Management Communications and Media Management under Putin”, note 108. 152 Ibid. 153 Digges, C, “Explosion aboard Russian Nuclear Submarine Kills One and Elicits Sceptical Responses”, Bellona Foundation, 20 November 2004, http://193.71.199.52/en/international/russia/envirorights/info_access/36239.html. 154 This was confirmed by a source of the Russian Navy’s Headquarters. Ibid.. 155 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

36 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION lasted until 26 October, when Russian special forces pumped gas into the building and mounted a raid, resulting in the deaths of over 40 hostage-takers and 128 hostages.156

Information on the fate of those inside the theatre was limited: the government would not release any information to family members about where victims were being taken, or about whether relatives were among the dead. More vitally, Russian authorities also refused to disclose the name of the gas used in the rescue operation, claiming it was a State secret. This continued despite requests from foreign embassies for the information in order to aid treatment of victims. It was not until 30 October, four days after the raid, that the Russians responded to increasing domestic and international pressure to name the substance with a statement by the Health Minister that is was an aerosol of a fentanyl derivative - possibly Carfentanil, a powerful opiate, normally used to immobilise large animals.157

4.4.3 T he N uclear Industry

The nuclear industry in Russia poses several health and environmental risks. The ministries in charge of it have been placed above other ministries, and conduct their activities in complete secrecy. Rosatom (Federal Agency for Nuclear Power), although not as powerful as its predecessor, Minatom (Ministry of Atomic Energy), has maintained this privileged position.158 Secrecy was particularly marked during the Soviet Union, when it adversely affected nuclear scientists themselves, by limiting even the information they received concerning their own work.159

4.4.3.1 The Mayak Facility

The area surrounding the Mayak nuclear facility in the Urals has been described as the most contaminated place on earth.160 Radiation is the main concern in this region, yet there are other environmental hazards, including pollution from metallurgy, heavy metals and pesticides. There is a high concentration of large-scale industry in the area. For example, tonnes of sulphuric acid are released into the atmosphere by copper processing factories in the area every year. Not surprisingly, many people have chosen to leave the area.161

Three major nuclear accidents at the Mayak complex have resulted in the release of large amounts of radiation, causing high rates of cancer, radiation poisoning and birth defects, and severely decreased life expectancy among inhabitants.162 Official inaction and

156 BBC report “Moscow Theatre Siege Death Toll Rises”, 7 November 2002, http://news.bbc.co.uk/ 2/hi/europe/2414003.stm. 157 CNN report “Dozens Held in Moscow Siege Probe”, 30 October 2002, http://archives.cnn.com/2002/WORLD/europe/10/30/moscow.funerals/index.html. The government has also opposed efforts by the liberal Union of Right Forces party to set up an investigative commission to probe all aspects of the hostage crisis and rescue attempt. 158 Kudrik, I et al, note 4, p.7. 159 Ibid., p.12 160 For example by the Bellona Foundation, http://bellona.no/bellona.org. See also the article on a documentary by Grunberg, S, “Chelyabinsk: The Most Contaminated Spot on the Planet”, http://www.logtv.com/films/chelyabinsk/. 161 Meeting with NGO Fatiha, 2 May 2006. 162 Digges, C, “Duma Deputy Mitrokhin to Fight for Evacuation of Mayak Area”, Bellona Foundation, 25 October 2002, http://www.bellona.no/en/international/russia/nuke_industry/siberia/mayak/26971.html.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

37 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION suppression of information on public health and risks from radiation have exacerbated the problems. While State Duma representatives and environmental groups are seeking the closure of the facility or at least limits on its activities, Rosatom has been planning to dump and store more nuclear waste in this area.163

The Mayak complex was built near the city of Chelyabinsk in the late 1940s as part of the Soviet Union’s nuclear weapons programme and is home to Russia’s only working radioactive waste reprocessing plant.164 As a centre of military production, Chelyabinsk was closed to foreigners until 1992 and activities at the plant were shrouded in secrecy. The first incident took place between 1948 and 1956, when large amounts of radioactive waste were systematically released into the Techa River. The river was the only source of drinking water for 24 villages along its banks, with the result that 124,000 people were exposed to medium and high levels of radiation,165 and 28,000 residents received medically significant doses of radiation.166 Russian doctors who study radiation sickness in the area estimate that those living along the river were exposed to an average of four times more radiation than the Chernobyl victims.167 As of 1953, the river could no longer be used as a source of drinking water, and over a number of years 7,500 residents were evacuated from their villages along the riverside. Fishing and fetching water from the Techa river were prohibited and barbed wire fences erected on both sides of the river, but the residents were not informed that the river had been contaminated by radiation and consequently tended to disregard the ban.168 No signs were posted warning people of the dangers of fishing, partially to avoid scaring the population.169 Of those villages that were not evacuated, it was Muslyomovo whose residents were the most affected. Dams and reservoirs were built along the Techa river to contain the radiation, but to little effect. Samples taken from the riverbanks above a dam in Muslyomovo indicated activity levels extremely dangerous for human health; nevertheless, farm animals continue to graze in this area and people continue to live there.170 In 1993, the administration of Chelyabinsk oblast passed a resolution to evacuate Muslyomovo and build a new village for the residents further away from the Techa River, but this has been blocked because of financial problems.171

The second major incident at the facility occurred in 1957, when the cooling systems of a radioactive waste containment unit at the Mayak plant exploded, exposing 270,000 people to similar levels of radiation as victims at Chernobyl three decades later.172 At least 200 people died from radiation sickness in the years following the explosion, and agricultural production in the area also suffered. More than 10,000 people were evacuated from their homes following the explosion, though the last of these were not moved until two years after the explosion. Even in the most contaminated areas, some people were not evacuated until ten days after the event.173

163 Greenpeace, “Mayak story”, http://archive.greenpeace.org/mayak/mayakstory/index.html 164 Grunberg, S, note 160. 165 Greenpeace, “Mayak story”, note 162 and ibid. 166 Bohmer, N, and Nilsen, T. “Reprocessing plants in Siberia: Ozersk”, Bellona Foundation, 12 April 1996. 167 Grunberg, S, note 160. 168 Bohmer, N, note 166. 169 Mironova, N, “A Hot Catch-22”, Ekologia i Pravo, No.20, September 2005. 170 Digges, C, note 162. 171 Bohmer, N, note 166. 172 Grunberg, S, note 160. 173 Bohmer, N, note 166.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

38 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Ten years later, in 1967, a third incident occurred. Minatom had attempted to solve the Techa river contamination problem by dumping waste in Lake Karachai, a closed water source in the area. However, following a dry period over some years, part of the lake evaporated, exposing land that had previously been underwater.174 Strong winds spread radioactive dust from the lake sediments across a large area of 1,800 square km, causing approximately the same levels of radiation as at Hiroshima.175

The environmental and social effects of these incidents have been wide-ranging, with residents suffering from deaths from cancer, chronic illnesses among children, ineffective or non-existent resettlement, and official refusal to provide information on the risks and causes of illness.176 Radiation exposure following the three major incidents around Mayak has led to the deaths of thousands, and many more people have become ill.177 In total, the three incidents, along with discharges from routine operations, has contaminated a total area of approximately 26,000 km sq. Some half a million people have been subjected to increased levels of radiation, and of these, 180,000 have been evacuated. Throughout the 40 years that the Mayak facility has been in operation, approximately 10,000 workers have suffered from some form of radiation sickness, and 4,000 people have died because of it.178 Life expectancy in the region is 50 to 55, and as many as 90% of the children suffer from chronic illnesses. Even today, children continue to be born with birth defects due to radiation, including missing hands, legs or feet.179

The Ministry of Health has admitted that the level of deformity among children of Minatom staff is higher than the average level in Russia.180 Yet, reportedly the government refuses to acknowledge that there are any high illness rates in the Chelyabinsk region, and it does not disclose the relevant data.181 A Mayak facility’s spokesperson has claimed that the area is “an ecologically safe place to live” and dismisses reports of decreased life expectancy and increased birth defects as hype created by the media and Western ecological movements.182 In 2004, the general prosecutor investigated the Mayak case and exposed the health hazards in the area, leading the company’s director to be charged with abuse of office under the Criminal Code. Investigations into the Mayak plant continue, but there has been little progress since 2004. There is no allowance for independent inspections and security issues prevent NGOs from carrying out inspections.183

The Mayak episode demonstrates extremely high secrecy levels in relation to the Soviet weapons programme. The Institute of Biochemistry (FIB) has been testing the area’s residents for radiation since the late 1950s, but neither told them the cause of their illness nor treated them. As the factory produced weapons-grade plutonium, during the Soviet period it was feared that if it became known that high numbers of people had been irradiated in a particular area it would have revealed the facility’s location, which was then

174 Digges, C, note 170 175 Grunberg, S, note 160. 176 Ibid. 177 Greenpeace, “Mayak story”, note 163 178 Bohmer, N, note 166. 179 Grunberg, S, note 160. 180 Greenpeace, “Nuclear”, http://www.greenpeace.org/russia/en/campaigns/nuclear. 181 This is the opinion of State Duma deputy and Yabloko Party member Sergei Mitrokhin. Bohmer, N, note 166. 182 Digges, C, note 170. 183 Alimov, R, “Investigation of Mayak goes on”, Bellona Foundation, 27 October 2005, http://www.bellona.no/en/international/russia/nuke_industry/siberia/mayak/40466.html.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

39 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION secret. Distress suffered by people in the area has been compounded by an acute lack of information over the cause of their illnesses and official refusals until relatively recently to acknowledge that cancer even existed in the region. This extended to a prohibition on doctors citing cancer as a cause of death – accompanying factors such as a stroke, severe heart attack or chronic heart disease frequently being specified instead. During the Sovet years FIB doctors were forbidden from writing ‘radiation sickness’ on patients’ charts, but had to use a code instead.184 Even now, inhabitants of the areas around the Mayak facility do not have full access to information on their environment, let alone social aid in cases where the link between health problems and radiation is proven.185

Mayak is not the only nuclear complex posing threats to people’s health. The Siberian Chemical Complex experienced a storage tank explosion in 1993. As a result of the explosion and the complex’s general activities, the area’s level of radiations is consistently high.186 Some villages had to be evacuated and to this day warning signs indicate that it s unsafe to pick wild fruit.187 One of the three nuclear power stations in Krasnoyarsk region, the Mining and Chemical Complex in Krasnoyarsk-26 undertakes activities with weapon- grade plutonium in top secrecy. As a result, many of the accidents that have occurred in the complex have gone unreported and most information is still being kept from the public.188

4.4.3.2 Nuclear Dumping

The nuclear industry has also been hiding from the public the fact that, over the last 30 years, it has imported 100,000 tonnes of nuclear waste - contaminated uranium and depleted uranium - into Russia. Most of the waste is from facilities in France, Germany, the Netherlands and the UK. The dumping poses a great risk to human health: the containers used for the transport are below the safety standards and could contaminate areas of thousands of kilometres around the dumpsites.189 Storage also poses risks. The uranium is stored in containers which are subject to external corrosion and do not meet the current international safety requirements.190 Furthermore, the storage sites were established during the Soviet era and continue to operate despite being environmentally unsound.

The dumping of nuclear waste in Russia is made even more problematic by the following factors: (a) the waste is being exported to some of Russia’s most contaminated sites with long-standing environmental and human health problems; (b) the nuclear waste transported

184 Grunberg, S, note 160. 185 Greenpeace, “Nuclear”, note 180 186 Kudrik, I et al, note 4, p.78. 187 Greenpeace International Briefing Paper, Europe’s Radioactive Secret. How EDF and European Nuclear Utilities are Dumping Nuclear Waste in the Russian Federation. 18 November 2005, http://www.greenpeace.org/raw/content/france/press/reports/radioactive-secret-EU.pdf. 188 Kudrik, I et al, note 4, p.88. 189 Dumping occurs in four main locations: the Urals Electrochemical Plant (Sverdlovsk-44), the Siberian Chemical Plant (Tomsk-7), the Angarsk Electrolysis Plant (Angarsk) and the Electrochemical Plant (Krasnoyarsk-45). All four are under the control of Rosatom. Kudrik, note 4., p.78. The Siberian Chemical Plant, activated in 1954, is an immense nuclear complex located several kilometres from Tomsk and 3,000 km east of Moscow. The site covers more than 190 square km and borders the Tom river. More than 100,000 people inhabit the ‘closed’ city of Tomsk-7. Greenpeace, “Europe’s Secret Nuclear Waste Dumping in Russia Revealed”, 5 December 2005, http://www.greenpeace.org/international/photosvideos/videos/europe-s-secret- nuclear-waste. 190 According to a 2004 ‘Report on Activities’ by the Russian Federal Service for Supervision over Nuclear and Radioactive Safety, the storage containers do not meet safety standards. Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

40 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION is a hazardous material (uranium hexafluoride); (c) shipments are delivered in non-purpose- built cargo vessels, ill-equipped to deal with emergency situations; (d) the transportation route lies through the major cities of Saint Petersburg and Tomsk.191

Russian law does not permit the importation of nuclear waste for either storage or disposal.192 Yet the nuclear industry has justified the imports by stating that the material undergoes further processing which results in re-enriched substances either being transported back to Europe or being manufactured as fuel. However, research by Greenpeace has revealed that the enrichment process leaves the vast bulk of the uranium - over 90% - at Russian nuclear sites.193 Hence, not only are people not informed of the hazards posed to their health by the transport and storage of nuclear waste in Russia, but they are also deceived as to the real purposes of these processes.

4.5 Spies or Environm entalists? Hum an Rights Defenders under Threat

Espionage charges are increasingly being made by the Russian authorities, apparently to silence those who are vocal in their criticism of the State. This particularly applies to scientists and environmentalists, especially in case of collaboration with foreigners. The first notable case occurred in early 1995, when the premises of the Bellona Foundation’s Murmansk Office were raided. Just a few months later, scientist Aleksandr Nikitin was arrested and charged with espionage.194 Human rights groups have claimed that the FSB’s pursuit of espionage cases involving scientists and academics seeking to expose environmental hazards has resulting in a ‘chilling effect’ on their work.195

In Russia ‘spy-mania’ seems to have taken root through a “wave of Bond-style books and films glorifying the bloody past of the KGB”.196 This has manifested itself in a revival of the Soviet fictional literary character Major Pronin: a heroic spy who fought against external threats. More topical is the popular film Lichny Nomer, in which an FSB agent fights against Chechen rebels and a hostage crisis in Moscow is depicted.197 Although films on infallible government agents are common in many countries, these films appear to be specifically serving the FSB’s needs; this interpretation is supported by the fact that Lichny Nomer was produced with the assistance of the FSB and the government. There are also several television series with FSB agents presented as heroes. Furthermore, a new television station called Zvezda was launched in early 2005. Its aim is to broadcast on military subjects in a patriotic fashion and it enjoys the backing of the Ministry of

191 Greenpeace International Briefing Paper, note 187. 192 It is in violation of the Russian Federal Law on ‘Environmental Protection’, Article 48(3). 193 Greenpeace International Briefing Paper, note 187. 194 See Section 4.3.2. 195 Human Rights Watch, World Report 2002. Russian Federation. Human Rights Developments http://www.hrw.org/wr2k2/europe16.html 196 Osborne, A, “Russia’s Spooky Mania for its Hero Spies”, The Independent, 28 February 2005, http://news.independent.co.uk/europe/article13244.ece. 197 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

41 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Defence.198 Commentators have suggested that the ‘militarisation of society’ occurs naturally in a country that has many enemies.199

There have been violations of criminal procedure in many of the spy-mania cases. These include: the failure of courts to check whether the information allegedly passed to foreigners was indeed secret; charges based on secret decrees such as Decree 055, to which defendants have not had access, even for the preparation of their defence; vague charges; public statements on the defendants’ guilt before proven guilty by a court.200

In the majority of espionage cases the courts have succumbed to some degree of FSB pressure. Courts in Russia are still unaccustomed to their newly-acquired rights, and unable to assert their independence from government structures. In recent years they have passed judgements that appear to be compromises – not acquitting a defendant yet also not fully complying with the wishes of the FSB.201 In some cases, courts requested further investigation rather than acquitting (Aleksandr Nikitin in his 1998 trial and Igor Sutyagin). In others courts did find the defendants guilty, but showed leniency (Anatoly Babkin and Vladimir Shurov).202 Yet in other cases courts did acquit defendants (final judgement on Nikitin; Grigory Pasko’s acquittal of treason in July 1999, and amnesty for an abuse of office guilty verdict).203 However, in some cases courts showed extreme severity (final judgement on Igor Sutyagin).

Following high-profile cases, international concern has been raised at the “growing number of individuals who, on account of their scientific and journalistic work, have fallen victim of a practice often described in Russia as ‘spy-mania’”.204 The European Parliament has stated that it believes the Grigory Pasko case to be “highly symbolic of the present situation concerning the freedom of speech in Russia and that his conviction is a considerable setback for the development of the rule of law”.205 Its members further noted that the case showed that “freedom of expression in Russia is deeply undermined and that the situation, with regard also to the independence of the judiciary, should be closely monitored”.206 The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has also paid considerable attention to these cases, noting that the series of arrests and trials, affecting mainly environmental activists, “smack of lawlessness” and that, according to human rights organisations, the charges against those targeted have been

198 Ibid. 199 Political scientist Andrei Piontkovski, in Osborne, A, ibid. 200 Human Rights Watch, note 10, p.9. 201 Ibid. 202 Defendants received prison sentences for less than 12 years, despite the fact that 12 years is the minimum foreseen by the Criminal Code for treason as per Article 275. Babkin, although found guilty of treason, received an eight-year suspended prison sentence with five years’ probation. Shurov, who was found guilty in August 2003 of disclosing State secrets, received a two years’ suspended prison sentence and was immediately amnestied. Human Rights Watch, ibid., pp. 9-12. For more information on this and other cases, see below. 203 Pasko’s acquittal was later overturned by the Supreme Court. 204 International Helsinki Federation for Human Rights, “Russia: Espionage Cases Violate International Human Rights Standards”, 15 February 2002 http://www.hrea.org/lists/hr-headlines/markup/150202.php. 205 European Parliament Resolution, P5_TA-PROV(2002)0377, “Human rights: Sentencing of Grigory Pasko in Russia”, 4 July 2002, http://www.bellona.no/en/international/russia/envirorights/pasko/24846.html 206 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

42 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

“completely groundless”.207 A coalition of four prominent human rights organisations, including Amnesty International and Human Rights Watch, has identified a “pattern of arbitrary prosecutions of independent scientists, journalists and environmentalists in Russia who work on sensitive topics”.208

4.5.1 G rigory Pasko

The case of Grigory Pasko is a clear example of the suppression of environmental information which, if disclosed, would put the Russian authorities in a negative light, despite federal provisions requiring environmental information to be made available to the public. Pasko was convicted of treason through espionage following his exposure of the illegal dumping of nuclear waste in the Sea of Japan in 1993.209 He served two thirds of his four-year sentence before being released on parole in January 2003.210 Since his release, Pasko has worked for the Norwegian NGO Bellona Foundation as editor-in-chief of its magazine Ekologia i Pravo, and continues to work to clear his name. His case was taken to the European Court of Human Rights and communicated to the Russian government in 2005, with a verdict expected by late 2006 or early 2007.211

Before his arrest, Pasko had been working since 1983 as a reporter for Boevaya Vakhta, the newspaper of the Russian Fleet. His articles focused primarily on radioactive waste disposal and other issues related to the activity of the Pacific Fleet. Pasko also filmed Russian navy tankers dumping shells and liquid radioactive waste in the Sea of Japan, which was shown by television stations in Japan and the Russian Far East. The film caused outrage among the Japanese public and embarrassment to the Russian government.212 Pasko also worked on a freelance basis for a Japanese television station and newspaper, and passed on (openly available) information and video footage to his Japanese colleagues.213 Following the showing of his film, Pasko faced frequent harassment from the Russian government.214 According to Pasko’s submission to the European Court of Human Rights, it is evident from case files that his journalistic work attracted FSB attention, and that

207 “Honouring of Obligations and Commitments by the Russian Federation”, Doc. 9396, 26 March 2002 http://assembly.coe.int/Main.asp?link=http://assembly.coe.int%2FDocuments%2FWorkingDocs%2FDoc02% 2FEDOC9396.htm. 208 The organisations were commenting on the Sutyagin case. Amnesty International, Human Rights Watch, the International Helsinki Federation for Human Rights, and the Moscow Helsinki Group “Joint Statement on the case of Igor Sutyagin to the Parliamentary Assembly of the Council of Europe”, January 2004, http://web.amnesty.org/library/Index/ENGEUR460042004?open&of=ENG-RUS. 209 Amnesty International news release “Russian Federation: FSB vs. Grigory Pasko – Punishment without a crime”, published on 21 March, 2001 http://www.amnesty.org.uk/news/press/13842.shtml 210 Bellona Foundation, “Background”, http://www.bellona.no/en/international/russia/envirorights/pasko/index.html 211 Gauslaa, J, “European Court Takes Action”, Bellona Foundation, 30 September 2005, http://www.bellona.no/en/international/russia/envirorights/pasko/40027.html. Application to the European Court of Human Rights ‘Pasko v. Russia’, 24 December 2002, available at http://www.bellona.no/en/international/russia/envirorights/pasko/27746.html. 212 Human Rights Watch, World Report 1999. Russian Federation, Human Rights Developments. http://www.hrw.org/worldreport99/europe/russian.html. 213 Application to the European Court of Human Rights, note 211. 214 Human Rights Watch, World Report 1999, note 212.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

43 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION throughout 1996 and 1997 the FSB increased surveillance of him and started to tap his telephone.215

Through his film and journalistic work, Pasko exposed the environmental threat caused by decaying submarines and the Pacific Fleet’s general activities. In particular, Pasko revealed that by 1993 the Fleet had dumped 6,893 nuclear waste containers and scuttled 38 warships in the Sea of Japan, on sites that had not been monitored for 20 years. Pasko further reported that, during the 1970s and 1980s, from 70 to 120 metric tons of ammunition had been annually dumped into the Sea of Japan, growing to more than 1,000 metric tons in the 1990s. Pasko also focused on financial shortages and corruption within the Pacific Fleet as a probable cause of these problems. In 1997 Pasko was investigating the alleged disappearance of $100 million given to Russia by Japan in a 1993 agreement to be used to clean up radioactive waste and dismantle nuclear warheads. Documents from this investigation which Pasko had intended to use in future publications disappeared from his office shortly before his arrest.216

Pasko’s case began on 20 November 1997, when he was arrested in Vladivostok on suspicion of treason through espionage.217 His trial began at the Court of the Russian Pacific Fleet in Vladivostok in January 1999, and was the subject of considerable international attention because of the case’s environmental and human rights issues.218

The prosecutor’s contention that Pasko’s journalism contained secret information was based on the conclusions of three expert evaluations from 22 December 1997 and one from 14 March 1998, and was based on secret Decree 055,219 Decree 1203,220 and the Law on State Secrets.221

Since parts of Decree 055 had been denounced as ‘illegal and invalid’ by the Supreme Court,222 and it had not been registered according to Russian law, the Court made no references to it in its ruling, though it did use the exact wording of the Decree’s points 129 and 240.

In July 1999 Pasko was acquitted of treason charges, but sentenced to three years in prison for ‘abuse of his official position’223, a crime with which he had never been charged, and then released under a general amnesty.224

Both Pasko and the prosecution appealed against the verdict, and in November 2000 the verdict was cancelled and a re-trial began at the Pacific Fleet Court on 11 July 2001. The basis of the charges were that Pasko had transferred or intended to transfer 10 items of information to Japan which were judged by an expert panel - appointed by the 8th

215 Application to the European Court of Human Rights, note 212. 216 Ibid. 217 Articles 275 and 276 of the Russian Criminal Code. 218 Gauslaa, J, “The Pasko Case”, Bellona Foundation, 26 June 2005, http://www.bellona.no/en/international/russia/envirorights/pasko/24748.html 219 Point 129 (regarding radio-electronic warfare) and point 240 (regarding names of military units). 220 Points 77 and 13. 221 Various sections of Article 5. 222 See Sections 2.2.3. 223 Article 285 of the Russian Criminal Code. 224 Application to the European Court of Human Rights, note 212.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

44 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Directorate of the Staff of the Pacific Fleet - to contain secret information relating to nuclear submarines and the storage of nuclear waste. In this second trial, the Court found no evidence that Pasko had transferred the items to Japan and acquitted him on related charges. However, he was convicted of having kept them with the intention of later transferring them to a Japanese journalist. Pasko was sentenced on 25 December 2001 to four years’ hard labour for treason through espionage.

Both sides again appealed against the verdict, with the defence demanding a full acquittal and the prosecution seeking the 12 years minimum sentence for treason. The appeal case was heard in the Supreme Court on 25 June 2002, but despite some adjustments in Pasko’s favour, the four-year sentence was upheld. Pasko was released on parole on 23 January 2003, having served two thirds of his sentence, but was unable to get an international passport until 18 months later.

Pasko continues to work to have his conviction overturned, and his defence team has claimed that his trial was in breach of several articles of the Russian Constitution, the Russian Criminal Code and the European Convention on Human Rights and that, based on the evidence, Pasko should have been acquitted. The notes which formed the basis of Pasko’s conviction were confiscated in a search of his flat acknowledged by Russian courts to have been illegal, and which should therefore have been disqualified as evidence.225

Pasko filed an application to the European Court of Human Rights on 24 December 2002. He submitted that his conviction violated Articles 6 (fair trial), 7 (retroactive use of criminal law) and 10 (freedom of expression) of the European Convention on Human Rights. There was an additional submission by Pasko to the European Court on the conditions of his detention (Article 3, prohibition of torture) and on its unlawfulness (Article 5, right to liberty and security).226

4.5.2 Aleksandr N ikitin

The Pasko case shares a number of similarities with an earlier case against Aleksandr Nikitin, who was also charged with espionage after exposing nuclear safety issues related to the Northern Fleet. Nikitin is a former naval officer who joined Norwegian environmental NGO Bellona Foundation in 1995 to work on a report entitled The Russian Northern Fleet:

225 Amnesty International adopted Pasko as a prisoner of conscience in January 2002, stating that his prosecution appeared to be “motivated by political reprisal for exposing the practice of dumping nuclear waste into the sea”. Amnesty International news release “Russia: Grigory Pasko Gets Four Years in a Labour Camp for Speaking out for the Environment”, 6 January 2002 http://www.amnesty.org.uk/news/press/13835.shtml. Amnesty International further concluded that Pasko was being held “solely for the peaceful exercise of his right to freedom of expression”. “Russian Federation: Grigory Pasko, Prisoner Of Conscience”, 15 February 1999, AI Index: EUR 46/07/99 http://web.amnesty.org/library/Index/ENGEUR460071999?open&of=ENG-RUS. Pasko was nominated for the 2002 Sakharov Prize for freedom of thought. “Sakharov Prize for the Freedom of Thought 2002”, Notice to Members No. 11/2002, European Parliament Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy, 16 September 2002 http://www.europarl.eu.int/meetdocs/committees/afet/20020930/471640EN.pdf. 226 Additional Submission Pasko v. Russia, Application no. 69519/01, 22 June 2003, http://www.bellona.no/en/international/russia/envirorights/pasko/31588.html. Further complaints regarded the Russian courts’ use of illegally obtained evidence (Article 6, taken in conjunction with Article 14).

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

45 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Sources of Radioactive Contamination.227 The report provided an overview of potential sources of radioactivity which could harm public health and the environment, and noted the lack of provisions for the storage of old nuclear submarines and radioactive waste.228

On 5 October 1995, the FSB conducted searches of Bellona’s office in Murmansk and seized the draft report, along with a number of other documents and computers.229 At the same time the FSB also apprehended Nikitin and another of his Bellona colleagues in Saint Petersburg, both of whom were interrogated and released the same day.230 The FSB issued a press release on 18 October stating that a criminal case had been launched due to the alleged disclosure of State secrets in the Bellona Foundation’s materials.231

On 6 February 1996, Nikitin was arrested at his home in Saint Petersburg and charged with treason through espionage in respect of having allegedly provided secret information on submarine accidents to a foreign organisation in contravention of Article 64 of the Russian Criminal Code.232 The classification of this information as an official secret was based on unpublished secret decrees, and on Presidential Decree 1203 applied retrospectively.233 Nikitin was also charged with unlawful use of his military identification card.234 He spent ten months in pre-trial detention before he was released on 14 December 1996, though he was subject to travel restrictions and the charges against him were not dropped.235

Nikitin’s trial on charges of treason through espionage and aggravated disclosure of official secrets began at Saint Petersburg City Court on 20 October 1998.236 The trial was stopped on 29 October and remitted for further investigation on the basis that the vagueness of the indictment hindered Nikitin’s defence and made it impossible for the court to assess the merits of the case.237 The court also found that the case file left open the question of whether the report contained any official secrets and that there had not been an adequate investigation into possible public sources for the information in the report or of the estimated damage caused by the disclosures.238

The trial was resumed on the same charges at Saint Petersburg City Court on 23 November 1999.239 On 29 December, Nikitin was acquitted on all counts, and the court found that he had been prosecuted unlawfully on the basis of secret and retroactive decrees.240 Despite an

227 Decision as to the Admissibility of Application no. 50178/99 by Aleksandr Konstantinovich Nikitin against Russia, http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html& highlight=NIKITIN&sessionid=6759990&skin=hudoc-en 228 Bellona Foundation, The Russian Northern Fleet: Sources of Radioactive Contamination, http://www.bellona.no/en/international/russia/navy/northern_fleet/report_2-1996/index.html. 229 Kudrik, I, “The Nikitin case: Current Status, September 1997”, Bellona Foundation, 5 October 1997. 230 Nilsen, T, and Gauslaa, J, “How the KGB Violates Citizens’ Rights: the Case of Aleksandr Nikitin” Demokratizatsiya, http://www.demokratizatsiya.org/Dem%20Archives/DEM%2005-03%20nilsen.pdf 231 Kudrik, I, note 229. 232 The new Criminal Code came into effect in 1997. The article number here refers to the 1960 Criminal Code. 233 Decision as to the Admissibility of Application no. 50178/99, note 227. 234 Nilsen, T, note 230. 235 Gauslaa, J, “European Court on Human Rights: Prosecution’s Actions Arbitrary and Abusive”, Bellona Foundation, 26 July 2004, http://193.71.199.52/en/international/russia/envirorights/nikitin/34855.html. 236 Judgment on Case of Nikitin v. Russia (Application no. 50178/99), 20 July 2004. 237 Gauslaa, J, note 235. 238 Judgment on Case of Nikitin v. Russia, note 236. 239 Ibid. 240 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

46 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION appeal by the prosecution, on 17 April 2000 the Supreme Court upheld Nikitin’s acquittal. However, in May 2000 the Russian Prosecutor General appealed this final acquittal to the Presidium of the Supreme Court, seeking to have the case against Nikitin re-opened.241 This appeal was dismissed on 13 September 2000 and the acquittal once again upheld.

In July 1999, Nikitin had applied to the European Court of Human Rights on the grounds that the proceedings against him constituted violations of Articles 6 and 13 of the ECHR (fair trial and effective remedy).242 Following his acquittal, the terms of the application were re-drafted and replaced with claims that the appeal to the Presidium made Nikitin liable to prosecution for the same offence twice under Article 4 of Protocol No. 7 of the European Convention and violated the principles of fair trial outlined in Article 6.243 The European Court examined the application in November 2003 and ruled it admissible, noting that it raised “serious issues of fact and law under the Convention”.244 In its final judgement, the European Court acknowledged that the Prosecutor General’s appeal “could itself be criticised as being arbitrary and an abuse of process”.245 However, given that the Prosecutor’s request was denied and a re-trial did not take place, the Court found that there had been no violation of the Convention.246

4.5.3 Igor Sutyagin

In April 2004 arms control researcher Igor Sutyagin was found guilty of treason for passing secrets to the United States and was sentenced to 15 years’ hard labour, following an 11- day closed trial. He was arrested in October 1999, for allegedly selling information on nuclear submarine and missile warning systems to a British company, which the FSB claimed to be a cover for the CIA.247 Sutyagin stated that the information provided to the British company, which he had no reason to believe was an intelligence cover, was based on open sources. The charges were based on secret Decree 055.

Sutyagin was held four years before the 2004 verdict. The trial proceedings, which began only in February 2001 after his arrest in October 1999, were postponed to December 2001, when the court judged the case against him groundless. It ruled that the FSB had violated the Criminal Procedure Code and deprived Sutyagin of the right to defend himself, particularly by failing to specify what secrets he had disclosed and not providing access to Decree 055. The only ‘evidence’ provided were statements by the FSB that Sutyagin had violated Decree 055.248 In addition, the court held that Decree 055, being secret and unregistered, could not be used for prosecution.249 The investigation had also failed to assess whether the information in question in fact corresponded to State secrets.250 Sutyagin had quoted several publications, including newspaper articles, both Russian and foreign,

241 Gauslaa, J, note 235. 242 Ibid. 243 Ibid. 244 Decision as to the Admissibility of Application no. 50178/99, note 227. 245 Judgment on Case of Nikitin v. Russia, note 236. 246 Ibid. 247 Alimov, R, “FSB ‘Vents’ its Rage on Igor Sutyagin with a Guilty Verdict”, Bellona Foundation, 6 April 2004, http://www.bellona.org/english_import_area/international/russia/envirorights/33253. 248 Washington Post, “Injustice in Russia”, Editorial, 12 November 2001. 249 Gauslaa, J, “Postpone Sutyagin Case”, Bellona Foundation, 13 March 2003. 250 Ibid., p.16.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

47 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION that he had used to compile his research. Although these materials were provided to the investigation, there were not taken into account.251 However, instead of declaring him innocent, the court required further investigation from the FSB,252 whilst an appeal to the Supreme Court asking for his immediate release was rejected.253

Hoping for more judicial independence, the defence requested a jury trial, to be held in a Moscow city court. A new, closed trial began in November 2003. In February 2004, the judge who had been appointed apparently withdrew himself from the case and was replaced by Marina Komarova, who had been involved in other high-profile espionage cases. In addition, the original jury formed in November 2003 was dismissed and replaced.254

Human rights activists accused judge Komarova of manipulating the jury as the questions posed to them did not reflect the actual charges.255 The judge did not ask the jury whether the information released by Sutyagin amounted to State secrets but whether he had worked for a ‘foreign service intelligence service’ and had been paid for the information provided.256 Sutyagin had never denied providing information to a British organisation, but had denied that the information constituted State secrets. The jury reached the guilty verdict with unanimity, and only four out of 12 voted in favour of leniency in sentencing. Allegations were made that some of the jurors had been handpicked by the FSB to influence the decision of the rest of the jury. Sutyagin’s lawyer Boris Kuznetsor claimed that he received a phone call from a person who introduced himself as one of the jurors, saying that two jurors had acted to influence the others.257 This was denied by the FSB.258 Sutyagin’s lawyers said that they would appeal the verdict and, if necessary, take it to the European Court of Human Rights. In the meantime, in April 2004, the FSB director for the Kaluga region and the initiator of the Sutyagin case, Valery Loginov, became the region’s deputy governor.259

It has been suggested that the harshness of the sentence might represent FSB’s ‘revenge’ following its ‘defeat’ in the acquittal of a defendant in a similar case, Valentin Danilov.260 Furthermore, the FSB did not shy away from the admission that it wished to restrict the freedom of environmentalists. An FSB colonel interviewed by Bellona Foundation spelled this out clearly: “[this case] should serve as a warning to scientists, ecological organisations, journalists and others who often exchange information with foreigners. There has been far too much of that over the past few years and that will change”.261 Sutyagin remains in prison; in 2006 he still had eight years to serve.

251 Human Rights Watch, note 10, p.15. 252 Gauslaa, J, note 249. Gauslaa noted that this gave the FSB “a chance to re-fabricate its case”. 253 Gauslaa, J, “Sutyagin to Remain in Prison”, Bellona Foundation, 20 March 2002, http://bellona.no/bellona.org/english_import_area/international/russia/envirorights/23494. 254 Alimov, R, note 247. 255 Ibid. This was one of the first jury trials in Russia, as jury trials only started in 2002. In a similar case, a jury had acquitted Valentin Danilov in 2003. 256 Alimov, R, note 247. 257 Alimov, R, “Igor Suyagin Hit with 15-year Hard Labour Sentence – FSB Says Verdict is a ‘Warning’ ”, Bellona Foundation, 7 February 2004, http://bellona.no/bellona.org/english_import_area/international/russia/envirorights/33269. 258 Ibid. 259 Alimov, R, note 247. 260 Section 4.6.5. 261 Alimov, R, note 257.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

48 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

4.5.4 N ikolai Shchur262

Nikolai Shchur, a scientist from the ‘closed’ city of Snezinsk, was arrested in 1994 for revealing the levels of radioactivity he had measured in several areas of the city, including a kindergarten. The results were broadcasted on local television. He was held in custody for six months and lost his job in with a local environmental committee. Shchur was accused of anti-State activities funded by Germany, as well as of passing secret information on pollution levels to Germany. The trial took place in 1996, in a special prosecutor’s office that was part of the local military unit. Shchur was sentenced to imprisonment for 2.5 years and his wife Tatiana to two years. Following an appeal to the district court, Shchur was granted an amnesty that set both free.

In 1999 a new proceedings were instigated against Shchur. This time Shchur was accused of defamation of public officials from the city administration. The accusation was due to an article published in Shchur’s name, in which he revealed cases of corruption in the city administration. The trial was held in a closed territorial court, which prevented the flow of information and opportunities for public oversight. Furthermore, the city court did not provide Shchur with a legal defence and lawyers from outside were prevented from entering the ‘closed’ city, which meant that Shchur was forced to defend himself. Russian and foreign journalists wishing to cover the trial were also not allowed to attend the trial in the ‘closed’ city. The Snezinsk court found him guilty of defamation, although, fortunately, the regional court simultaneously closed the criminal case against him.

In 2000 Shchur received six new charges for his writing. The lawsuits were brought by nuclear weapons scientists, the head of the local police and former KGB veterans. The trials lasted for three years. Shchur’s articles also appeared to be the reason for his being repeatedly summoned to the local FSB office. Despite this, Shchur was able to defend himself successfully at the trials.

So far the Shchurs have established four human rights organisations. One of them, Ekologia, in Chelyabinsk, conducts research on radiations, to help people living in this heavily polluted area in the Urals. These organisations fulfil an important role given the authorities’ lack of initiative in providing environmental information and assistance to the public.263 In addition, in 1996 the Shchurs started publishing their own newspaper, Open Position, as the authorities have refused to make public their research on nuclear pollution, and have exercised pressure on journalists to also refrain from doing so.264

4.5.5 V alentin D anilov and others

There have been other espionage cases where legal procedures have been violated, including those reported below.

262 Unless otherwise stated, the information from this section is from a private communication with Nikolai and Tatiana Shchur, November 2006. 263 The other organisations are Women of Eurasia, dealing with specific problems of women and children; the Snezinsk Human Rights Group ‘Step Forwards’, dealing with human rights issues in the ‘closed’ city; and the organisation ‘Helping Hand’, carrying out human rights activities at the regional level. 264 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

49 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

• A professor in Krasnodar Technical University, Valentin Danilov, was acquitted in December 2003 of charges of selling State secrets on space technology to China and misappropriating university funds.265 Danilov, director of a research institute in Krasnoyarsk State Technical University, was first arrested in May 1998. • In October 1999, Vladimir Shurov, a scientist from the Russian Academy of Science, was found guilty of espionage by the Primorsky Regional Court for passing State secrets to China. He was given a two-year suspended prison sentence and later amnestied.266 • Valentin Moiseev, a Russian diplomat and Korean expert, was charged with espionage in 1998 for allegedly passing classified information on relations between Russia and North Korea to a South Korean diplomat.267 He was sentenced in August 2001 to four and a half years’ imprisonment for treason.268 • Businessman Viktor Kalyadin was found guilty of providing information to the United States under Decree 055. He died in 2004 while serving his sentence. • In July 1999, the FSB accused Vladimir Soifer, a scientist who had worked on nuclear pollution in the Sea of Japan, of intending to pass to a foreign organisation a secret map of a submarine base that had been found in his flat during a search.269 He was eventually acquitted. • In April 2000, a university professor, Anatoly Babkin, was charged with espionage by the FSB for providing information to the United States on secret torpedo technology. Similar charges were brought against Valerii Kovalchuk only a few months later.270

4.5.6 H arassm ent of Environm ental N G O s

In addition to scientists, environmental NGOs have been targeted by the authorities. For example, in late 2002, the FSB raided the premises of environmental organisation Baikal Wave in Irkutsk and confiscated computer hard drives and a full list of the organisation’s volunteers. The computers were eventually returned to Baikal Wave, albeit in a somewhat damaged form.

The organisation had worked on a project with a Sosnovgeos research organisation to develop a map of radioactive contamination around the Angarsk Electrolysis Chemical Complex (AECC).271 The maps had been sent by Baikal Wave to the local authorities, urging them to address the problem of radiations in the region. The FSB maintained that classified information had been appropriated by Baikal Wave, yet the search report did not contain information on classified information having been found.272 In addition,

265 Alimov, R, note 247. 266 Ibid. 267 Human Rights Watch, note 10, p.8. 268 Ibid., p.10. 269 Ibid., p.8. 270 Ibid., p. 9. 271 Alimov, R, “Siberian Envirogroup to Bring Suit against Security Police. Update”, Bellona Foundation, 6 February 2003, http://bellona.no/bellona.org/english_import_area/international/russia/envirorights/info_access/28285. 272 Ibid.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

50 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION information included in the maps can easily be obtained by environmental organisations with the use of their own technical equipment.273

Following the search an article was published in local newspaper SM-Number One entitled “Green Spies Undermine the Economy of the Angara Region”. In the article the head of the local FSB branch stated: “Several dubious environmental organisations, supported from abroad, are working in Irkutsk county… Environmental questions are the legal cover-up of the enemy’s intelligence activities”.274 He further accused the West of seeking to illegally obtain technology on uranium isotope separation.275

The tax authorities inspected the organisation shortly after the FSB raid. Although the two occurrences might be unrelated, tax inspections have been routinely used by the Russian authorities to intimidate NGOs. Moreover, on 22 November 2005, a criminal case was started under Article 283(1) of the Criminal Code (disclosure of State secrets) against a group of geologists from Sosnovgeos who had worked on the project.

AECC is a government institution producing uranium hexafluoride,276 and its activities have been a secret since its creation in 1956 until the mid-90s. Its work has caused the contamination of water and earth in the surrounding areas, and is a hazard for the city of Angarsk and its 300,000 inhabitants. Public officials have stated that contamination does not exceed official levels, yet environmentalists believe that it may be behind the illnesses of people living in the area.

The cases against Baikal Wave may have been part of an apparent campaign against the organisation, ahead of Baikal Wave’s participation in a public hearing to present evidence against a project supported by the State-owned Yukos oil company. Yukos was intending to build an oil pipeline from Russia to China and the search occurred days before a public hearing. The FSB denied a link between the search and the hearing, whilst Yukos denied any involvement in the case.277

273 Ibid. 274 Ibid. 275 Ibid. 276 Used to separate uranium 235 from uranium. Uranium 235 is used to produce atomic and hydrogen bombs, and as fuel in nuclear reactors. 277 Alimov, R, note 271.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

51 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

5 CONCLU SIONS A ND RECOM M ENDATIONS

Many Russian institutions operate in an atmosphere of secrecy. The situation has worsened since the early 1990s, following a period of openness immediately after the Soviet Union’s collapse, under the Yeltsin administration. Under Putin’s leadership, a process of ‘cultural counterrevolution’ has taken place, eroding many nascent democratic systems.278

Russia’s relatively robust provisions for access to environmental information are, for the most part, wilfully ignored by the Russian authorities. In addition, there is a tension between the progressive provisions on access to environmental information and the criminal provisions on State secrets, as well as various presidential and ministerial orders on secrecy.

The fact that there is no specific freedom of information law at the federal level means that mechanisms for requesting and obtaining information from the authorities are underdeveloped, while the authorities seldom proactively disseminate information on their functions and activities to the public. This undercuts the public’s right to public oversight and participation. The few access to information provisions that exist - and progressive provisions relating to environmental information mentioned above - are sporadically and incorrectly implemented, due to the lack of a tradition of openness but also to public officials’ limited training over their freedom of information-related responsibilities. Bureaucratic barriers, the complexity of the legislation and contradictions therein, also impede public access to information and inhibit criticism of government officials as well as the exposure of corruption, aggravating poor government accountability. A vertical power structure largely excludes the possibility of input from the public in decision-making processes. Moreover, people lack knowledge of their right to freedom of information and the means to exercise it. All of this, taken in conjunction with the fact that the national broadcast media are under the control of the authorities and produce primarily one-sided information, results in people being starved of vital information. This includes information on environmental issues, such as pollution, food contamination and nuclear waste, despite the fact that they constitute grave health hazards.

Additionally, there are too few lawyers able to advise the authorities in the implementation of relevant legislation, including its interpretation and translation into practical rules. This frequently leads to incomplete and/or incorrect replies to information requests, often following long delays, by public bodies.

‘Spy-mania’ cases have also constituted a serious obstacle to the work of environmentalists. Although many of those accused of espionage have subsequently been released from detention, they have often had to fight long battles to clear their name. Several of them have spent considerable periods in prison, have incurred legal costs and have been vilified by the media. This has undoubtedly created a chilling effect upon the Russian scientific community as a whole, which seems to have been specifically targeted by the authorities, to a greater extent even than NGOs. For example, in the Baikal Wave case, a criminal case

278 Yassman, V, note 11.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

52 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION was brought against the geologists concerned, while the NGO was penalised ‘only’ with the seizure of computers.279

The authorities in Russia have acted to specifically deter scientists from collaborating with environmental organisations as well as with foreigners. Following the Sutyagin case, the FSB warned that cooperation between foreigners and Russian scientists must stop.280 Moreover, the Russian media has been used for an anti-Western campaign, connecting foreigners to espionage activities, while NGOs have had limited access to the media to defend themselves.

Behind much of this is the fact that the FSB has assumed an increasingly active role in Russian politics during Putin’s presidency, aided, perhaps, by the fact that the President is himself a former KGB leader. A system of rewards exists for FSB officers who root out activities involving the exposure of environmental ‘secrets’ and contacts with foreigners. The FSB agent who was the driving force behind the Sutyagin cases was promoted to become the region’s deputy governor. Moreover, the Sutyagin case shows more than any other the power of the FSB: although the case was based on a secret decree, which is not in compliance with international or Russian law, the scientist received a prison sentence of unprecedented severity in this type of case. Although in some cases the courts have shown leniency or have taken bold stands by refusing to bend to FSB pressure, overall there has been sustained interference by the authorities in the activities of scientists.

Meanwhile, NGOs in Russia find themselves operating in increasingly difficult conditions, with the imposition of bureaucratic layers around their work and restrictions on the receipt of foreign funding.

5.1 Recom m endations

In order to make access to environmental information a reality, the Russian authorities should create an environment conducive to the free flow of information and public participation in decision-making. In particular, e-governance provides an important opportunity to enhance the information flow. The number of Internet users in Russia is small but constantly growing, and an increasing number of institutions are developing and maintaining their websites.

Civil society fulfils an important complementary function to the authorities’, which becomes even more crucial when a country’s civil service is relatively rigid and recalcitrant over access to information. This is, unfortunately, the case in Russia, where an increasingly autocratic regime with an interest in maintaining secrecy is taking root. Civil society’s role in pressing for greater institutional transparency is increasingly important, particularly in the environmental sphere.

279 See Section 4.4.6. 280 See Section 4.6.3.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

53 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

Recommendations to the Federal State:

Recommendations on legal reform • A freedom of information law, containing mechanisms for receipt of publicly-held information, should be adopted and implemented; • Freedom of information legislation should take precedence over secrecy provisions; • The principle of maximum disclosure should be introduced in Russian law: there should be a presumption that all information is available to the public, with only narrowly-defined exceptions, instead of a rigid distinction between ‘open’ and ‘closed’ information; • Normative acts should not impose bans on broad categories of information; • Freedom of information legislation should include a public interest override; • Provisions for whistleblower protection should be adopted; • Contradictions between freedom of information provisions in different laws should be eliminated; • The tension between provisions on State secrets, including criminal ones, and progressive provisions on access to environmental information should be resolved; • The State should legislate to ensure that private companies release information in the public interest, industries being made aware of their corporate responsibility in this area; • The law should provide for the opportunity to challenge the classification of information; • The ‘Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters’ and the ‘Kiev Protocol on Pollutant Release and Transfer Registers’ should be ratified.

Recommendations on the practice • Access to environmental information provisions, especially those on public participation, should be fully implemented; • The State should assume a proactive role in promoting the implementation of access to information legislation, including through the development of State bodies’ internal guidelines for access to information; • People’s awareness of their right to information should be enhanced through public campaigns; • Environmental information, particularly that which may threaten people’s health, should be disseminated proactively and effectively to the population, in compliance with the Russian Constitution and other legislation; • Public officials must be placed under a duty to inform citizens, to provide information services and to promote governmental information resources within their spheres; those who fail to do so must be held to account; • Information should come from the authorities with a guarantee of reliability and should be available in a convenient format, at a suitable time and place; • Requests for information should be processed rapidly and fairly; • The State should refrain from creating obstacles to the dissemination of information in the public interest; in particular, the persecution of scientists and NGOs that disseminate information in the public interest should immediately cease; • Nobody should be charged under provisions that are secret;

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

54 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

• Public officials should not be penalised, especially under criminal laws, for State secrets disclosed in good faith; • Nobody should be penalised for the dissemination of information that is already in the public domain; • Training for public officials and incentives for greater transparency should be provided by the authorities; training should address the importance and scope of freedom of information, procedural mechanisms for accessing information, maintenance and efficient access to records, and rules on what information a body is required to publish; • Mechanisms to tackle the culture of secrecy should be established; • Opportunities offered by e-governance should be fully examined; the authorities should ensure that public bodies publish regularly on their websites information about themselves and their activities; • The State should create the conditions for the creation of a pluralistic media, capable of providing information in the public interest in a timely fashion - with the establishment of public service broadcasting and true independence of private media outlets; • The dialogue between wider society and the State should be enhanced. A significant role in this should be played by consultative panels and commissions which should be set up by the executive and which would specialise in the broader objectives of relevant organs and departments. The main aim of such structures would be to locate and examine issues of public significance and to ascertain public opinion with regards to proposed means of resolving such issues with particular attention being paid to any potential compromises.

Recommendations to Civil Society and Donors:

• Special projects should be set up, particularly at grass-roots level, including: o projects aimed at raising the general awareness of people’s right to information and the risks - including health ones - of the inability to exercise such a right; o training of public officials in openness and transparency of the institutions (particularly in relation to environmental information); o promotion of a dialogue between public officials, civil society and the media, so as to find workable solutions to common concerns; o lobbying of the authorities towards greater transparency of the institutions and civil society’s participation in decision-making.

Recommendation to Private Companies:

• Private companies should adopt internal codes of conducts providing for their transparency.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

55 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

6 TA BLE 1. PROVISIONS ON INFORM ATION IN RU SSIA N LAW

LEGAL INSTRUMENTS GUARANTEES RESTRICTIONS

Russian Constitution (1993) Art. 24(2) – obligation of State bodies to provide information Art. 29(4) – right to seek and impart information Art. 41(3) – information that harms human life/health cannot be classified Art. 42 – right to reliable information on the environment and compensation in case of harm Law on State Secrets (1993) Art. 7 – information on the Includes a list of information that environment (including emergency may be considered a State secret; the situations) cannot be classified full list is provided by Decree No. 1203 of 1995. Law on Information, Information Art. 3(1) – information about the Art. 5(2) – the law distinguishes Technology and Protection of activities of State bodies is open between ‘open’ and ‘closed’ Information (2006 – repealing and Art. 8 - General right of access to information. Art.9 - Closed substituting the 1995 Law on information information (including State secrets Information, Informatisation and Art. 8(4)(2) – information on the and confidential information) is not Protection of Information) environment cannot be ‘closed’ accessible to the public

Law on Citizens’ Appeals Art. 12 – an information request (2006, repealed 1968 Law) must be answered within 30 days Law on Mass Media (1991) Art. 40 – an information request by a media outlet must be answered within seven days Criminal Code Art. 237 – criminalisation of Art. 283(1) – criminalisation of the concealment/distortion of divulgation of a State secret, to be information on facts threatening punished with imprisonment for human life and health up to seven years New decree replacing the 1996 The extent of the restrictions is Decree 055 on ‘List of unknown as the Decree itself is Information to be Classified in the secret Military’ (exact date and codename unknown) Presidential Decree on ‘The Despite its name, the decree raised reduction of the list on State the number of state secrets from 87 Secrets), Spring 2006 to 113; however, according Article 29(4) of the Constitution, the list of State secrets can be modified only through federal law Government Decree 98 on Obliges State bodies to disseminate ‘Guarantees of Access to information on their activities Information about the Activity of (including 53 categories of the Russian Federation and the information) through the Internet Federal Organs of Executive and other means Power’ (2003) Law on Environmental Impact Right to receive timely and reliable Assessment (1995) information on the environment; an

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

56 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

impact assessment including consultation with the public must be carried out before the start of an industrial activity that has an impact on the environment Law on ‘General Principles of the Provisions for public participation Organisation of Organs of Self- and proactive dissemination of governance’ (2006) information Law on Environmental Protection Art. 68 – people’s right to (2006) environmental protection, including right to inspect polluting companies Presidential Decree 763 (1996) The government and the President reserve the right not to make public any information that violates the Constitution and information on human rights when these contain State secrets Government Decree 35 on the Information on environmental ‘List of Information that Cannot pollution cannot be classified be a Commercial Secret’ (1999) Law on Commercial Secrets Art. 5 – information on (2004) environmental pollution cannot be classified Law on ‘State Regulation of Art. 10 – right to information on Genetic Engineering Activity’ activities on genetic engineering (1996) Decree No. 210 (2002) List of natural resources that are classified. City Planning Code (2004) Art. 18 – right to information on the environment and changes due to architectural developments Rules for the Presentation of the Declarations must be made Disclosure of declaration is subject Declarations of Industrial Safety available to the authorities’ approval of Dangerous Production Units (1999) Other: Law on ‘the Social Information on the environment Protection of Citizens who were (relating to radiations and other Subjected to Radiations as a Result health issues) must be made of the Chernobyl Catastrophe’, Law available on ‘The Use of Atomic Energy’; Law on ‘The Security of the Population from Radiations’; Law on ‘The Protection of Citizens’ Health’; Law on ‘the Sanitary- Epidemologic Well-being of the Population’

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

57 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

ARTICLE 19, the Global Campaign for Free Expression, champions freedom of expression and the free flow of information as fundamental human rights that underpin all others. We take our name from Article 19 of the Universal Declaration of Human Rights. It states:

Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

ARTICLE 19 believes that freedom of expression and of information is not a luxury but a basic human right. It is central to achieving individual freedoms and developing democracy. When people are denied freedom of speech or access to information, they are denied the right to make choices about their lives.

Freedom of expression and access to information are essential for the achievement of equality for women and minorities, in responding to the challenge presented by HIV and AIDS, for the promotion of equitable development, for the fight against corruption and for the protection of children's rights. ARTICLE 19 works to make freedom of expression a reality all over the world. We undertake authoritative and cutting edge research and monitoring, advocacy, standard- setting and legal analysis, capacity-building and global partnerships. We engage international, regional and State institutions, as well as the private sector, in critical dialogue, and hold them accountable for the implementation of international standards.

ARTICLE 19 works worldwide – in partnership with 52 local organisations in more than thirty countries across Europe, Africa, Asia and Latin America - to lead institutional, cultural and legal change. We carry out advocacy and training programmes in partnership with local NGOs to enable individuals to exercise their social and economic rights. We translate all our publications into local languages whenever possible.

In the absence of a free press, international pressure is crucial to shed light on all forms of human rights violations. ARTICLE 19 monitors threats to freedom of expression in different regions of the world and develops long-term strategies to combat them.

Founded in 1986, ARTICLE 19 was the brainchild of Roderick MacArthur, a US philanthropist and journalist. Its International Board consists of eminent journalists, academics, lawyers and campaigners from all regions of the world. ARTICLE 19 is a registered UK charity (UK Charity No. 327421) based in London with international staff present in Africa, Latin America and Canada. We receive our funding from donors and supporters worldwide who share a commitment to freedom of expression.

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

58 ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION

ARTICLE 19’s work in Russia is funded by the Foreign and Commonwealth Office’s Global Opportunities Fund ARTICLE 19 6-8 Amwell Street London EC1R 1UQ Tel: +44 20 7278 9292 Fax: +44 20 7278 7660 E-mail: [email protected] http://www.article19.org

The Forbidden Zone: Environmental Information Denied in Russia – ARTICLE 19, London, 2006

59