Lawyers who work with those accused of treason still feel the positive effects of this ruling to this day, says lawyer Ivan Pavlov
, who specializes in criminal cases involving state secrets.
"This is a revolutionary decision. And I am very proud that I had something to do with him - although I personally did not participate [in this process], my mentor Yuri Schmidt, with whom I worked together on the Alexander Nikitin case, did. The work, of course, was carried out jointly," says Pavlov. "And I consider myself involved in this decision, one of the few that can be called revolutionary.
Now there are no such decisions. In some of its further decisions in the early 2000s, the Constitutional Court even extended the scope of this ruling beyond the scope of criminal cases. And he said that for the participation of lawyers in cases that are related to state secrets in the framework of arbitration, civil, legal proceedings, it is also enough to use a non-disclosure agreement for information constituting a state secret, and thereby allow them to participate in the case and familiarize themselves with the materials. Because the right to judicial protection prevails over other rights and obligations that are associated with the circulation of information constituting a state secret.
But still, the March 1996 judgement was the first step. What was the background? They did not want to allow us to participate in the case of Alexander Nikitin. The investigators said that if we had a permit, they would let us in. They offered the client to choose a lawyer with a security clearance, usually from former security officials who still had security clearance after their dismissal. In Soviet times, there was such a practice when only "special" lawyers were admitted to a certain category of cases. And when an ordinary lawyer came to the investigator, he was told this: "Of course, we will allow you, but let the chairman of the presidium of the Bar Association sign this warrant." But the chairman never signed such a permit. And this rule has flowed from the Soviet to Russian times. And since there were more colleges, the security agencies simply refused, citing a lack of access.
Art. 21 of the Law on State Secrets clearly stated that permission was needed. And this was just the reason - several applicants applied to the Constitutional Court at once, and the Constitutional Court then made this decision.
If you look, last year we tried to recognize the right of a lawyer without lawyer status to participate in such cases under the Code of Administrative Procedure. And the Court has already departed from the position it has taken in a number of its other judgments. He said: "No, after all, not all lawyers, but only attorneys, have the right." Although earlier in its rulings the Court spoke not only about attorneys, but about all participants in a particular legal proceeding."
On the question of how the right to defense, the completeness of the examination of evidence and state secrets are combined today in the framework of a judicial investigation, commented Tamara Morshchakova
, Professor at the National Research University Higher School of Economics:
"There can be no secrets from the court. The existence of state secrets from the court, which excludes the possibility of examining any documents, would be contrary to the fullness of the judiciary. And the protection of state secrets in the procedural sense, in the order of legal proceedings, is provided by other methods: a closed meeting, obligations not to disclose the secret, which are imposed on the participants in the process.
Now, in general, they come to the court and say: "We will not tell you why we are expelling this person, but we declare this organization undesirable, because security interests require us not to disclose it."
There can be no security interests that require something not to be disclosed in front of a court."