Lawyers from Pepeliaev Group have defended in state commercial courts the constitutional right of a person to receive information from state authorities
A team of lawyers from Pepeliaev Group has protected the interests of its client, a major production company, in a precedent-setting case where the key question was about the direct effect of articles 24, 29 and 55 of the Russian Constitution. At the same time, the state authority (the Federal Antimonopoly Service of Russia (“FAS”)) insisted that the constitutional right to receive information could not be exercised, because the information did not violate the rights of the claimant and also because neither the sector-based legislation nor the state authority’s internal regulations set out how the state authority had to provide such information.
What made the case even more difficult was the state authority’s claim that the entire information constituted a commercial secret. During the court proceedings a further argument was put forward: that the documents were for official use only.
The case proceedings lasted more than two years and, after two rounds, the court judgments fully took on board our position that constitutional rights cannot be limited by a gap in industry legislation. The courts also decided that it was lawful to establish a judicial penalty if the state authority failed to comply with court judgments.
In the cassation instance, the FAS stated that the case was precedent-forming and ‘opened Pandora’s box’.
Aidar Sultanov, Head of Pepeliaev Group's Representative Office in the Republic of Tatarstan and the person who handled this case, also believes that the case sets a precedent and proves that the rules of the Russian Constitution can be applied directly where there are gaps in sector-based laws.
We hope that the legal stance that the courts took in this case may be useful for the protection of rights to receive information from state authorities:
“By virtue of article 24(2) of the Constitution of the Russian Federation, state authorities and local governments, as well as their officers, must ensure that every person may acquaint themselves with documents and materials that directly affect such person’s rights and freedoms, unless the law provides otherwise. Pursuant to article 55(3) of the Russian Constitution, a federal law can restrict rights and freedoms of an individual only to the extent required to protect the fundamentals of the constitutional system, morality, health, rights and legitimate interests of others, or to ensure the defence of the country and security of the state…
...provisions of the Law on Protecting Competition do not ban acquainting oneself with audit materials based on a person’s application regarding a breach of this Law; therefore, they may not be treated as laws covered by the stipulation contained in article 24(2) of the Russian Constitution (“unless the law provides otherwise”).
The antitrust authority has not presented any evidence that the specified documents constituted a commercial secret. The refusal to provide information, citing a commercial secret, without finding out the will of the owners of the information was premature and unlawful. The claimant, in filing a cassation appeal, has put forward invalid arguments that the Law on Protecting Competition and Administrative Regulations did not allow for copies of a decision to refuse to instigate a criminal case over a breach of antitrust legislation to be provided to persons that are not claimants in the meaning of article 42(1)(1) of the Law on Protecting Competition. That the law does not specifically point to the obligation to send a decision to refuse to instigate a case to the person that was audited does not rule out the obligation to provide the decision in question, at such person’s request.
…the antitrust authority has not presented any evidence that the requested documents were categorised as documents for official use only, and nor did it state this reason to justify the refusal to provide the documents.
…Taking account of the above provisions of the law and the actual facts of the case, the courts were justified in concluding that the antitrust authority’s refusals had been unlawful, and the Federal Antimonopoly Service was vested with the obligation to grant the claimant the opportunity to acquaint itself with the documents.
…acting on the basis of article 174(4) of the Russian Commercial (‘Arbitration’) Procedure Code the court may, at the claimant’s request, award an amount of money to be collected from a state authority or local government body (which is a defendant) if it has failed to comply with a court judgment binding it with an obligation to perform certain actions”.