Back to the Stalinist future: Russia to recast political opinion as a criminal offence

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Just a couple of weeks before the Kremlin clock chimed in the new year 2009, Russian human rights advocates distributed a statement where the recent governmental initiative to open the legal notion of “high treason” to any kind of arbitrary interpretation was called “a comeback to the totalitarian norms” of Soviet times. The authors urged Russian citizens to demand a stop to the advance of the new “year 1937” – a time that any Russian associates immediately with the repressions of the Stalin era.

“The attempt to turn, by using legislative means, making any statement against the regime and exposing violations of human rights and freedoms into aiding the country’s enemies means a return to the bleakest totalitarian methods of squashing dissent,” said the statement signed by representatives of several human rights advocacy groups such as the Moscow Helsinki Group, Memorial, the All-Russia Public Movement for Human Rights, Committee for the Defence of Scientists, and other organisations.

According to prominent environmentalist Alexei Yablokov, leader of the parliamentary faction Green Russia, the amendments to the Russian Criminal Code presented by the government for the consideration of the State Duma, the lower house of the Russian parliament, in mid-December are not only anti-democratic, but “anti-constitutional, immoral, anti-humane and simply dangerous.”

Enemies of the state
The law currently in force criminalises any “hostile activity threatening to harm the external security of the Russian Federation.” However, the government submitted that the new definitions – both of the two proposed amendments, to Articles 275 and 276 of the Criminal Code, on high treason and espionage, respectively, are listed at the end of this article, along with the original language – be expanded to consider criminal any “actions directed against the security of the Russian Federation, including its constitutional system, sovereignty, [and] territorial integrity and that of the state.”

Human rights activists say this new language makes it possible to initiate criminal prosecution over any criticism voiced against the authorities, which is not dissimilar to the practice adopted in the Soviet Union, when what were called “anti-Soviet activities” were considered a crime as well.

Furthermore, where the law currently in effect codifies as a prima facie “act” of high treason “aiding a foreign state, a foreign organisation, or representatives thereof, in implementing hostile activities to the detriment of the external security of the Russian Federation,” the amended language expands this notion to include “providing financial aid or aid in the form of materials and technologies, consulting, or otherwise, to a foreign state, an international or foreign organisation, or representatives thereof, in implementing activities directed against the security of the Russian Federation.”

As could be seen in the proposed phrasing, the “activities” in question are no longer described as “hostile,” while “security” stops being external only. It follows logically that any Russian citizen may on the merits of such a law be charged with a criminal offence for the sole reason of simply cooperating with an international or foreign organisation or, say, giving an interview to a foreign-based media outlet.

Additionally, the notion of an “act” is as well open to wide interpretation, as both performing or abstaining from certain actions may be grounds to assume that a criminal act has been committed. This, according to many human rights activists, creates a risk that non-legal arguments can be made for prosecuting a charge: No one will safely know whether they in fact are committing a crime.

“Go figure if your ‘act’ has been intended against the state’s sovereignty. This is a regular walk in a mine field,” said Yury Dzhibladze, president of the Centre for the Development of Democracy and Human Rights.

“Security” is another notion used in the new language that defies clear definitions unless categorised precisely as, for example, food security, information security, cultural, energy, environmental – or any other kind.

One example of how widely the word “security” can be interpreted was given in an interview to the Russian BBC service by Boris Nadezhdin, deputy chair of the Department of Law of the Moscow Institute of Physics and Technology and head of the Moscow Regional Branch of Right Cause – a newly formed Russian liberal democratic political party founded last November as a merger of the Union of Right Forces, Civilian Power, and the Democratic Party of Russia.

“Let’s say that a foreign or an international organisation – not necessarily a governmental one, a private foundation, for instance – commissioned you to write a study. As a scientist, you have provided one – say, livestock breeding statistics in the Eastern part of Russia. And then a detective somewhere decided that livestock breeding in the Eastern part of Russia is the very basis of the food security of the country,” Nadezhdin told the BBC.

In other changes, the earlier phrasing “divulging a state secret” is, according to what the government intends in its amendments, to read “divulging information constituting state secret that a person has been entrusted with or has acquired knowledge of in the course of service, work, or study.” 

“Now, not only such persons who have been entrusted with a state secret may be [held liable for] divulging it, but also, say, a scientist or a student who came up on their own with something that experts may later regard as state secret,” said Yablokov.

NGOs under siege
Another fact that observers and human rights advocates are concerned about is the proposed introduction into the Criminal Code of the words “international organisations” as these could include groups that have foreign headquarters but also run legally registered operations in Russia.

As the explanatory note accompanying the recent bill clarifies, the code as it currently stands does not allow the inclusion of international organisations into the category of those that may be deemed as receiving “aid in implementing activities directed against the security of the Russian Federation” – whereas “certain international organisations have repeatedly attempted to gain information constituting state secret.”

A law that would qualify as espionage transferring information not only to foreign states, but to international organisations as well, would hang a Damoclean sword over the head of any employee of a Russian non-governmental organisation, including environmental ones, as for most of these groups, engaging in productive activities is inconceivable without international cooperation.

“The scope of the new law will have its effect on international organisations that are registered in Russia, and among those are the Moscow Helsinki Group, Memorial, and the International Socio-Ecological Union,” Yablokov told Bellona Web. “The amendments to the articles of the Criminal Code on high treason and espionage are dangerous for all environmentalists, without exception.”

On the FSB’s cue
The government’s proposal makes no attempt to conceal where this latest wave of Soviet-like relapse is coming from: The FSB, or the Federal Security Service – the entity that came to replace the notorious KGB – finds it is hard pressed to operate in the conditions set by the legislation currently in force. As follows from the explanatory note, the existing language on treason and espionage throws spanners in the works of this organisation as it renders the assumed hostile nature of the accused’s actions “extremely difficult to prove.”

Simultaneously with the proposal to amend the treason and espionage articles of the Criminal Code, the state also undertook to remove the right to be judged by a court of peers for those defendants who are charged with other offences that fall under the purview of the FSB, such as terrorism, hostage-taking, sabotage, or organisation of mass disorder. The corresponding amendments to the Criminal and Criminal Proceedings Codes were passed by the State Duma in the third reading on December 12th.

The reasoning, again, is nothing short of ingenuous: The existing laws place too heavy requirements on the prosecution to meet its burden of proof. Especially so, said in an interview to the Noviye Izvestia publication Sergei Pashin, a renowned Russian lawyer, because “jurors know that across the board, such proof is collected by ways of torture, falsification, and investigative activities instead of procedural.”

Members of the Public Chamber of the Russian Federation – an advisory panel created in 2005 to serve as a liaison between Russia’s civil society and the executive power and criticised by many as a governmental puppet – have concluded in an expert opinion study that the proposal to exclude criminal cases on “anti-state” charges from the jurisdiction of trials by jury is anti-constitutional and leads to a clampdown on civil rights and liberties. The study was extended for the consideration of the Federation Council, the Russian parliament’s upper house. However, at its meeting on December 17, the Council approved the amendments.

“We see this as an act of daring on the part of the proponents of repressive authoritarian policies,” said the December protest statement signed by human rights advocates, scientists, and prominent public figures, and sent as an open letter to President Medvedev, asking that he veto the new bill.

Articles 275 and 276 of the Criminal Code of the Russian Federation, before and after the proposed amendments: 
Article 275. High treason
Current language:
High treason, i.e. espionage, divulgement of state secret or providing any other form of aid to a foreign state, foreign organisation, or representatives thereof in implementing hostile activities to the detriment of the external security of the Russian Federation, committed by a citizen of the Russian Federation, is punishable by imprisonment for a term of twelve to twenty years with or without a fine of up to five hundred thousand roubles or equivalent to the wage or other income earned by the convicted offender in a period of up to three years.
 
Proposed language: 
High treason, i.e. an act committed by a citizen of the Russian Federation to the detriment of the security of the Russian Federation: espionage, divulgement to a foreign state, an international or foreign organisation, or representatives thereof, of  information constituting state secret that a person has been entrusted with or has acquired knowledge of in the course of service, work, or study, or providing financial aid or aid in the form of materials and technologies, consulting, or otherwise, to a foreign state, an international or foreign organisation, or representatives thereof, in implementing activities directed against the security of the Russian Federation, including its constitutional system, sovereignty, [and] territorial integrity and that of the state, is punishable by imprisonment for a term of twelve to twenty years with or without a fine of up to five hundred thousand roubles or equivalent to the wage or other income earned by the convicted offender in a period of up to three years.
 
Article 276. Espionage
Current language:
Transfer, or else collecting, stealing, or storing, for the purposes of transfer to a foreign state, a foreign organisation, or representatives thereof, of information constituting state secret, as well as transfer or collecting on commission from foreign intelligence of other information for use to the detriment of the external security of the Russian Federation, if such acts are committed by a foreign citizen or stateless person, are punishable by imprisonment for a term of ten to twenty years.
 
Proposed language: 
Transfer, or else collecting, stealing, or storing, for the purposes of transfer to a foreign state, an international or foreign organisation, or representatives thereof, of information constituting state secret, as well as transfer or collecting on commission from foreign intelligence or person acting in the interests thereof, of other information for use to the detriment of the security of the Russian Federation (espionage), if such acts are committed by a foreign citizen or stateless person, are punishable by imprisonment for a term of ten to twenty years.

Galina Raguzina

ragunna@gmail.com

Maria Kaminskaya