Russia's new treason statute, anti-NGO and other repressive laws: 'sovereign democracy' or renewed autocracy?

• Author: Pitts, Chip
• Position: Nongovernment organizations - II. Development of Russian Treason Law D. New Version of the Treason Statute through Conclusion, with footnotes, p. 114-138

1. Who: International and Non-Governmental Bodies

   Previously, the articles stipulated punishment for dissemination of state secrets to foreign governments or organizations, or providing any help to foreign secret services "in their hostile activity against the external security of the Russian Federation." (158) The new wording states that high treason, espionage, or state secret dissemination crimes now can be prosecuted not only for a connection with a foreign government, but also for a relationship with an international organization. (159) The explanatory note to the bill, written by FSB lobbyists, states that:

   Due to the fact that foreign special services actively use the facilities of international, both governmental and non-governmental, organizations for their investigations and other work aimed at causing damage to security of the Russian Federation, it is necessary to include international organizations and their representatives in the list of those who receive the aid for inflicting harm to the security of the Russian Federation. (160) Special attention is given to supranational organizations, whose "membership and jurisdiction are not limited to the territory of one state." (161) Moreover, the law covers the dissemination of secrets to organizations "founded by individuals for activities on the territory of several states." (162) By including international organizations in the list of suspect bodies, the 2012 law enables the prosecution of non-governmental, private, or charitable organizations if their activity is conceivably jeopardizing the country's security. Private corporations and nongovernmental as well as intergovernmental bodies, including the International Court of Justice, the European Court of Human Rights, or the United Nations, may now also be persecuted as the legal wording extends to the entities whose activities span more than one country.

2. When: Study or Other Activity

   Another new amendment to the article claims that not only secrets with which one is entrusted in one's work, but also classified information that one becomes aware of in one's "study, or other activity" may be considered a highly secret subject. (163) The explanatory note gives no clear reasons to justify this amendment. But by recalling the abovementioned treason cases in post-Soviet Russia, we may, nevertheless, suppose that such an extension could stem from the typical pattern of alleged violations committed by scientists and environmental activists in those prior cases. Furthermore, the lawmakers did not consider, or perhaps deliberately ignored, the possibility of arbitrary interpretations of this newly expanded law. Work or service, study or research, interviews or self-education may now be grounds for criminal charges provided they allow a person to become privy to secret information. This is unlike the argument made in the U.S. Court of Appeals for the First Circuit appellate case Chandler u. United States, in that the guilt of the citizen does not depend on whether, for example, enemy propaganda was heard or broadcast by anyone. (164)

   In addition, now in Russia, the definition of treason no longer depends on whether a person intended to help his country (165) by working for a scientific discovery, or attempting to prevent crimes or corruption, or trying to attract attention to an environmental disaster. As noted in the Chandler case, even if giving aid and comfort to the enemy occurred, the crime of treason in the United States still required adherence to the enemy or intent to betray. (166) This is a crucial distinction necessary to avoid use of a treason law to repress even vigorous but valuable political dissent. (167) A major risk under the new Russian law is that no such intent to betray need be present for a conviction. The new law thus wrenches from the offense the core element of intent to betray allegiance to one's own country, which typically has been, in addition to the requirement of overt acts, an integral part of the offense in Russia and other states.

3. How: Any Aid

   The new law also broadens the type of aid that can be considered high treason. The phrase "any aid" is now rewritten as "financial, technical, consulting, or other aid." (168) The formal FSB purpose of this change is to eliminate "contradictory and arbitrary interpretations" (169) of the law.

   One of the main triggers for the law's revision was the term "hostile activity" in the 1996 version. According to the explanatory note, high treason "in the present [1996] version is extremely difficult to prove as advocates use the absence of 'hostile' activity evidence in their defense arguments to free their defendants from punishment." (170) Consequently, the revised 2012 statute speaks about "aid ... in activity against... the Russian Federation." (171) Thus, by excluding the hostile nature of the act, the treason statute erases the difference between intentional treason and the innocent dissemination of a secret.

4. What: Vague Definition of State Secret

   The new treason statute has no clear definition of what should be considered secret information. Indeed, as the Constitution of the Russian Federation (172) and the Federal Law "On State Secrets" (173) provide, federal law must list information concerning what is considered a state secret. After the 2004 and 2005 Constitutional Court rulings No 188-O (174) and No 238-O, (175) however, the Constitutional Court declared that the details about the list of what constitutes state secret information might be announced in "classified subordinate legislation." (176) Thus, the information that specifies what secret data is might not be made available to the public. Consequently, people might not--probably would not--know that information acquired from open sources may be considered a secret and, if so, that it must not be disseminated.

   Despite the initial goal to make the language more precise and certain, the new version of the treason statute became, if this was possible, even more equivocal. The law's vague formulations broaden its jurisdiction to international and foreign organizations, and criminalize activities that, by chance or intentionally, may be seen as harmful to Russia's security. Considering the vagueness of the "state secret" definition, the amended law cannot but depend on a law enforcer's personal interpretation and, thus, is vulnerable to political bias and manipulation. As a result, contact with a foreigner, a presentation of research findings at an international conference, or a donation to an NGO might be considered high treason.

   The new Russian treason law thus brings back with great force Blackstone's warning, in his Commentaries, that the crime of treason is so serious that it "ought therefore to be the most precisely ascertained" crime. (177) If it "be indeterminate," says Blackstone, quoting Montesquieu, "this alone ... is sufficient to make any government degenerate into arbitrary power." (178) There is a reasonable assumption based on the political context described in Part I above that the real or at least a major motivation for the 2012 treason law revision was to assist in the consolidation of domestic power, especially given the fear of foreign or international intervention into the internal affairs of the country. The following section finds further evidence of this in describing other recent laws that violate basic civil liberties in Russia.

   3. OTHER LAWS AGAINST CIVIL SOCIETY AND FREEDOMS

      The treason law revision was not the only amendment that affects the development and political freedoms of individuals and civil society in Russia. Several new laws introduced further serious limitations on the freedoms of foreign and local NGOs, human rights activists, journalists, and ordinary people in the country.

      1. NGO, i.e., "Foreign Agents" Law

         Indeed, the overall hardening of conditions for civil society can be seen in the example of NGO legislation. The first amendment to the 1996 law regulating creation and activity of NGOs in Russia (179) was made in 2006, during President Putin's second term. (180) The law obligated all NGOs to inform the federal government about the amount, goals, and actual usage of all financial or any other aid from "international and foreign organizations and citizens." (181) The law also denies registration of an NGO whose "goals and tasks ... create threats to the sovereignty, political independency, territorial integrity, national unity, cultural heritage, and national interests of the Russian Federation." (182) Moreover, an ad hoc federal agency was enabled to ban financial transfers to the local branch of an international NGO "in order to protect the constitutional system, morality, health, rights and legitimate interests of people, and provide security of the country." (183)

         In 2009, the new President, Dmitry Medvedev, revised the law and made several amendments liberalizing the NGO registration process. (184) In 2012, however, President Putin not only changed the NGO law back to its original wording, but also toughened several NGO regulations. (185) Effective from November 21, 2012, the law proclaimed that:

         All non-profit (186) organizations that receive financial or any other aid from foreign states, state departments, international and foreign organizations, foreign citizens, stateless persons ... and that participate in political activity in Russia would be required to call themselves non-profit organizations functioning as "foreign agents." (187) Consequently, every NGO that receives foreign aid must: (a) register as a foreign agent in the state list of foreign agents; (b) provide reports on its activity, funding, and expenditures (quarterly), and governing board (once every six months); and (c) provide audit reports annually. (188) All materials of foreign-agent NGOs published in mass media must be marked as from a foreign-agent NGO. (189) In addition, a vague authorization allows the state committee to implement...