Russia's new treason statute, anti-NGO and other repressive laws: "sovereign democracy" or renewed autocracy?
I. INTRODUCTION AND OVERVIEW A. International Factors B. Domestic Factors II. DEVELOPMENT OF RUSSIAN TREASON LAW A. Treason Laws in the Russian Empire B. Treason Laws in the USSR C. Treason Laws in Post-Soviet Russia D. New Version of the Treason Statute III. OTHER LAWS AGAINST CIVIL SOCIETY AND FREEDOMS A. NGO, i.e., 'Foreign Agents" Law B. Part of a Global Anti-NGO Trend C. The "Dima Yakovlev Law" D. Other Recent Restrictions on Political Freedoms IV. CONCLUSION
I. INTRODUCTION AND OVERVIEW
Treason is the only crime referenced in the Constitutions of most countries. Treason statutes aim to protect the security of the people and preserve the integrity of the state. Invoked especially in times of war or other crises, treason laws can be both a powerful mechanism to punish betrayal, and a dangerous path to penalize political dissent.
In 2012 the Russian Duma (the lower house of Parliament) amended the treason statute with several significant revisions that can seriously impede civil society and complicate the lives of ordinary citizens. (1) Both international and domestic developments preceded the revision. The international community witnessed a global wave of political uprisings, including the Color Revolutions in the former Soviet republics, and worldwide opposition movements manifested in the "Occupy" movements and the so-called "Arab Spring." In addition, the post-9/11 world has seen a drastic weakening of the Rule of Law through the actions of the major democracies, including the United States of America, as new laws such as the USA Patriot Act (2) and analogous security laws around the world (3) have resulted in enhanced state surveillance, (4) indefinite detention, (5) and even extrajudicial killing without due process (6) of allegedly treasonous citizens as well as foreigners, while the scope for legitimate dissent has been diminished. (7)
Within Russia's domestic polity, however, the Russian middle class has become more active--stepping up protest activity. (8) It has thus shown itself somewhat more able and interested in mobilizing against the deeply rooted and widely acknowledged paternalistic and authoritarian traditions of Russia. (9) Meanwhile, President Putin has reinforced his regime through the illiberal means of "managed" or "Sovereign Democracy," which favors the sovereign state over self-government by an empowered people. (10) This less authentic approach to democracy had been slightly interrupted by the liberal policy of Putin's temporarily designated successor Dmitry Medvedev, but with Putin back at the helm, it now appears to have returned in full force.
This article aims to demonstrate that there has been a degradation of democracy, civil rights, and the Rule of Law from the beginning of Putin's third term. We will give particular attention to the new treason law as an illustrative exemplification of the other regressive trends also mentioned. Overall, the human rights situation in Russia not only parallels the continued global trends by governments to take restrictive steps against potential political protest and revolt following the so-called "Arab Spring" and Color Revolutions, but goes further--evidencing what appears to be President Putin's agenda to return Russia to an authoritarian state. Parts II and III address the most extreme recently passed laws infringing on political freedoms: the treason law, foreign-agents law, and the "Dima Yakovlev Law." They demonstrate steps taken by the government to punish political dissent and restrict contact with foreigners on personal, organizational, and national levels. In the course of describing these laws, we also note the existence and elaborate on the likely impact of other recently passed laws that violate the freedoms of speech, assembly, association, and expression in Russia.
A. International Factors
The Color Revolutions in Georgia, Ukraine, and Kyrgyzstan, along with the uprisings in Tunisia, Egypt, Libya, Yemen, and Bahrain, and NATO expansion eastward in seeming violation of earlier promises made to Russia, (11) contributed to Russian paranoia that the West supported regime change and the division of Russia into small ethnic republics. (12) Russia's authorities thus perceived a need to amend legislation to discourage foreign intervention. Foundations and financing from the United States and the West, such as financing from the Open Society Foundation, admittedly played a role in promoting democracy in the Color Revolutions and in former Soviet satellites, (13) so there is some understandable and long-standing concern by regional autocrats that exposure to foreign ideas and influence will lead to enhanced freedoms. It is no coincidence that in repressive regimes, such as Iran and Syria, local protesters are frequently equated with foreigners, treasonous actors, or terrorists; the truth, however, is that local citizens usually display extraordinary courage to peacefully assert their universal human rights, and to seek recognition of those rights and an environment of enhanced dignity, fair participation, and justice.
For its own part, Moscow intervened to promote its policies and interests in Ossetia and Ukraine, (14) with Kremlin advisors supporting the successful 2010 campaign of Ukrainian president Viktor Yanukovych, who succeeded the Orange Revolution hero Viktor Yushchenko and adopted Putinesque policies against civil liberties. (15) Demonstrations in Kiev were scrupulously monitored by the Kremlin even before Russia's 2014 military incursion into Ukraine (replete with apparent war crimes) and the annexation of Crimea following a referendum in the majority ethnic-Russian Ukrainian province. (16) Aware of the potential for a Color Revolution in Russia itself, the Kremlin adjusted its regional foreign policy with the goal of "limiting the infiltration of Western influence in the region [the Commonwealth of Independent States], and... the expansion of NATO membership." (17) In March 2013, after calculating possible consequences to Russian stability, Russian Foreign Minister Sergei Lavrov responded to the U.S. announcement of 60 million USD in humanitarian aid to the Syrian opposition by saying that it would merely encourage further uprisings and instability among states. (18)
After twenty years of independence and two Chechen wars, Russia is still struggling with separatist movements across its regions. Several ethnic republics--mostly from the Caucasus region--are known to have independence movements. (19) Russia's recent strong reaction prohibiting a Siberian independence march and threatening to ban the British Broadcasting Corporation for its coverage of the movement is only the latest reminder of Moscow's sensitivity to its own territorial integrity. (20) Putin frequently reiterates his stance that the territorial integrity of Russia must be maintained. Unsurprisingly, in November 2013 one of the working groups in the Russian Duma heeded the President's concern and introduced a bill to penalize separatist propaganda with up to twenty years in prison. (21)
Although substantive--as opposed to merely procedural or formalistic--notions of the Rule of Law recognize that it must be imbued with both structural and rights-based protections, namely those that stem from designated constitutional rights, and checks and balances among different branches and levels of government, (22) the post-9/11 moves of the United States and other major Western democracies toward a less balanced system favoring executive power did not set a good example for Russia's emerging Rule of Law and democracy. Justification of intrusive surveillance, repression of free speech, (23) and other abuses such as kidnapping and torture (24) by John Yoo and other lawyers working for the George W. Bush administration gave apparent license to autocrats everywhere to use such methods against their own alleged national security threats, including designated "terrorists" and perpetuators of "treason" (even if those actors had advocated merely peaceful means of protest).
Thus, the increased reliance during the Bush Era on ironically named "free-speech zones" (where speech is cordoned off and cannot be widely heard) has now become part of the norm in major Western democracies. (25) While the Bush administration threatened to prosecute journalists and whistleblowers, the Obama administration has actually done so-to an extent unprecedented in the nation's history. As the New York Times Public Editor puts it: "[W]hile vowing transparency and accountability, [the Obama administration] has actually become ever more secretive and punitive: stamping 'classified' on everything in sight, pursuing whistle-blowers as never before, and prosecuting journalists for publishing leaked information." (26) Under the Obama administration, the government has more frequently invoked national security exceptions to maintain secrecy in response to Freedom of Information Act requests. (27)
These actions by the United States government send exactly the wrong signal, encouraging further repression by autocrats instead of promoting human rights and civil liberties. Russia's recent crackdowns on domestic opposition and protesters, and its moves against transparency and due process, are made much easier in light of such strongly negative U.S. examples.
In 2011, for instance, the Russian authorities collected personal data about everyone who supported Alexei Navalny, a political activist and blogger, then and now an opposition leader, by tracking those who donated money to him through the Yandex money transfer engine as part of an anti-corruption campaign. (28) In 2013, the website of the independent newspaper Novaya Gazeta was subjected to a distributed-denial-of-service attack (29) when its journalists started to collect signatures for a petition (30) on dissolution of the Russian State Duma. (31) Social media, including VKontakte, the Russian analogue of Facebook, is also under significant security service surveillance to prevent calls for demonstrations through online services, which were popular mobilization channels in December 2011. (32)
The 2013 case regarding Edward Snowden's U.S. state secrets leak and the resulting EU-U.S. crisis on mass surveillance (33) were followed by a new amendment to Russian law. A month after Vladimir Putin defended the U.S.'s counter-terrorism public surveillance, though emphasizing the need to secure a special legal warrant, (34) the Russian President signed a bill that expands tremendously the prosecution agencies' power to freely access citizens' confidential data. (35) Such data were until recently shielded as private by other federal laws (36) and the Russian Constitution. (37) While pursuing prosecution, the agencies can access financial, medical, and other data on a Russian citizen without any special warrant or explanation to a judge regarding the surveillance purpose. (38)
Notwithstanding increased concerns about the state of human rights in Russia, the ruling Russian elite including Putin himself views U.S. expressions of those concerns as hypocritical and unjustified interference in Russian sovereignty. This was certainly the elite reaction, in the wake of the tragic and mysterious death of lawyer Sergei Magnitsky while in police custody, (39) to the U.S. Congress passing the Sergei Magnitsky Rule of Law Accountability Act of 2012, (40) the substance of which was also passed as a non-binding resolution by the EU in late 2012. (41) This law sanctions Russian officials implicated in Magnitsky's death or responsible for serious human rights violations in Russia by limiting visas for entry into the United States and imposing various asset sanctions. (42) President Putin argued that the law poisons the U.S.-Russia relationship, (43) and ordered matching the U.S. list of 18 banned Russians allegedly implicated in human rights abuses with Russia's own list banning 18 Americans (including John Yoo and former counsel to Vice President Dick Cheney, David Addington) implicated in U.S. human rights abuses, such as those at Guantanamo. (44) A law preventing U.S. couples from adopting Russian children-the "Dima Yakovlev Law," discussed in more detail below-was another direct response. (45) The recent Russo-Ukrainian crisis also boiled over between the United States and European Union on the one hand and Russia on the other hand, as each side sanctioned the other. (46)
B. Domestic Factors
Trying to recover from the world economic crisis, which began in 2007 to 2008, Moscow failed to propose any replacement to its dead-end, oil-centered economy. Both middle-and lower-income groups in Russia lost their investments and, therewith, significant confidence in Putin's administration. (47) Indeed, many middle-class entrepreneurs have realized that the Kremlin's repressive policy impedes not only political and legal development, but also economic prosperity and progress, as anti-NGO laws and other restrictive policies can impede anticorruption activities and transparency awareness campaigns. (48) The lower-income group, in turn, has witnessed the government's inability to fulfill its part of the social contract that previously had kept people away from politics in exchange for welfare payments. (49) In this regard, the Russian government's previous dual strategy of repressing civil liberties while simultaneously "bribing" the populace with direct payments--a strategy which has been used so successfully in the wake of the "Arab Spring" by oil-rich nations such as Saudi Arabia and Algeria--became less tenable as Russia continued to experience stagnation and economic difficulties. Consequently, these major social groups began appealing more directly, and not merely through the often co-opted "official" or "systemic" opposition, for political and social reforms focusing on the Rule of Law, free-markets, and effective anti-corruption measures. (50) This came to a head in the December 2011 protests in Moscow involving more than one hundred thousand people who objected to the Duma elections that month, considering them to be illegitimate and possibly fraudulent. (51) The 2014 decline in oil prices will only continue these economic and political pressures in Russia.
Anticipating possible threats to his power, President Putin and his administrative chief, Vladimir Surkov, had earlier introduced the concept of so-called "Sovereign Democracy." (52) Centralized in Putin's office, (53) "Sovereign Democracy" emphasizes two points: first, it privileges the sovereign state over authentic democracy by the people in the running of the state. (54) Second, it aligns itself with autocratic Russian traditions of ruling the country rooted in the Soviet and tsarist regimes. (55) It presupposes strict supervision over national and regional elections (as reflected in Putin's earlier systematic shift from elected to appointed regional governors), (56) control of civil society, and nurturing of youth loyal to the Kremlin. (57)
Putin's approach seems calculated to also stoke the fires of anti-American and anti-Western xenophobia to shore up his model of "Sovereign Democracy," as demonstrated by the "Dima Yakovlev Law" against adoption of Russian children by foreigners, and the frequent official outrage against the supposed but often exaggerated ill-treatment of Russian children abroad. (58) Recently, the ruling "United Russia" Party proposed, and Vladimir Putin signed, a bill that forbids people from countries accepting same-sex marriages to adopt Russian orphans. (59) Emphasizing Western states' tolerance for the LGBT community, the lawmakers even discussed forbidding minors from travelling in such countries. (60) The notorious anti-gay law, which was depicted by the authorities and the Russian Orthodox Church leaders as a tool to protect the people from moral degradation emanating from the West, has already received a furious reaction from the international community and will probably harm not only the economic, (61) but also the political (62) position Russia holds in the world.
Implementing this agenda upon his return to power as President in May 2012, Putin abolished the changes that Medvedev had undertaken to depoliticize national youth organizations, including the well-known "Nashi [Ours]," and to liberalize legislation regarding NGOs. (63) Then, to establish a regime more akin to the Soviet period--from which he sprang, as a former KGB officer--Putin promoted anti-treason legislation as well as several other bills that will have a chilling effect both on civil society institutions and on foreign activity within Russia's territory and in relation to its affairs. (64)
The Ukrainian crisis of 2013-2014 again boosted Putin's standing in the polls. (65) Again, nationwide propaganda and an appeal to the great and powerful past of the Soviet empire helped the Kremlin accumulate unprecedented support for military intervention in a foreign territory. Characterizations of a hostile and depraved West played a major role in state polemics. (66) Nevertheless, major sociologists predict that nationwide euphoria after "recovering" Crimea will be replaced by a new wave of national protests with the currency going down (67) and prices rising in the future. (68)
II. DEVELOPMENT OF RUSSIAN TREASON LAW
Treason in Russia has gone through several revisions during its centuries-long history. Depending on political order, internal problems, or international context, Russian legislation changed the interpretation of treason from a crime identified with attacks or insults against the Tsar's person, to the support of capitalism, to the dissemination of scientific findings to Western countries. In 2012, the treason law again underwent several revisions that might drastically aggravate conditions for the development of Russian civil society, including by potentially criminalizing contact with foreign citizens and organizations. (69)
A. Treason Laws in the Russian Empire
The first Russia law code describing treasonous crimes was the 1649 Sobornoe Ulozhenie by Tsar Alexis Mikhailovich. (70) Ulozhenie recognized the Tsar's health and life as strategic prerequisites for the state's stability. Although malicious intent against the Tsar's life was not directly called treason, the foremost statute in the Code, "On State Honor and the Health of the Tsar," was dedicated to the security of the ruler. (71) Article 1 of the Code decreed capital punishment for those who inflicted harm or conspired against the Tsar. (72) Similar to English law statutes on monarchy, (73) the Code also ordered the death penalty for anyone who harmed or conspired to harm members of the royal court. (74)
State territories were also a focus of the law. Being a Tsardom of a dozen fiefdoms, Russian statehood relied on loyalty and allegiance of provinces. Consequently, attempts to seize power over Moscow or its fiefdom, the intention to hand power over any Russian town to an enemy, or a plan to burn a town with treasonous intent were equivalent to treason and subject to the death penalty. (75) In other words, treason legislation included the intent to levy war or assist an enemy.
Until 1912, any malicious intent and criminal act against the life, health or honor of the Tsar, any intent "to depose Him from the throne, to deprive Him of liberty or sovereign power, or to limit his rights or impose any violence on Him" was considered treason punishable by death. (76) Two hundred years after Alexis Mikhailovich's Ulozhenie, Tsar Nicolas I signed the first Russian Criminal Code, "[T]he 1845 Code on Criminal and Correctional Punishments." (77) The Code's Chapter 2 "On State Crimes" commanded capital punishment, exile to Siberia, or penal servitude for anyone who organized, instigated, or assisted a rebellion or plot against the Tsar. (78) Moreover, the Code formalized the state-of-war criteria, first introduced in the 1649 Code, into the treason statute. (79) Capital punishment or exile was ordered for assistance to the enemy during a war or dissemination of state secrets, involuntarily or with malicious aforethought, to foreign states. (80)
Given these points, the treason law in early Russia was mostly similar to legislation in other countries that punished attacks against the ruler and help to invaders.
B. Treason Laws in the USSR
After the Bolsheviks came to power in 1917, Communist ideology immediately left its mark on treason legislation, which focused on the counter-revolutionary struggle and ran to the extremes of the Red Terror. (81)
After the Russian Empire was dismantled, the honor and safety of the Tsar gave way to the honor, preservation, and stability of the "Bolshevik's power brought by the honorable victory of the workers and peasants against bourgeoisie." (82) Following the secret service's zeal to eradicate all remnants of imperialism and dissident thought, Soviet officials expanded treasonous crimes to acts against the Revolution or support to "international capitalism." (83) The first Penal Code of the Russian Soviet Federative Socialist Republic (RSFSR), written in 1922, defined treason broadly:
Article 57. Efforts to overthrow the power of the Soviets, and assistance to the part of the international bourgeoisie, that does not accept the equality of the communist principles of property and seeks to overthrow it by intervention, blockade, espionage, financing of mass media, or other means.
Article 59. Contacts with foreign governments or citizens in order to instigate a war with the RSFSR.
Article 66. Participation in espionage of any kind, including collection and dissemination of a state secret to a foreign government or counter-revolutionary organization with counter-revolutionary intentions or for economic consideration.
Article 70. Propaganda and agitation for assistance to the international bourgeoisie.
Article 73. Insinuation and dissemination of false rumors or unverified data that may instigate panic, or cause distrust or defamation of the Soviet government. (84)
The death penalty with total forfeiture of estate, or one to five years of solitary confinement with appropriation of property, was the formal punishment for violating any of the abovementioned Articles 57, 59, and 66. (85)
On January 1, 1927, a new Criminal Code introduced amendments to the henceforth-notorious Article 58 that previously covered "organization of military coup... in order to seize power in the Soviets." (86) The Code's authors wrote a detailed description of high treason:
Article 58.1 a. Treason, id est, acts in prejudice of military power of the USSR, its independence and territorial integrity, including espionage, disclosure of a military or state secret, adhering to the enemy, and escape abroad, is liable to death by firing squad and appropriation of property or ten years imprisonment (in case of extenuation).
Article 58.1 c. All emancipated relatives of the military man who escaped abroad are penalized with five to ten year imprisonment with appropriation of property, in the case that those relatives knew about his escape plans. Other members of the family are to be exiled for five years in remote regions of Siberia. (87)
After the 1932-1933 collectivization famine resulting in a death toll of an estimated 5.7 million, (88) the Red Terror further instigated mass flight of Soviet citizens abroad. Concerned with a demographic crisis, the USSR officials proposed and passed a law of June 8, 1934 charging attempts to escape abroad with capital punishment. (89)
The notorious Article 58 classified its convicts as "enemy of the people." While such stigmatization helped governments in other countries reinforce a sense of social identity and create a negative public perception of "out-group" traitors, (90) the alleged traitor's designation in the Soviet Union during Stalin's repression went beyond this meaning. It was not due to the stigma of genuine traitors that society avoided contacts with "enemies of the people." People were mainly afraid of being caught up in dragnets and arrested for their contact with an "enemy." (91) The perceived omnipotence of the security services and an unconstrained application of the treason statute hardened the Soviet people to such repression and overbroad treason adjudications. (92)
Stalin did not suspend his search for "infidels" during World War II. Six million Soviet soldiers and civilians who had escaped from German captivity were charged with treason upon their return home and sent to concentration camps. (93)
After Stalin's death in 1953, the Ministers of the Interior and Justice and the Attorney General wrote a letter to the new First Secretary, Nikita Khrushchev, reporting that about four million people were convicted of treason or counterrevolutionary activity during the Red Terror of 1937-1939, persecution of dissidents and supporters of capitalism. (94) Of those charged with treason during that period, 642,980 people were sentenced to death. (95) The ministers claimed many people were sentenced "without sufficient evidence of their guilt... legal investigations were held in suspect's and witnesses' absence." (96) Unfortunately, no law revisions were made, and the 1960 Criminal Code appeared without any amendments to the treason investigation or punishment process. (97) In fact, penalties for treasonous crimes became more severe. According to Article 64, escape or refusal to return from abroad was punished with ten to fifteen years' imprisonment or the death penalty plus the appropriation of a violator's property. (98)
The Cuban Missile Crisis and overall Cold War tensions likely played a part in motivating such statutes, as espionage, covered in Article 65, became subject to the death penalty or seven to fifteen years' imprisonment plus appropriation of property. (99)
We can see how the USSR started to divert in its legal wording on treason from a conventional "state versus enemy" or "aid and comfort for the enemy" theory into the realm of "state versus citizens." While treason statutes in other countries, including the U.S. and the UK, referred to the "existence of war, or at least a military conflict of the same scope and intensity," (100) Soviet law applied treason accusations to peacetime activities. (101) Instead of elaborating on military enemies, legal language abounded with blurry definitions of "imperialists versus capitalists." That finally resulted in the general demonization of foreigners. A contact with a foreign person or operation with foreign currency became illegal. Penal sanctions were handed out to those who had or tried to obtain foreign money: from 1959 to 1974 approximately two thousand people were sentenced for foreign exchange transactions. (102) From 1967 to 1974 more than eleven thousand citizens were imprisoned for "having suspicious connections with foreigners or nurturing hostile intentions." (103) During this period almost one in every hundred people was investigated for state crimes. (104)
Thus, treason legislation in the USSR went through several pivotal revisions that led to the indictment and imprisonment of many millions of people. Blurry definitions and countrywide "witch-hunts" for supporters of capitalism gave the secret service agencies carte blanche in making enemy-of-state accusations.
C. Treason Laws in Post-Soviet Russia
After the collapse of the Soviet Union, Russia implemented a revised version of the USSR's treason law. Though communism-centered definitions were replaced with more neutral formulations, ambiguous language remained and allowed equivocal and arbitrary interpretation of the law.
For five years after Mikhail Gorbachev declared the demise of the USSR, Russian legislators worked on a new Criminal Code. (105) In 1996, the document took effect. (106) The revised treason legislation was as follows:
Article 275. High Treason
High treason, that is espionage, disclosure of state secrets, or any other assistance rendered to a foreign State, a foreign organization, or their representatives in hostile activities to the detriment of the external security of the Russian Federation, committed by a citizen of the Russian Federation, shall be punishable by deprivation of liberty for a term of 12 to 20 years with confiscation of property or without such confiscation.
Article 276. Espionage
Transfer, and also collection, theft, or keeping for the purpose of transfer to a foreign state, a foreign organization, or their representatives, of information constituting a state secret, and also transfer or collection of other information under the order of a foreign intelligence service, to the detriment of the external security of the Russian Federation, if these deeds have been committed by a foreign national or a stateless person, shall be punishable by deprivation of liberty for a term of 10 to 20 years.
Article 283. State secrets dissemination
1. Disclosure of information comprising a state secret, by a person to whom it has been entrusted or to whom it has become known through his office or work, if this information has become the property of other persons, in the absence of the characteristic features of high treason, shall be punishable by arrest for a term of four to six months, or by deprivation of liberty for up to four years, with disqualification to hold specified offices or to engage in specified activities for a term of up to three years, or without such disqualification.
2. The same deed, which involved through negligence grave consequences, shall be punishable by deprivation of liberty for a term of three to seven years, with disqualification to hold specified offices or to engage in specified activities for a term of up to three years. (107)
With references to the counter-revolutionary context deleted, the law became more focused on the external security of Russia. Concern for the enemy's ideological or market orientation gave way to foreign citizenship of a person the accused contacted. As for the prosecution toll, unlike the millions charged and convicted of treason during the Soviet period, there were only a few public cases involving treason charges in the 1990s. (108)
The first cause celebre was against an expert of the Norwegian environmental NGO "Bellona," Alexander Nikitin, (109) former nuclear safety engineer. In October 1995 the Federal Security Service (FSB) suspected the activist of high treason and dissemination of state secrets in his earlier report on radioactive pollution from decaying nuclear submarines. (110) Nikitin was arrested in February 1996 and freed in December 1996, but only after a special Attorney General's order. (111) While Amnesty International considered him a "prisoner of conscience," (112) the Russian Supreme Court declared Nikitin innocent only in April 2000. (113)
Igor Sutyagin is another scientist who was impeached for treasonous crimes. He served as the head of the military-economy and military-technical research division in the Political-Military Research Department of the U.S.-Canadian Institute at the Russian Academy of Science. In October 1999, Sutyagin was arrested on suspicion of disseminating state secrets to his American colleague Joshua Handler from Princeton University. (114) Sutyagin argued that all the information he gave to Handler was collected from public sources (115) and was not marked as confidential. Moreover, Sutyagin claimed was never given access to secret information in his work at the Institute. (116)
On October 29, 1999, the FSB prosecutor accused Sutyagin of high treason and dissemination of state secrets. (117) In 2004, after a five-year proceeding, (118) the Court convicted Sutyagin of high treason and sentenced him to fifteen years in a penal colony. (119) Amnesty International recognized him as a political prisoner. (120) In 2010, the FSB officials exchanged four convicted of treason, including Sutyagin, for ten secret agents charged with spying for Russia in the U.S. (121)
The most recent treason case is against two professors of Baltic State Technical University. Yevgeny Afanasiev and Svyatoslav Bobyshev were accused of espionage for China. (122) Later, the indictment included high treason, stating that the professors sold state secrets regarding space and missile equipment to Chinese intelligence for seven thousand USD. (123) In June 2012, Afanasiev was sentenced to twelve and one-half years for high treason, and Bobyshev was sentenced to twelve years for being an accessory to treason. (124) The hearing was held behind closed doors with no detailed evidence presented to the public.
Overall, the Public Committee for Protection of Scientists mentions ten scientists that were accused of or investigated for the crime of high treason: Mirzayanov, (125) Sutyagin, Danilov, (126) Kaibyshev, (127) Reshetin, (128) Soifer, (129) Korobienitchev, Babkin, (130) Shchurov, (131) and Tsepilova. (132) Many of them examined air or water pollution associated with nuclear waste, or collaborated with foreign environmental organizations. (133) Notably, each of these treason accusations against scientists was accompanied by fraud or embezzlement indictments that helped stigmatize the convict and motivate support for treason charges. (134)
In his book on high treason cases in post-Soviet Russia, Ernest Cherny, researcher at the Moscow Helsinki Group, cites the cases of Pasko, (135) Moiseev, (136) Khvorostov, (137) Kovalchuk, (138) and Kalyadin. (139)
While data on treason cases against scientists is broadly available, there is little information on espionage or other treasonous crimes committed by military officials or politicians, who actually have greater access to state secrets. Until now only four FSB agents' treason cases have been revealed to the public: Valerij Mikhailov (sentenced to eighteen years' penal colony imprisonment), Vladimir Nesterec (thirteen years), Alexander Zaporozhskij (eighteen years), and Alexander Poteev (twenty-five years). (140) All were accused of high treason and dissemination of state secrets to the CIA. (141)
While the treason clause was applied rarely after the collapse of the Soviet Union, investigations of treasonous crimes abounded, replete with ambiguous and arbitrary interpretations of the law. Vague definitions either confused judges or let the FSB prosecutors apply the clause for a broad range of crimes. The "aid and comfort" theory usually lacked evidence. (142) That helps explain why FSB prosecutors often accompanied the high treason charges with embezzlement accusations. The persistence of Cold War and arms-race mentalities allowed the KGB's disciples in the FSB to target scientists for treason indictments.
The use of treason laws in Russia in recent years does not parallel treason cases in such Western countries as the U.S. and the UK. Eichensehr has argued that after Al-Qaeda's attacks on 9/11, treason law's application in the West depended not on the "magnitude of the threat," but on the perceived existential nature of the threat. (143) By declaring a war on terror, and authorizing use of all necessary means to punish those responsible for 9/11 attacks, (144) the U.S. government under the George W. Bush administration clearly emphasized the supposedly existential character of Al-Qaeda's threats, even though critics of the administration's policies pointed out repeatedly that the threat from Al-Qaeda was likely not existential for the country when compared, for example, to the many missiles pointed at the United States by the Soviet Union. (145)
Moreover, terror attacks in the West resulted in the focus of the treason statute shifting from "enemy-state-based treason," (146) which was historically common during most wars, to the creative use of the legislation against non-state actors, like members of Al-Qaeda. (147) Citizens as well as non-citizens of the U.S. were incriminated in treasonous crimes under this view. (148) Despite difficulties in a precise interpretation of the concepts, "aid and comfort" and "adhering-to-enemy" theories were used against terrorist suspects. (149) The Seditious Conspiracy statute, which is similar to the U.S. treason law, (150) was used several times to make charges of conspiracy against the United States without requiring evidence for "aid and comfort" or the "actual act of levying war." (151)
By contrast, despite the obvious attractiveness of such broad interpretations to Vladimir Putin and the Russian regime in dealing with its own actual and feared threats of separatist or revolutionary terrorism, suspects in terror attacks throughout Russia in the 2000s were charged under the 1998 (152) and 2006 (153) federal anti-terrorism--not treason (154)--laws. Even members of illegal armed groups from Chechnya, whose crimes were similar to the acts of those imprisoned for high treason in the United States (in which civilians were attacked using terroristic methods), faced terrorism, not treason, accusations.
Overall, as illustrated by the large number of Russian suspects considered "prisoners of conscience" by Amnesty International, the uncertainty of the treason statute's language in post-Soviet Russia has been used for subjective and biased application of the law. Those convicted of treason in Russia were mostly scientists or environmental activists who collaborated with foreign colleagues. The FSB prosecutors initiated cases without sound evidence, and often reinforced treason accusations with embezzlement indictments as a sort of "back-up" or additional route to obtaining convictions.
In December 2008, FSB lobbyists proposed a revision to the treason law. (155) After being tabled for three years, the bill was taken up by the Russian Duma on January 12, 2012. (156)
D. New Version of the Treason Statute
President Putin signed the new treason bill on November 12, 2012, after senators in both the Duma and the Federal Council (the upper house of Parliament) voted overwhelmingly in favor of it. (157)
The two main articles, 275 and 276, which cover high treason and espionage, respectively, received the most amendments. Five major revisions now define the who, when, how, and what of a treasonous crime.
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|Title Annotation:||nongovernment organizations; Introduction through II. Development of Russian Treason Law C. Treason Laws in Post-Soviet Russia, with footnotes, p. 83-114|
|Author:||Pitts, Chip; Ovsyannikova, Anastasia|
|Publication:||Houston Journal of International Law|
|Date:||Jan 1, 2015|
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