When the Law Gives Rise to Lawlessness

Vera Vasilieva, 03/10/12 

Source: HRO.org

· Freedom of association  · Freedom of speech  · Human rights defenders  · Moscow city & Moscow region

On 2 October 2012 the latest Strasbourg Gathering roundtable took place at Moscow's Independent Press Centre, organised by the Centre for International Protection. The main issue for discussion were the proposed amendments to the Criminal Code extending the definitions of "treason" and "espionage".

Taking part in the event were Karinna Moskalenko, founder and project director of the Centre for International Protection, as well as commissioner and member of the executive committee of the International Commission of Jurists; Yury Larin, a lawyer of the Moscow Central Collegium of Lawyers; Yury Kostanov, an expert with the Independent Council of Legal Expertise, as well as employees of the Centre: Alexandr Manov, Olga Mikhailova, Anna Polozova and others.

On 21 September the Russian State Duma had unanimously adopted on first reading amendments to the Criminal Code and Criminal Procedure Code proposed by Yury Gorbunov, deputy director of the FSB.

The current wording of Article 275 of the Russian Criminal Code (High Treason) defines the crime as "espionage, the disclosure of State secrets or other assistance rendered to a foreign state, a foreign organisation or their representatives in activities intended to harm the external security of the Russian Federation".

In the new draft, the term "international organisation" is appended to that of "foreign organisation" since, according to the authors of the draft law, there are organisations whose jurisdiction is not limited to the territory of one state and which have an international dimension.

In Article 283 (Disclosure of State Secrets), the following clarification has been added: it may become known not only at work, but in the course of study. There are other modifications too.

It emerged that participants in the discussion were unanimously critical of the draft law. They called it vague and open to interpretation, thus paving the way for lawlessness.

Karinna Moskalenko, on opening the round table, observed that "we are faced with frenzied law making" that "is all headed in the same direction". Examples include not only the amendments to the articles of the Criminal Code on espionage and spying, but new laws on demonstrations and on "foreign agents".

"The law is bad as it is, in the current version Article 275 is meaningless, and that remains so in the new version,” thinks Yury Larin.

The lawyer is concerned by the wording "other assistance rendered", which is present in both the current version of Article 275 and the one now being proposed.

The new version reads as follows: "The provision of financial, logistical, consulting or other assistance".

"The law didn't get more specific; it is elastic. The danger of the new law lies in its application. We believe that it is a very bad thing when a hostile state intends to cause harm to our state. The Constitutional Court did not like the "other". They removed "other" from tax offences, but there were few cases of treason and they have not been not referred to the Constitutional Court,” Yury Larin said.

“Where did this extension to the description about ‘financial, logistical and consulting assistance’ come from? I think that it came from the Sutyagin case because he did some consulting", Yury Larin suggested.

Consequently, so the lawyer believes, this list of criminal actions remains open. And it will be for the investigator to decide whether the accused committed the "other".

What troubles Alexandr Manov is that the existing wording of Article 275 mentions harm to, "the external security of the Russian Federation," and in the new wording, simply harm to "the security".

"In the modern age, in an era of globalism, can we really divide organisations into the international and non-international, based on their legal status? In my opinion, the status of an international organisation does not at all imply that it should be intrinsically hostile. This is wording from the Vyshinsky era, in my view.

So what if my colleagues and I were to form an international organisation tomorrow? Me, some lawyer in the UK and another from Ukraine? Does this somehow alter our status? There should be stricter criteria. This is a very rough draft," the lawyer added.

"The adoption of wording like this can be extremely dangerous. I've worked a lot on bribery cases in recent years, and have found that our judicial practice allows for the same issue to be resolved in a number of different ways.

Of course, freedom of judicial discretion will be limited in cases falling under Article 275 because there is sure to be some control over this activity. Be that as it may, now that we have decided to make such drastic changes to the wording, I believe that the legislator must make things absolutely clear. Adjectival clauses in the style of Tolstoyan sentences are of no use here. They allow for too-broad an interpretation. Laws should not be written using such language," Alexander Manov argued.

"We have regressed to medieval Mongolia, where any and all laws constituted State secrets. When I was in the second year at law school, all draft laws were published in the central press, never mind the law journals. All of them circulated to the localities and were widely discussed. Half of the resulted that followed became law.

Right now, the Criminal Code and the Criminal Procedure Code are being amended at more or less the same speed – over twice a month. To my mind, one cannot by any means call this an improvement of the law," Yury Kostanov suggested.

In his estimation, the new amendments to the Criminal Code also do not preclude the criminal prosecution of persons for divulging State secrets - even if they were not aware of the classified nature of the information they had passed on.

Apart from the draft amendments on treason and espionage, the Strasbourg Gathering also discussed the recent refusal by the Russian Supreme Court to overturn the conviction of Igor Sutyagin, which the researcher’s defence intends to appeal, and cases of entrapment.

On that last subject, Karinna Moskalenko expressed the view that police officials who work undercover violate the law themselves. As an example, she cited the case of Vanyan v Russia, which was won by lawyers from the Centre for International Protection at the Strasbourg court.

The essence of this case is as follows: A female acquaintance rang the accused, Grigory Vanyan, and asked him to buy heroine for her. She said that she really needed the drug as she was suffering withdrawal symptoms. It later emerged that this was done on the orders of officers from the Federal Drug Control Service. When Vanyan brought her the drug, fearing that his friend would commit suicide otherwise, he was arrested for being a dealer.

When the police become over-zealous and initiate an act that would not otherwise have occurred, the European Court considers any judicial proceedings conducted on this basis to be unfair, Karinna Moskalenko explained.