Leonid Nikitinsky: Sentences, yes; words, no. Russian lawmakers lay more mines across the field of law―to put away anyone prepared to call things by their proper names

29 June 2022

by Leonid Nikitinsky, PhD (Law), journalist, laureate of the Moscow Helsinki Group

Source: Moscow Helsinki Group [original source: Новая газета. Европа]

A la guerre comme à la guerre: the State Duma continues to go into contortions in its efforts to lay mines across the field of law while trying to avoid articulating a banned word. The law ‘Controlling the activity of persons under foreign influence’ was given its second reading on 28 June, and its third the following day. And on Monday, 27 June, members introduced amendments to the second reading of a bill to broaden the concept of ‘treason’ and to criminalise various other activities which―how can I put this?―are carried out somewhere nearby.

The enemy is unpredictable and cunning, so mines are being placed everywhere just in case. The ‘Controlling’ law essentially abolishes the old and extremely vague definition of a ‘foreign agent’, which has stood since its enactment in 2012, removing from it the previously mandatory attribute of foreign funding. Anyone who has come ‘under foreign influence in some (meaning “any”) form’ can now be tagged an ’agent’.

That covers everything; but along with mere amateur agents, hardened spies and mercenaries are now alarming the Duma. A bill with the pedestrian title ‘Bringing amendments into the Criminal Code’ was brought to the Duma on 25 May (we commented on it here on this site the following day); it took just a month for members to propose another string of armour-piercing amendments at the second reading. It’s as if they have some kind of conspiracy theory competition going.

If the law is passed, propaganda or public ‘demonstration’ (?) of Nazi symbols or symbols ‘confusingly similar’ to them, along with the production of such symbols, will be punishable by up to 4 years in prison.

One could, with good reason, describe this proposal as patriotism bordering on idiocy, were it not for the clarification that it is also to include ‘the trappings or symbols of extremist organizations …’ We can see at once that the target here is the Anti-Corruption Foundation and Navalny’s headquarters (safe to assume that the reference to their ban has already been put into the text).

Another outlandish proposal is to add a new Article 283-2 to the Criminal Code. Part 2 of the Article provides for the ‘illegal movement or forwarding outside the Russian Federation’ (with no underlying ghastly intent) ‘of media containing information constituting a State secret’. Just as with the proposal already contained in the bill to add an Article on ‘confidential cooperation not bearing the marks of treason’ (275-1), so criminalisation of ‘the movement of data’ may be indirect evidence of inconsistencies in the Safronov case, where ‘treason’ can’t be proven, although, of course, that won’t prevent the court from sentencing Ivan for it.

Part 1 of the proposed Article 283-2 might well turn out to be particularly operative. It addresses the ‘departure from the Russian Federation of a citizen privy to or formerly granted access to state secrets, whose right to leave the Russian Federation is knowingly limited by the legislation’. One such reckless ‘person’ might be Chubais―or just about any serving or former military or law enforcement officer. If the Article becomes law (and there’s not much doubt of that), the courts are likely to treat the presence of such persons abroad as a ‘continuing offence’. Some of them have already ‘departed’ the country, but an Article threatening them with up to 7 years in prison will make it hard for them to return. It’s true, though, that their beloved ‘Russian Federation’ will scarcely be able to get at them while they’re overseas.

The Investigative Committee of the Russian Federation will face the same problem in cases brought under Article 275 of the Criminal Code (‘treason against the Motherland’), specifically in relation to the part where it is proposed to add ‘defecting to the enemy or rendering financial, material and technical, consulting or other assistance to a foreign state, international or foreign organisation or their representatives in respect of activities directed against the security of the Russian Federation’ (terms to be from 12 to 20 years). One of the amendments brought forward does at least clarify that ‘defecting to the enemy is to be understood as the participation by a person as a member of forces directly opposing the Russian Federation … in an armed conflict …’. This wording was missing from the original version, although ‘consulting and other assistance’ would make it possible for the Article to be applied also to regular Russian prisoners of war giving evidence at interrogations for which no one had prepared them.

The draft also proposes to equate the ‘participation of a Russian citizen or stateless person permanently residing in the Russian Federation in an armed conflict … on the territory of a foreign state for purposes contrary to the interests of the Russian Federation’ with the ‘organisation of an illegal military unit or participation in it’. Here, under the current Article 208, participants might face terms of between eight and fifteen years. Originally, Article 208 was aimed at private military companies, whose soldiers of fortune do not hide their participation in ‘armed conflict’, but if the law is enacted, volunteers joining the Ukrainian Armed Forces, including those who signed up without the least self-interest, will fall within its reach.

Even this innovation, however, will not solve the issue of the legitimacy of sentences passed on volunteers from third countries, whom ‘the Courts of the Luhansk and Donetsk Peoples’ Republics’ are already sentencing to execution―clearly not something they’re doing without support from Moscow.

Another amendment to the second reading proposes the addition of Article 274-2 to the Criminal Code to cover ‘violations of the rules of installation, operation and modernisation’ of communication networks, including ‘violations of requirements to allow the passage of traffic through technical means of countering threats’ to the Russian segment of the internet. This seems to be aimed at officials and entrepreneurs who refuse to instal expensive counter-VPN equipment, rendering them liable to an administrative fine for a first offence, and subsequent criminal liability in the event of a repeat offence.

Also proposed are separate amendments to the Code of Criminal procedure: there’s a veritable squall of new offences all spinning round ‘treason’ of every kind under the sun and all to be heard in military courts, where everything is even more secret than usual.

Such mass and non-systemic mine-laying, without clear maps, is turning the ‘field of law’ into something more like a swamp. But that is a topic for a separate and extensive review.

Translated by Richard Coombes

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