3 August 2020
Ivan Pavlov, attorney, head of Team 29, laureate of the Moscow Helsinki Group award
Everyone who is accused of a crime has the right to know what they are accused of. This is a key element of the fundamental right to defence, which is guaranteed by the Constitution of the Russian Federation, by the norms of international law, and by Article 47 of the Code of Criminal Procedure of the Russian Federation. In practice, this means that a criminal accusation must be based on concrete facts which are clearly laid out in the text of the key procedural document – the statement by the investigator of the charge being brought against the accused. This is done in order that the accused will know precisely what they are accused of and can either admit or deny the facts laid out in the accusation.
In the case being brought against the journalist Ivan Safronov, we are seeing a flagrant violation of this fundamental right.
If we consider the essence of the decision to investigate Safronov, the accusation against him is that, in 2012, Safronov was recruited by a membesr of the Czech intelligence service. In 2017, having completed the specific espionage task that he had been assigned by this individual, Safronov passed over to them state secrets he had collected concerning Russia’s military-technical cooperation with African countries and the activities of the Russian armed forces in the Middle East. He passed this information over via the Internet, using a popular encryption method.
The investigator has not provided any further details that would shed light on the essence of the charge being brought.
During his first interrogation following his detention, Safronov and the members of his defence team stated that they did not understand the charges because of the vagueness of their wording. During his interrogation, Safronov filed a request for clarification of the charge being brought against him, asking the investigator to reply to a number of questions.
In particular, the defence asked:
- When precisely, by whom and in what circumstances, in the view of the Federal Security Service (FSB), was the accused recruited by the Czech intelligence services;
- When precisely, from whom and how, in the opinion of the Chekists, did Safronov receive his espionage instructions; where and when did he obtain the state secret; to whom precisely, when and how did he pass it on;
- Given that Ivan specialised in military matters and wrote extensively, including about military and technical cooperation of the Russian Federation with African countries and the activities of the Russian armed forces in the Middle East, which information that he possessed was considered by the investigators to be a state secret?
Without answers to these questions, the accusation looks like a rebus or a puzzle. If the investigators are sure that the accused carried out specific actions, what is the point of hiding them from him? At the same time, if we assume that some of the answers may constitute a state secret, and if they are shared with the members of defence team (who have signed the appropriate nondisclosure undertaking), then it makes no sense to hide this information from participants in the proceedings, neither from the view of the criminal process, nor from that of the protection of state security.
The defence recently received, from the investigator in the Safronov case, a copy of the order refusing to grant the petition. This means that the FSB does not intend to give any explanations that would help the defence understand the crux of the charge until the end of the preliminary investigation. Taking into account the usual duration of the preliminary investigation in this category of cases (from a year to 18 months), the next news on the Safronov case may not appear very soon.
If I had not previously participated as a lawyer for the defence in such cases, I would probably have been patient and prepared to wait for the end of the preliminary investigation. However, my experience acting as the defence in espionage cases suggests that there is absolutely nothing to wait for here. For the FSB, limbo is a very convenient place to be. Time is the resource that best calms down negative public opinion and the professional solidarity of Safronov’s colleagues who don’t believe him to be guilty. Strategically, my “procedural opponents” rely on “time healing”: in a month public opinion will switch to other events, in six months the public will have forgotten about Safronov, and in a year, so will journalists. And there will be a trial, which will also be closed: all that is told to journalists and the public is Safronov’s sentence. The rest is a state secret. The script for such cases has been prepared, and, with the prosecution of scientists, this scenario has worked. The script is now being pilot tested in the prosecution of journalists.
To make it clear that waiting for the end of the preliminary investigation is futile, I can explain what the evidetial basis for such cases consists of. In order not to reveal any state secrets, I will present it in the form of a prediction. After all, it has not yet been shown to me, so what I quote below cannot be considered disclosure.
To begin with, I will note that, according to the wording of the articles of the Criminal Code, treason in the form of espionage formally consists of collecting or transferring certain information to representatives of a foreign state or foreign organization.
If we translate straightforward journalism into the language of our security services, then it will just look like the collection and transmission of information; that is, according to the pure legal wording, the distribution of ‘spy’ articles.
It turns out that for the Chekists, journalism, especially in a sensitive area, is their Eldorado when it comes to searching for another victim in the role of a person accused of treason. There was a time when they didn’t touch journalists, but something has changed.
In order to bring charges under Article 275 of the Criminal Code of the Russian Federation it is only necessary to prove the communication of some information by a Russian citizen to a foreigner. This is the only fact that the FSB needs to deal with in terms of collecting evidence. And to help the security services, they have an entire arsenal of technical means for monitoring citizens: internet monitoring systems [SORM], operational investigative activity, and other forms of ‘wiretapping’. When establishing a target, it’s only important to record the fact of transmission of some kind of information to a foreign citizen, for example by email, messenger, phone, SMS or something like that. Everything else will be drawn up in the office of the operational officer, for whom colouring a completely neutral fact with ideological sensibilities is an easy task. For example, the accused’s acquaintance with a foreign colleague can be interpreted as an act of recruitment, questions received in emails can be interpreted as an espionage assignment, and in any case in our country any information can be deemed a state secret, there’s no need to worry about that. This is all in order. Departmental ‘experts’ from the first departments will gladly help their fellow security officers and will come to an appropriate conclusion, adjusting some fragment of the intercepted information to one of the items on the departmental list of information to be classified. For example, in the case of Oksana Sevastidi, a saleswoman from Sochi, (and also several other residents of Sochi), would-be experts from the General Staff of the Russian Armed Forces managed to discover Russian state secrets in a pair of SMS messages only 70-characters long.
In the Ivan Safronov case, all the evidence is likely to be built around the intercepted correspondence between Ivan and one of his acquaintances from a list of foreign citizens. The rest is a technical matter.
The acquaintance will be deemed recruitment, backed up by a certificate with a general’s signature, stating that according to the latest intelligence data, Ivan’s acquaintance is a cadre of the Czech special forces, who is competent in undertaking recruitment and extracting classified information. It’s not important whether or Safronov knew about this or not, because of course his acquaintance didn’t have the fact that he was a spy written across his forehead. No one is going to attach a certificate of education in a spy school, a worksheet from the personnel department or a copy of the official ID from an enemy intelligence unit to the case file. Why?
Because a general has confirmed it! You don’t believe it? Well, the court will. The court trusts a sergeant of the National Guard, and even more so a general of the FSB, Foreign Intelligence Service (SVR) or Military Intelligence (GRU). Ah yes, and I almost forgot, the certificate will be secret. At the end of the preliminary investigation it will be shown to the accused and his counsel, who won’t be able to tell even their relatives about it under threat of a criminal charge.
The commission of experts from military agencies will come to the conclusion that one of Ivan’s letters to his friend contains a fragment/phrase/proposal, which reveals state secrets. The conclusion of the investigation will also be classified, and you will never see it. His defence counsel will not be able to obtain an alternative opinion because his lawyers will not be allowed to take pictures or even copy the text of the letter incriminating Safronov since, according to the FSB, it contains state secrets.
It should be noted that such expert evaluations are the monopoly of the Chekists, since they are carried out by persons with access to state secrets and it is the FSB that decides on the granting and denial of security clearance. Lawyers for the defence will simply not be able to find a single specialist with clearance, who, without monitoring by the FSB, would agree to provide an alternative report.
In order to give weight to the investigation, an official from some Russian foreign intelligence agency or other may be questioned as a witness (of course, under the cloak of anonymity), who will confirm that, according to his information, hostile Westerners had a source in Russia who provided valuable information to NATO’s intelligence services before Safronov’s arrest. The defence lawyers will discover that the transcript of the interrogation of this witness is classified secret information.
There will probably be some negative evidence about Ivan’ s character. To achieve these necessary slurs on his character all methods are acceptable, because the lofty ends justify the use of any means. For example, in the case of the scientist, Viktor Kudryavtsev, when selecting a means of character assassination and justifying the fact that the accused may try to escape, the investigator Alexsandr Chaban (the same man as in the case of Ivan Safronov) used an email written about purportedly winning a green card in the lottery. The email was sent from a typical spam address and its form and content could not be taken seriously by anybody who has had the least experience of spam. But it became the main pretext for the investigator, who claimed that the 75 year old scientist planned to escape to the West, and therefore he should be taken into custody. The court accepted this and used it to justify the decision to remand him in custody, citing the spam email.
After the investigator refused to comply with Ivan Safronov’s request for clarification of the charges, it became obvious that the evidential base in his case would be exclusively ‘spam.’ And so that this circumstance might not outrage the public, before handing the case to court, they prudently placed the already familiar blue stamp in the upper right corner of on the cover of each volume.
In principle, our courts must accept as fact a great deal they receive from the law enforcement agencies, especially from the FSB. However, the courts, and any governmental authority, including the FSB, are sensitive to anything that does not fit into their routine narratives. The growing public resonance of the Ivan Safronov case is the only factor that might cause the existing system to deviate from the narrative with its pre-ordained outcome. Fortunately for Ivan, the potential for this publicity rests in the hands of his colleagues, the journalists. And how they deal with it depends on whether the investigation into his case is fair.
The interest of the Kremlin in the refusal of the investigators to let Safronov and his legal counsel know the essence of the charges against him is a healthy start: on 31 July, Dmitry Peskov [Press Secretary to Vladimir Putin] promised to ‘follow’ the proceedings. Bring it on.