Institute of Modern Russia

Comparisons to the 1937 “great purge” that overwhelmed the Russian blogosphere after the summer raids on the homes of opposition leaders were, to a large degree, an overstatement. But the new amendments to the Penal Code that broaden the definition of “high treason” actually threaten to return the country to the era of Stalinist “justice”. The recently adopted laws on rallies, slander, and “foreign agents” pale in comparison to the Duma’s latest initiative.

The initiative itself, in fact, is not new: the proposed changes were submitted to the Duma by then-Prime Minister Vladimir Putin in 2008. It is hardly surprising, though, that this idea is being revived now, as the Kremlin is “tightening the screws” in an attempt to suppress the growing opposition movement. During the bill’s first reading in the Duma, it was supported by 449 legislators (that is, all of them except the recently expelled Gennady Gudkov), including opposition legislators Ilya Ponomarev and Dmitri Gudkov who later explained that they voted “aye” by mistake and will not do so at the second reading. This will not, however, change the preordained result of the vote.

Article 275 of the Russian Penal Code, as it currently and originally stands, defines high treason as “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”. The “reformers” do not hide their reasoning: the bill’s explanatory note states that “the form of treason as currently framed is highly difficult to prove, since references to the absence of proof of “hostile” activities in the person’s actions are used by the defense as the principal argument for releasing defendants from criminal responsibility” (highlighting by V.K.-M.). In other words, the upcoming amendments are intended to make it easier for security agencies to “find traitors” than before: they will no longer be even formally obligated to prove intent.

But the principal change lies elsewhere. According to the new version of Article 275, high treason will consist not of “assistance rendered to a foreign state, a foreign organization, or their representatives,” but of “disclosure of classified information that was entrusted to the person, or that the person learned in the course of work or study, or financial, material and technical, consultative or other assistance, to a foreign state, an international or foreign organization, or their representatives, in the activities directed against the security of the Russian Federation, including its constitutional order, sovereignty, territorial and state integrity” (highlighting by V.K.-M.)

Needless to say, with such a definition, Putin’s prosecutors, the FSB and the Kremlin-controlled courts will have “legal” authority to imprison almost any Russian citizen who openly opposes the government. For instance, a poll monitor who provides evidence of vote fraud to the OSCE. Or a human rights activist who collects information on torture in Russian prisons and police precincts and hands it over to the relevant committees of the UN and the Council of Europe. Or a journalist who gives information on government corruption in Russia to Transparency International. Or any Russian employee of an international NGO (such as Human Rights Watch or Amnesty International). All these examples (and many others) can be interpreted as “consultative assistance to an international organization” and as “activities directed against the constitutional order and sovereignty” (naturally, by the current regime’s definition). The punishment for high treason remains the same: 12 to 20 years in prison.

A whole separate category of potential “traitors” includes Russian citizens who have supported the adoption (both in the U.S. and in the European Union) of the Magnitsky Act which would introduce visa and financial sanctions on Russian officials involved in corruption and human rights violations. Kremlin officials have frequently described the bill as “meddling in internal affairs” (that is, a violation of “sovereignty”), while nationalist leader Vladimir Zhirinovsky, often the one to test the Kremlin’s ideas, openly accused supporters of the Magnitsky Act of “betraying Russia’s national interests”.

The new amendments would provide a “legal” foundation for such accusations. It should be noted that Russian supporters of the Magnitsky Act include such prominent figures as film director Eldar Ryazanov, actors Natalia Fateyeva, Liya Akhedzhakova and Alexei Devotchenko, politicians Boris Vishnevsky and Vladimir Ryzhkov, and human rights activists Lev Ponomarev and Ludmila Alekseeva, who have signed an open letter in support of the bill; as well as opposition leaders Boris Nemtsov, Mikhail Kasyanov, Yevgenia Chirikova, Garry Kasparov, and yours truly who have actively promoted its passage. According to a Levada Center poll, a plurality of Russians (44%) back the idea of Western visa sanctions for those involved in Magnitsky’s death. In the eyes of the amended Penal Code, they are all potential “traitors”.

There is not much point in discussing the “legal” foundation for the amendments: it is enough to recall that, according to the founding principles of the OSCE, which also apply to Russia, “issues relating to human rights, fundamental freedoms, democracy and the rule of law are of international concern […] and do not belong exclusively to the internal affairs of the State concerned”. The sponsors of Russia’s repressive laws often point to “foreign precedents,” such as when a false parallel between the U.S. Foreign Agents Registration Act of 1938 and the new Russian NGO law was drawn. The authors of the Penal Code amendments chose not to cite any examples, since nothing even approaching their proposals can be found in Western democracies, in law or in practice. In the United States, for instance, the definition of treason is limited by the Constitution in order to avoid potential abuses: Article III states that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”. Since 1789, when the U.S. Constitution went into effect, only around thirty people have been indicted for treason, and fewer still were convicted (even the former Confederate leaders were not tried after the Civil War).

Indeed, the only relevant comparison is the infamous Article 58 in Stalin’s Penal Code that included such “crimes” as “counterrevolutionary propaganda and agitation,” “participation in a counterrevolutionary organization,” “treason to the Motherland,” “dealings with a foreign state for counterrevolutionary purposes,” and “assistance to the international bourgeoisie.” “In all truth, there is no step, thought, action, or lack of action under the heavens, which could not be punished by the heavy hand of Article 58,” wrote Alexander Solzhenitsyn who had himself been convicted under its terms. According to Russia’s Memorial society, some five million people have been arrested by state security on political charges between 1918 and 1987; one million of them have been sentenced to death.

The new amendments to the Penal Code all but bring back Stalin’s Article 58 – and this time, it is not an exaggeration. The only difference is that “international bourgeoisie” has been replaced by “international organizations,” and “counterrevolutionary propaganda” has given way to “activities directed against the constitutional order and sovereignty.” Having encountered the first serious challenge to its power in twelve years, the Kremlin has chosen a path of re-Stalinization. The only thing that can stop it is a mass protest by Russian citizens who have, last December, already told the regime that they will no longer be treated as cattle.