Institute of Modern Russia

Having enriched my vocabulary with a few fancy words, I began to consider myself a sophisticated young lady, almost like Fima Sobak¹. As it turns out, Fima Sobak knew one bad word, the broadcasting of which could get her into a lot of trouble nowadays. There is, however, another fancy word, discontinuity, which means that a bill must be considered by the end of a parliamentary term or it dies, that is it—finita la comedia.  If anyone wants Parliament to reconsider it, the procedure for enactment must start from the very beginning. But this is not for us—this is for those who do not take the bills seriously, and do not take good care of them. As with Gogol, for us every string will come in handy, nothing will go bad or get lost. Unlike other things, bills are treated with diligence: when something is introduced in the federal legislature, it will stay there until final victory (or to the bitter end).

The bill broadening the definitions of “treason” and “espionage” was introduced in the State Duma in 2008.  However, according to media reports, it was initially rejected by then-President Dmitri Medvedev, who acknowledged that there was a risk in expanding the definitions of state secrets, treason, and espionage.  By the end of 2012, this risk had apparently decreased considerably, because the bill, which was adopted last fall, did not undergo any substantial changes, though it had clearly been edited. The original text can still be found in the State Duma’s database. The bill has an explanatory note, some parts of which I cannot help commenting on. Page 1: “Treason” as it is currently framed is highly difficult to prove, since lack of evidence of ‘hostile’ activities in the accused person’s conduct may be used by the defense as the principal argument for relieving a defendant from criminal responsibility and punishment.” In other words, it is hard for prosecutors to do their work: first, the Constitution states that any person shall be presumed innocent until proven guilty (Article 49); the same Constitution says that any person who is detained, taken into custody or accused of committing a crime shall have the right to legal counsel from the moment of being detained, placed in custody or accused (Article 48). A new Code of Criminal Procedure was then adopted, which outrageously enlarged the rights of the defense (Article 53). Only by broadening certain articles of the Criminal Code can the government save the day and guarantee the apprehension of the minimum required number of traitors and spies.

On Page 3 of the explanatory note, another jolt awaits the reader: “The analysis of materials of criminal cases that are being investigated by the Federal Security Service showed that classified data are not protected from deliberate acts by persons to whom such data was not entrusted.” (Italics supplied by E.M.) It turns out that the provisions of the 1993 Law on State Secrets, and particularly those covered by Section 6 (the “Defense of State Secrets”), Section 7 (“Financing the Defense of State Secrets”), and Section 8 (“Control and Oversight of the Defense of State Secrets”) are either poorly written or badly implemented. Why, then, has the question of introducing amendments and annexes to the aforementioned law not been raised? For it looks like state secrets were left unsupervised, which was acknowledged by those who have the right to initiate legislation. Some articles of the law could be changed, starting with the provisions on qualifying information as a state secret and classifying it (for example, as “confidential,” “secret,” or “top secret,” and so on).  The wording of the entire law and its Part 3 (“Procedure of Qualifying Information as a State Secret and for Classifying State Secrets”) in particular is so vague and elastic that my cat’s vaccination chart could qualify as confidential.   Article 6 (“Principles of Qualifying Information as a State Secret and for Classifying State Secrets”) sounds especially alarming.  The article lays out three principles: legality, justifiability, and timeliness. Here begins the most interesting part: the legality of qualifying information as a state secret and its classification requires only that the classified information “comply with the provisions of Articles 5 and 7 of the present law and the legislation of the Russian Federation on state secrets.”  Compliance with the Constitution and other founding acts of the Russian Federation is not required. The criterion of timeliness with respect to qualifying information as a state secret and its classification is also interesting because it consists of “establishing restrictions on its dissemination the moment the data is received (developed) or beforehand.”  I particularly like the idea of doing it “beforehand:” it means that something that is not yet received or developed, and consequently does not yet exist, not only could, but must be classified. This reminds me of Marek, the enlisted soldier who used to write the history of his battalion in advance.²

Pro-Kremlin groups have long accused Russian opposition leaders of being “American spies” (the banner on this photo refers to Boris Nemtsov).The new amendments to the Criminal Code could give such slogans a “legal” basis.

With respect to the principle of justifiability, the law is no longer funny. “The justifiability of qualifying information as a state secret and classifying it is determined by an expert opinion on the desirability of classifying certain information and the probable economic and other consequences of doing so, based on a balance of the interests of the state, society, and citizens.” It is not exactly clear whom the law charges with giving such an expert opinion.  What is clear, however, is the “independence” of their opinion. But the worst is the use of the notion of desirability, which is the opposite of legality in jurisprudence. Given the restrictive definition of legality offered in the same Article, desirability, awkwardly disguised as justifiability, can be easily considered to be the main criterion for qualifying information as a state secret and for how it is classified. As a result, anything can be in fact qualified as a state secret or classified.

On the other hand, it is true that there is Article 7, which specifies data that are not to be classified as state secrets:

• “Emergencies and disasters that threaten the safety and health of citizens, and their consequences, as well as natural disasters, their official forecasts and consequences;
• Ecological conditions, public health, sanitation, demography, education, culture, agriculture, and level of criminal activity;
• Privileges, compensation, and social protection provided by the state to its citizens, officials, enterprises, institutions and organizations;
• Violations of human rights and freedoms;
• Amount of gold reserves and government foreign exchange reserves of the Russian Federation;
• State of health of senior officials of the Russian Federation;
• Violations of the law by governmental authorities and their officials.”

But most of these data do not have to be classified because they are simply not provided.  Any information that is not specified in Article 7 can—and probably should—be classified as a state secret.

The analysis of the Law on State Secrets and the Criminal Code’s amended Articles 275 (“Treason”), 276 (“Espionage”), and 283 (“Disclosure of a State Secret”) gives us the following picture:

• In the amended Article 275, the old wording “hostile action that threatens the external security of the Russian Federation” was replaced by a considerably broader concept of “activities directed against the security of the Russian Federation.” It is clear that lawmakers were referring to both external and internal “security” of the country. However, there is no detailed definition of this concept;
• The inclusion of international organizations in the list of potential recipients of state secrets makes this list infinitely expandable;
• The concept of “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” is so broad that it can be applied to practically any kind of activity.

Therefore, disclosure of any information and any activities by any citizen of the Russian Federation can be considered treason.  These expansive definitions are applicable to almost anything and bring up an uncomfortable association with early Soviet criminal law. They look too much like an advanced version of the principle of analogy established in Article 16 of the 1926 Criminal Code of the RSFSR: “If any socially dangerous act is not directly provided for by the present Code, the basis and limits of responsibility for it shall be determined by application of those articles of the Code which provide for crimes most similar to it in nature.” The applicability of the article on treason to almost any person reminds us of Article 7 of the 1926 Criminal Code of the RSFSR: “Measures of social defense of a judicial-correctional, medical or medico-educational character shall be applied to persons who have committed socially dangerous acts or who represent a danger because of their connection with the criminal sphere or because of their past activity.” In our country, criminal law truly does move in spirals.

You are following the Leninist way, comrades lawmakers! And this way leads here: “The courts must not ban terror—to promise that would be deception or self-deception—but must establish the basis for it, legalize it as a principle, plainly, without any make-believe or embellishment. It must be formulated in the broadest possible manner, for only revolutionary law and revolutionary conscience can determine the limits within which it should be applied.” Do you really want this? If you do, be careful what you wish for—the revolution usually devours its own children.

¹ A character from Ilf and Petrov’s satirical novel The Twelve Chairs. Fima Sobak’s vocabulary was made up of 180 words, one of which was “homosexuality.”

² A character from Jaroslav Hašek’s satirical novel The Good Soldier Švejk.