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(Nov 28, 2012) On November 14, 2012, Russian President Vladimir Putin signed into law a bill amending the Russian Criminal Code in regard to the crimes of espionage and state treason. (Marina Ozerova, He Did Not Betray Himself: Putin Signed the Law on State Treason [in Russian], MOSKOVSKII KOMSOMOLETS, No. 26093 (Nov. 15, 2012).)

According to the Russian Federal Security Service (FSS), which proposed the bill, the amendments are aimed at emphasizing that state treason is a broad concept and that espionage and disclosure of state secrets are forms of it. (Explanatory Memo to the Draft Federal Law on Amending the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation [in Russian], State Duma of the Russian Federation website (last visited Nov. 21, 2012).)

The FSS also stated, in its explanatory memo to the amendment law, that previous practice in enforcing the law in cases related to state treason and espionage identified the necessity of prosecuting acts of cooperation with representatives of international organizations engaged in hostile activities as state treason and of extending the liability of persons to whom state secrets are entrusted. (Id.)

Key Provisions of the Amendment Act

Law Nr. 190-FZ amends the Criminal Code with a new article prosecuting illegal access to information considered to be state secrets. It also amends three existing articles, on state treason, espionage, and disclosure of state secrets. (Ekaterina Vinokurova, Law of Particular Application [in Russian] GAZETA.RU (Oct. 23, 2012).)

According to the new legislation, the crime of state treason will cover not only support given by a Russian national to a foreign country or foreign organization conducting hostile activity against Law Nr. 190-FZ [in Russian], ROSSIISKAIA GAZETA, No. 5935 (Nov. 14, 2012) (official publication).)

Support provided to foreign countries or to foreign and international organizations that constitutes treason is described in article 1, paragraph 2, of the Law as "financial, material, technical, advisory or any other support given to a foreign country or to international or foreign organizations engaged in activities against the security of the Russian Federation." (Law Nr.190-FZ.) The previously applied standard of "providing support to a foreign state, foreign organization, or their representatives in conducting hostile activity against the external security of the Russian Federation" was considered too vague, according to the drafters of the Law. (Explanatory Memo, supra.) This wording had also created problems for law enforcement, because the reference to hostile activity as a qualification for the crime was often used by defense attorneys as grounds for pointing to a lack of evidence of hostility in the actions of defendants. (Id.)

Another provision of Law Nr. 190-FZ amends the previous rule according to which only persons entrusted with state secrets in their line of work could be held liable for the disclosure of state secrets. The new legislation broadens the list of such persons, to include any Russian or foreign individual who becomes familiar with state secrets in the course of his/her studies or has access to them in any other legal way. (Id.)

Law Nr. 190-FZ also establishes a new crime under article 283.1 of the Criminal Code. It provides for imprisonment for up to four years or a fine of up to an amount equal to approximately US$16,000 for commission of the crime of gaining illegal access to state secrets by means of theft, the threat of violence, blackmail, or other illegal methods. If special techniques for espionage are used to commit the crime, the punishment on conviction is a term of from three to eight years of imprisonment. (Law Nr. 190-FZ, art. 1(5).)

According to one of the commentaries on the new Law, even "hunting" for a state secret can be considered a crime under article 283.1. However, this provision will not apply to persons who become familiar with a state secret by chance and negligently disclose it. (Piotr Orlov, Don't Go to Bond! The Law Has Extended the Concept of State Treason and Espionage [in Russian], ROSSIISKAIA GAZETA, No. 5935(262) (Nov. 14, 2012).)

The new Law also amends the Code of Criminal Procedure, mandating the transfer of all cases related to the newly introduced article 283.1 to the jurisdiction of the FSS. (Law Nr. 190-FZ.)

The New Law and Human Rights

The Law has caused concern among human rights activists, who argue that its parameters of state treason are too broad and that there are no firm criteria to define when cooperation with an international organization assumes a criminal character, thereby leaving that assessment to the discretion of investigative and judicial authorities. (Marina Ozerova, supra.) Russian legislator Dmitriy Gorovtsov said during the parliamentary debates on the bill that the draft shifted the balance between national security and human rights concerns in such a way as to harm the latter. (Id.)

Lev Ponomarev, a leading Russian human rights defender, expressed his concern that the word "security" now in the text of the article on treason, in contrast to the previous term "external security," may have a very broad interpretation, including, e.g., food security, legal security, or internal security. He said that with the current wording, any activity, even presentation of human rights reports by the political opposition at international conferences, could be deemed an act against security. (Vinokurova, supra.)

Members of the Russian legislature's upper chamber, the Federation Council, will probably request the Supreme Court of Russia to issue guidelines for implementation of the new Law. (Extension of State Treason Criminal Provision Is in Effect [in Russian], NEWSRU.COM (Nov. 14, 2012).) President Putin's Press Secretary, Dmitriy Peskov, commented that the President has expressed his willingness to review the Law if any problems with restrictions of human rights are identified in the course of its implementation. (Marina Ozerova, supra.)

Law Library contract Foreign Law Specialist.

Author: Peter Roudik More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Russia More about this jurisdiction

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Last updated: 11/28/2012