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18.12.08
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Redefining Betrayal
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By Roland Oliphant
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Recent legal reforms in Russia swing from threatening a return to Joseph Stalin era political repression to a surprising progressive liberalization of the criminal justice system. A new bill was introduced to the Duma this week widening the definitions of treason and espionage. The proposed amendments to the criminal code have drawn flak from human rights campaigners and lawyers, concerned about the potential for abuse under the new, much wider definitions.
The current law on espionage forbids the gathering of information that may threaten Russia’s external security. The new bill replaces the notion of “external security” – fairly easily definable in terms of border defense and protection from foreign attacks – with the much vaguer and more general notion of “national security.” But the really eye-catching changes are to the law on treason. In its current form, the law describes the fairly simple war-time crime of betraying state secrets and assisting foreign states in “carrying out hostile actions, damaging to the external security of the Russian Federation.”
The amended version would outlaw all activities directed “against the security of the Russian Federation, including its constitutional order, sovereignty, territorial and state integrity.” As in the law on espionage, the qualifier “external” has been removed from the definition of security, but the most worrying thing in the view of many lawyers is the explicit identifying of national security with the constitutional order. That, they warn, could make it almost ridiculously easy to accuse someone of being a traitor.
“Now anything can be understood as treason. You could accuse people who have criticized the government or done anything that could be a threat to national security of treason,” said Genrik Padva, a Moscow-based defense lawyer, after examining the proposed amendment. “It’s a terrible law.”
Both laws also widen the type of organizations such information may not be passed to, from “foreign” to “international or foreign.” That has raised concerns that the new law is intended to target not only foreign intelligence agencies, but also Non Governmental Organizations. In a statement released on December 18, two prominent campaigners, Lev Ponomarev and Lyudmila Alexeyeva of the Moscow Helsinki Group warned that this could outlaw “consultative work for international organizations,” and mean that “not only opposition activities, but even simply reporting of events in the country could be considered hostile.”
Proposed by the United Russia party, the amendments are almost certain to pass into law in the near future. What the new laws will actually mean is unclear; although Alexeyeva and Ponomarev call on citizens to “stand up against the new 1937.” Padva noted that the wording is so vague that the implementation is not a foregone conclusion. “It will really depend on how the law is practiced,” he said.
The amendments to the espionage and treason laws are only the latest in a series of amendments to the law in recent months. On December 12, the Duma passed amendments to the procedural code replacing jury trials in cases involving terrorism, espionage and attempts to overthrow the government. Instead, defendants in such cases will face a three judge panel.
That, according to Alexeyeva and Ponomarev, amounted to a “terrible blow” to Russian jurisprudence, and can be seen as an attempt to undo the judicial reforms of the 1990s. Given that jury trials were only restored in Russia in 1992, and even since then have only been applicable to a limited number of crimes, it is easy to draw such a conclusion. The Russian judiciary has a poor reputation when it comes to independence. Judges are appointed by a government committee, and among the legal community it is considered highly unusual for a defense attorney – with their professional antagonism to the prosecutors office and hence the powers that be – to make it onto the bench. Removing juries from trials, the argument goes, will consolidate the government’s control of the courts (supporters of the change retort that juries have several times acquitted suspects of serious crimes - including murder and terrorism – despite compelling evidence).
Though an authoritarian trend is easy to spot in these reforms, some commentators are cautious of embracing the explicit connection drawn by Alexeyeva and Ponomarev. For one thing, said Padva, who recently defended jury trials in a debate on the legal television channel Zakon TV, the issues are legally distinct, if related. Secondly, other recent developments have given precisely the opposite impression: that of a liberalizing tendency.
On December 16, the tabloid Komsomolskaya Pravda printed an excerpt from a meeting between President Dmitry Medvedev and Human Rights Ombudsman Vladimir Lukin, in which the president expressed support for finding lighter punishments (or “alternative measures”) for minor offences. “In our country we have a widespread practice of meting out practices that involve actual imprisonment for minor crimes,” he told the Ombudsman. “But we all know what happens to people when they have spent time in prison, and we know that getting them ready to return to society can take a very long time… we need to take a look at the kinds of alternative sentences that are widely used around the world, and look at where we could take some steps forward.”
The president went on to specify that he was not only talking about the issue of pre-trial detention (which has long drawn criticism from human rights groups), but also of the sentence itself, and suggested electronic tagging, used in many European countries, as a way of “depriving an offender of freedom without actually sending him to prison.”
The motives may not be entirely altruistic: the prison system is incredibly overcrowded, and simply as a practical measure it makes sense to look for alternative forms of justice (similar considerations lay behind the UK experiment with electronic tagging). But nonetheless, the liberalizing tendency seems to be genuine; or at least as identifiable as the parallel authoritarian current. It is too early to say whether this enlightened approach to criminal justice is in conflict with the “Stalinist-Hitlerite” tendency denounced by Alexeyeva and Ponomarev, or can actually coexist with it (one may note that the “authoritarian” trend seems to be devoted to crimes against the state, while Medvedev’s comments might keep petty thieves out of jail). As Padva points out, the proof will be in the practice. The coming year promises to be an interesting one for Russian justice. |
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