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Comparing the Anti-Magnitsky Law to repressive Soviet-era legislation

30 January 2013

By Sergei Kovalev

Source: Novaya gazeta 

'From a legal perspective, even the lawmakers of the Khrushchev and Brezhnev periods were far more responsible than the present-day Duma' 


There is more to be found in the “Anti-Magnitsky” Law than what it says about children. Let’s begin by looking at Article 3 of the Federal Law No. 272 (28.12.2012), which halted the 2011 Agreement between Russia and the USA on the Adoption of Children: 

“In accordance with this law, the activities of non-governmental organizations that engage in political activities in the Russian Federation and receive monetary grants or other assistance from citizens (or organizations) of the United States of America, or engage in domestic projects, programs, or other activities that pose a threat to the interests of the Russian Federation, shall be suspended by a federal executive body responsible for developing and implementing the state’s policy and its normative and legal regulations governing the registration of non-governmental organizations. The federal executive body responsible for developing and implementing the state’s policy and its normative and legal regulations governing the registration of non-governmental organizations shall submit information about the non-governmental organizations whose activities are suspended to the federal executive body responsible for developing and implementing the state’s policy and its normative and legal regulations governing the international relations of the Russian Federation.”

Clearly, the lawmakers didn’t wish to include any criteria that would specify which “projects, programs, or other activities” would be considered a “threat to the interests” of the Russian Federation.

In other words, the officials of some federal executive body can personally decide which particular programs further the interests of Russia, and which programs threaten Russian interests and need to be halted. It is true that under the general rules of our legal system the decisions of this federal body may be subject to appeal in court. The courts are left equally helpless, however, by the State Duma when making sense of these “interests” — which, by the way, are implied to mean the interests of Russia itself, as opposed to the interests of a particular state body or even of the authorities. 

It is interesting to compare this law to the repressive laws of the Soviet era. For example, Article 190-1 of the RSFSR Criminal Code banned the “systematic circulation, in oral form, of fabrications known to be false and which defame the Soviet state and social system, and, likewise, the preparation or circulation of such content in written, printed, or any other form.” Article 70 of the RSFSR Criminal Code said almost the same. It was overlaid with a more serious aim, however, and banned any “agitation or propaganda carried out for the purpose of subverting or weakening the Soviet regime or of committing separate and particularly dangerous crimes against the state, or otherwise circulating, preparing or keeping literature of such content for the aforementioned purpose.” 

According to Soviet law, the prosecution carried the burden of proof in a series of critical factors. It had to prove: 1) that the message of the defense is false; 2) the important factor of prior intent, that the individual or individuals who “fabricated” this falsehood were not merely mistaken or repeating a rumour, but were deliberately lying; and 3) that they were lying with intent to defame or falsely accuse the state or social order of doing something improper. Article 70 added a fourth requirement: the intent to use this falsehood to weaken or undermine the Soviet state or system. 

From a legal perspective, the lawmakers of the Khrushchev and Brezhnev periods were far more responsible than the present-day Duma. Strange as it may seem, not even those terrible laws, according to their wording, would allow an independent court to convict an innocent person. Of course, it was another matter that our servile public justice system easily found ways to satisfy even those stringent criteria for the prosecution.

All they had to do was call up carefully-prepared witnesses and reject a petition by the defense to examine, for example, witnesses of the event, deemed a slanderous fabrication by the prosecution, and not to permit an important document to be added to the case materials but rather to allow various allegations published in Soviet newspapers and similar materials to be treated as evidence. It was hardly rocket science. At my trial in Vilnius in 1975, Andrey Sakharov demanded to be called as a witness in accordance with Article 70. They would not even let him into the courtroom. This happened on the very day his wife, Elena Bonner, received the Nobel Peace Prize on his behalf in Oslo.

While we’re on the subject of such trials, let me offer another example of the simulation of justice. After investigators found an “ERA”-brand photocopier buried in a pile of construction sand in his yard a Lithuanian named Gudas was brought in for questioning. The samizdat Chronicle of Current Events cited the Chronicle of the Catholic Church in Lithuania, which claimed that Gudas was then beaten. Gudas, called as a witness at my trial, now claimed that no beating took place and that he was treated in a civil manner. “How did he come into possession of the photocopier?” he was asked. People he had never met before drove by and asked him to look after several large, heavy suitcases. They promised to pick them up on their way back. He allegedly had no clue what was inside. I asked Gudas, Why had he buried the suitcases in the sand. If the strangers had asked to leave them until their return, he could have put them in a corner and left it at that. The judge immediately struck down my question, saying it had nothing to do with the case. He understood my thinking perfectly and foresaw the consequences of my logic: the witness hid the suitcases and, therefore, must have known they contained something in need of concealment. Yet if he was lying in such an obvious manner, how could the rest of his testimony be trusted? Was he beaten or not? Needless to say, the two samizdat publications were found guilty of defamation. 

Here is another example. A prison-camp inmate made an attempt to get across the barbed wire and was shot dead. That is what we reported in the Chronicle of Current Events. Subsequently it became known that he had been seriously wounded. What did the witnesses inside the camp see? They saw a shot fired and a fallen, motionless man was carried away. They thought he had been killed. At face value, it seemed an honest mistake. Naturally we printed a correction in the Chronicle as we always did. Our correction did nothing to reduce by one single day the prison sentence for those convicted.

Why, then, did Soviet legislators work so hard to embellish these draconian laws, which shielded the totalitarian regime from its citizens behind a guise of judicial “correctness”? That is a long story but, roughly speaking, I can say it was done primarily for the sake of appearances.

I’m reminded of the legendary Article 125 in the 1936 “Stalin” Constitution, which rapidly listed every basic democratic right and freedom. The Soviet authorities wanted to give the “progressive international community” a weapon to use against various hawks, so as to claim that it wasn’t criticism of the government that was punished in the Soviet Union, but rather fabrications that were deliberately false, and slanderous. After decades of experience, our wayward judicial system has grown accustomed to putting on charades.

Where is that much-vaunted and supposedly refined normative procedure today? What accounts for the Duma’s fixation with writing three laws a day, and all equally bad? Perhaps it’s not fixation, but fear? Or have we come to the point where Russia’s legislators have decided to lower their trousers, show us their backsides and let us know just how much they care about our opinion?

Or, maybe, those in the Duma and the Kremlin have simply lost their minds.