Re: New law on treason and espionage threatens freedom of expression in Russia
To: President Vladimir Putin; Alexander Kolonalov, Minister of Justice
From: Andrew Guaglio, LRWC
Date: November 19, 2012
I write on behalf of Lawyers’ Rights Watch Canada (LRWC), a committee of Canadian lawyers who promote human rights and the rule of law internationally. LRWC also provides support to lawyers and other human rights defenders in danger because of their advocacy.
LRWC is deeply concerned by Russia’s new law on treason and espionage, adopted by the Duma on the 23rd of October, 2012, which due to its broadened definition of treason, poses the risk of allowing for state suppression of the legitimate, internationally protected work of human rights advocates and non-governmental organizations (NGOs). Under the new law, treason includes “providing financial, technical, advisory or other assistance to a foreign state or international organization . . . directed at harming Russia’s security.” The effect of this law will likely be the stifling of interaction between Russian human rights advocates and NGOs and human rights advocates, NGOs and intergovernmental bodies outside Russia.
LRWC is further troubled by the fact that the enactment of the treason and espionage law follows the recent creation of new laws that: (1) significantly increase fines for participants in unauthorized demonstrations; (2) require all political NGOs receiving financial support from foreign entities to register as “foreign agents”; (3) re-criminalize libel; and (4) allow for sweeping bans of websites deemed to be harmful to children or have extremist content. These laws restrict rights to participate in public life including freedoms of expression, association, and assembly.
Freedom of expression, which includes the right to seek, receive, and impart information and ideas, is guaranteed by several international legal instruments, including the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR), ratified by Russia in October 1973.
Article 19 of the UDHR states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (emphasis added).
The ICCPR provides for a similar guarantee to freedom expression. Article 19, paragraph 2 states:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
Article 19(3)(b) allows for limitations to freedom expression where restrictions are necessary for “the protection of national security or of public order, or of public health or morals.” Article 29 of the UDHR provides for similar limitations. As a general principle, restrictions on fundamental human rights must be interpreted strictly, having regard to the particular right at issue and the purpose of the restriction (see Principle 3 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights).
The Johannesburg Principles on National Security, Freedom of Expression and Access to Information state that laws limiting freedom of expression must be necessary in a democratic society for the genuine purpose of protecting a legitimate national security interest. To establish that a law is necessary, a government must demonstrate that (1) the expression or information at issue poses a serious threat to a legitimate national security interest, (2) the restriction imposed is the least restrictive means possible of protecting that interest and (3) the restriction is compatible with democratic principles (Principle 1.3). A restriction is not justified unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use of threat of force (Principle 2(a)). A restriction is not legitimate if its genuine purpose or effect is to protect interests unrelated to national security, including to protect a government from embarrassment or exposure of wrongdoing (Principle 2(b)).
Further, the Johannesburg Principles provide that for expression to be punishable as a threat to national security, it must satisfy three requirements: (1) the expression is intended to incite imminent violence; (2) it is likely to incite such violence; and (3) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence (Principle 6). This test applies to criticisms of or insults to the nation, the state, the government, its agencies or public officials (Principles 7, 8).
Russia’s new law on treason and espionage risks offending the principle of least-restrictive measures, as it threatens criminal liability for the legitimate activities of human rights organizations that disseminate information perceived as being detrimental to the Russian government to foreign governmental and non-governmental organizations. Further, the law threatens to encompass activities that do not present a serious and imminent threat to national security, and thus may have the effect of merely protecting the government from embarrassment or exposure of wrongdoing.
LRWC calls on the Russian government to immediately repeal the treason and espionage law and to consult with civil society on any proposed replacement law so as to ensure concordance with Russia’s obligation under international law to protect all expression other than that which presents and immediate and serious threat to national security, public order, public health, or morals.
We request a response setting out the steps that the Russian government is taking to address this matter of serious concern.
