The case of Wall Street Journal correspondent Evan Gershkovichwho saw his appeal against investigative detention on charges of espionage on April 18, 2023 rejected by a Russian court, has echoes of an earlier era. Not since the Cold War, noted the Kremlinis an American journalist accused of espionage in the former Soviet Union.
But if one long-time specialist in the field of the Russian legal systemI am aware that the charges against Gershkovich are a product of modern Russia – and that could have dire consequences for the journalist.
Foreign agents and state secrets
The espionage legislation in Russia is no longer the same as that of the former Soviet Union. On July 14, 2022, Article 276 of the Russian Penal Code changed the definition of “espionage”.
Under the revised version of Article 276, espionage is now defined as “the transfer, collection, stealing or retention for the purpose of transmission to a foreign state, international or foreign organization, or their agents, of information which is a state secret”.
If such an act is committed by a foreign citizen or a stateless person — that is, a person who has no citizenship — then it is espionage, according to the code.
This amended text broadened the definition considerably. The Gershkovich case appears to be the first involving a journalist by the expanded definition.
Exactly what information Gershkovich obtained or collected according to Russian authorities is not a public matter. The FSB, the Russian security service, has formulated the allegations in rather vague terms journalist was caught “gathering classified information” about Russia’s “military industrial complex”. during a trip to Yekaterinburg, about 1,400 kilometers (880 mi) east of Moscow. The FSB added that Gershkovich was “acting under orders from the American side”.
That has the journalist’s employer, The Wall Street Journal strongly denied that the reporter was involved in espionage. The United States Department of State also said that Gershkovich was “unjustly detained” and called for his release.
In any case, under Russian espionage law, the newspaper would be considered a foreign organization, that is, an entity established under the law of a foreign country.
Years of detention – or a deal?
So what awaits us in the criminal proceedings on Gershkovich’s case? Below the Russian Penal Codethe crime of espionage requires “direct intent” to be proven by the prosecution.
“Direct intent” is defined in Russian law as being aware of the social danger of one’s actions, or foreseeing the possibility—or inevitability—of consequences deemed to pose a danger to society.
The prosecution will attempt to prove that Gershkovich handled, attempted to obtain, actually acquired or possessed state secrets. While the definition of what constitutes a state secret is narrower than it was during the Soviet era, it nonetheless remains quite comprehensive and would encompass the information Gershkovich is accused of having access to.
Should Gershkovich be convicted of espionage, the penalty prescribed by the Penal Code is deprivation of liberty for a period of 10 to 20 years. Russian criminal law refers to “deprivation of liberty” because while it can be served in a prison if the individual is dangerous to others, for most it takes the form of detention in some sort of camp where the prisoners share shelter.
It is likely that Russian authorities will lock Gershkovich in a research cell, probably shared with someone else, while the legal proceedings continue.
Gershkovich’s legal adviser invited to court on April 18 to replace investigative detention with house arrest, possibly at Gershkovich’s address in Moscow, or financial security, through collateral or bail.
Both would have been possible under Russia Code of Criminal Procedure. But both were rejected by the court.
The investigation will now continue until the trial, unless Russia and the United States come to a different settlement.
