Wall Street Journal reporter’s arrest case RussiaEvan Gerskovich, on charges of espionageevokes memories of an earlier era. As the Kremlin itself has pointed out, the last time an American journalist was accused of spying in the former Soviet Union was during the Cold War era.

As Professor William E. Butler, an expert on issues related to the Russian legal system, points out in his article on the Conversation website, the accusations against Gershkovich are a product of modern Russia, and this can have disturbing consequences for a journalist.

Foreign agents and state secrets

Espionage legislation in Russia has changed since the former Soviet Union. In particular, on July 14, 2022, the definition of “espionage” was changed in Article 276 of the Criminal Code of the Russian Federation.

Thus, according to the new definition, espionage is “the transfer, collection, theft or retention of information constituting a state secret for the purpose of transferring it to a foreign state, as well as to an international or foreign organization or their representatives.” .

If this is done by a foreign citizen or a stateless person, then by law this is espionage.

This change in the Criminal Code led to a significant expansion of the term “espionage”. The Gerskovich case appears to be the first case of a journalist to fall within this broader definition.

The information that Gerskovich is believed to have received or collected from the Russian authorities has not been publicly discussed. The Russian security agency FSB was rather vague about the allegations, saying the journalist was caught “gathering classified information” about Russia’s “military-industrial complex” on a trip to Yekaterinburg, about 1,400 kilometers (880 miles) east of Moscow. The FSB added that Gerskovich “acted on the instructions of the American side.”

For its part, the American newspaper The Wall Street Journal categorically denies the involvement of its journalist in actions constituting “espionage”. In addition, the State Department said Gerskovich had been “unjustly arrested” and called for his release.

However, under Russian law, a newspaper is considered a foreign organization established under the laws of a foreign state.

Booking… or deal?

So what’s next in the criminal proceedings in the Gerskovich case? According to the Criminal Code of the Russian Federation, in the case of espionage crimes, the prosecution must prove the existence of “direct intent”.

Russian law defines “direct intent” as the awareness of the danger of one’s actions to society or the ability to foresee the possibility – or inevitability – of consequences that create a danger to society.

The prosecution will try to prove that Gerskovich sought to obtain or possessed state secrets. Although the definition of what constitutes a state secret is less broad than during the Soviet period, it remains very broad and includes information that Gershkovich is accused of possessing.

If Gerskovich is found guilty of espionage, the penalty under the Criminal Code is imprisonment for 10 to 20 years. Russian law speaks of “deprivation of liberty” because while it can mean imprisonment if someone poses a danger to others, for most it means being held in some sort of camp where all the prisoners are held together.

It is possible that the Russian authorities will detain Gershkovich in a special cell with someone else while the trial continues.

On April 18, Gerskovich’s lawyer urged the court to replace pre-trial detention with either house arrest, possibly at Gerskovich’s house in Moscow, or bail.

Both that, and another according to the Code of Criminal Procedure of Russia is possible, but rejected by the court.

Therefore, the investigation will continue until the trial, unless Russia and the United States come to some other agreement.

^{Source: Conversation}