To Denounce Oneself: What the Case of Alsu Kurmasheva Reveals

By Maxim Krupskiy, Visiting Scholar of The Fletcher Russia and Eurasia Program

Journalist Alsu Kurmasheva became a victim of the “dormant” provision of the law stating that anyone who collects any military or military-technical information must report themselves to the Ministry of Justice as foreign agents. Lawyer Maxim Krupskiy explains why this case is surprising even against the backdrop of existing Russian law enforcement practices.

On October 18, 2023, it was announced that Alsu Kurmasheva, a journalist from the Tatar-Bashkir service of Radio Free Europe/Radio Liberty (recognized by the Ministry of Justice as a foreign agent), was detained in Kazan. On October 23, the Sovetsky District Court of Kazan sent Kurmasheva to pre-trial detention until December 5. The charge is formulated according to Part 3 of Article 330.1 of the Criminal Code of the Russian Federation, “Evasion from the fulfillment of duties provided by the legislation of the Russian Federation on foreign agents.” The criminal offense imputed to Kurmasheva establishes responsibility for “failure to report” to the Russian authorities about herself as a “foreign agent” by a person “carrying out a purposeful collection of information in the field of military or military-technical activities of the Russian Federation, which, if obtained by foreign sources, can be used against the security of the Russian Federation.” The maximum penalty under this article is up to five years of imprisonment.

For those who are too curious

This criminal offense appeared in Russian law in March 2021 and initially provided liability for those “foreign agents” who did not declare themselves to the Ministry of Justice, who collected information only on the territory of Russia and “in the interests of a foreign state, its state bodies, international or foreign organization, foreign citizens, stateless persons” in the field of military and military-technical activities, which could then be used against the security of Russia. However, as early as December 2022, the Russian authorities expanded this provision, extending its scope to “purposeful collection” of this information not only inside Russia, but also outside of it, and eliminated the need for the prosecution to prove that such collection is carried out in someone else’s interests.

Now, for almost a year, the Russian authorities by default consider every journalist, military expert, political scientist, scholar, student, and just about anyone who is anywhere in the world and for any purpose collecting information on the “special military operation” in Ukraine, the state of the Russian military-industrial complex, Russian military developments, and any other information of a military nature described in the Order of the Federal Security Service of Russia No. 547 of November 4, 2022, as criminals if they have not declared themselves to the Russian Ministry of Justice as “foreign agents.” The legislator emphasizes that a person can be sentenced to five years of imprisonment, even without intending to harm Russia’s security. Part 3 of Article 330.1 of the Criminal Code of the Russian Federation does not mention that the collection of information is intended to deliberately create a threat to national security – the article states that responsibility for treason and espionage are separate offenses.

Potentially Guilty

The crime attributed to Kurmasheva is paradoxical in many respects even by the standards of the “foreign agency” norm. According to the definition of “crime” (Article 14 of the Criminal Code of the Russian Federation), such a crime is a culpably committed socially dangerous act. The literal content of Part 3 of Article 330.1 does not clarify what the legislator considers socially dangerous and why “failure to report” as a “foreign agent” in the case of purposeful collection of military information is singled out as a separate crime, as opposed to all other similar cases of undeclared “foreign agency”, which are initially subject to administrative responsibility. The fact that the threat to Russia’s security in the article is purely hypothetical, not real, and the collection of information and its acquisition by “foreign sources” are independent events raises even more questions.

For example, a military historian, whether a Russian citizen or a foreigner, who for scientific research purposes collects open information on the military and political situation in Russia, on the mobilization and combat training of troops, and who wishes to present the results in a scientific publication, must independently apply to be listed as a “foreign agent” by the Russian Ministry of Justice to avoid criminal liability. This is because his publication may be accessed by “foreign sources” which could use the information against Russia’s security, regardless of the author’s intent.

The structure and content of the crime described in Part 3 of Article 330.1 of the Criminal Code of the Russian Federation suggests it is a poorly veiled instrument of military censorship. Any collection and analysis of military information can result in the status of a “foreign agent” and criminal prosecution for a journalist or expert dealing with military issues. The initiation of a criminal case against Alsu Kurmasheva under an article that had been dormant until recently may well signal the development of new mechanisms of pressure on journalists covering military affairs.

(This post is translated and republished from Forbes Russia.)