Chapter 2: The 2006 Russian laws

¶5.2 Two laws passed through the Russian legislative process in the first part of 2006, to

which I shall refer as 'the 2006 laws'. At the time, some perceived the 2006 laws as a means by which President Putin might take action against the dissident community outside Russia, including in the UK. It is necessary to consider whether such fears may have been justified, and whether their enactment is a factor of any significance in the death of Mr Litvinenko.

¶5.3 I heard oral evidence on these matters from a number of witnesses. Following the

conclusion of the hearings, I instructed Drew Holiner, an expert in Russian law, to prepare a report on the meaning and effect of the 2006 laws. He produced a report dated 4 August 2015, which I have adduced into evidence.1

¶The 2006 laws 5.4 The first of the 2006 laws was Federal Law no.35-FZ of 2006 – On Counteraction

of Terrorism (hereafter 'the Terrorism Law').2 It was adopted by the State Duma on 26 February 2006, endorsed by the Federation Council on 1 March 2006 and signed into law by President Putin on 6 March 2006. The Terrorism Law runs to some 17 pages and reads as a code providing for anti-terrorism measures to be taken by Russian forces. One of the striking features of the Terrorism Law is that it makes provision for Russian forces to take action against terrorism beyond the borders of the Russian Federation.

¶5.5 The Terrorism Law contemplates anti-terrorism action being taken both by Russia's

armed forces, and also by the "federal security service" – i.e. the FSB. I shall return below to address questions as to the roles that each was intended to play under the legislation, and the limits on their statutory functions.

¶5.6 The second of the 2006 laws was not, like the first, a piece of freestanding legislation

but was an amendment to the Federal Law of 25 July 2002 On Counteracting Extremist Activity. The bill containing the amendment was approved by the State Duma on 8 July 2006 and by the Federation Council on 14 July 2006. It received Presidential approval on 27 July 2006. I shall refer to this amendment as 'the Extremism Law'.

¶5.7 The Extremism Law contained an expansive list of activity that was to constitute

extremism for the purposes of the statute. The list is set out in full in Appendix C to Mr Holiner's report3 (an abbreviated version of the list is included in Professor Service's first report). The list includes:

"(a) the activity of public and religious associations or other organisations, or the editorial board of a medium of mass communication, or physical persons as to the planning, organising, preparation and implementation of acts directed at:

Violent change to the constitutional order and territorial integrity of the Russian Federation;

¶Undermining of the security of the Russian Federation;

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¶Seizure or arrogation of [governmental] authority;

¶Creation of illegal armed formations;

¶Conduct of terrorist activity or the public justification of terrorism;

Excitation of racist, national or religious strife (roznya) as well as social strife accompanied by force or calls for the use of force;

¶Insulting (unizhenie) national dignity;

Realisation of mass disorders, hooligan actions and acts of vandalism with motives of ideological, political, racial, national or religious hostility or hatred, as well as that motivated by hatred or enmity toward some social group;

Propaganda of the exceptionalism, superiority or inferiority of citizens on the basis of their attitude towards religion, social, racial, national, religious or linguistic affiliation;

Obstruction of the legal activity of organs of state power and election commissions, as well as the lawful activities of the officials of such organs and commissions;

Public slander of anyone filling a state post of the Russian Federation or a state office of a constituent region of the Russian Federation during the exercise of his official duties or in connection with their exercise, accompanied by an accusation that the person has committed acts identified in this article, on the condition that such slander has been established in court proceedings;

¶…

Production and (or) dissemination of printed, audio, audio-visual and other materials for public use that contain even one of the above-mentioned features;

¶(b) …

(c) Public appeals to engage in such activity, as well as public calls and addresses encouraging engagement in such activity and supporting or justifyng the commission of acts identified in this article;

(d) Financing such activities or any co-operation in planning, organisation, preparation and implementation of such actions, including by means of providing funds, immovable property, educational, printing material and technical support, telephone, fax or other means of communication, informational services or other material and technical means."

¶5.8 Professor Service commented on this provision in trenchant terms. He said:

"The amendment is a mere listing of categories rather than a careful legislative definition. The language is extravagantly vague, and more than one category allows for unfettered repressive activity by the authorities. The item on the slandering of holders of public office is remarkable for the room it gives to treat any strident critique of the President or other leading officials as extremism. The wording is so expansive as to enable the authorities, if such were to be their desire, to act

¶The Litvinenko Inquiry

against every kind of unfair criticism – or indeed any criticism that they deem to be unfair."⁴⁴ Marina Litvinenko 3/24-25; INQ017734 (page 3 paragraph 7); there are some small points of difference between this evidence and Mr Litvinenko's own account, given without an interpreter at the first session of his November 2006 police interviews – INQ002076 (page 3) HMG000353 INQ019146 (page 22 paragraph 67) Mascall 22/135

¶The perceived threat 5.9 There is no doubt that Mr Litvinenko and the circle around him perceived the 2006

laws as representing a threat to their safety. On 11 July 2006 (three days after the second law had been passed by the Duma), The Times published a letter written by Vladimir Bukovsky and Oleg Gordievsky. It was short and to the point. It read as follows:

"Sir, As the seven leaders of the world's most industrially developed democracies are packing their suitcases in order to go to St Petersburg for the G8 meeting, their would-be host, Former KGB Lieutenant–Colonel Vladimir Putin, has rushed through the state Duma two new pieces of legislation.

First, a new law enabling him to use his secret services as 'death squads' to eliminate 'extremists' anywhere abroad (including in this country).

Second, an amendment to existing law on fighting 'extremism', providing a much broader definition of that 'crime' which, among other things, will include now any 'libellous' statements about his Administration.

Thus, the stage is set for any critic of Putin's regime here, especially those campaigning against Russian genocide in Chechnya, to have an appointment with a poison-tipped umbrella. According to the statement by the Russian Defence Minister Sergei Ivanov, the black list of potential targets is already compiled.

In keeping with the best traditions of the Soviet-era foreign policy, which always strived to make the world an unwitting accomplice of their crimes, this masterpiece is delivered precisely to coincide with the G8 meeting, which will serve to provide a semblance of approval, or at least of acceptance, by the world of this new development in the 'common fight with terrorism'.

Needless to say, this is an extremely dangerous development. Unless the Western leaders are prepared to share responsibility for murders, like the one committed in Qatar by Russian agents, they must cancel their meeting, or, at the very least, should protest loudly against such abuse of the G8 chairmanship."⁵⁵ Marina Litvinenko 3/15 lines 14-16 Service 28/71 lines 1-4 INQ019194 Marina Litvinenko 4/8-9

¶5.10 In an interview conducted by the Metropolitan Police Service in March 2007, Boris

Berezovsky explained the extent of the concerns that Mr Litvinenko himself had had regarding the new legislation. He said:

"And of course he was always worried of the security especially after, in July 2006, Putin signed a law which allowed Russian special services without any investigation or court hearing, to kill people who Russian authorities considered to be enemies of then Russian state. Sasha mentioned loads of times that this legislation of course was designed in the first place to get rid of us – him, Zakayev and myself. Moreover, he said that most probably they would try to poison us. Today this sounds amazing but unfortunately this proved to be true, true prediction."⁶⁶ Marina Litvinenko 3/27-29; 4/80 INQ017734 (page 10, paragraph 34); Marina Litvinenko 3/137 lines 4-11 Berezovsky 25/26 lines 9-20 Reilly 10/61

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¶5.11 Marina Litvinenko's evidence was to a similar effect – she said that Mr Litvinenko

¶"viewed these laws as a personal threat".⁷⁷ INQ017734 (page 3 paragraph 8) INQ016642 (page 7) INQ017734 (page 23 paragraph 80) Mascall 8/2-4

¶Did the 2006 laws represent a real threat? 5.12 This is an issue that is best addressed in two stages.

¶5.13 First, it is necessary to consider whether the terms of the legislative provisions

themselves bear out the type of concerns expressed above. That is an exercise that requires me to determine the meaning and effect of the 2006 laws. Although Professor Service addressed the point, it is not strictly within his expertise. Mr Holiner, on the other hand, is an expert on Russian law and I will refer principally to his evidence in addressing this first question.

¶5.14 The second stage is to assess whether the laws could have operated at a more

general level in increasing the threat to Mr Litvinenko and those around him. That is an area within Professor Service's expertise, and I found his evidence of assistance in this regard.

¶The strict meaning of the 2006 laws 5.15 The question here is whether the text of the 2006 laws themselves bears out the

concerns held and expressed by Mr Bukovsky, Mr Gordievsky and Mr Litvinenko, and which would appear to have been shared by others.

¶5.16 As I have said, both Professor Service and Mr Holiner addressed these matters. I also

received helpful representations on this point made in March 2013 to the Solicitor to the Inquiry (then the Solicitor to the Inquest) by Mr Batmanov, the then Head of the Consular Department of the Russian Embassy in London.8

¶5.17 I agree with the observation made by Professor Service in his report that there is

"some confusion" as to the meaning and content of the two pieces of legislation, "even in some of the well-informed secondary literature".9

¶5.18 I would make the following points regarding the content and strict meaning of the two laws:

a. It appears to me that the effect of the Extremism Law was to create a very wide definition of the term 'extremism'. Moreover, the new definition included conduct of which Mr Litvinenko and those around him could be accused – most obviously, "Public slander of anyone filling a state post of the Russian Federation." I note the statutory requirement under that limb of the statutory definition that "such slander has been established in court proceedings"

b. It follows that steps might well have been taken against Mr Litvinenko under the On Countering Extremist Activity law as amended, had he been in Russia in 2006. However, he was of course outside the jurisdiction by that time, and the anti-extremist law contained no provisions for extra-territorial enforcement

¶c. The Terrorism Law, by contrast, did contain such provisions

¶The Litvinenko Inquiry d. Mr Holiner confirmed the distinction at paragraph 25 of his report:10

"In sum, the Counterterrorism Law permits the Federal Security Service, upon obtaining authority from the President of the Russian Federation, to engage in counterterrorist activities abroad aimed at eliminating terrorist threats, including through the use of lethal force…The Counter-Extremism Law confers no similar authority to act in respect of persons defined as extremists."

e. Professor Service made a similar point at paragraph 68 of his report – the 2006 anti- extremism amendment, he said, "contained no permission for the assassination of 'extremists' who were not terrorists"¹¹¹¹ INQ017734 (page 2 paragraph 4) INQ017680 [video] INQ019146 (page 22 paragraph 68) Mr Kovtun states that he is one year older than Mr Lugovoy in his 2 June 2015 witness statement INQ021208 (page 6). There is evidence that Mr Lugovoy was born in 1966. INQ016809 INQ006067 The Minister may give consent, in accordance with paragraph 8 above, to the attendance at a closed hearing of persons other than those identified in paragraph 9, where the person concerned is a legal representative of the witness, the Chairman indicates in writing that the attendance of the person is necessary, and arrangements are in place which the Minister considers adequate to ensure that the public interest in preventing the disclosure of the Schedule material is not damaged.Show full note

f. The only legal route to extra-territorial action against Mr Litvinenko was therefore under the Terrorism Law. However, action could only have been taken against Mr Litvinenko under this law had he been involved in, or no doubt suspected of involvement in, some form of terrorist activity. Article 3 of the Terrorism Law contains definitions of terrorism and terrorist acts that are broadly conventional, and certainly not as expansive as the definition of 'extremism' in the second of the 2006 laws. Mr Batmanov's letter (above) states that, "Alexander Litvinenko did not make part of a terrorist organization and was not accused by Russian law enforcement bodies of having committed a terrorist crime." That accords with my understanding of the evidence

¶5.19 On the basis of the evidence currently before me, and in light of the considerations

set out above, I am therefore not persuaded that any action could have been taken by the FSB against Mr Litvinenko in 2006 under the terms of either of the 2006 laws.

¶5.20 For completeness, I should add that the letter from Mr Batmanov made a further

suggestion, to the effect that the Terrorism Law only established a legal basis for Russia's armed forces to take international action against terrorism, and that it did not create any similar legal basis for international action by the FSB. Mr Holiner disputed this analysis. His view was that the Terrorism Law did indeed authorise international action of this sort by the FSB, and that this was also clear from the relevant terms of the Federal Security Service Law.

¶5.21 I find Mr Holiner's reasoning on this point compelling, but in the end it is unnecessary

for me to reach a conclusion on it. There is a simple factual reason why the terms of the 2006 laws did not permit any Russian forces to take action against Mr Litvinenko in the UK, namely that he had not been involved in terrorist activities.

¶Wider considerations 5.22 But as I have already indicated, that is not the end of the matter. Professor Service,

rightly in my view, identified a further consideration. Even if the strict terms of the 2006 laws could not be brought to bear against Mr Litvinenko, can it be said that they had a subtler, less formal effect of encouraging, or emboldening, or even licensing the FSB to take action against Mr Litvinenko and others like him?

¶5.23 Professor Service helpfully put the 2006 laws into their historical context. He referred in

particular to the public outrage in Russia following the killing of five Russian diplomats by a Chechen supporting terrorist group in Iraq, and also to FSB claims in July 2006

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that it had been responsible for the explosion in Ingushetia that had killed Shamil Basayev, a leading Chechen terrorist.

¶5.24 Against this backdrop, Professor Service expressed the view that the 2006 amendment

to the anti-extremist law had an influence going beyond the scope of its black letter provisions. In his report he put the matter in this way:

"The amendment did, however, have a political consequence of importance by broadening the spectrum of targets to be pursued by the security agencies. Not only out-and-out terrorists were mentioned but 'extremists' in general, and extremism itself was described only in relation to imprecisely delineated categories of activity. The door was left open to brand a large swathe of opponents of Putin and his administration as extremists who needed to be eliminated. And terrorism and extremism were frequently mentioned in the same breath by Putin and his ministers. There was little attempt to make an official distinction between the two phenomena that the legislation was directed against. To that extent, there was an implicit licensing package for FSB operations abroad as well as in Russia."¹²¹² Berezovsky 25/3-30 Marina Litvinenko 4/31-32; 4/41; 4/112-114 INQ019146 (page 22 paragraph 69) INQ021208 (page 6) Elenora Wall 32/81 INQ020031 No person shall produce or show to any witness any of the Schedule material, or ask any questions which tend to reveal the existence or content of such material, otherwise than in accordance with a procedure formulated by the Core Inquiry Team and agreed in writing by the Minister.Show full note

¶5.25 Professor Service expanded on this reasoning in giving oral evidence. When asked

whether it was his view that the 2006 laws had more of a political than a legal effect, he stated:

"Yes, I think that's a fair summary. In legal terms, only one of them related to legal encouragement for taking physical action abroad, but generally taking the two together, the political effect was to engender an environment within the FSB and within public opinion that there was little difference between acting against extremism and acting against terrorism… legally speaking, there is a distinction, but it's hard to avoid the conclusion that the authorities wanted to fudge that distinction and just create a new feeling for the FSB to feel free to act without constraint."¹³¹³ Berezovsky v Abramovich [2012] EWHC 2463 (Comm), paragraphs 97-112 Marina Litvinenko 4/113; INQ016447 Service 28/47 lines 4-14 Hohne 32/50-54; Marina Wall 32/56 INQ017779 (page 30) Dombey 23/5-56 The Chairman shall ensure that no transcript of the evidence given at a closed hearing is made available to any person other than the Minister, members of the Core Inquiry Team or HMG advisers.

¶He continued:

"We don't have definite documentation about exactly why President Putin introduced these two legal changes in 2006, but we do know that they were introduced to the maximum of publicity, so that it is inconceivable that they were not thought to be important elements in reinforcing support in public opinion for what the authorities wanted to do."¹⁴¹⁴ Berezovsky 25/6-7 Felshtinsky 23/128-131 Service 28/48 lines 3-9 Hohne 32/51 INQ015781 part 1, INQ015781 part 2; INQ015777 part 1, INQ015777 part 2; INQ015778; INQ015779; INQ015780 [videos] Dombey 23/13-39 The Chairman shall ensure that no reference is made to the substance of the evidence given at a closed hearing of the Inquiry in any open ruling, judgment or report arising out of the Inquiry, or otherwise. Amendments to this Restriction Notice November 2014Show full note

¶And further:

"We simply don't know the extent to which those two amendments affected the operational activity of the FSB. It seems a strong possibility that those amendments opened a channel for the FSB that wasn't as wide beforehand."¹⁵¹⁵ Marina Litvinenko 3/35-36 INQ019146 (page 24 paragraph 75) Service 28/51 lines 2-6 Marina Wall 32/55 INQ017779 Dombey 23/22 By letter to the Chairman under this paragraph the Minister may remove from the scope of this Notice any document or information referred to in the Schedule.

¶The Litvinenko Inquiry