From Russia, with Love – some issues of espionage against the European Union

by | Feb 21, 2024

The recent news related to Tatjana Ždanoka has raised questions about espionage against the European Union and its institutions.

Who is Tatjana Ždanoka?

She was born in 1950, in Riga, Latvia (at that time a member state of the Soviet Union). She has been actively involved in Latvian politics since the early 1990s, she is the co-chairwoman of the Latvian Russian Union and its predecessor parties, including Equal Rights and For Human Rights in a United Latvia. Through her political career, she has been a consistent advocate for minority rights and social justice, maintained close relationship with Russia.

In the late 1980s, she was one of the leaders of the Interfront, a political organization opposing Latvia’s independence from the Soviet Union and rapid market reforms. After the political changes, she remained active in the Communist Party of Latvia, and based on Latvian law, she is prohibited from further nomination for election to the Latvian Parliament or local councils. However, she can participate in European Parliament elections, that is why she has a seat in the European Parliament.

In early 2024, she has faced accusations of being a Russian intelligence agent with maintaining links to the Russian FSB, which raised serious concerns. She has denied the allegations and currently still serves as a MEP.

Is there espionage against the EU?

Opinions differ on the seriousness of the danger of classic espionage against the EU or its institutions.

As a matter of fact, in theory, the capital of the EU, Brussels, opens a lot of opportunities for espionage. Lot of events are being organised, press and political networks are dominant in the city, the European External Action Service, back in 2019 has even issued a warning to staff about potential eavesdropping, which is a sign of the problem being taken seriously.

Still, there is a vast uncertainty about the seriousness of the question. The number of spies operating in Brussels is unknown, even according to Belgian security officials. Unlike some other states (e.g. the United States), Belgium does not require people working for foreign interests to register, making it harder to track influence attempts. Brussels hosts not only EU institutions and NATO but also numerous other international organizations and foreign diplomatic missions, which can all operate as espionage asylums. Many available job opportunities are potential covers for intelligence officers, a well-known example being the closure of the the Confucius Institute (operating at the Free University of Brussels) in 2019, after its director was accused of spying for Beijing.

The real problem is a vast legal gap related to the problem. Not only the fact that the legal framework for prosecuting espionage in Belgium is outdated, with some paragraphs dating back to before World War II, but the fact that this question is at the crossroads of member state sovereignty and competence and necessity on EU level. The latter may require EU-level rules, but the founding treaties do not provide for competence to the EU, what’s more, member states probably are not happy with the idea of giving powers to the EU in this matter.

At the same time, Belgium constantly develops its laws as territorial jurisdiction dictates steps from this state, other member states may not exercise any investigative or punitive power – but currently it is far from being perfect.

One field, where espionage activities can be dangerous, is the EU’s foreign policy. Espionage generally provides access to critical information about other nations’ intentions, capabilities, and vulnerabilities, which may also apply to the EU’s foreign policy decision-making, especially in its preparatory phase. Sensitive information may be available, which shapes the EU’s foreign policy decisions, allowing it to anticipate threats, assess risks, and identify opportunities. Additionally, espionage enables states to manipulate perceptions, opinions, and decisions, foreign actors may infiltrate EU institutions, lobby groups, and media outlets to sway narratives in their favour and by controlling information channels, they can even alter the EU’s stance on various issues – a good example of that are Russia’s disinformation campaigns during the annexation of Crimea, with which it has tried to influence European public opinion and policy responses.

Of course, these risks apply differently in relation to different institutions. In our opinion, the European Parliament is probably the least “endangered” of those, as MEPs are usually not involved in preparation of decisions, they rarely get sensitive information, and their activities are public – giving less space for intelligence activities.

When dealing with espionage, the EU must balance openness with vigilance to maintain relationships while safeguarding its interests. It invests in counterintelligence to protect its institutions, officials, and sensitive data. But the lack of clear competence and rules mentioned above provide less than perfect results.

A recent precedent – the story of “KGBéla”

One situation similar to the one in our scrutiny is the case of Béla Kovács, a Hungarian economist, businessman, and politician born in 1960. He was a member of the European Parliament representing the extreme right-wing Jobbik party from 2009 to 2017. Next to his EP activities, he was also the founder and former president of a political organisation of extreme right wing parties, the European National Movements Alliance. He got the nickname “KGBéla” for his cooperation with the Russian intelligence, built on the Hungarian abbreviation of the Soviet State Security Commission, which had operated from 1954 to 1991.

While serving in the European Parliament, he has been accused of keeping contacts with Russian intelligence officers and had to face faced charges related to espionage. But the Hungarian Criminal Code considered “espionage” only as a crime in relation to the Hungarian state (Section 261), with the following text:

(1) A person who engages in intelligence activities for a foreign power or foreign organisation against Hungary is guilty of a felony and shall be punished by imprisonment for two to eight years.

(2) A person who commits espionage as specified in paragraph (1) by disclosing data classified as top secret shall be punished by imprisonment for five to fifteen years.

(3) A person who commits preparation for espionage shall be punished by imprisonment for one to five years.

(4) A person shall not be liable to punishment for offering or undertaking to engage in intelligence activities if he reports his offer or undertaking and reveals his foreign connection in full to the authorities or a competent state organ before performing any other intelligence activity.

Section 261 of the Hungarian Criminal Code

A solution had to be found, and it was, by adding a new section (Section 261/A) about a “new” crime in 2014, namely “Espionage against the institutions of the European Union”. The text is the following:

A person who engages in intelligence activity for a third country outside the European Union against the European Parliament, the European Commission or the Council of the European Union shall be punishable in accordance with section 261.

Section 261/A of the Hungarian Criminal Code

After the legislation entered into force, in 2015, Hungarian authorities initiated legal proceedings against Béla Kovács, during which he was initially acquitted on some charges, but was ultimately found guilty of espionage preparation, espionage, budget fraud, and document forgery (the latter being related to providing financial support to some members of his party from EP funds). First, he received a two-years suspended prison sentence, then in September 2022, the court reevaluated the case, finding the offense more severe, with the sentence modified to five years in prison and banning him from public affairs for ten years. According to the judgment, between 2012 and 2014, Béla Kovács passed information on energy matters, on the EP elections, on the Hungarian political situation and even the expansion of the Paks nuclear power plant to military intelligence officers working undercover at the Russian embassy in Budapest.

At the same time, it is important to mention, that the execution of the judgment is currently on hold as Béla Kovács currently resides in Moscow and does not show any sign of willingness to return to Hungary. During the trial, he once said that his workplace – the Moscow-based MGIMO, which does have a history of training spies for the Soviet Union – would not let him leave for a week, which is quite unusual from an academic institution, to say the least.

Still, questions have been raised related to the legitimacy of the proceeding – mostly around the fact, that the new section of the criminal code about “Espionage against the institutions of the European Union” was created after or at least during the time of the alleged crime already being committed, being in violation of the “nullum crimen sine lege” principle meaning “no crime without law”. The judicial proceedings have not found any of these issues problematic enough to halt the criminal proceeding, seemingly providing for a possible model for the future: member states using their own domestic laws for the protection of interest of the EU.

A model for the future?

What kind of legislation and/or institutional solutions are the most capable of protecting the EU from espionage? There are practically two ways for the future: Union legislation or member states doing the job for the community.

Does the Hungarian case constitute a working model? Do the member states have the penal power to create a crime protecting the European Union? The currently existing only precedent does not give us a clear answer. Even though the judicial decision in the case of “KGBéla” is final, many of the questions raised by that may still be subject to scrutiny by European judicial fora, e.g. the European Court of Human Rights. At the same time, it is important to stress that this solution is in conformity with the existing practice, it does not lead to competence debates and does not require the EU to develop counterintelligence capacities beyond its already existing protective solutions.

However, the nature of the EU decision-making process – especially in cases related to foreign policy – may require a more direct capacity building on the side of the EU. No offense intended towards Belgium, but vesting the responsibility exclusively on the territorial state practically means that the EU is defenceless against Belgian espionage – while territoriality completely excludes operative capacities of other member states, weakening the EU’s potential defence capacities. As a result of this, developing the EU’s own competence of protection against espionage (in the framework of already applicable EU laws, e.g. norms related to respect for human rights) seems to be a valid idea – regardless of all potential resistance from member states.

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