Jon Gauslaa,
Legal Advisor of the Bellona Foundation

Analysis of the Supreme Court verdict

A step backwards
On February 4, 1999 the Criminal Collegiate of the Supreme Court of the Russian Federation consisting of Chairman Magomed Karimov and judges Voroshtsov and Gritskikh, failed to determine the Nikitin case. The Supreme Court acknowledges that the indictment against him is so vague that it deprives the accused of his right to defend himself with legal means, and that the FSB has not investigated the case in an objective manner. However, rather than dismissing the case because of its lack of legal and factual foundation, the Supreme Court returned it to the FSB for "additional investigation". It also upheld Nikitin’s city arrest and gave the FSB, who is responsible for the misconduct pointed out in the verdict, a new chance to prosecute and harass him.

The Supreme Court could on February 4 have ended the Soviet practice of sending unfounded criminal cases back for "additional investigation" rather than acquitting the accused. As this practice contradicts several fundamental principles of the rule of law, the Supreme Court had a clear obligation to end it. However, rather than living up to its obligations, it refused to take the responsibility for the determination of the case. The victim of this refusal is Aleksandr Nikitin.

On February 4 it was almost exactly three years since he was arrested and charged with espionage and disclosure of state secrets for having written two chapters of Bellona’s environmental report on the radioactive pollution within Russia’s Northern Fleet. During these three years he has suffered severe violations of his basic rights and freedoms. He is still charged on the basis of secret and retroactive legislation, and he was until October 20, 1998 denied access to the regulations he is accused of having violated. He is still under city arrest in St. Petersburg and will be until his case is finally determined. He has been subject to massive public prejudication from responsible Russian authorities, and when, last October, he got the chance to clear his name in a Court of justice, the trial showed that the accusations against him were unfounded. Nikitin was, however, not acquitted, as he would have been in a country truly ruled by law. Instead, the Court upheld the travel restrictions on him and returned the case to the FSB for additional investigation.

Now Russia’s supreme judicial authority has confirmed this decision. As the Supreme Court confirmed the verdict of the City Court on most points and on some points even fortified the City Court’s criticism of the FSB and the prosecutor’s office, the verdict was more a consolidation for Nikitin than a step backwards. For the struggle to establish the rule of law in Russia the decision was, however, a step backwards. By sending the case back for additional investigation and maintaining Nikitin’s city arrest, the Supreme Court did not just confirm the decision of the City Court. It also confirmed a legal system in which severe violations of the individual’s basic rights and freedoms are acceptable and where such violations can continue indefinitely.

Supreme Court: FSB has committed serious misconduct
The Supreme Court did, with one exception (commented on below), maintain the City Court’s verdict. Thus the Supreme Court maintained that:

• the accusations against Nikitin are so unclear that he is deprived from his legal right to defence,
• they give the Court no possibility of evaluating the foundation of the indictment, and
• each and all expert-evaluations the indictment is based on are useless.

The Supreme Court has, as has the City Court, considered the FSB’s three-year investigation of the case to be of no value. Furthermore, it points out that the investigation has violated several provisions of the Criminal Procedure Code. Among these provisions are Art. 144, which requires that the time, place and other circumstances of the alleged crime shall be mentioned in the indictment. The Supreme Court states that these requirements are not fulfilled in the indictment against Nikitin: "[T]he factual and concrete circumstances of the crime, the essence of information pertaining to state secrets, the concrete text of the primary documents (i.e. the corresponding chapters of the report) are not indicated". Thus, the Supreme Court has maintained the City Court’s point of view: The indictment must quote the alleged secret information in the Bellona report. Only then will the Court have the possibility to evaluate the foundation of the indictment, and only then will Nikitin have a proper possibility to defend himself.

The Supreme Court also points out that Art. 20 of the Criminal Procedure Code has been violated. This provision requires that the investigative and prosecuting authorities shall carry out a thorough and objective examination, and also reveal the details that are favourable for the accused. The Supreme Court’s conclusion on this point is devastating for the FSB (and the Prosecutor’s Office):

"As it is evident from the materials of the case, the bodies of preliminary investigation have violated the mentioned requirements of the Criminal Procedure Code … The Court Collegium has considered these violations significant".

According to the Supreme Court the investigation has not been objective, it has not bothered to reveal details in Nikitin’s favour and it has levelled an indictment which it is impossible to defend oneself against with legal means. The Court also gives an example of this kind of misconduct:

"…Nikitin claimed that all the information he had used was taken from open sources. However, the experts do not answer this question, i.e.: their work is incomplete. … Nikitin’s arguments about the sources used for the report (open or closed, secret or not) remain not examined."

The Supreme Court also agrees with the City Court that the work of the experts who have estimated the Bellona report’s economical damage is useless.

It is noteworthy that Nikitin’s defence on numerous occasions has protested against all the mentioned violations, but the investigative and prosecuting authorities have either ignored the arguments of the defence or stated that they are groundless. Now, the Supreme Court has approved the defence’s point of view. Its verdict is therefore a much bigger defeat for the bodies who are responsible for bringing the Nikitin case to Court, than for the defence.

Refusal to take responsibility for the case
Although the Supreme Court’s verdict includes some positive elements, it must, be considered as a step backwards. Despite the Court’s acknowledgement that the investigative and prosecuting bodies did not act in an objective manner and committed serious misconduct, it did not take action consistent with this point of view. Rather than dismissing the case as unfounded, it gave the FSB another chance to come up with an indictment, while the accusations stand and Nikitin remains subject to city arrest in St. Petersburg. The basis for this decision seems to be Art. 232 of the Russian Criminal Procedure Code. According to this provision, the Court shall send the criminal case back for additional investigation if the inquiry is incomplete, if the needed additional investigation cannot be carried out during the trial and in cases where the investigative bodies have committed significant violations of the Criminal Procedure Code. Therefore, the Supreme Court states, the mentioned violations can be eliminated "only on the stage of preliminary investigation".

This reasoning is first and foremost of a formal nature. Art. 232 seems to prescribe that the Court must return even unfounded cases where the investigative or prosecuting authorities have committed misconduct, to additional investigation rather than acquitting the accused. The provision therefore violates the presumption of innocence in Art. 49 of the Russian Constitution. See also Art. 6 (2) of the European Convention on Human Rights which became legally binding for Russia in May 1998. Thus, if the Supreme Court had wanted to, it could easily have found a legal foundation for acting unlike it did. The question then is whyhy it decided to base its decision on the out-dated Criminal Procedure Code and not on the Russian Constitution and international treaties.

The reason is not, as some commentators have assumed, that it wanted to give the FSB a chance to discover new evidence. This possibility is exhausted, and even the FSB has in a resolution dated February 24, 1998 acknowledged this fact. The facts of the case were clarified during 1995 and 1996. What remains to be done is to qualify Nikitin’s actions legally, i.e.: to decide whether Nikitin while committing his actions violated any provisions of the Penal Code. The FSB has not yet been able to base its accusations on a valid legal foundation, or to carry out a correct legal qualification of his actions. It is therefore not surprising that the Supreme Court demands that a possible new indictment has to "properly apply the law, which was in force during the alleged actions of Nikitin." Before levelling a new indictment the investigation also has to perform a complete and proper expert evaluation of the open sources, as none of the previous expert committees have done this.

If the Supreme Court’s instructions are carried out, the FSB will have to dismiss the case. The only imaginable legal foundation for the accusations is the secret and retroactive decrees. This foundation is however unconstitutional, a fact that is recognised twice by the General Prosecutor, and also (even if it is not directly stated) by the Supreme Court. Moreover, a proper evaluation of the open sources will show that all information in the Bellona report was taken from open sources.

The verdict is therefore, to some extent, positive for Nikitin. In his appeal he had, however, demanded the case dismissed because of its lack of a valid legal foundation and the lack of corpus delicti in his actions. Thus, the Supreme Court had a clear invitation to do more than just demanding that the investigation should be carried out in a proper and lawful manner. But the Supreme Court did not even bother to discuss these questions and the most probable explanation is that it did not want to take the responsibility for the determination of the case. Rather than taking this responsibility it returned it to the FSB, and by maintaining and fortifying the City Court’s demands on the additional investigation, its message to the FSB seems to be: "You started this case. Now you have to close it."

The FSB has, until now, ignored all orders to carry out a proper evaluation of the open sources and to apply the law properly. There is, therefore, reason to believe that the FSB will once more be levelling an indictment as vague as the one the Supreme Court rejected, and still based on secret and retroactive decrees. Such an indictment will neither lead to a conviction nor an acquittal, as the practice of sending unfounded cases back for additional investigation, rather than dismissing them, has now been confirmed by the Supreme Court. Thus, it has also set the precedent for the future development of the case. FSB’s indictment will be rejected by the Court that is to handle the case next time around and the case will be sent back for further investigation. Then the FSB will come up with a new indictment, which will in turn be sent back, and, since there are no legal limits concerning how many times this may repeat itself, the case could continue for the rest of Nikitin’s life.

Defence arguments ignored
Rather than evaluating the arguments in Nikitin’s appeal suggesting the case had to be dismissed because of its lack of a valid legal foundation, the Supreme Court turned down the appeal because the accusations "are based on evidence which need additional examination". According to the Court, this can only be done "at the stage of preliminary investigation". This is a weird statement. The question of the legal foundation of a criminal charge is not a question that should need any additional examination at the stage of preliminary investigation. The question is strictly judicial, and the closest authority to evaluate it is not the FSB, the Prosecutor’s Office or any obscure expert-committee, but the Supreme Court itself. Its arguments for not evaluating the legal foundation of the case, is therefore incomprehensible from a judicial point of view and they fortify the impression that the Supreme Court did not want to take any responsibility for the determination of the case.

Moreover, the defence’s appeal concerning the European Convention on Human Rights (EConHR), which includes alleged violations of Art. 6 (1), 6 (2), 7, 13 and Art. 2 of Protocol No. 4, is not at all discussed by the Supreme Court, except in the following one-liner: "The [City Court’s] verdict does not contradict with the norms of international law mentioned in the complaint".

The prosecution of Nikitin does however involve a clear violation of Art. 7 of the EConHR. In particular, prosecution for offences defined by decrees that had not come into force at the time of the alleged offence, violates its prohibition of the use of retroactive legislation. Moreover, criminal liability must be determined by reference to laws that are accessible to the citizen. This is a requirement under both Art. 7 and Art. 5 of the EConHR, and lies at the heart of the principle of legality and protection from arbitrariness enshrined in the Convention. As the charges have no valid legal foundation neither the restrictions on Nikitin’s liberty have a valid legal foundation. Thus, also Art. 2 of Protocol No. 4 to the EConHR, which guarantees the right to freedom of movement, is violated.

Moreover, the Court’s returning of the case to additional investigation rather than reaching a determination, makes it impossible to predict when the case might end. The case has already lasted for almost three and a half years and now the FSB has to start from scratch. It is therefore reason to believe that the case involves a violation of Nikitin’s right to have the criminal charge against him determined "within a reasonable time", cf. EConHR Art. 6 (1). The decision to send the case back for additional investigation also violates the presumption of innocence in Art. 6 (2), according to which all reasonable doubt shall come to the benefit of the accused. If the prosecution cannot present any damning evidence against the accused, then the Court must reach an acquittal. Finally Art. 13 of the EConHR gives the individual a right to an "effective remedy" for complaints of alleged violations of their rights under the EConHR. Nikitin, as mentioned above, claimed that several of his rights under the Convention had been violated, but the Supreme Court ignored the subject. Thus his right to an effective remedy have been violated.

The Supreme Court’s total disregard of Nikitin’s appeal concerning the EConHR is another demonstration of its lack of willingness to determine the case. Moreover, the fact that it turned down this appeal without even discussing it, gives serious reason to doubt whether Russian Courts understand the range of the EConHR and what Russia’s ratification of it actually means.

Renunciation of making judicial evaluations
The discussion above shows that the Supreme Court neglected to evaluate the legal foundation of the indictment and alleged violations of the EConHR. The most striking demonstration of its unwillingness to carry out legal evaluations is however found in its statements about what may be or may not be state secrets, according to the Russian Federal Law on State Secrets.

The City Court stated in its verdict that the indictment’s point concerning Nikitin’s alleged handing over state secrets about "losses of armament and military equipment in times of peace" (in connection with the report’s mentioning of the submarine accidents on the vessels K-27 to K-279) had to be abolished because it did not correspond with the Law on State Secrets. What the City Court means is that this law has no formulations that allows information about such losses to be classified. Therefore such information can under no circumstances be considered as secret. This is a question about how to interpret the wording of the law, and it is a purely legal evaluation. Article 5 part 1 of the Federal Law on State Secrets, which is the relevant provision, mentions "tactical-technical characteristics" of armament and military equipment, but not the pure fact that such equipment is lost. The City Court’s interpretation therefore seems convincing.

The Supreme Court has however overturned this part of the City Court’s verdict because its "statement that the data about submarines from K-27 to K-279 does not correspond with the content of the Federal Law on State Secrets, was based on not examined materials of the case and should be excluded from the verdict." Thus the Supreme Court leaves open the question of whether or not information on ‘losses of armament or military equipment in times of peace’ is a state secret. Since this is strictly a question about how to interpret the law, it is difficult to figure out how the Supreme Court can claim that the City Court’s evaluation was based on "not examined materials of the case". The only material that needed as a basis for this evaluation is the text of the Law on State Secrets, and the indictment. The City Court used this material, interpreted the Law and concluded that the indictment contradicts the Law on this point. It is therefore not particularly easy to understand the Supreme Court’s abolishing of this part of the City Court’s verdict.

Concluding remarks
The general impression is of a Supreme Court wanting to deal only with questions of a procedural nature, while it avoided carrying out a judicial evaluation concerning the legal foundation of the charges. Thus, the Supreme Court has passed the responsibility for determining the Nikitin case over to others.

The Supreme Court has, however, made it difficult for the FSB to present a new indictment, stipulating that any new indictment be based on objective, expert evaluation of the open sources and a proper application of the law. The result of the evaluation of the open sources will be that Nikitin took all the information he compiled in the Bellona-report from such sources, and a proper application of the law will lead to the dismissal of the case because of its lack of legal foundation. However, by failing to determine the case and returning it to the FSB for additional investigation, the Supreme Court has given the FSB a carte blanche to continue its harassment of Mr. Nikitin.

Since not even the Supreme Court was willing to determine the case there is reason to believe that it has entered a vicious circle, where it may be sent back and forth between the FSB and Russian Courts for years. The FSB will, as shown above, not be able to come up with an indictment that will be accepted by the Courts. However, all the actions that the FSB has performed so far indicate that it will level a new indictment, just vague and still based on secret and retroactive decrees. The Court will return such an indictment to additional investigation. Then the FSB will come up with a new indictment, which the Court again will return, and this may repeat itself over and over again.

Russian law sets no limit for the number of times a judge can send a case back to be investigated again. In extreme cases, Russian Courts are said to have returned criminal cases to additional investigation no less than 13[thirteen (!)] times.

On February 4, 1999, the Russian Supreme Court could have ended this outrageous practice, but it did not. Instead it confirmed the words of Karl Marx: History repeats itself – first as a tragedy, then as a farce. For those who have hoped for a development towards the rule of law in Russia, there is however, no reason to be amused.

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