Russian Supreme Court:

Researcher Igor Sutyagin at the USA and Canada department of the Russian Academy of Sciences, was arrested by the FSB in the Russian town of Kaluga on October 27, 1999. He has been kept in pre-trial detention ever since, on charges of treason through espionage.

The trial against him started more than one year ago, and the prosecutor could not convince the Kaluga City Court about the rightfulness of the charges. However, rather than acquitting Sutyagin it sent the case back to the FSB for additional investigation on December 27, 2001. His defence appealed the decision, demanding Sutyagin’s immediate release and that the case should be closed due to the lack of content of crime in his actions.

The hearing of the appeal was scheduled for March 13, 2002, but in a surprise move, the Russian General Prosecutor asked for a postponement of the hearing so that it could take part in the case and evaluate it more closely. The Supreme Court was most willing to comply with this request, and postponed the hearing until March 20, 2002.

Below follows some background information on the case. More information is avvailable at http://www.case52.org.

Case based on secret decree

According to the charges Sutyagin, who has no security clearance and thus, has no access to state secrets, collected, kept and transferred abroad information pertaining to state secrets by preparing a number of reports, mostly for publishing in the Russian press, on nuclear arms, missile defence and arms-control issues.

The fact that the disputed information was available in open sources has neither bothered the FSB-investigators nor the prosecutor, who have based their allegation that the case involves state secrets on the infamous decree 055:96 of the Ministry of Defence.

The case against Sutyagin was brought before the Kaluga City Court in the winter of 2000/2001, but due to several postponements the trial continued until December 27, 2001.

Substantial law-violation by investigation

While the defence pleaded for a full acquittal the prosecutor insisted that Sutyagin’s activity had inserted gross damage to the security of the Russian Federation. Thus, 14 years of forced labour would be a sentence that would fit his ‘crime’.

On December 27, 2001, the Kaluga Court ruled that the investigating body, the FSB, substantially had violated the Russian Criminal Procedure Code and deprived Mr. Sutyagin of his constitutional right to defend himself. In particular the Court pointed out that the indictment did not specify what were the secrets that Sutyagin allegedly had disclosed, and that the charges were based on Decree No. 55 of the Ministry of Defence, which was secret and not registered and therefore could not be used for prosecution. The latter had a few months before been established by a ruling of the Military Collegium of the Russian Supreme Court, after evaluation a complaint filed by the former submarine officer turned environmentalist, Aleksandr Nikitin.

In short, the Court found that there was no evidence against Sutyagin, and that the case lacks both a factual and a legal foundation. In any country ruled by law, such findings would have led to an acquittal. The burden of proof lies on the prosecution, and if it can’t fulfil its burden, the Court has to acquit the accused. Russia is however, a different place.

Case sent back to square one

Rather than acquitting Sutyagin because of the lack of evidence, the Kaluga Court gave the prosecution a chance to re-fabricate its case, by sending it back to the FSB for additional investigation.

In the first trial in the spy case against Aleksandr Nikitin in October 1998, the St. Petersburg City Court came up with an almost similar decision, and on almost similar grounds. Still, there are considerable differences between the effect of the two decisions.

In October 1998 Nikitin, who 14 months later went on to be acquitted by the St. Petersburg Court, was not allowed to leave St. Petersburg without the permission of the FSB, but yet a relatively free man. Sutyagin on the other hand, has already been imprisoned for almost 30 months, faces several more months in prison under appalling conditions.

Contradicts Constitutional Court

Besides, in April 1999 the Russian Constitutional Court cancelled the major parts of article 232 of the Russian Criminal Procedure Code, which was the legal basis for sending cases to additional investigation. The reason for the decision was that sending cases to additional investigation when there was not produced any significant evidence against the accused, would violate the presumption of innocence in Article 49 of the Russian Constitution, as well as several other Constitutional provisions.

The Constitutional Court could however not touch part 2 of article 232 because the plaintiff of the said case had not challenged it. Article 232 part 2 says that cases shall be sent to additional investigation if they involve “substantial violations” of the criminal procedure code by the investigative bodies.

Although the grounds of the Constitutional Court’s judgment indicates that it also considers article 232 part 2, as unconstitutional, the provision was formally kept in force. And this was the loophole the Kaluga Court used in order to send the case back to additional investigation rather than determining it.

The Russian Spy Mania

It is too early to predict what the involvement from the General Prosecutor and the Supreme Court’s postponement of the case means. Those who have followed the legal development in Russia closely throughout the last few years have however few reasons for mindless optimism.

In April 2000, the General Prosecutor made a similar move in the appeal-case against the then recently acquitted Aleksandr Nikitin, with the intention to prolong the case for months and even years. Then the Russian Supreme Court stood firm against the prosecution’s attempt, and managed to come up with a ruling in accordance with the rule of law. Only time will show if the same will happen in Sutyagin’s case. However, not even a full acquittal can repair the gross violations of his rights that he already has suffered.

The Sutyagin case fits well into the “spy mania”, which has plagued Russia recently, and that also includes the cases against Grigory Pasko, Valentin Moiseev, Aleksandr Danilov and others. Both the International Helsinki Federation and the EU-parliament has engaged themselves in Sutyagin’s case. On November 12, 2001, the Washington Post said the following in its editorial (“Injustice in Russia”):

“If [Sutyagin’s case] sounds like a bad parody of Kafka, that’s precisely the intention: The FSB wants Russians to know that it has the ability to jail anyone who somehow displeases the authorities, regardless of evidence or the law.”

These are harsh words, but on March 20, 2002, we might get an indictation regarding Russia’s supreme legal authority’s possibilities to control the activities and abilities of the FSB.