To the Collegium on Criminal Cases of the Supreme Court of the Russian Federation

Appeal to the Supreme Court lodged by prosecutor on January 2, 2000.

02.2000 13-25-95

APPEAL

According to the verdict of the court collegium on criminal cases of the St.-Petersburg City Court of December 29, 1999 under the presidency of Judge Golets S. Yu.,

NIKITIN, ALEKSANDR KONSTANTINOVICH, born on May 16, 1952 in Akhtyrka, Sumskaya oblast, in the Ukrainian SSR, (ethnic) Ukrainian, citizen of the Russian Federation, with higher education, married, captain of the 1st rank, pensioner of the Armed Forces of the Russian Federation, no prior convictions, place of residence: St. Petersburg, Ul. Tukhachevskogo, 5 – 4 – 69,

is acquitted under Article 275 and Article 283 (para. 1) of the Penal Code of the Russian Federation because of the lack of the corpus delicti according to item 2 part 1 article 5 of the Criminal-Procedure Code of the RSFSR.

The evidences, collected on the case, establish the guilt of Nikitin A. K. that being a citizen of the Russian Federation he collected the information constituting state secrets with the purpose to transfer it to the foreign organisation to the detriment of the external security of the Russian Federation in August, 1995 in St.-Petersburg, and in September, 1995 in Murmansk he transferred the specified information to the foreign organisation, i.e. committed a crime stipulated by Article 275 of the Penal Code of the Russian Federation; and also that in the spring – autumn of 1995 in Murmansk he divulged the information constituting state secrets, which became known to him while he had been at service, i.e. committed a crime stipulated by Article 283 (para. 1) of the Penal Code of the Russian Federation.

The experts’ committee of the 8th Department of the General Staff of the Russian Armed Forces concluded that the information collected and transferred by Nikitin A. K. to the foreign organisation, and also the information divulged by him while he had been in service in the Armed Forces of the Russian Federation is secret according to paragraphs 2, 4 and 6 of item 1 of Article 5 of the Russian Federal Law “On State secret”, and constitute state secrets both at the moment of the alleged actions incriminated to him, and at the present moment.

In the verdict without contesting objectively Nikitin’s actions the Court made an ungrounded conclusion that in his actions there is no components of the above mentioned crimes, because in the Court’s opinion, at the moment of his alleged actions there was no legislative base for referring information to the state secret in the Russian Federation, namely since December 12, 1993; that is from the moment of the enforcement of the Constitution of the Russian Federation, till October 6, 1997; that is up to the moment of adopting amendments and additions to the Russian Federal Law “On State secret” of July 21, 1993,

I believe, the given verdict should be subject of revoking because of the Court’s conclusions, which have been set up in the verdict, is in discordance with the actual facts of the case, wrong application of the criminal law, and also not complete examination.

For the correct and substantiated adoption of the decision on the present criminal case, it is necessary to consider the problem on the volume of the contents and accepted limits of realisation of the citizens’ constitutional rights, about the possibility of their limitation.

With the purposes of rational combination of harmony of the interests of the society, the state and the individual, alongside with the definition of the contents of the constitutional law, the legislator establishes the order of its realisation. The purpose of the procedural order of realisation of the rights consists in providing (guarantee) of use the concrete boons and values underlying the contents of the rights. The procedural order of realisation of the rights can also act as the known means of its limitation for a certain category of the citizens. The limitation of the rights and freedoms of the citizen can be realised by means of exception from these, or that possibility (legal power) from the contents of the right (legal power), and also by the special order of its realisation.

So, according to part 3 article 55 of the Constitution of the Russian Federation “Human and civil rights and freedoms can be curtailed by federal law only to the extent to which it may be necessary for the purpose of protecting the foundations of the Constitutional system, morality, and the health, rights, and legitimate interests of other individuals, or of ensuring the country’s defence and the State’s security”.

The said Constitutional principle conforms with the provisions of Article 29 of the Universal Declaration of Human Rights, that “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”, and also with Article 10 (1) of the European Convention of Human Rights declaring that, “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

At the same time, according to Article 10 (2) of the Convention, the accomplishment of these freedoms “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety,… preventing the disclosure of information received in confidence”.

According to Article 29 (4) of the Constitution of the Russian Federation the list of information constituting state secrets is defined by federal law, which according to Article 15 (3) of the Constitution of the Russian Federation should be officially published for general knowledge as it mentions the rights, freedoms and duties of the man and citizen.

Basing on the above-mentioned postulate in the verdict, the Court made an erroneous conclusion that in the Russian Federation since December 12, 1993; that is from the moment of the enforcement of the Constitution of the Russian Federation till October 6, 1997; that is up to the moment of adopting amendments and additions to the Law of the Russian Federation “On State secret” of July 21, 1993, there was no legislative base for referring information to the state secret and, that only “the new edition of the Law of the Russian Federation "On State Secrets", which was put into force by the Federal law on October 6, 1997, has put the law in conformity with the requirements of the Constitution; and hence, only from this moment there was a possible independent application of Article 5 of the Law of the Russian Federation "On State Secrets". That is without the reference to "The List of the information referred to state secret", which was confirmed by the decree of the President of the Russian Federation on November 30, 1995” (p. 27).

Thus, the court interpreted the law incorrectly and stated that the List of the information constituting state secret is given exclusively in Article 5 of the Russian Federal Law “On State Secret” in its new wording. In the reality, Article 5 of the Russian Federal Law “On State Secret” in the edition of July 21, 1993 on the moment when investigating agencies incriminated Nikitin A. K in particular actions, contained “the information, which can be referred to as state secrets”.

At the same time, the Court’s conclusion that “while Nikitin was working on the report (August-September 1995) it would be wrongful to apply Article 5 of the law of the Russian Federation “On State Secrets” in order to solve the question regarding which concrete information that can be related to the category “information constituting state secrets”. The mentioned article contained the list of information as its disposition specifies which could be pertained to state secret only after observance of the special procedure, i.e.: after inserting [the information] into the list the information constituting state secrets” (p. 27), are made arbitrary and do not originate from the Law itself.

In reality some information could be referred to state secrets by the same Law, which established the order in details regarding relating the information to state secrets and its classifying (part 4 III), but not “after inserting (the list of Article 5) into the list of information constituting state secret.”

The terminological discordance, which appeared on December 12, 1993 after the enforcement of the Constitution of the Russian Federation, between the Law of the Russian Federation “On State Secret” in the edition of July 21, 1993 and the Constitution was eliminated as a result of the changes and additions which were brought in by the Federal Law no. 131-FZ on October 6, 1997. Then Article 5 of the Russian Federal Law "On state secret" was set in a new wording and is denoted as “List of the information constituting state secrets”. The contents of Article 5 of the Law in its old edition, despite the number of improvements and detailed elaboration of its provisions, does in principle not differ from the new edition on the structure and contents.

Also item 4 of the decision of the Constitutional Court of the Russian Federation “On the case about the examining of the constitutionality of a number of provisions of item “a” of Article 64 of the Penal Code of the RSFSR in connection with the petition of citizen V. A. Smirnov No. P-17 of December 20, 1995, testifies of the terminological discordance between the Law of the Russian Federation “On State Secret” in the edition of July 21, 1993 and the Constitution of the Russian Federation of December 12, 1993. The Constitutional Court of the Russian Federation has explained that “Realisation of the demands of Article 29 (4) of the Constitution of the Russian Federation is provided by the Law of the Russian Federation of July 21, 1993, in which the definition of state secrets is defined as well as the information referred to state secrets is specified”.

Later the Constitutional Court of the Russian Federation once again confirmed the given approach to the legislative base on the protection of state secrets.

So, regarding item 2 of the Decision “On case about examining the constitutionality of Articles 1 and 21 of the Russian Federal Law of July 21, 1993 “On State Secret” in connection with the petitions of the citizens V.M. Gurdziyants, V.N. Sintsov, V.N. Bugrov and A. K. Nikitin No. P-8 of March 27, 1996, the Constitutional Court concluded that “the Constitution of Russian Federation, warranting everyone the right freely to search to receive, to transfer, to effect and to spread the information by any way, at the same time provides, that the federal law defines the list of the information constituting state secret (Article 29, para. 4). Such decision is called by the necessity of the protection of the sovereignty of Russia, providing its defence and security and corresponds with the provisions of Article 55 (para. 3) of the Constitution of the Russian Federation permitting limitation by the federal act of the rights and freedoms of the man and citizen for the mentioned purposes, and consequently the right for the information. Proceeding from this, the legislator has the right to establish the list of the information, which can be referred to the state secret…”.

The fact that the Constitutional Court of the Russian Federation in these cases was talking about the very same Article 5 of the Russian Federal Law “On State Secret” in the edition of July 21, 1993 containing “The List of the information, which can be referred to state secrets”, eliminated the arisen terminological discordance between Article 29 (4) of the Constitution of the Russian Federation and the Russian Federal Law “On State Secret” in the old edition for the period before entering into force the respective alterations into this article of the Law on October 6, 1997.

Thus, the investigation bodies’ application of items 2, 4 and 6 of part 1 of Article 5 of the Russian Federal Law “On State Secret” in the edition of July 21, 1993, when charging Nikitin A. K. is substantiated and legal. Consequently, the Court’s conclusions about the lack in the Russian Federation for a long time of a legislative definition of the classified information, and also that the experts and the investigating bodies have made a conclusion about secrecy of the information collected and transferred by Nikitin A. K. to the foreign organisation, and the information divulged by him for the same organisation, are arbitrary and not grounded on the law as well as inconsistent and contradict the exact meaning of the Law.
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Such arbitrary and wrong interpretation by the Court of the Constitution of the Russian Federation and the Federal law of the Russian Federation on the protection of the state secrets in the given criminal case, also contradicts the judicial opinion on the concrete criminal cases of a similar category in the above-mentioned period of time.

So arbitrary and incorrectly the Court has also interpreted the provisions of the Constitution of the Russian Federation about the demand of the publishing of the laws and the subordinate legislation. The Court connected closely the conclusions on this issue with the above-mentioned argumentation about the lack of a real legislative base in Russia for the protection of state secrets in 1993-1997 as the base for instituting criminal proceedings for the particular actions, accomplished by NIKITIN A.K.

For a regulation of the issues related to the protection of state secrets, the Russian Federal Law “On State Secret” stipulates a possibility for a further development of the legislative base by the issuing of subordinate legislation, which concretises the provisions of the federal law about state secrets by its kinds, subjects (bearers) etc. It stipulates organisational and other measures directed on providing and protection of the state secret.

According to the Court, all these acts should be officially published for general knowledge, and only in this case citizen is a subject to the criminal responsibility on the basis of article 275 and 283 of the Criminal Code of the Russian Federation.

Substantiating its position the Court refers to the Decree of the President of Russian Federation No. 104 of January 21, 1993 “About the normative acts of the central bodies of state administration of the Russian Federation”, according to which “the acts, which have not passed the state registration, and also acts that are registered, but not published in the proper order, do not entail legal effects as they have not entered into force and can not serve as lawful basis for regulating legal relations…”.

It is impossible to agree with the Court’s conclusion, as the given acts [used in the Nikitin case] contain standards of the special action, they should be known only to the persons for whom they are addressed, as they concern state secrets.

As mentioned above, Article 55 (3) of the Constitution of the Russian Federation stipulates limitations of the human and civil rights and freedoms by federal law to the extent to which it may be necessary for the purpose of protecting the foundations of the Constitutional system, morality, and the health, rights, and legitimate interests of other individuals, or of ensuring the country’s defence and the State’s security.

Such a federal law, namely the Russian Federal Law “On State Secret”, in the edition of July 21, 1993, already existed in the Russian Federation at the moment of the enforcement of the Constitution of the Russian Federation. And, in the Decree of the Supreme Council of the Russian Federation “About the order of the enforcement of the Russian Federal Law “On State Secret” the earlier acting law in this field was not cancelled, and it was offered to the President and the Government of the Russian Federation to develop and to accept normative acts in accordance with the law, in order to concretise the provisions mentioned in it, and also to propose suggestions about arranging the legislative acts of the Russian Federation according to the said law.

Consequently, the normative acts existing in the Russian Federation before, remained in force to the extent they did not contradict the Constitution of the Russian Federation and the Russian Federal Law “On State Secret”.

In this connection it is necessary to conduct the analysis of the normative acts regulating the order of state registration and official publication of the normative acts, as the Court conducted such an analysis arbitrarily and selectively by “pulling out” certain provisions, which would ostensibly acknowledge the illegality of the decrees No. 071 and 055 issued by the Minister of Defence of the Russian Federation and which are the subject to security classification in the Armed Forces of the Russian Federation, but also a number of other normative acts.

So, even back on January 14, 1992 the President of the Russian Federation signed the Decree “About the protection of state secrets of the Russian Federation" No. 20, in which, in particular, it was offered to all the heads of the ministries, departments and central administrations of Russian Federation, “pending the issuing of the new legislative acts of the Russian Federation regulating providing of protection of state secrets of the Russian Federation to be guided by the earlier accepted normative acts on this issue”.

Later the President of the Russian Federation by the Decree “On the Procedure for Publication and Enforcement of the Presidential and Governmental Acts of the Russian Federation” No. 302 of March 26, 1992, decided that “the decrees and orders of the President of the Russian Federation and the decrees of the Government of the Russian Federation or their separate items containing information pertaining to the state secrets, are not subject to obligatory publication”.

The mentioned Decree of the President of the Russian Federation remained in force after the acceptance of the Constitution of the Russian Federation up to May 23, 1996, when the President of Russia signed Decree No. 763 of May 23, 1996 “On the Procedure for the Publication and Enforcement of Presidential and Governmental Acts of the Russian Federation and of Legal Normative Acts of Federal Executive Bodies.". Its item 10 contains a provision, according to which “normative legal Acts of federal executive bodies except Acts and some of their provisions that contain data constituting state secrets or confidential information, not registered officially and those registered officially but unpublished in the established procedure, shall not entail the legal consequences as not coming into force, and may not be the basis for regulation of respective legal relations, application of sanction to citizens, officials and organisations for non-fulfilment of instructions they contain”.

On October 18, 1992 the Government of the Russian Federation issued the classified decree No. 733-55 “On the temporary list of the information constituting state secret” which was not a subject to official publication according to item 1 of the Decree of the President of the Russian Federation No. 302 of March 26, 1992.

The said decree of the Government of the Russian Federation remained valid after the enforcement of the Constitution of the Russian Federation on December 12, 1993, what is proved by the Decree of the Government of the Russian Federation No. 798 of August 7, 1995 “About measures on enforcement of the documents of the Organisation on Security and Cooperation in Europe”, “The Vienna document of 1994 on negotiations about measures to reinforce trust and security”, “Global exchange of the military information”, “Code of conducts concerning political-military aspects of security”, and “Decision on principles regulating non-proliferation”, which made a change of not secret character in item 17 part 2, item 26, 27, 29 of part 3 of the mentioned Decree [No. 733-55], which confirms that it (decree) did not contradict the Constitution.

“The temporary list of the information to be classified in the Armed Forces of the Russian Federation” was worked out in order to put into force the decree of the Government of the Russian Federation of October 18, 1992 No. 733-55 “On the temporary list of the information constituting the state secret”. This temporary list was put into force on January 1, 1994 by the decree of the Minister of Defence of the Russian Federation No. 071 of September 7, 1993. This classified temporary list was valid at the moment of the alleged actions of Nikitin, and it was not officially published anywhere.

The fact that the Ministry of Defence of the Russian Federation developed the specified Temporary list, did not contradict Article 9 of the Russian Federal Law “On State Secret”, containing before and now a provision saying that State authorities, whose heads are empowered to refer information to state secrets in accordance with the List of information referred to as state secrets, shall work out detailed lists of information subject to classification, the expediency of which (Lists) classification is defined by their contents, as from the contents of Article 5 of the called Law, as in the old and in the new edition is visible, that it contains only generalised categories of the information constituting the state secret.

The said Temporary list defined only the“degree of secrecy of the information of the military character constituting state secret”, while the information itself constituting state secrets was mentioned in the Decree of the Government of the Russian Federation No. 733-55, which content did not contradict the Constitution of the Russian Federation. Besides, it (Temporary list) was intended “for the consulting in work and arranging degrees of secrecy of the bearers of the information constituting, state secret, in accordance with it”.

“The Temporary list of the information to be classified in the Armed Forces of the Russian Federation”, which came into force January 1, 1994 by the Decree of the Minister of Defence of the Russian Federation No. 071 of September 7, 1993 acting at the moment of the alleged actions of Nikitin, and then lost force on September 1, 1996 from the moment of enforcing “The List of information to be classified in the Armed Forces of the Russian Federation” by the Decree of the Minister of Defence of the Russian Federation No. 055 of August 10, 1996, – was not a subject to state registration.

According to item 1 of the Letter of the Ministry of Justice of the Russian Federation No. 08-09/307 of June 3, 1993 “About the application of the provision on the order of state registration of the departmental normative acts”, which clarifies the application of the “Provision on the order of state registration of the departmental normative acts” approved by the Decree of the Russian Federation No. 305 of May 8, 1992, “the acts of the bodies accountable only to the Supreme Council of the Russian Federation or under immediate jurisdiction of the President of the Russian Federation,… are not the subject to state registration” (Ministry of Defence of the Russian Federation is under immediate jurisdiction of the President of Russia). In accordance with the very same provision the acts of non-standard character are neither the subject for registration.

The fact that the given act of the Ministry of Defence of the Russian Federation was not a subject to state registration is also proved by the answer of the Chief of the Department of registration and control on the departmental normative acts of the Ministry of Justice of the Russian Federation, Khomchik T. N., in letter No. 07-3792 of December 10, 1999, which was received on inquiry of the state prosecution, and attached to the files of the criminal case during the trial (vol. 25, sheet 51). The specified letter was completely ignored by the court.

The mentioned Temporary list containing the detailed list of the information constituting state secret with their reference to a certain degree of secrecy, was not subject to official publication, as Article 4 of the Russian Federal Law “On mass media” of December 27, 1991 contains the direct prohibition for “… usage of mass media… for divulging the information constituting state secret… “.

Thus, “the Temporary list of the information to be classified in the Armed Forces of the Russian Federation” acting at the moment of the incriminated actions by Nikitin A. K., used by the investigating bodies and being enforced on January 1, 1994 by the Decree of the Minister of Defence of the Russian Federation no. 071 of September 7, 1993 as well as “The List of the information to be classified in the Armed Forces of the Russian Federation”, which came into force on September 1, 1996 and approved by the Decree of the Minister of Defence of the Russian Federation No. 055 of August 10, 1996, – did not require both state registration and publication, according to the Constitution of the Russian Federation, the Decrees of the President of the Russian Federation, federal legislation and other subordinate legislation.

The above mentioned analysis of the law testifies that in the field of state policy on protection of state secrets in the Russian Federation from the time of Nikitin’s alleged actions and till now, nothing has changed. The acts of the ministries and departments containing information constituting state secrets before and at the present time were not subject, and are not subject to state registration and official publication.
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Besides, while pronouncing the non-guilty verdict the court specified, that Nikitin A. K. retired in November, 1992 and had no real possibility to familiarise himself with “the Temporary list of the information to be classified in the Armed Forces of the Russian Federation”, which was put into force on January 1, 1994 by the Decree of the Minister of Defence of the Russian Federation No. 071 of September 7, 1993 “On enforcement of the temporary lists of the information to be classified in the Armed Forces of the Russian Federation”, as well as “The List of the information to be classified in the Armed Forces of the Russian Federation”, which was put into force on September 1, 1996 by the Decree of the Minister of Defence of the Russian Federation No. 055 of August 10, 1996 “On probation of the lists of the information to be classified in the Armed Forces of the Russian Federation” and also the decree of the Government of the Russian Federation of September 18, 1992 No 733-55 “On the temporary list of the information constituting the state secret”, which is not published officially.

At the same time, the Court has not taken into account circumstances, which essentially could influence a decision on the case.

So, by the evidences collected in the case it is established that Nikitin A. K. had valid military service in the navy of the USSR (Russia) from the moment of the graduation from the Navy College up to being transferred to the reserve in November 1992 from the position of the chief of the group of the Inspection on Nuclear Safety of nuclear installations of the Defence Ministry of the Russian Federation in the rank of the 1st rank captain. Because of the character of his service, he was familiarised with the top secret and secret information on design, service regulations of the navy nuclear installations, usage of the new nuclear installations in the navy shipbuilding, providing their nuclear safety (vol. 12, p. 32-33). He had access to works and documents of the first degree of admission, that is to information constituting state secret (vol.8, p. 204). When retiring from the Armed Forces he gave a subscription about non-divulging the information, which he got to know at service (vol. 12, p.41). Nikitin was also familiarised with the Decree of the Minister of Defence which declared the Decree of the Council of the USSR Ministers of December 3, 1980 no. 1121-387 “On affirmation of the List of the most important information constituting state secrets and provisions about the order of establishing a degree of secrecy for the categories of the information and definition of a degree of secrecy of the information, contained in works, documents and products”.

The above-stated evidences testify that when retiring from the Armed Forces Nikitin A. K., on the basis of the voluntarily taken liabilities on non-divulging the information constituting state secret which he got to know at service, and his knowledge of the provisions of the decree No. 052 and about the routines of treating secret information in the Armed Forces of the Russian Federation, had no right to familiarise himself on August 8, 1995 in the Kuznetsov’s Navy Academy with top secret books “Incidents Onboard Nuclear-Powered Submarines 1965-1983”, issued in 1987, and “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987”, issued in 1990, and the secret books “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989”, issued in 1990, and ” Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1991", issued in 1992 and furthermore to write out from them the concrete and authentic information constituting state secret for its further transferral to the foreign organisation, and to transfer it to the mentioned organisation, and also to disclose other information constituting state secret, which he learned at service at the Navy of the USSR (Russia).

That circumstance, that Nikitin A. K., being acquainted with the information constituting state secrets and routine of treating secret information, in the specified period of time [August 1995] in the Navy Academy wrote out the information from the top secret and secret books with the purpose to transfer it to the foreign organisation and then transferred it to the mentioned organisation testifies of the direction of his willingness to collect and transfer the concrete and authentic information constituting state secrets to the foreign organisation.

In this connection it should be mentioned, that the current legislation does not set as a condition for the criminal liability for high treason in the form of espionage for the person, who has collected the concrete and authentic information, constituting state secret, for its subsequent transfer to the foreign organisation from the secret sources, to which he officially had no access, with the fact of his familiarising with the departmental Lists of the information constituting state secret, developed on the basis of the federal law, and also with the fact of their official publication.
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Besides, the Curt made an ungrounded conclusion in the verdict that during conducting the expertise, the members of the experts’ committee of the 8th Department of the General Staff of the Russian Armed Forces were guided exclusively by the secret and unpublished decrees of the Minister of Defence of the Russian Federation.

Giving reasons for it, the Court referred to the testimonies of the expert Bakanov that “the experts’ commission used only two decrees of the Defence Ministry No. 071 and 055. Basing on these decrees the experts’ commission concluded that the information collected and revealed by Nikitin contains state secrets. In fact, when writing their conclusion, the Law “On state secret” was not applied”, and also to the clarification received by the investigating bodies from the Headquarters of the General Staff of the Russian Armed Forces, which says that “according to the order of the Russian Defence Ministry, the experts’ evaluations regarding the degree of secrecy, is conducted only on the base of the decree of the Minister of Defence of Russian Federation, at that period – decree No. 071 (vol. 13, sheet 137)”.

The said conclusion by the Court, which was set up in the verdict, does not correspond with the actual facts of the case and is not based on the evidences examined in the court session.

As, according to the conclusions of the experts’ committee of the 8th department of the General Staff of the Russian Armed Forces about the degree of secrecy of the information contained in the files of criminal case No. 12 of May 28, 1997, and also of June 10, 1999, during conducting the expertise the committee was guided by and has used the Constitution of the Russian Federation of December 12, 1993, the Russian Federal Law “On State Secret” in the old and new edition, and also other normative acts on the protection of state secrets in the Russian Federation, but not, as the Court believed, exclusively the decrees of the Minister of Defence of Russian Federation No. 071 and No. 055 (vol. 19, p. 46-76, vol.24, p.140-146).

Romanov, being one of the members of the experts’ committee at the 8th department of the General Staff of the Russian Armed Forces, was interrogated in the trial, and he fully confirmed the conclusions of the experts’ committee. He also explained that during conducting the expertise, were used all the normative acts given on sheets 5-6 of the experts’ conclusion, and also that usage of the specified acts was caused by the purpose to show clearly and confirm that the information, given in the conclusions, constituted and constitute state secrets, at the moment of the alleged actions of Nikitin and at the moment of conducting the expertise, and that nothing has changed in the field of protection of the state secret in the Russian Federation since 1993 till now (vol. 27, p.98).

Under such circumstances the Court’s references to the testimonies of Bakanov, one of the members of the experts committee at the 8th department of the General Staff of the Russian Armed Forces, who during the Court session completely confirmed the conclusions exports of the experts committee, and also to the testimonies of Romanov in the court, are in general unreasonable, as they contradict the conclusions of the experts committee on the whole, and also Romanov’s testimonies themselves (vol.27 p. 101-105), which the court completely ignored.

Other members of the experts committee than the ones mentioned above, were neither called to the court nor gave testimonies regarding the content of the experts’ conclusion.

Sheet 137 of Volume 13 lacks the mentioned clarification of the Headquarters of the General Staff of the Russian Armed Forces, to which the Court refers. The reference of inspector Maximenkov of June 27, 1996 is attached to the case files. The inspector was not interrogated in the Court about the circumstances of writing the reference and of the truthfulness of its content. The “clarification” itself, even if it had existed before the expertise was conducted, was not examined by the Court.
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Besides, the court has in the verdict made an ungrounded conclusion about non-concrete charges presented to Nikitin A. K by the investigation bodies with the reference to the provisions of item 1 of Article 5 of the Russian Federal Law “On State Secret”.

The court believes “the charges against the defendant NIKITIN (vol. 24 sheets 44-55) were formally presented only on the base of Article 5 item 1 paragraphs 2, 4 and 6 of “The Law on state secret” in the edition of 6.10.1997. However, the factual charges were based on the normative acts indicated in the experts’ conclusion and in the indictment, but not mentioned in the formula of guilt in the decision of launching the criminal case against Nikitin”, that prevented the defendant to defend himself by the legal ways and belittled his rights for defence.

Thus, the Court have without noticing it, brought innovations into the current legislation, and have actually deprived the Ministry of Defence of the Russian Federation of the possibility to make the Federal List of the information constituting state secrets more detailed. At the same time, refuting itself, the Court recognises the insufficiency of the Law “On State Secret” and the necessity of using the departmental Lists.

The said conclusion of the Court contradicts the current legislation and the files of the criminal case. According to part 1 of Article 8 of the Law “On State Secret” “the degree of secrecy of the information constituting state secrets shall correspond to the gravity of damage that may be caused to security of the Russian Federation as a consequence of the spreading of such information”. According to part 2 of the mentioned Article “three secrecy degrees are established for information constituting state secrets and three secrecy grades corresponding to these degrees and reading: "VERY IMPORTANT", "SECRET", and "TOP SECRET" are established for carriers of said information”.

On the basis of Article 9 of the Russian Federal Law “On State Secret” the classification of the information is carried out by the heads of the authorities who are empowered to refer information to state secrets, and who also work out detailed lists of information subject to classification, which in their turn, can be made secret on the basis of their contents. The given provision was also confirmed in items 1 and 4 of “the Rules of referring the information constituting state secrets to various degrees of secrecy” approved by the decree of the Government of the Russian Federation “About the affirmation of the Rules of referring the information constituting state secrets to various degrees of secrecy” No. 870 of September 4, 1995.

While conducting their examination the members of the experts’ committee at the 8th department of the General Staff of the Russian Armed Forces in details and clearly showed the ratio of the state secrets in the information collected and transferred by Nikitin A. K. to the foreign organisation, and also divulged by him, as according to item 1 of Article 5 of the Russian Federal Law “On State Secret” (in both editions), of “the List of the information referred to state secrets” approved by the Decree of the President of Russia no. 1203, as according to the positions of the departmental Lists approved by the decrees of the Minister of Defence of the Russian Federation No. 071 and No. 055, which usage during conducting the expertise was caused by the purpose to show clearly and understandable, that the information collected and transferred by Nikitin A. K. to the foreign organisation, and also divulged by him, is secret and constituted (constitute) state secret, at the moment of Nikitin’s alleged actions and now (vol. 19, p. 46-76, vol. 24, p. 140-146).

Thus, the categories of the information constituting state secrets protected by the law and enumerated in Article 5 of the Russian Federal Law “On State Secret” were subject (are subject) to a further detailed elaboration and reference to this or that degree of secrecy from the concrete area of their usage.

In the decision about presenting the charges and in the indictment the investigation bodies showed the concrete information, which was collected and transferred, and also divulged by Nikitin A. K. to the foreign organisation, which according to the paragraphs 2, 4 and 6 items 1 article 5 of the Law of the Russian Federation "On State Secret" constitute state secret.

The reference to the contents of the items of “the Temporary list of the information to be classified in the Armed Forces of the Russian Federation” which was put into force on January 1, 1994 by the Decree of the Minister of Defence of the Russian Federation No. 071 of September 7, 1993, is grounded, as it refers the concrete information collected, transferred, and also divulged by Nikitin A. K. to the foreign organisation to this or that degree of secrecy given in the detailed list, that has significant importance for determining the degree of damage, which can be entailed to the security of the Russian Federation after the distribution of the specified information, and for determining the volume and severity of Nikitin’s actions.
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There is also an improper statement from the Court that the usage by the investigation bodies of the Decree of the President of the Russian Federation no. 1203 Decree of the Minister of Defence of the Russian Federation no. 055, issued after Nikitin had committed the alleged actions, as the basis for the charges against Nikitin A. K. is a direct violation of the Constitution of the Russian Federation (part 3 article 15 and article 54).

The specificity of the criminal cases of the given category is just in the necessity to probe the dynamics of the conditions of secrecy, as the Russian Federal Law “On State Secret” stipulates the concrete order of declassification of the information, if the necessity for its state protection has disappeared in certain time. According to it, the information for the period of its criminal collection can constitute state secrets, but during its transfer or on the moment of its estimation (conducting of expert evaluation) it is not secret any more.

Besides, referring to the given criminal case regarding Nikitin A. K. during the expert examination of the information collected and transferred by Nikitin A. K. to the foreign organisation, and also divulged by him, and legislative base, it was undoubtedly established the sequence and continuity of this information in state protection, and also that this information in the statutory order was not declassified, and constituted state secrets in the period of collecting, transfer and divulging, and also now.
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The biased character and the incompleteness of the examination during the trial, non-examining of the case files, and also the court’s conclusions contradicting the current legislation, can be also found in other issues reflected in the verdict.

In particular the Court, without having special knowledge, have completely ignored the conclusions of the experts committee of the 8th Department of the General Staff of the Russian Armed Forces consisting of four men, and made a categorical conclusion that “the complete detailed data about the detailed construction features, parameters and operating procedures of the emergency reactor shut down system on 3rd generations nuclear power submarines, was not disclosed by the accused.”

At the same time, it is evident from the files of the criminal case that the search at Nikitin’s flat on October 5, 1995 was conducted by the investigator of FSB’s Investigative Department Osipenko on the day of launching the case, and by the oral request of the investigator Maximenko, who was in charge of the case, on the basis of the decree endured by him about the search from the approbation of the procurator of St.-Petersburg.

The criminal procedure law does not contain any demands about the necessity of issuing written request by the investigator regarding the conduction of any investigation action by the other investigators of the same body of inquiry. The fact of giving the oral request regarding the search could be tested by the Court by interrogating Maximenko as a witness. However, it did not do that.

Besides, Nikitin A. K., did neither during the preliminary investigation, nor during the court session deny, that the note book confiscated at his flat on October 5, 1995 in blue cover, with the notes in red ink, belongs personally to him.
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The above-stated testifies about the biased character and the incompleteness of the examination during the trial, the discordance of the Court’s conclusions, which have been set in the verdict in contraction with the actual facts of the case and based on a wrong application of the criminal law.

On the basis of the above-mentioned, being guided by article 325 of the RSFSR Criminal-Procedure Code I REQUEST:

[the Supreme Court] to revoke the verdict of the St.-Petersburg City Court of December 29, 1999 regarding NIKITIN, ALEKSANDR KONSTANTINOVICH, and submit the case for a new court reconsideration to the same court, in different structure.

The public prosecutor A.V. Gutsan