News
Publish date: October 4, 1998
Written by: Ken Uggerud
Translated by: Jens Chr. Bugge
News
By Ken Uggerud [1]
The analysis of the Nikitin-indictment displays a messy laid out case, where many of the connections attempted «proved» is either irrelevant or lacks significance in the criminal case. The main impression is that the prosecution, by trying to «prove» a series of affairs (almost of any character), is attempting to obtain credibility also in accordance to Nikitin being guilty of treason through espionage. It seems, however, not difficult to tear this case apart.
In this article, written within narrow time limits, I must however confine myself to discuss some of the evidence that may have a slight significance and then evaluate whether these more credible offers of evidence can be sufficient to sentence Nikitin in a criminal case. However, as I will get at below, I don’t think it will be the evidence evaluation in accordance to the actual facts that will be decisive in the case, but rather the main legal questions concerning the usage of secret and retrospective decrees.
On the other hand, some of the characteristics I deal with, such as the total lack of evidence for Nikitin’s objective and subjective culpability, will obviously suggest that the defence should have a strong case before the City court.
Even though Bellona has only asked for a reply on the evidence evaluation, I had, for the sake of totality intended to evaluate some of the other aspects of the indictment that seem important, but only briefly. However, after examining Mr. Jon Gauslaa’s draft version of «The Nikitin trial. Legal analysis of the indictment», I find that it would be difficult to bring along any new moments concerning the lack of legal foundation of the indictment, as all the relevant points as far as I can see are given a profound and convincing evaluation in this document.
The angle of the indictment against Nikitin is very different from the one in Norway and other «western» contries, where a charge (and then an indictment) contains the violation committed, and then an often thorough description of the criminal act. An indictment should also contain the evidence that is evaluated by the prosecuting authorities, and an analysis of which provision(s) in the law that covers the actions that have been committed. If the case is juridical complex, the indictment also contains the interpretation of the provision invoked and the main principals for this interpretation. This way, the accused gets the possibility to oppose all the case arguments considering production of evidence, usage of legislation etc. at an early stage of the case.
It is also assumed in Norway, and other countries ruled by law, that the prosecuting authority must account for the evidence that weigh in favour of the accused, even though this in the «real life» is not followd up in a satisfactory manner.
The indictment against Nikitin is probably an attempt to establish evidence for a number of facts:
When I started working seriously with the indictment, I thought of getting a hold on the various forms of «evidence» which it presents, but I soon discovered that this would be a futile reeling of matters concerning which allegations are irrelevant and those which may have some crumbles of relevance. I will therefore concentrate on the few matters that may have significance for the case.
First of all it can be ascertained that the first part of the indictment either does not turn upon Nikitin, that it turns upon setting facts (without evidence evaluation) and it reels of subsections in the trial-course which are not relevant to the criminal-case. These moments seems to be dealt with solely to show the «adherence» of the prosecution’s association with the facts in the case, and to create a glow of credibility which one hope will effect the case otherwise.
However, I got quite another impression after studying these parts of the indictment is another impression. Namely that of an incoherent display without connection to the regulations Nikitin is accused of having violated. The prosecution does not seek any explanation of why the invoked evidence is interesting, and the indictment does not in any way confront the evidence the prosecution feels they have made clear with Nikitin’s own assertions/evidence. In fact, if the prosecuting authorities hope that the contents of the indictment are strengthening their case, the defence should have a rather easy task convincing the court otherwise (with reservations, since I’m not familiar with the culture in Russian courts).
The section « The undertaken investigation has established: A treason committed by Nikitin» contains mainly statements about the facts or inserted assertions about different «top-secret books» and more, which has been copied and transferred. In an evaluation of the evidence, however, none of this contains anything with particular interest for the case.
Some of the information seems to be totally irrelevant in connection to this criminal-case. For instance: What is the prosecuting authorities trying to prove with their information of Nikitin’s work and his alleged wish to move to Canada and so on? Even if these «allegations» were true (and some of them obviously are), they have no bearing whatsoever as «evidence» in the case raised against Nikitin.
The prosecution also uses a lot of energy in «kicking in open doors». For instance: It might be correct that Nikitin’s Bellona-contact and the contact with Robert Bathurst establishes a probability for this contact having taken place, but this is also admitted by Nikitin himself, and is also clear for all parts. Therefore it is not necessary to say more about it. The prosecution delivers some strange information when they state that Nikitin wanted «to change his social status» (which has by the way not been proven – Nikitin’s intention could have been of an entirely different character, environmental for instance), that he hoped to receive protection from a foreign organisation in order to move to Canada (not proven) and that he wanted money to live abroad (not proven!)? What does the prosecution hope to establish with presenting this «evidence»? The only possible explanation must be that this is an attempt to smear Nikitin in one way or another. Such attempts to enfeeble Nikitin’s credibility with non-related and non-proven accusations, seems to lie as a basis for the indictment, but should not in any way be given any importance during the trial.
In the section «The actions, which Nikitin undertook in order to obtain information about Russia’s Northern Fleet are established by the following proofs», the prosecuting authority can establish that Nikitin stayed on the various places at the time mentioned, but this is not an issue to use much energy on, as this is also admitted by Nikitin himself. In this section, there’s one particularly striking point, i.e. the incredible naiveté the various people Nikitin has questioned have displayed. Witness for the prosecution Smirnov gives the impression that i, during a meeting with Mr. Nikitin and Mr. Kudrik, indeed was talked about issues involving sub-marines, but that he and Titarenko did not want Kudrik to take notes. They did not, however, refuse to speak with them. Witness for the prosecution Ibaduljev has spoken with Nikitin and he admits to have, although reluctantly (if we are to believe Ibaduljev), given Nikitin the information he asked for. Witness for the prosecution Zvankovich gave, without more ado, Nikitin the answers he had to Nikitin’s question concerning radioactive waste and so on. My opinion is that those who gave him the information did not look upon the information Nikitin wanted as secret or top-secret. Or should one assume that also these people, by reveiling these facts to Nikitin and others who made it clear that they worked for Bellona, made themselves guilty of treason? I presume that the defence will make some good points out of this, almost directly out of the prosecuting authorities’ own material.
The same applies to Nikitin’s appearance: According to the «evidence» he has openly inquired about various books at the Kuznetsov library, without any effort to cover it up. Towards Titarenko and Zvankovich he has even informed them that he worked for Bellona. Is it probable that he would do such a thing if he wanted to keep secrecy about him transferring classified material to the organisation? It is not likely that he would put the rope around his own neck in this way. These acts of Nikitin’s are at least clear indications that he in no way was aware that what he was doing might have been illegal, and therefore that the subjective terms of liability to punishment (for instance «intents of treason») is hardly fulfilled.
The information in this section of the indictment then, could just as well be turned around, so that they, to an extent, strengthens Nikitin’s case: It is not likely that Nikitin would had this open approach, if he understood that he copied secret documents (which he could not have understood anyhow, since the decrees he is charged with was not public, while others were not made yet…). To sum things up, the following conclusion given in the indictment is not at all proved, and even partly challenged by the facts that the prosection has picked out:
«Therefore, the data collected in this case objectively testify that throughout 1995, Nikitin has aimingly attempted to collect information about nuclear submarines of the Russian Northern Fleet, including secret information, in order to use this information during writing of the report, ‘The Northern Fleet – The potential risk of radioactive Pollution of the Region,’ which he had to write according to his commitment to Bellona.»
The prosecution has not on any matter presented presumptive evidence that Nikitin’s activities involved seeking for secret material, which is evident of both Nikitin’s attitude and the attitude of those he met. Consequently, the prosecution is far away from establishing evidence «beyond reasonable doubt», that Nikitin have done anything illegal, and equally far away from evidencing that the subjective terms of liability to punishment are fulfilled.
This section of the indictment contains the most relevant evidence connected to the criminal-case, and in fact it is only this part of the factual description of Nikitin’s «illegal actions» that can be fond in the indictment’s «judicial evaluation» of the case. Thus, it is only these actions that actually are incriminated.
At first sight, it is not to Nikitin’s advantage that he has changed his statement, but that which emerges is not particularly dangerous to his case: It is clear that Nikitin has gathered information from a number of books, but the prosecution is not able to present convincing evidence for Nikitin actually having copied secret information from these books.
It is also a strange feature, that the prosecution in a public document, describes the contents of the alleged «secret» and «top secret» books in a relatively detailed manner. Are the books not secrets anymore? We may even – admittedly as a polemical point – raise the question, wheter the prosecuting authority is in fact committing a crime by publishing state-secrets? If not, one should use the same principles in the Nikitin case as evidently lies as a basis of the case of the prosecution’s description of «state secrets», that the information was already known (at least in essence) before the attempt of a wider spreading of them by Nikitin, and then the information therefore can no longer, legally, be classified as secrets.
Nikitin’s explanation that he has used his memory together with open sources, and not classified documents, in his work for Bellona is mentioned in several parts of the indictment, but this is most often not commented by the prosecution. This is a severe lacunae in the prosecution’s argumentation, which indicates a predisposed prosecution, which does not take counter-evidence seriously enough into consideration.
Some energy is put in on proving that Nikitin was the author of chapter 8 in the Bellona report. This is not denied by anyone, and does not need further elucidation.
If the prosecution is to have a case at all, it needs more substance and power to convince that in relation to the data in chapter 8 in the Bellona report could not have come from open sources, than what is presented in the indictment. As I have already mentioned, the prosecution most often does not comment on this, when discussing points where this would be appropriate, thus giving the case against Nikitin an air of a clear-cut case.
To have evidential credibility, the prosecuting authority needs to be far more concrete, and present to the court the parts of the secret material that are copied, together with the copies/transcripts. It can not be sufficient in a courtroom to state that the case’s nature corresponds to the claims of the prosecution, and then just refer to the evaluation of some expert-groups. An «evidence» which solely consists of an assertion from the prosecuting authority – for instance confirmed by witnesses or experts with security clearance or others – that it is accordance between classified documents and transcripts, must be dismissed by the court.
Even more problematic is the prosecution’s failure to discuss the significance of the fact that the information in the documents Nikitin perhaps have taken transcripts of already was known to the public, although this must be a major argument in the case.
I refer to Mr. Nikitin’s own statement, dated May, 15 1998, where it is apparent that the prosecution’s allegations involves ridiculously little variation in the relations between what Nikitin allegedly has written down and what is apparent in the open sources. This fact alone make it difficult to see that a court convicts him. The defence should have a strong case by stating that the actual information was «qualitatively» known publicly, already before its «release», and that the «new» information «quantitatively» consists of ridiculously tiny exceedings which can not be looked upon as «new» information in relation to the main contents in the already published literature.
This section becomes almost pathetic when the prosecution authority, without referring to any fact, states: «At the same time, the fact that Nikitin had collected information that constitute state secret, had been established by the total combination of the proofs collected for the case.» This clause more than indicates that the prosecution is predisposed, without any wish to make a genuine evaluation of Nikitin’s culpability.
It is actually no disagreement concerning Nikitin’s actual delivery of information to Bellona (what the disagreement mainly concerns is whether this information is secret or not, and whether the criminal case can be conducted on the basis of secret and retroactive legislation). It is no need to go thoroughly through the section of the indictment which deals with the transferring of information.
One moment should, however, be noticed. Even if it is agreed that some information has been handed over, the prosecution authority’s production of evidence, in reality only refers to «the total combination of the evidence collected in the case». The prosecuting authority is otherwise seeking to conduct evidence with other circumstances, which also is to be proved, and that is a droll method of conducting evidence.
A general feature connected to the indictment is that statements from so-called «expert commissions» are regarded as evidence to such an extent, that one could believe that a statement from these organs alone is sufficient for a conviction. However, I presume that the evaluations and facts, as an example, «the environmental expert commission» and others, will be reviewed freely and independently by the court, and that the court not uses the expert evaluations themselves as weighty sources for its decisions. (In a Norwegian court, some of these reports would probably have been refused motioned, as they seem to be legal evaluations «produced on the occasion of the case». However, a rule like this is probably non-existing in Russia.)
The conclusion that Nikitin «ill-willingly aimed specifically at obtaining classified information» etc., is based on absolutely no evidence at all. If the prosecuting authority by these statements means that Nikitin has acted with «evil» intentions or fulfilled the subjective terms for being sentenced for a violation of Art. 275 of the Penal Code, this must be turned down. The prosecution does not present the subjective terms of liability to punishment neither here, or in other parts in their «line of evidence».
The judicial part of the indictment can from an evidential point of view be criticised with corresponding reasons as the above. A closer account for this is not needed here.
In a Norwegian Court, it would be seen as misconduct by the prosecution not to accept the counter-evidence the defendant can produce, when it is taken a decision on the question of culpability. Often, the case is so simple that an account of the charged’s evidence is superfluous. Besides, the defendant’s lawyer has at least to a high degree «equality of arms» in Norway and other countries ruled by law. This means, i.a, that the defendant’s lawyer is often presumed to produce the relevant evidence in favour of the defendant. As far as I can see, this development has not reached very far in Russia. Still, the absence of the moments that Nikitin has produced is striking. The prosecuting authority should at least have taken up that evidence, from Nikitin’s side, which refers to the prosecutions own. However, that does not seem to have been done by Mr. Gutsan in this case.
The lack of any sort of interpretation of the state of the law is perhaps the most striking with the indictment. The prosecuting authority is content with what it calls production of evidence, for so to mix the interpretation of the invoked provision and the «classifying» of Nikitin’s actions under Art. 275 and Art. 283 of the Penal Code in one sentence. This is totally untenable, and no court in a country ruled by law can sentence an accused on such grounds.
The main point in my evaluation after I’ve seen through the indictment is this:
It would be impossible for a court in a country ruled by law to reach the conclusion that Art. 275 of the Penal Code is violated by Nikitin. There are three reasons for this. First of all, it does not exist an «organisation that engage in hostile activities with the purpose of undermining Russia’s outward security» in this case. None of these terms of punishment are fulfilled, as far as Art. 275 both demands «hostile activities» and that the purpose is to «undermine Russia’s outwards security». Secondly, the indictment does not manage to prove in any way that Nikitin has gathered and passed on secret material. Thirdly, the subjective terms of liability to punishment, as the prosecution has not in any way proven that Nikitin has displayed «intents of treason», and that he has passed on the material to Bellona with the purpose to enfeeble Russia’s «outwards security».
Art. 283 of the Penal Code is somewhat more difficult to interpret; «intents of treason» is not required, and I’m not familiar with common demands of culpability in Russian law. Parting from the formulation of Art. 283 is formulated, it most probably demands «negligence». However, as I have not been asked to evaluate this provision, I will leave the subject.
Notwithstanding, neither Art. 275 nor Art. 283 can lead to a conviction in this case, because this will demand that it existed «state secrets» in a legal sense at the time of Nikitin’s alleged actions. Concerning the usage of secret and retroactive decrees, I totally agree with Section 2 of Mr. Gauslaa’s «Analysis of the indictment», and the same goes for his interpretation of the word «can» in Art. 5 of the Federal Law on State Secrets. It is obvious that this provision in that form can not be used alone. It is also obvious that the usage of a secret decree as a foundation for an indictment and a possible conviction, is in defiance of every principle of legal protection. It should be out of the discussion in a country ruled by law to sentence somebody on such a decree. Even if can be good reasons for keeping secret information, registers and such, an individual in a rule-of-law country cannot be sentenced unless he has a possibility to know whether his actions is illegitime. Morover, it is obvious that in accordance to both Russian law and international human rights conventions, which Russia is committed to, laws can not be used retroactively (if it is not in favour of the accused).
The argumentation presented in Gauslaa’s Analysis of the Indictment, should in itself be sufficient to get Nikitin acquitted on all the points in the charge connected with treason/espionage and transferring state secrets. As far as I can see, any western court would be bound by sound principles of law to reach such a verdict. If Russian courts will reach a different verdict, this basis for this will not be the law, but something else. Nikitin would of course also have very a strong case in The European Court on Human Rights if he is not acquitted.
I can, after having conscientiously gone through the indictment and after several thorough perusals of Jon Gauslaa’s draft «The Nikitin trial. Analysis of the indictment», only approve the conclusions which are given in that document. The presentation of the juridical questions in the Nikitin case in Mr. Gauslaas document seems conform and well substantiated, and built on solid knowledge of both relevant issues of Russian law as well as international human rights.
Article 49 of the Russian Constitution has the following wording:
Thus, if Nikitin should be convicted on the basis of the indictment dated June 29, 1998, he will have suffered another violation of his fundamental constitutional rights.
[1] Ken Uggerud (b. 1962) is a lawyer from the University of Oslo, 1989. He has worked, i.a., as a law clerk in the Norwegian Supreme Court (1993-96), where a part of the job was to assist the judges in the evaluating of the evidential status of criminal cases. He is currently living part-time in Italy, where he makes a living as an authour of juridical opinions, books and articles. Uggerud also serves as a researcher at the Norwegian Institute of Human Rights, the University of Oslo. He has published several articles and books on Norwegian legal and international human rights issues.
Uggerud’s paper is translated to English by Jens Chr. Bugge, with assistance from Jon Gauslaa.
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