Rule of law or arbitrariness?

Publish date: November 14, 2001

Written by: Jon Gauslaa

Recently the Russian Supreme Court nullified the secret decree 055:96. What significance will this decision have for the case against Grigory Pasko and other similar cases? Read this article and find the answer.

Legal analysis:

On November 6, 2001 the Appeal Collegium of the Russian Supreme Court confirmed the ruling of the Supreme Court’s Military Collegium of September 12, 2001, regarding the nullification of the Ministry of Defence’s infamous secret decree no. 055:1996. The significance of this ruling might yet seem somewhat unclear. There is however, reason to believe that it might have considerable impact, both on the future use of secret legislation in Russian criminal cases, and on ongoing criminal cases like the ‘espionage’ case against journalist Grigory Pasko in Vladivostok and a number of similar cases.

Decree completely nullified
The verdict of the Supreme Court is directly related only to 10 of the approximately 700 provisions of decree 055:96. The reason for this limitation is that Aleksandr Nikitin, who challenged the legality of the decree, had to limit his complaint to the provisions that were used by the prosecution in the criminal case against him, which was determined with his final acquittal on September 13, 2000. Nikitin’s original intention was to challenge the whole decree, but he had to make the said limitation for procedural reasons.

Thus, the verdict of the Supreme Court, which its Appeal Collegium confirmed as "legal and reasonable" on November 6, 2001, only states that articles 235, 259, 260, 287, 305, 443, 444, 445, 489 and 650 of decree 055:96 are "illegal an invalid from the moment of their issuing". The remaining provisions of the decree are not mentioned. The grounds of the judgment does however, not apply only to the said provisions, but to the whole decree.

In the decision of September 12, 2001 the Supreme Court refers to a letter of the first deputy Ministry of Justice dated March 16, 2000 where it is stated that decree 055:96 do not need state registration, because it contains no binding legal norms and is of an internal character. The Supreme Court found this opinion to be wrong. After having given several examples showing that the decree indeed contains legal norms that are binding for the citizens and that is not of an internal character, the Court concludes that the decree regulates "the rights and duties of the human being and citizen, … Therefore it is a normative act subject for state registration."

Since the disputed provisions have not passed state registration in accordance with the existing legislation, the Court found them to be "illegal and invalid". It is however, not only the provisions that Nikitin challenged that are unregistered, but the whole decree. Thus, the legal effect of the Supreme Court ruling can not be any other than a complete nullification of decree 055:96 from the day of its issuing, i.e.: from August 10, 1996.

A normative act
It follows from the above-mentioned that the Supreme Court ruling clarifies the following:

1. Decree 055:96 is a normative act regulating the rights and freedoms of the citizens (this has previously been denied by the prosecution in the Nikitin-case, by the Ministry of Justice, and also by the attorneys of the Defence Ministry in the present case).

2. The decree, and all similar decrees listing up various kinds of information constituting state secrets, is subject to state registration.

In his complaint Nikitin also set out the following pleas:

3. The decree is invalid as a basis for criminal charges, because it is not published in accordance with Article 15 (3) of the Constitution (‘no normative acts affecting the rights and freedoms of the citizens can be applied unless they are officially published for general knowledge’).

4. The decree-provisions are invalid because they go beyond the limits for classifying information set up by the Law on State Secrets.

Since the Supreme Court found the provisions that Nikitin challenged to be invalid and illegal because of the lack of registration of the decree, it found it unnecessary to settle the two latter questions. This may seem somewhat odd, but it is actually a quite normal approach for a Court not to go into other (subsidiary) questions and pleas after it first has found sufficient grounds for its ruling.

Besides, the major significance of the ruling is the very fact that the Supreme Court has recognised decree 055:96 as a normative act, in a case where the legal status of the decree was the main question. This is apparently the first time that the Supreme Court has addressed directly the question whether the decree is a normative act or not (previously it has only addressed it indirectly, for instance in the Nikitin-acquittal). After the recent ruling decree 055:96 (and all similar decrees) should be considered as ‘normative acts’, not only in the sense of the legislation regarding the question of state registration, but also in the sense of Article 15 (3) of the Constitution.

Thus, decree 055:96, its successor(s), and all similar decrees have to be officially published if they are to be applied in criminal cases. Although this clearly is the prevailing Russian law today, one will however, have to challenge this question in a separate case to get a court ruling that directly deals with the issue.

The significance for the Pasko-case
The legal foundation for the charges against Pasko is decree 055:96, as the expert evaluation of whether there are state secrets or not in the materials he is accused of having handed over to Japan is entirely based on this decree. One should therefore assume that the expert evaluation has to be regarded as invalid since it is based on a normative act that the Supreme Court has ruled to be "invalid and illegal".

Russian law has however, not traditionally been based on precedents. Although this situation is slightly changing, there is no guarantee that the Pacific Fleet Court in Vladivostok will feel obliged to follow the legal opinion of a ruling issued by the Supreme Court in Moscow.

Yet, the Pacific Fleet Court can hardly ignore the Supreme Court ruling. The ruling is not related to the concrete factual peculiarities of a case, which would have made it possible for other Courts to distinguish their cases from the Supreme Court case by saying that the ruling was so directly connected with the facts of the case that it is not binding for later cases. On the contrary it is related to a general question of law application, and it is clearly stated in the grounds of the judgment (its ratio decidendi) why decree 055:96 has no legal force. When this first is established, it is hard to imagine a situation where the decree is given legal force in some cases, but not in others.

Obliged to follow?
The question remains though, whether the Pacific Fleet Court will consider itself limited only by the concrete verdict of the Supreme Court (10 provisions are nullified) or also by the grounds of the judgment, which de facto nullifies the whole decree.

In the former case, the Supreme Court verdict will have little direct effect, as the ten provisions used against Nikitin are others than the provisions the prosecution has used against Pasko. However, such an approach would – if Pasko gets convicted – form a good reason for an appeal from his defence. The appeal will be handled by the Military Collegium of the Supreme Court, which hardly will be able to ignore the grounds of its previous ruling. However, a possible outcome of such an appeal might well be that the verdict of the Pacific Fleet Court is cancelled for the second time and that the case is sent back to Vladivostok for a third trial, which is not exactly a dream scenario.

If the Pacific Fleet Court on the other hand considers itself obliged to follow not only the concrete verdict of the Supreme Court, but also the grounds of the judgment, its verdict can not be based on the expert evaluation at all. This gives us two possible scenarios:

i) Pasko will be acquitted, which is the only legal and adequate outcome of the case. The prosecution has not been able to prove the presence of state secrets in the disputed materials of the case, which is a necessary (but not sufficient) condition for convicting him as charged. Moreover, it has not been able to prove that Pasko handed over (or planned to hand over) any of the disputed materials to the Japanese. This is why Pasko was acquitted of espionage at the first trial in 1999, and the prosecution’s attempts to prove this at the second trial have been even more unsuccessful than at the first. Besides, most of the ‘evidence’ of the case is either illegally collected or downright falsified, and should according to Article 50 (2) of the Constitution be disqualified from the case.

ii) Rather than reaching a decision at the present stage, the Court might order a new expert evaluation that shall be based on the law on state secrets and other registered (and officially published) normative acts, which was valid in 1996/97 when Pasko did the actions he is accused of. Such an evaluation will postpone the case further, and is not an acceptable solution, when one takes into consideration the many postponements that already have occurred and the fact that the case On November 20 will enter its fifth year.

Conclusive remarks
At the time of writing it is hard to estimate the exact effect of the Supreme Court ruling on the Pasko case. This is partly because the ruling has some limitations (although it can not be interpreted in any other way that as a full nullification of decree 055:96) and partly because of the lack of traditions in Russia for the use of precedents. For instance ongoing the case against researcher Valentin Danilov in Kraznoyarsk does not give reasons for much optimism regarding the future legal development in Russia.

The Supreme Court ruling has however, all the needed features of a ruling that should make a precedent (it is related to a question of general law application, the grounds of the judgment are very clear, and the ruling is unanimous). Thus, the possibility that the ruling will have positive effect on the outcome of the case is definitively present. Given the latest developments with several postponements and various hints that might indicate that the Court is under pressure from forces who want a conviction, it is however difficult to predict the outcome of the case.

As to the cases against academics Igor Sutyagin, Vladimir Soyfer, Vladimir Schurov and Valentin Danilov, it is even harder to predict anything since the full factual and legal circumstances of these cases are not known. However, all these cases are to a considerably degree based on decree 055:96 and thus, the Supreme Court ruling should at least have some positive effect.

It is also of great importance for the future legal development in Russia, which still is very much in the melting pot despite the fact that some positive steps have been taken, that the ruling gets such an effect. The difference between a legal system that is based on precedents and one that is not, is huge. In its core, this difference is equal to the difference between a country ruled by law, and a country ruled by arbitrariness. Thus, if the Pacific Fleet Court, or any other court ignore the Supreme Court ruling, one has to conclude that Russia still is a country that belong much more to the latter category than to the former.

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