Showdown at the Presidium

Publish date: March 19, 2002

Written by: Jon Gauslaa

Russian Prosecutor General appeals nullification of unregistered and secret Ministry of Defence decree to Supreme Court Presidium.

Just as everybody thought that decree 055:96 of the Russian Ministry of Defence (MoD), which has been the legal basis for a number of bogus espionage cases, including the cases against Aleksandr Nikitin, Grigory Pasko and Igor Sutyagin, was cancelled once and for all, its validity will once more be tried in the Russian Supreme Court.

Challenge from Prosecutor General

The Prosecutor General has challenged the Supreme Court’s Military Collegium’s cancellation dated September 12, 2001 of ten provisions of decree 055:96. In this ruling, which came after an application filed by Aleksandr Nikitin, the Collegium cancelled the disputed provisions from the date of the enforcement of the decree (August 10, 1996),on the ground that the provisions had not been subject to state registration.

The ruling was confirmed by the Supreme Court’s Appeal Collegium on November 6, 2001. It has thus, reached legal force, but the Prosecutor General has appealed the decision to the Supreme Court Presidium, which will handle the appeal on March 27, 2002.

At first sight the move of the Prosecutor General seems somewhat surprising. In both previous instances his representative supported Nikitin’s application, saying that the decree indeed is a normative legal act subject to state registration as well as official publication, and that it should have no legal force. However, his recent move may turn out to be a cunning plan with the purpose to ensure that the legal force of the unregistered and unpublished decree is maintained ever from its enforcement in August 1996.

Decree cancelled – but from when?

Formally the Prosecutor General has not left the above-mentioned position, but he claims that the disputed provisions should be cancelled, not from August 1996 when they entered into force, but from the date the verdict cancelling the provisions was enforced (November 6, 2001).

The decree was cancelled because it is not registered, but the Prosecutor General’s position would mean that it still would have full legal effect throughout the whole period in which it was not registered. Thus, the lacking registration of the decree would have no legal consequences, and the cancellation of it would hardly have any effect, at least not for the ongoing criminal cases against Grigory Pasko, Igor Sutyagin and others.

If the Supreme Court Presidium should approve the Prosecutor General’s position, the consequences could be disturbing. It would mean that the unregistered and unpublished decree 055, which according to Russian legislation can not be used as a normative legal act because of its lack of registration and publication, nevertheless can be used as a normative legal act – from the day of its enforcement until this very day.

From a legal point of view, it would be surprising if the Presidium would aprove the position of the Prosecutor General. However, some might say that bigger surprises have happened before…

More cases waiting in line

The case regarding the date of the cancellation of decree 055 is not the only case pending before the various bodies of the Russian Supreme Court these days. In fact the cases are queuing up in lines almost as tight as the queues to the Lenin Mausoleum in times past.

Firstly, the Military Collegium’s cancellation of the remaining provisions of decree 055 from February 12, 2002 will be subject to a hearing in the Appeal Collegium of the Supreme Court on April 2, 2002. The defence of Grigory Pasko, who launched the application regarding the validity of the provisions, will argue that also these have to be cancelled from their enforcement. Its opponents from the Ministry of Defence (MoD) will insist that the decree is not a normative legal act affecting the rights and duties of the citizens and thus, not the subject to state registration.

Secondly, the Appeal Collegium will on April 2 also hear the MoD’s appeal against the Military Collegium’s decision of February 13, 2002 regarding the cancellation of article 70 of MoD decree 010, which was used as a part of the legal basis of the Pasko-conviction. Article 70 forbids Russian military personnel to have off-duty relations with foreign citizens and was cancelled because it violated the Constitution’s provisions regarding the right to private life. The MoD claims that this is “wrong” and that the rights of military servicemen can be limited without having basis in any legal norms.

Thirdly, also a case on the validity of the presidential decree No. 763:96 regarding state secrets will be heard on April 2. The Supreme Court has previously rejected an application on the issue saying that it did not have the competence to deal with the matter, but it has now accepted to evaluate the application filed by Nikitin’s lawyer, Yury Schmidt.

Pasko appeal case not scheduled

While the above-mentioned cases, which in many ways can be considered as legal skirmishes of the Supreme Court’s hearing of the cassation appeal against the Pasko-conviction, will be heard shortly, the date of the latter hearing has not been scheduled. According to the latest rumours, the hearing would probably take place in May.