ABOUT PROLONGATION OF THE TIME LIMIT FOR THE PRELIMINARY INVESTIGATION
The Deputy of the Prosecutor General of the Russian Federation, Mr M.B. Katushev has after an evaluation of the criminal case No. 12 against A.K. Nikitin and V.S. Artemenkov decided:
This criminal case was brought up 05.10.95 by the investigation department in the St. Petersburg and Leningrad oblast department of the FSB, after it was established that divulging of information pertaining to state secrets had taken place, i.e. according to characteristics of a crime, as described in §75 in the Penal Code of the Russian Federation.
The basis for the case was a declaration from the citizen of St. Petersburg Mr. V.A. Perovsky who delivered a draft of the report "The Russian Northern Fleet" which he got from the Russian Citizen I.V. Kudrik, Murmansk representative of the Norwegian nongovermental environmental organisation Bellona.
During the preliminary investigation it was established that the former naval officer A.K. Nikitin in the beginning of 1995 entered into an agreement with the organisation Bellona. He was, for a fee, to use his knowledge about nuclear and radiation security on nuclear installations for the preparation of the second edition of the report named "The Russian Northern Fleet." Among other things, he committed himself to prepare information about accidents and shipwrecks on the nuclear submarines of the navy.
Nikitin had at his disposal some information from his previous service in the navy. The rest of the information he provided through meetings with persons who were dealing with such information and through other means. Among other things, on August 1995, by using his military identity card, which he did not return after his transferred into the reserve forces, and by using an admission permit provided by his acquaintance Artemenkov, he went into the Kuznetsov Naval Academy where he wrote down information from top secret collection books about incidents and accidents on submarines in the navy of the Soviet Union during the period from 1965 to 1989.
Based on the evidence collected during the investigation, Nikitin was accused of high treason through espionage (point "a" §64 in the Russian Penal Code) and devulging of state secrets that had led to serious consequences (part 2 §75 in the Russian Penal Code). He was declared guilty because he had when he wrote the text in part 2 of chapter 8 named "Nuclear Submarine Accidents" in the report "The Russian Northern Fleet" taken into the report information about accidents and shipwrecks on submarines in the Soviet navy during the period 1965 to 1989 from top secret collection books, and by this delivered a foreign organisation information about peacetime losses of weapons and weapon technology, and information about usage of weaponry and military installations and design defects on weaponry and military installations.
The above mentioned data is secret and constitute state secrets (§64 in the Russian Penal Code) in accordance with the "List of information considered state secrets", confirmed by the President of the Russian Federation Decree No. 1203 of 30.11.95 and "Temporary list of information within the Russian armed forces that is classified as state secrets" confirmed by the Russian Ministry of Defence decree No. 071 of 07.09.93.
He has by writing part 3 in chapter 2 named "Development of naval reactors" in the same report described all nuclear reactor instalations of the third generation type and mentioned their design particularities. This is information he obtained during his service in the Navy. This is publication of state secrets (§75 in the Russian penal Code).
The preliminary investigation was ended 12.12.96 and the case with the indictment was sent to the court.
In order to examine the complains presented by the defence attorneys for the General Prosecutor of the Russian Federation it was necessary to issue an order to have the case sent back from the court in order to be able to study the documents in the case.
Examination of the material in this case has shown that the case was sent to the court too early. There are a series of important mistakes; the charges presented are not concrete, while the juridical norms applied did not comply with the Russian Constitution.
The experts of the General Staff of the Ministry of Defence of the Russian Federation has in their conclusions both by the first expert committee on 30.01.96 and by the second expert committee on 10.09.96, only given general evaluations of chapters in the whole report, without concretising the level of secrecy of the information given directly by Nikitin in part 2 in chapter 8 and part 3 in chapter 2. The FSB investigators had therefore presented a charge which was too general in its form to be in accordance with the requirements of §144 in the Russian Criminal Procedure Law.
Transfer of information which previously has been published in open sources is not a criminal offence according to §64 in the Russian Penal Code. Therefore the investigators and the experts did not only have to asses the level of secrecy of the information delivered by Nikitin, but also to verify if this information had been published before. The question about the open sources was not studied by the experts at all, despite the fact that the documents in the case clearly show that they had this possibility. A similar study was carried out upon request from the investigator by experts in military unit No. 27177.
The claim presented by the defence lawyers that the expert committee illegally used normative acts in establishing which information should be considered state secrets is herewith sustained.
During the evaluation, the expert committee of the 8. department of the General Staff of the Russian Military used the "Contemporary list on information considered secret," adopted by the Government of the Russian Federation resolution No. 733-55 of 18.09.92 and put in force by decree of the Ministry of Defence, and the "Temporary list of information within the Russian armed forces that is classified as state secrets," enforced by Defence Ministry decree No. 071 of 1993.
The above mentioned normative acts are stamped "secret" and have therefore not been published officially for general knowledge.
In accordance with part 3 §15 of the Constitution of the Russian Federation and the ruling of the Constitutional Court of the Russian Federation of 20.12.95, criminal prosecution for revelation of state secrets to a foreign state is only legal provided that the list of secret information has been published officially for general knowledge. There are no exemptions for persons who obtained such information during their military service.
Consequently, the expert committees should have used in their expert assessment the Russian Federation "Law on State Secrets" of 21.07.93 and "List of information considered state secrets," enforced by Decree No. 1203 of 30.11.95 by the President of the Russian Federation. But the last normative document mentioned here entered into force after Nikitin set the actions he is accused of. This normative document can only be used after an evaluation of aggravated responsibility compared with the former valid normative documents.
During the extended investigation, a new expert assessment needs to be conducted and the violations of Nikitins rights in the prior evaluation must be eliminated. Thereafter, if there still is a basis for this, new charges in accordance with the changes in the Penal Code shall be brought. This task shall take at least 2 months.
Given that, the deadline for the preliminary investigation, which was earlier expanded to 12 months, has expired and in accordance with §133 and §211 in the Criminal Procedure Law I
That the preliminary investigation in case No. 12 shall be extended to 15 month.
The Deputy of the Prosecutor General of the Russian Federation