Press-release of Yuriy Schmidt
Part 4, Article 29 of the Russian Constitution reads "everyone shall have the right to seek, get, transfer, produce and disseminate information by any lawful means. The list of information constituting a state secret shall be established by federal law".
According to Part 3, Article 15 of the Constitution of Russia "no regulatory legal act affecting the rights, liberties or duties of the human being and citizen may apply unless it has been published officially for general knowledge".
In a ruling on December 20, 1995, the Constitutional Court found that based on these norms criminal responsibility for high treason is legitimate only if the list of data, pertaining to state secrets, is present in the federal law published officially for general knowledge. The legal decisions, including the verdict of the court can not be based on unpublished legal act".
During 2,5 years of unprecedented red tape, the investigation trampled the Constitution of Russia, ignored all the arguments of the defence counsel, and based 6 (!) FSB charges against Nikitin exactly on unpublished legislative acts – secret lists approved by the Ministry of Defence. They were not even presented to the defence counsel and the defendant.
The neglect of constitutional provisions and laws caused the case to be returned for additional investigative work after a first review by the General Prosecutor’s office of Russia. The review was carried out after a motion by the defendant’s legal counsel. In his decision issued on January 27, 1997, the General Prosecutor deputy Mikhail Katyshev clearly pointed to the number of serious violations. He completely agreed with the main arguments of the defence, including the one about "unlawful usage of law applied in expert examinations of normative acts, defining the information, which contains state secrets". In his resolution he reproduced the aforementioned articles of the Constitution and clarification by the Constitutional Court of Russia. He also stated that "the evaluations should have been conducted in accordance with the Law on State Secrets" dated July 21, 1993". He ordered that additional evaluations be undertaken after "eliminating the violations", and then, "if grounds are sustained, to present charges based on the law".
In the previous press release of the defence it was said that the FSB followed the obligatory instructions of the Deputy General Prosecutor "precisely the opposite way the Prosecutor had ordered". Besides, the military experts in their conclusion, and then the investigative body, again based the accusation of revealing state secrets on the same "unlawful" legislative acts. Having used refined demagogy, the FSB openly challenged Katyshev’s position of legal principle.
Naturally, the defence council had to submit a petition to the General Prosecutor’s office once again. The first nuisance was that the case had been taken out from the control of Katyshev and passed over to another Prosecutor’s deputy Rozanov, who refused to meet us in the beginning. We had to lobby for the meeting through the deputy of the State Duma.
On April 21, 1998 we received an answer from Mr. Rozanov. He stressed that it was done "in accordance with instructions from the Prosecutor General of the Russian Federation".
So, what were "the instructions" of the General Prosecutor? He pointed out that " The charges against Nikitin A.K. for high treason, collection and transferring of data covered by the provisions of the Law on State Secrets, are sustainable". At the same time, the St. Petersburg Prosecutor’s office was ordered to correct incidents of negligence, namely: " to exclude from the case all references to the administrative decrees which were either not officially published for the general public, or were published after the divulging of state secrets in question in this case had occurred. Usage of these decrees violates article 15 of the Constitution of the Russian Federation".
But Article 15, as quoted above, contains a prohibition to apply unpublished legislative decrees, what is not equal to a prohibition to refer to them.
Obviously, this is not a play on words; otherwise the General Prosecutor would not be able to acknowledge the accusation to be "sustained", based namely on the illegal application of the decrees. And the FSB understood the guiding instruction, as it wanted to: The seventh set of charges, levelled against Nikitin on May 8, 1998, is a precise copy of the sixth set. It means that examination of the data, as pertaining to state secrets, was based on the same decrees of the Minister of Defence. The text of appropriate paragraphs from the decrees is reproduced in the accusation. In fact, it could not have been any different, as the "new" accusation is based on the old expertise, which was based upon these secret decrees. The only change is that the references to the numbers and paragraphs of the orders have disappeared. The decree numbers, not their content, were "excluded" as ordered by the two responsible officials, who exercise top supervision of legal order in our country.
The legal masterpiece of Mr. Skuratov and Mr. Rozanov solves one more quite painful problem for the investigators – the legal requirement of presenting the accused with the charges brought against him. Why familiarise the defence counsel with the decrees, if there is no references to them in the text of charges?! In the recent FSB’s resolution where a petition from the defence counsel is rejected, investigator Aleksandr F. Kolb, referring to Article 55 of Constitution (!), stated that the limitations of the defendant’s right to information concerning his own case are legitimate.
In the resolution by Katyshev mentioned above, there was an important statement, namely "publication of information previously published in other sources does not constitute the formal element of crime". In their answer dated April 21, 1998, Skuratov and Rozanov state that according to the conclusion of the expert group the data Nikitin allegedly transferred abroad could not be obtained from open sources. The experts of the Directorate 8 of the HQ of the Ministry of Defence gave incompetent, unintelligible and at the same time rather evasive answers to this question. Three months later, investigator Osipenko (soon he "tragically perished" due to a strange coincidence), executing Katyshev’s instruction, conducted a detailed comparative examination of the documents in question. The specialists from the Russian Navy took part in this examination. The results of the examination were documented in the report dated 15 August 1997, and then attached to the case file. It would be enough for the Prosecutors just to read this document and look at the defendant’s table, compare differences and similarities between the defence’s and the commission’s findings, in order to come to the obvious conclusion that there are practically no divergences. Taking this into consideration, it is impossible to maintain that there is any formal element of a crime in Nikitin’s actions. So, the General Prosecutor made a 180-degree U-turn from the previous position, taken by his deputy Katyshev one year ago. The General Prosecutor’s decision does not only contradict the law, but is also shameful and ridiculous.