Before the City Court of St. Petersburg, Russia
In the Matter of Alexander Nikitin

BRIEF AMICUS CURIAE

by
William M. Cohen

President and Chief Counsel
The Centre for Human Rights Advocacy

I. The Charges Against Alexander Nikitin Violate Article 54 of the Russian Constitution

A. The Foundation of the Charges Against Nikitin

Alexander Nikitin remains charged with

• high treason through espionage by handing over to a foreign organisation information classified as state secrets (Article 275, RF Criminal Code), and
• disclosure of state secrets (Article 283, part 2, RF Criminal Code) in connection with his work on behalf of the Norwegian environmental organisation Bellona. Nikitin’s work for Bellona pertained to the danger of radioactive waste contamination in Northwest Russia.

The time period during which Nikitin allegedly conducted this illegal activity is between February and September 1995.

The element of disclosure of information classified as state secrets is an essential component of each of these charges. However, throughout the investigation and in its present indictment, the prosecution has relied on the following three decrees that purportedly define the state secrets, which Nikitin allegedly disclosed:

1. Presidential Decree 1203:95 (articles 6 and 7), published officially for general public knowledge and entered into force on November 30, 1995;
2. Defence Ministry Decree 055:96 (Articles 275, 287, 305 and 582), entered into force on September 1, 1996, but never published officially for general public knowledge; and
3. Defence Ministry Decree 071:93 (Articles 242, 287, 300, 317, 612), entered into force on September 7, 1993, but never published officially for general public knowledge.

Two of these decrees, Numbers 1 and 2 above, did not exist prior to the period of Nikitin’s alleged criminal misconduct. Also, two of these decrees, Numbers 2 and 3 above, have never been published officially for general public knowledge. Nevertheless, the present indictment has more than 20 direct references to provisions in these decrees.

Therefore, the Court must decide as a preliminary matter before conducting a trial on the merits of these charges whether they violate the prohibitions in Article 54 of the Russian Constitution against retroactive criminal legislation or normative acts (decrees or regulations) and against criminal liability for action which was not legally recognised as an offence at the time it was committed.

B. The Scope of Article 54 of the Russian Constitution

Article 54 of the Constitution of the Russian Federation, adopted by referendum on 12 December 1993, provides:

• "The law instituting or aggravating the liability of a person shall have no retroactive force.
• No one may be held liable for an action that was not recognised as an offence at the time of its commitment. If liability for an offence has been lifted or mitigated after its perpetration, the new law shall apply." [1]

Article 54, in essence, incorporates two fundamental principles of the rule of law, principles now recognised virtually universally as customary international human rights law: [2] First, that criminal statutes cannot be applied retroactively to punish conduct committed prior to the effective date of any law which establishes a crime or increases punishment therefore; and second, of equal importance, no conduct can be prosecuted and punished criminally in the absence of the existence of any law defining such conduct as criminal prior to its commission.

Article 7(1) of the European Convention on Human Rights [3] also prohibits retroactive criminal legislation in language substantively identical to Article 54 of the Russian Constitution. Article 7(1) has been construed by the European Court of Human Rights to give expression to these two basic principles of the rule of law:

The Court points out that Article 7(1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.

Kokkinakis v. Greece, European Court of Human Rights, judgement of 25 May 1993, (1994) 17 EHRR 397, para. 52. Accord, SW v. United Kingdom, European Court of Human Rights, judgement of 22 November 1995, (1996) 21 EHRR 363, para 35. [4]

In SW v United Kingdom, the European Court of Human Rights recognised both the importance and the purpose of these rules of law protections:

The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under its Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.

Id. at para 34. [5] The importance of these principles, as embodied in Article 54, to the establishment and preservation of Russia as a "rule-of-law state," Article 1, RF Constitution of 1993, is similarly emphasised by the fact that Article 56, part 3 of the Russian Constitution prohibits restrictions on the rights protected by Article 54 even in the event of a state of emergency. [6]

C. The Relationship of Article 15, Part 3 of the Russian Constitution to Article 54.

The reliance of the indictment in this case on Presidential Decree 1203:95 and Defence Ministry Decree 055:96, both issued or published after Nikitin’s alleged misconduct, patently violates Article 54’s prohibition on applying criminal laws retroactively. However, reliance on Defence Ministry Decrees 071:93 and 055:96, both of which have never been published for general knowledge, also violates the fundamental rule of law principle embodied in Article 54 that conduct not defined in law as criminal can not be prosecuted and punished.

Article 15, part 3, Russian Constitution of 1993, provides:

"Laws shall be officially published. Unpublished laws shall not be applied. 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."

Therefore, under Article 15, part 3, the charges of Treason and Disclosing State Secrets against Nikitin, to the extent they rely on unpublished decrees, lack a foundation in enforceable law. Those charges are therefore unconstitutional under Article 54, which forbids prosecuting Nikitin for conduct which "was not recognised as an offence at the time it was [allegedly] committed." Article 54, Part 2, RF Constitution of 1993.

The Office of the Procurator General of Russia in Moscow has issued two Letter Opinions concurring in the above-stated analysis of the charges against Mr. Nikitin. In his resolution on the prolongation of the time limit for the preliminary investigation dated January 27, 1997, Deputy Procurator General M.B. Katushev reviewed Nikitin’s complaint that the charges of treason and disclosing state secrets were unconstitutional because they were based on retroactive and/or secret laws. Relying on Article 15, part 3 and the ruling of the Constitutional Court of the Russian Federation of 20 December 1995 (the "Smirnov" Case), and with express reference to amongst others the secret and unpublished Defence Ministry Decree 071:1993, Mr. Katushev stated that "criminal prosecution for revelation of state secrets to a foreign state [treason] is only legal provided that the list of [what constitutes] secret information has been published officially for general knowledge. There are no exceptions for persons who obtained such information during their military service."

Mr. Katushev also recognised that Presidential Decree 1203:95 could not be relied on to determine whether Nikitin had disclosed state secrets because that normative document "entered into force after Nikitin" allegedly committed the "actions" of which he is accused. Hence, Nikitin’s complaint that the investigation and expert committee illegally used retroactive and unpublished normative acts in establishing the information that could be considered state secrets in this case was sustained by Mr. Katushev. The Procurator General of St. Petersburg was instructed to order the investigative body, the FSB, to carry out a new expert evaluation that was not based on secret and retroactive legislation, and only come up with new charges against Nikitin if these could be based on valid normative documents, i.e: The charges could not be based on secret and retroactive decrees.

Despite these instructions the FSB on June 17 and September 9, 1997 as well as on February 24, 1998, filed subsequent charges against Nikitin that were based on these same secret and retroactive decrees. In addition, the FSB also based the charges on secret and unpublished Defence Ministry Decree 055:96, issued long after Nikitin’s alleged misconduct. In response to another complaint by Nikitin, by Letter Opinion dated April 21, 1998, Deputy Procurator General A.A. Rozanov recognised that earlier "the Procurator General of St. Petersburg was instructed to [see that the FSB] exclude from the case all reference 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," because "usage of those decrees violates article 15 of the Constitution of the Russian Federation."

However, the current indictment, to the extent it remains dependent on these same retroactive or unpublished administrative decrees which among others is evident of its more than 20 direct references to the provisions of these decrees, still violates the provisions in Article 54. Moreover, if the charges against Nikitin are no longer dependent on those decrees, since they rely on no other decrees defining state secrets which were published for general knowledge prior to Nikitin’s alleged misconduct, those charges are supported by no law whatsoever. Without such a pre-existing legal foundation, the current charges violate the rule of law principle expressed by Article 54 and Article 15, Part 3 that "no one may be held liable for an action which was not recognised as an offence [by a previously published law] at the time of its commitment."

To require Nikitin to stand trial on charges which are not supported by laws published and effective prior to the conduct alleged to be criminal would be oppressive, the very evil sought to be prevented by Article 54 of the Russian Constitution. See Kokkinakis v. Greece, supra, at para 34. Therefore, the charges of treason and disclosure of state secrets currently pending against Nikitin should be dismissed.

[Footnotes]

[1]. On November 21, 1991, the Russian Congress of Peoples Deputies adopted virtually identical provisions to Article as Article 35 of The Declaration of Rights and Freedoms of Person and Citizen which provided: Return

Article 35
(1) A law instituting or aggravating a person’s liability shall have no retroactive force. No one may be held liable for acts not deemed to be an offence when these acts were committed. The new law shall apply where, after commission of offence, liability therefor has been eliminated or reduced.

(2) A law providing for punishment of citizens or restriction of their rights shall take effect only upon its official promulgation.

Article 35 of this Declaration was incorporated virtually verbatim into Amendments and Additions to the Russian Federation Constitution of 1978, effective on signing by the President on 21 April 1992, as Article 66 under Chapter 5, Human and Civil Rights and Freedoms. The substance of Article 35, Part 2 of the Declaration, and Article 66, paragraph 2 of the Additions to the 1978 Constitution was incorporated into the 1993 Constitution in Article 15, Part 3. However, the interrelationship of Article 15, Part 3, and Article 54 of the 1993 Constitution remains important as discussed subsequently in this Brief. Return

[2]. The universal recognition of the prohibition against retroactive criminal laws or increased punishments is demonstrated by inclusion of that prohibition in the following international Declarations and Conventions: Article 11, Universal Declaration of Human Rights (1948); Article 15, International Covenant on Civil and Political Rights (1966); Article 7, European Convention on Human Rights (1950); Article 9, American Convention on Human Rights (1969); Article 7, Part 2, African Charter on Human and Peoples’ Rights (1981).

Also, most State constitutions include such prohibitions, including, for example, the United States Constitution, Article I, Section 9, Clause 3 and Section 10, Clause 1 (1789), Article 96, cf. 97 of the Norwegian Constitution (1814) and the Constitution of South Africa, Article 35(l)(1996). Return

[3]. Article 7(1) of the European Convention on Human Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

[4]. Article 15, Part 4, RF Constitution of 1993 provides, in pertinent part, that "the commonly recognized principles and norms of the international law and international treaties of the Russian Federation shall be a component part of its legal system." Russia ratified the European Convention on Human Rights in February 1988, effective in May 1998. Therefore, it forms a component part of the Russian legal system, is binding on all levels of the Russian government and along with the specific provisions of human rights in the Russian Constitution "shall be secured by the judiciary." Article 18, RF Constitution of 1993. See Decision of the Constitutional Court of the Russian Federation of March 27, 1996 (The Gurdzhinyants, Sintsov, Bugrov, and Nikitin Cases)(Article 14 of the International Covenant on Civil and Political Rights forms a component part of the legal system of the Russian Federation, including the right to choose one’s own attorney in a state secrets criminal case). The decisions of the European Court of Human Rights interpreting the European Convention on Human Rights should be considered by this Court as authoritative with respect to the purpose and meaning of the Convention’s provisions. Return

[5]. The United States Supreme Court has recognized a similar purpose in the United States Constitution’s prohibition against "ex post facto" criminal laws. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)(Opinion of Justice Chase)(The ex post facto clause should be viewed as "an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation.") Return

[6]. Article 56, Part 3 provides in pertinent part:

The rights and liberties stipulated by Article… 54 of the Constitution of the Russian Federation shall not be subject to restriction. Return