News
Publish date: October 29, 1998
News
Judge Golets’ closing statement and verdict, read in court on Thursday 29 October 1998. This document contains strong critisism of the investigation. Golets concludes that the indictment is illegally vague, depriving the defendant any possibility of defence. The judge orders renewed investigation, among other specifying that the open sources must be taken into consideration.
Un-official translation
Case No. 02-1\98.
The court collegium for criminal cases of St.-Petersburg City Court consisting of:
chairman – judge Golets S. Y.
lay-assessors – Akhmedov G. Z. and Lavrova Y. N.
secretary – Semenova V. P.
with participation of prosecutor Gutsan A. V.
and lawyers Schmidt and Pavlov
on October 29, 1998 considered the criminal case no. 02-1 during closed trial in St.-Petersburg with accusation of
NIKITIN Alexander Konstantinovich, citizen of Russia, military pensioner, without previous conviction, married, living in St.-Petersburg at Tukhachevskogo str. 5-4-69,
decicion:
During the preliminary investigation Nikitin was accused of collecting and transferring to a foreign organisation information pertaining to state secrets in the field on nuclear submarines of the Northern Fleet, with the purpose of damaging the external security of Russia. In September 1995 in Murmansk he transferred the above-mentioned information to the representative of this organisation i.e.: conducted treason in the form of espionage (article 275 of Russian Penalty Code).
He was also accused of divulging information pertaining to state secret, which he got to know during his military service, when he had access to secret and top secret information. While writing chapter 2.3 of the report for the Norwegian environmental organisation “Bellona”, he described the nuclear installations of nuclear submarines of the 3rd generation, which pertains to the state secret in the field of military (article 283 part 2 of Russian Penalty Code edition of June 25, 1998).
During the trial, Nikitin and his lawyers have levelled a written petition with the request not to call as witnesses further persons listed in the attachment to the indictment. They have also levelled an oral petition about closing the case due to serious violations of the Russian Criminal Procedure Code (without mentioning the base of article 5 of Russian Criminal-Procedure Code). As the right of the accused for defence was violated, the defence attorneys claims that the right of the accused was violated. In particular, the right to know what he is exactly accused of, according to article 143 and 144 of Russian Criminal Procedure Code and the opportunity to apply his rights according to article 184 and 185 of Russian Criminal Procedure Code. Moreover, the attorneys consider the lack of legal foundation for the indictment, as a violation of Russian Constitution.
Having examined the petition, the court finds it must be rejected based on the following:
As it is evident of the list of witnesses, they are persons of different procedural status, who more or less illuminate questions regarding the indictment, the accused or his personality. In particular, the interrogation of two expert-witnesses and other witnesses during the trial did help the Court to understand the main point of the indictment.
Taking into consideration the provisions of article 20 of Russian Criminal Procedure Code “about thorough, full and objective investigation of the case” the court has no right to decide whether it is pointless or not calling further witnesses without discussing each witness separately. But the court will take into consideration the objection from the prosecution regarding not calling the witnesses.
Considering the question regarding closing the criminal case, the court finds that this contradicts Article 5 part 3 of Russian Criminal Procedure Code (which states that the court shall bring the case to an end if certain conditions are present). The court finds that the volume and the content of the accusations are not clarified, and that this can only be added during additional investigation.
So, the accusation against the defendant for committing a crime according to article 275 of the Russian Penal Code while writing of chapter 8.2 of the report for the foreign organisation “Bellona”, the investigation’s resolution dated May 8, 1998 (vol. 21 page 39-48), and then the indictment violates articles 143 and 144 of the Russian Criminal Procedure Code. The factual and concrete circumstances [of the crime] are not indicated and there is no objective side. In other words, there is no concrete text in the indictment rendering the information about the accidents on each nuclear submarine, which according to the investigation Nikitin passed to the foreign organisation, thus violating the “Law about state secret”. It is not clarified exactly which information about the accidents that constitutes state secrets.
It is in page 41-43 of the indictment (vol. 21, page 134-136) given an evaluation of the character of the secret information, but not its essence, which does not allow the accused to defend himself with legal means because of the vagueness of the indictment. It also deprives him from his legal rights, and prevents the court from checking the grounds of the indictment.
Besides, the investigation’s conclusion that the data about submarines from K-27 to K-279 (vol.21 sheet 134-135) contains information about losses of armament and military equipment, and that such information is secret according to article 5 part 1 of the Federal Law on State Secrets, does not correspond to the content of this law and cannot be accepted by the court.
Moreover, the court finds that there has not been carried out any proper and complete expert examination regarding the question whether the collected and transferred information pertains to state secrets according to the law.
During the preliminary investigation it was obvious several times, in particular in the resolutions dated June 24, 1996 and September 25, 1996 (vol. 18 page 78-82), that the expert-evaluations from the 8th Department of the Russian General Staff were not concrete and not complete, and could not be used by the investigation. Therefore, new expert examinations were set, and also an additional expert examination was set, on which conclusions the present indictment is based.
In the last expert-conclusion dated May 28, 1997 (vol.19 page 46-76) the experts did not give a concrete answer to question No. 6 regarding the open sources of information, provided by the accused Nikitin. There is a contradiction in the conclusion concerning this matter (page 64 and 75 vol. 19). It is not clear which documents exactly and which open sources that were examined, and on which grounds they were turned down. Therefore, the work of this expert-committee is not complete and the court can not accept its conclusion.
Moreover, the Court finds the estimation of the damage caused by Nikitin to be contradictory, supposing it was not defined. The indictment states that the damage is equal to 4.500.000 roubles (prices after January 1, 1998), referring to article 283 of Russian Penalty Code. In the experts’ conclusion dated September 23, 1996 (vol.10, page 273) the damage caused by chapter 2 was estimated to 34.000.000 roubles (prices after January 1, 1998). However, the defendant was accused only of writing one of the parts of this chapter, in particular part 2.3, by including there information pertaining to state secret. Any other special or additional estimation, setting the sum 4,5 million roubles has not been attached to the case. The resolution regarding this question was not passed.
Taking into consideration the above-mentioned the court finds it necessary to return the case for additional investigation. It is necessary to clarify the volume of the accusations of the defendant Nikitin in accordance with the above-mentioned conditions; to conduct additional expertise concerning the information used by the accused from the open sources; and to carry out other investigative actions, which are necessary for completing the investigation.
Basing on the above-mentioned, and in accordance with article 232 part 1, part 2 and article 261 of the Russian Criminal Procedure Code the court
has decided:
This verdict may be appealed to the Russian Supreme Court within 7 days from the day of its announcement.
The chairman:
The assessors:
(signatures)
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