Analysis of the Nikitin verdict

Publish date: November 12, 1998

Written by: Jon Gauslaa

This is said to be the first time ever that a Russian court has sent a case initiated by Soviet or Russian security services back to additional investigation in stead of passing a guilty verdict. Thus, the verdict is a crushing defeat for the FSB.

On October 29, the court collegium for criminal cases of the St. Peterburg City Court consisting of judge Sergei Golets, and lay-assessors G. Akhmedov and Y. Lavrova, deciced to stop the Nikitin trial and return the case to additional investigation. Even if this means that Aleksandr Nikitin not yet has been acquited, the court’s decision is a victory for him. This is said to be the first time ever that a Russian court has sent a case initiated by Soviet or Russian security services back to additional investigation in stead of passing a guilty verdict. Thus, the verdict is a crushing defeat for the FSB. The court has in fact considered the investigation carried out by the FSB for almost three years to be without any value, as it points out:

  • The accusations against Mr. Nikitin are so unclear that he is deprived from his legal right to defence, and they give the court no possibilities to evaluate the foundation of the indictment.
  • One of the indictment’s major points concerning Nikitin’s alleged handing over state secrets concerning losses of armament and military equipment in times of peace violates the federal law on State Secrets.
  • Each and all expert-evaluations that the indictment is based on are useless.

The court has in other words shattered the prosecution’s case and confirmed that the charges neither has a legal nor a factual foundation. Nikitin is, however, not acquitted and is still the subject to travel restrictions because of the criminal case. This state of affairs violates his fundamental rights, guaranteed both in the Russian Constitution and international treaties ratified by Russia, most notably the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (CP). Therefore, the defence has appealed the City Court’s decision to Russia’s Supreme Court, and demanded that the case must be stopped. However, also the prosecution has appealed the decision, claiming that the court was mistaken when it rejected the expert-conclusions, rather than taking them for granted. The prosecution has in other words no intention to give up their attempt on having Nikitin convicted.

Why was Nikitin not acquitted?
For those who have followed the Nikitin-case over the last few years, it is not surprising that the court found no reasons for a conviction in the material provided by the prosecution. However, what may raise a few eyebrows is that even if the court realized that the prosecution’s case was a mess and that no evidence indicates that Nikitin is guilty, it did not acquit him. In a country ruled by law, the only possibility would have been to pass a not-guilty verdict. This follows from the "presumption of innocence", which among others is evident of ECHR Article 6 (2), CP Article 14 (2) and Article 49 of the Russian Constitution. According to these provisions, the defendant in a criminal case shall be considered innocent until his guilt has been proven beyond reasonable doubt in a court of law. Consequently, if the prosecution is not able to present tenable evidence before the court, the defendant shall be acquitted.

However, it appears that the Russian Criminal Procedure system does not give the possibility to find a defendant not guilty because of lack of evidence. To aqcuit the defendant, the court has to write a detailed item-by-item rebuttal of the indictment. But when the prosecution’s case is as messy as the Nikitin-case, it is practically impossible to write an acquital. As it was pointed out in the editorial in Moscow Times on October 31, 1998, we face a bizarre Catch 22 situation: "If the prosecution can’t bring a proper case against Nikitin, then Nikitin should be acquitted – but Nikitin can’t be acquitted if the prosecution can’t bring a proper case against him".

Consequently, it is not that easy to critizise judge Golets and his two lay-assessors, when they in stead of passing a not guilty-verdict, ordered the prosecution to clarify the charges. From a western point of view, one could critizise the court for acting in accordance with the old Soviet Criminal Prosedure Code, rather than the Russian Constitution and international treaties legally binding for the Russian Federation. However, this would not be fair. Even if it the legal foundation for a not guilty-verdict in the Nikitin-case is solid, such a verdict would still be a very brave one. Moreover, it would also shake the foundation of Russian criminal procedural practice, where hundreds of cases every month are sent back to additional investigation because of lack of evidence. A city court may not be the right place to initiate such shakings. Even in a country ruled by law fundamental changes of the criminal procuderal practice often have to be carried out by the Supreme Court.

Therefore, the subject for the critizism after the "sending back"-verdict should not be the City Court of St. Petersburg, but the system which prescribes that criminal cases with lack of evidence shall be sent back to additional investigation, in stead of ending with an acquital. This legacy from the Soviet era is one of many examples of the desperate need for a total reform of Russian criminal procedure. In spite of the Russian Constitution’s many guarantees of legal protection, the judicial foundation for the conducting of criminal cases, is still the Criminal Procedure Code from 1960, which on most points is both outdated and unconstitutional.

A closer examination of the verdict of the city court
Before the Nikitin-trial it was stated from various quarters that the trial would be an important test case for the rule of law in Russia. As the trial was abrupted, and the legitimacy of this decission will be subject to Supreme Court evaluation, possibly in January 1999, it is too early to pass the final verdict over the Russian legal system. But the system has so far not passed the test completely. However, the failure could have been much worse, and a closer examination of the city court’s verdict gives at least some reason to be optimistic concerning the futural development.

After rendering that Nikitin has been accused of treason in the form of espionage and disclosure of state secret with serious consequenses, the court refers to the defenders’ written petition with the request not to call further witnesses to the court. This written petition was supplemented with what the court described as:

"… 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 the Russian Constitution."

The defence did in its oral petition indeed mention the violations of various provisions of the criminal procedure code, including articles 143 and 144 (the concreteness of the indictment) and 184 and 185 (the accused’s right to take part in the appointment of expert-committees). Its main point, however, was not that "the case should be closed", but that the court should continue directly to the closing speeches from the prosecution and the defence, without calling any further witnesses or experts. Morover, because the indictment is based on secret and retroactive decrees it has no legal foundation and violates the Russian Constitution.

Not calling further witnesses or experts
The court rejected the defence’s petition on not calling any further witnesses or experts to the trial, because it had to discuss each person separetely before it could decide whether it is pointless or not to call them. This may seem plausible. It is, however, reason to believe that the court had evaluated these questions also before the trial. The list of witnesses and experts to be summoned was presented on June 29, 1998, and the case files were passed over to judge Golets in early September. In October the three witnesses Rudenko, Filippov and Mormul, and also the two experts Ogoltsov and Babykin, were summoned. Mormul was because of his illness, later replaced by the witness Chernov. The remaining 23 witnesses and four experts were not in advance summoned to the court.

This is hardly surprising, as very few of the remaining witnesses or experts would be of any significance in order to clarify the facts of the case. The witnesses would only confirm incidents that nobody has denied; for instance that Nikitin was working for Bellona. No less than five witnesses were summoned to testify about this. Five others were called to testify that Nikitin and three other Bellona-employees were stopped at a traffic-police checkpoint in February 1995, while three witnesses were called to testify that Nikitin during his service in the Navy had access to secret information and so on. The four remaining experts have evaluated whether the Bellona-report contains state secrets. However, the basis of their evaluation is unvalid, as they in contradiction with the Russian Constitution and the order issued by Deputy General Prosecutor M. Katushev on January 27, 1997, have based their conclusions on secret and retroactive decrees. Besides they have not made an adequate analysis of the open sources.

To summon these witnesses or experts would therefore be a waste of time and money. Thus the petition from the defence is well founded. However, the court may have had formal reasons to turn it down. Besides, even if the petition was formally rejected, the court actually approved the defence’s point of view, as its response to the petition was to stop the trial and send the case back to additional investigation without summoning any further witnesses or experts. The court’s judgment of the value of questioning the remaining witnesses and experts, may therefore be similar to that of the defence. The difference between the court and the defence regarding these matters may not so much be the diagnosis (that no further witnesses/experts are needed to clarify the case) as the prescription. While the defence demanded the trial to continue to the closing speeches in order to reach an acquittal, the court choosed a more traditional sollution; to send the case back to the investigators because of its messy condition.

The question of closing the criminal case
The court claims that it would have contradicted article 5 part 3 of the Criminal Procedure Code to close the case at the present stage. However, the defence’s main point was not that the case should be closed, but that the proceedings should continue to the closing speeches. Moreover, the court has turned its attention away from the constitutional questions raised by the defence, and in stead focused on the prosecution’s violations of the Criminal Procedure Code.

Thus, it seems like the court has decided not to take a stand on the constitutional questions concerning the usage of secret decrees and the alleged lack of legal foundation of the indictment. This may be understandable, even if these questions from a legally point of view should have been discussed. However, when it comes to the violations of the Criminal Procedure Code, the court indeed takes a stand. In fact it formulates the strongest critisism that has been raised against the investigation from any official quarters since Katushev’s resolution from January 1997.

The indictment violates the criminal procedure code
The court states that "the volume and the content of the accusations are not clarified, and that this can only be achieved during additional investigation". It agrees with the defence that the accusation against Nikitin for having committed treason through espionage while writing chapter 8.2 of the Bellona-report violates articles 143 and 144 of the Criminal Procedure Code. It is not enough that the indictment points out the alleged "character of the secret information", by stating that for instance the information about the submarine K-27 reveals information on "losses" of military equipment. The indictment should also have rendered the concrete information in the report that according to the Law on State Secrets is secret, in order to clarify " exactly which information about the accidents that constitutes state secrets". By failing to do this, the indictment does not "allow the accused to defend himself", and it "prevents the court from examining the grounds of the indictment".

Only if the court knows excactly which information in the report that the prosecution considers as secret, it will be able to make an independent evaluation of whether this information is secret according to the law or not. And only then will the defendant be able to defend himself against the charges for having handed over allegedly secret information to a foreign organisation. From a judicial point of view this is a correct angle of incidence, and it shows that the court has ambitions on acting independent. It gives some hope, that even some of the lower courts in Russia have adopted a way of thinking that would be applauded also in most countries where the legal system not only on paper, but also in practice are based on the rule of law.

The indictment violates the law on state secrets
The court rejects that the Bellona-report concerning the submarines from K-27 to K-279 (all submarines that are mentioned in the indictment) contains secret information about "losses" of armament and military equipment in times of peace. The claim in the indictment that information about such losses is secret according to article 5 part 1 of the Law on State Secrets does as the court sees it "not correspond to this law". Therefore this (major) point of the indictment "cannot be accepted by the court".

This is a victory for the defence, who ever since the case started has claimed that the Law on State Secrets has no provisions that gives room for classifying information about losses of armament and military equipment in times of peace. The court’s verdict approves the defence’s interpretation. Consequently, the accusation that Nikitin have handed over to a foreign organization information about "losses" of armament and military equipment, has to be withdrawn.

The evaluations of whether there is state secrets in the Bellona-report
All accusations against Nikitin, including the one discussed above, were based on the presupposition that he has collected and handed over information that constitutes state secrets. This presupposition is in its turn based on an expert-evaluation from May 1997. However, this evaluation is not based on what information that is secret according to the law, but on what information that is secret according to secret and/or retroactive decrees; namely Decree 071:93 and 055:96 from the Minstry of Defence and Decree 1203:95 from the Russian President.

This is evident of a comparison between the charges dated February 24, 1998, the charges dated May 8, 1998 and the judicial part of the indictment dated June 29, 1998. The texts in these documents are identical, except from one crucial difference: The references to the actual points in the decrees are removed in the two latter documents. Moreover, the indictment’s rendering of the experts’ conclusions has more than 20 direct references to the secret and retroactive decrees.

Consequently, the indictment violates several provisions in the Russian Constitution, among others article 15 part 3 (usage of secret decrees), article 54 (usage of retroactive legislation) and article 123 part 3 (lack of equality between the parties of the case). One could have hoped that the court would have addressed the question regarding the usage of these decrees more directly. However, even if the court has not taken up a specific discussion concerning the expert’s usage of these decrees, it is indeed critical to their work as it among others points out:

"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."

This statement shows that the experts’ evaluation of whether the Bellona-report contains state secrets or not, have been a total failure. The reason is that all expert-committees that have reviewed this question have emphasised entirely on the secret decrees from the Ministry of Defence. They have ignored both the limits for secrecy set by the Law on State Secrets and the Constitution’s prohibition against using secret and retroactive legislation as basis for a criminal charge. This has made their conclusions useless from a legal point of view, a uselessness that is further strengthened by the experts’ lack of willingness to evaluate the open sources.

After having named the first couple of expert-evaluations as "not concrete and not complete" the court also judges the expert-evaluation that forms the basis for the present indictment to be unsatisfactory. The experts do not state which open sources they have examined and they give no grounds for their conclusion that the information could not have been taken from open sources. Therefore, the work of this expert-committee "is not complete and the court can not accept its conclusion".

Moreover, even if the court focuses on the inadequate evaluation of the open sources, it also states that none of the expert committees, including the one from May 1997, have given a "proper and complete answer" to the question whether the collected and transferred information pertains to state secrets according to the law. So, even if the court does not explicitly state that the expert-evaluation has an unconstitutional foundation because of the usage of secret and retroactive decrees, it gives some hints in this direction. After all, the only basis for the experts’ work that would be in accordance with the Constitution is the Law on State Secrets.

However, in 1995 when Nikitin committed the actions he is accused of, this law did not classify any information. It only stated that information within various fields could be classified, while the act of classification itself was supposed to be carried out by presidential and ministerial decrees. The only such act that by September 1995 had been carried out within the military field, was a secret military decree (071:93), which cannot be used as a basis for a criminal charge. Consequently, the only possible result of a "proper and complete" evaluation of the question of whether the Bellona-report contains secret information according to the Law on State Secrets, would be that the report not contains such information. Simply because at the time of the writing of the report, there existed no secret information according to this law.

The evaluation of the damage
The court also considers the expert-evaluation of the damage caused by Nikitin as meaningless. The evaluation is contradictive. While the indictment states that the damage caused by Nikitin by writing chapter 2.3 equals 4.500.000.000 old roubles (approx. 900.000 $), the experts do not mention this figure at all. They claim that the damage caused by the whole chapter 2 equals roubles, but there exist no evaluation connecting 4.500.000.000 roubles to chapter 2.3. The experts were examined in court, but this did "not help the Court to understand the main point of the indictment". The statement in the indicment that Nikitin have violated article 283 part 2 of the Penal Code because his alleged disclosure of state secrets has caused serious damage, is therefore as the court sees not well-founded.

The court’s instructions
The court points out the direction for the additional investigation. It is necesarry to "clarify the accusations", to conduct "additional expertice concerning the information used by the accused from the open sources" and to carry out the "other investigatice actions which are necesarry for completing the investigation".

The phrase "additional investigation", does not mean that there shall be taken any further steps in order to clarify the facts of the case. These facts took place in 1995, and even the FSB has in a resolution dated February 24, 1998 admitted that it no longer is possible to bring new facts into the case. The purpose of the additional investigation is therefore to define precisely the accusations against Nikitin, so that the indictment can be brought in accordance with the demands of the verdict.

To achieve this, the open sources have to be evaluated, and it must be figured out whether chapter 2.3 and 8 of the Bellona-report contains any information that not has been published before. This evaluation must be based on the sources provided by Nikitin. If the evaluation of the open sources shows that the said chapters contain information that not have been published before, this information must be evaluated in relation to the Law on State secrets, while the secret and retroactive decrees not can be used. If the investigation finds any information that

  1. not have been pubished before and
  2. pertains to state secrets according to the Law on State Secrets,

then this information must be quoted in the indictment. Only then will Nikitin have a possibility to defend himself against the accusations. And only then will the court have a possibility to understand the accusations, and be able to make an independent evaluation of whether Nikitin has collected and handed over to a foreign organization informations that constitutes state secrets according to the law or not.

The case-files allready contain a rather usable evaluation of the open sources carried out by experts within military unit 27177 in August 1997. Thus, the first part of the additional investigation may not be too difficult. However, the FSB-investigators have ignored the said evaluation, and stuck to the incomplete and unvalid evaluation from the 8th Department of the General Staff. The reason is obviously that the evaluation of unit 27177 shows that practically all information in chapter 2.3 and 8 of the report has been published before. The extent of information that is not mentioned in any of the open sorces, is so limited that one hardly can say that any "new" information is revealed, neither from a quantitative nor from a qualitative point of view.

Moreover, the law did as pointed out above, not classify anything as state secrets in 1995 when the information was collected and handed over to Bellona. The only classification were made in a secret decree, which according to Article 15 part 3 of the Constitution can not form the basis of any criminal charge, while basing the charges on legislation adopted after 1995 would violate Article 54 of the Constutiton.

Thus, if the investigators act in accordance with the court’s instructions, it will be impossible for them to come up with new and lawful charges against Nikitin. They have no other legal alternative than to close the case.

The case may go on and on
The above-mentioned outcome presupposes that the FSB will act in accordance with the court’s verdict as well as with the Law on State Secrets and the Constitution. However, given the fact that the FSB-investigators on several occasions have refused to fulfil the orders from the Russian General Prosecutor to act in accordance with the law and not base the charges on secret decrees, there is no reason to believe that they will act otherwise this time. Prosecutor Aleksandr Gutsan is likely to approve new charges from the FSB, even if they are not clarified and again will be based on secret and retroactive decrees. If such charges are brought to court, they in all likelihood again will be returned to additional investigation. Then the FSB will be coming up with the same unclear indictment based on secret decrees again and again, and the court will send every one of them back to additional investigation.

Thus, the Nikitin process may enter a vicious circle, where his right to have the criminal charges against him settled within reasonable time, his right to an effective remedy and his freedom of movement will be increasingly violated. If not the Russian Supreme Court comes up with a satisfactory solution in the forthcoming appeal case, these violations may in principle go on forever. However, the abovementioned rights and freedoms are guaranteed by the European Convention of Human Rights (see articles 6 (1), 13 and article 2 of Additional Protocol No. 4). If the Russian judicial system is not able to settle the Nikitin-case in a worthy manner, Mr. Nikitin will have a good case at the European Court in Strasbourg.

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