Legal advisor, the Bellona Foundation,
November 13, 1998
Comments to Gutsan’s appeal
The verdict of St. Petersburg City Court on October 29, 1998, was a crushing defeat not only for the FSB, but also for junior justice counsellor Aleksandr Gutsan, who conducted the case for the prosection and had approved all investigative steps that the FSB had taken during the three year long case. But Gutsan seemed to have recovered by November 1, when he lodged an appeal to the Supreme Court claiming that the City Court made a mistake when it rejected the conclusions made by military experts, rather than taking them for granted. The arguments Gutsan alleges are however, less than convincing. As the analysis below will show, he is mostly concerned on drawing the attention away from the court’s main points, rather than to focus on what the court actually says.
The need for claryfing the charges
The court points out that the specific text in chapter 8.2 of the Bellona-report, which allegedly contains state secrets according to the Law on State Secrets, must be rendered in the indictment. If not, the indictment will violate Articles 143 and 144 of the Russian Criminal Procedure Code.
In his attempt to oppose the court’s point of view, Gutsan states that the indictment specifies “when and under what circumstances Nikitin A.K. has collected and passed over to a foreign organization information regarding accidents on nuclear submarines that constitutes state secrets.” The court’s point is, however, not that the indictment should have been more concrete regarding “when and under what circumstances” Nikitin has collected and passed over information, but that it should have rendered the excact information in the the Bellona-report that according to the prosecution constitutes state secrets. Only then would it be possible for Nikitin to conduct a proper defence, and only then would it be possible for the court to make an independent evaluation of whether this information actually contains state secrets according to the law or not.
Gutsan also refers to “the decision of the expert commission of the 8th Chief Department of the Russian General Staff” dated May 28, 1997, as if this proves that Nikitin has collected and handed over state secrets. However, the conclusion of this expert commission is based on the secret and/or retroactive decrees and not on the Law on State Secrets. As proof for Nikitin’s “illegal activity” it is therefore without any judicial value, which also seem to be the Court’s point of view.
Gutsan’s third point is that the indictment concerning six of the submarines in the Bellona-report points out what kind of information that has been collected and passed over. However, the court clearly says that it is not enough that the indictment states that it for instance regarding K-140 has been collected and passed over secret information about “losses” of military equipment. It must also point out what part of the information about K-140 that contains such secrets. Besides, the indictment also mentions 15 other submarines of which Nikitin has collected information, and 13 of which he has passed over information. However, it does not specify what kind of secret information that has been collected and passed over regarding these 15/13 vessels.
Consequently, Gutsan has not been able to turn down the court’s arguments, and his allegation that the court is mistaken when it claims that the indictment lacks specifics is untenable. Morover, his reference to the decision of the Russian Supreme Court in case No. 233-i97 has no relevance. Even if the Supreme Court at this event may have overturned the lower court’s decision about sending a criminal case back to additional investigation, this happened because “new evidence has been revealed“. In the Nikitin case, however, the possibility to discover “new evidence” has been exhausted long time ago, a fact that also is recognized by the FSB in a resolution dated February 24, 1998. Gutsan’s mentioning of the said Supreme Court case is therefore just a pointless emphazising of the obvious fact that it is within the powers of the Supreme Court to overturn decisions form lower courts. However, to do so, the Supreme Court needs an objective judicial foundation, and none of the allegations set forward by Gutsan are of that kind.
The courts’ view on the expert-evaluations
The court states that the conclusions of the expert commissions of the 8th Departement of the Generel Staff are “not concrete and not complete“. Gutsan alleges that the court has drawn this conclusion too early, and without any evalution of the evidence of the case. When the court doubted the conclusions of these experts, it should have summoned them to a court session. What Gutsan “forgets” is however, that these experts have based their conclusions on secret and/or retroactive decrees, which not only contradicts the Russian Constitution’s Articles 15 part 3 and 54, but also the order from the office of the General Prosecutor of Russia dated January 27, 1997. The basis of the expert conclusion dated May 28, 1997, which is the foundation of the accusations in the present indictment, is for instance the following provisions in secret and/or retroactive decrees:
- Points 242, 287, 300, 317 and 612 in the secret Decree 071:93 from the Ministry of Defence, entered into force on September 7, 1993.
- Point 275, 287, 305 and 582 in the secret Decree 055:96 from the Ministry of Defence, entered into force on September 1, 1996.
- Point 6 and 7 in Decree 1203:95 from the Russian President, dated November 30, 1995
The unvalid legal foundation of the expert conclusion is evident of the conclusion itself. Therefore, it is not necessary to question the experts in court in order to reject this conclusion.
Gutsan also claims that the experts have evaluated the open sources and given a proper answer to the question whether Nikitin could have obtained the information about the submarine accidents from these sources. However, the court is right when it denotes the experts’ analysis of the open sources as inadequate, as they only have examined parts of the open sources provided by Nikitin. This is confirmed by the fact that experts from Military unit 27177 in August 1997 made a more thorough evaluation of the open sources than the experts from the 8th Department, concluding that practically all information in chapter 8.2 had been published before in open sources. Moreover, the court did itself make a thorough evaluation of these sources. This happened in open court sessions, and everybody who were present (with a possible exception for Mr. Gutsan), could see that all the accidents mentioned in chapter 8.2 have been discussed and analysed in numerous open sources.
The court’s non-approval of the experts’ analysis of the open sources is in other words well founded, and a questioning of the experts would not have changed its conclusion. Besides, it is hard to understand where Gutsan wants when he states that the court after having examined the evidence, “could have ordered a expert commission“. This is after all excactly what the court has done.
The damage evaluation
The court also found the expert evaluation concerning the damage (4,5 million denominated rubles) caused by Nikitin in chapter 2.3 of the Bellona-report to be unclear. Gutsan claims that also this conclusion is drawn too early and without any analysis of the materials of the case. However, the court did question the experts and it is obvious that their analysis is not satisfactory, neither when it comes to their method nor their conclusion. The figure 4,5 million roubles is not mentioned at all in their evaluation, which mostly consists of various formulas and coefficients on how to figure out the economical damage caused by the publishing of information. More important; the experts deal with the damage of the whole report, overlooking both the fact that Nikitin only have written some chapters of it and that only a small part of these chapters are alleged to contain state secrets.
Thus, their evaluation is usesless as a foundation for an accusation against Nikitin for having disclosed state secrets with serious consequenses. It goes without saying that such an evaluation has to be connected with the alleged state secrets in the report. Nikitin has after all not been charged with disclosing “non-secret” information. However, according to journalists who interviewed the experts, they said that they had not evaluated whether there actually was state secrets in the Bellona-report, becuase they were sure that this was the case. Therefore, even if the experts had been questioned more “pointedly” concerning the figure 4.500.000 roubles, this would not have helped to clarify anything, and neither would a questioning of the investigator.
The court therefore did the right thing when it rejected the conclusions of these experts. Besides, Gutsan was present in court when the experts were questioned. If he thought that the judge did not question them “pointedly” enough, why did he not ask the needed pointed questions himself?
Losses of military equipment in times of peace
The court also ruled that the indictment’s allegation that Nikitin has collected and passed over to Bellona secret information about losses of military equipment in times of peace is illegitime, as this conclusion is not in accordance with the Law on State Secrets.
Again, Gutsan claims that the court has concluded too early, and that it without sufficient ground has rejected the conclusions of the preliminary investigation. However, Gutsan is mixing the cards when he states that the court has rejected that “the information collected and passed over by Nikitin contains information about peacetime losses of military equipment“. The Court’s point is not this, but that Article 5 part 1 of the Law on State Secrets does not allow that information about such losses is classified as state secrets in first place. The indictment does in other words go beyond the limits for classification set by the law, and a closer examination of the wording of the said provision shows that the court is right. This provision mentions information “about tactical-technical characteristics and the possibilities of combat-usage of various kinds of armament and military equipment“, which clearly does not cover the losses of military equipment as such.
Besides, Gutsan’s only argument is that the indictment is based on the conclusion of the expert commission of the 8th Department, and that these experts have not been questioned in court. This would, however, from a number of reasons not be necessary: Firstly, the wording of the actual provision of the Law on State Secrets leaves little doubt about the illegality of the indictment concerning this point. Secondly, this is a strictly judicial evaluation of how the wording of the law shall be interpreted, and the court has much better qualifications for this than a group of officers. Thirdly, the said experts has based their conclusion on secret and retroactive legislation, which alone is more than enough reason to ignore their conclusions without questioning them in court.
The discussion above shows that Gutsan’s appeal must be considered as totally groundless, while the court’s evaluation of the indictment is correct on most points. The latter is in fact also emphazised in the appeal from the defence dated November 5, 1998. The reason for this appeal is not that the defence disagrees with the court’s views as such, but because it is of the opionion that the court rather than sending the case to additional investigation, should have continued to the closing proceeding without calling further experts and witnesses, so that Nikitin could have been aqcuitted and able to walk out of the courtroom as a free man. The forthcoming hearing of the appeal case in the Supreme Court will show whether the case will go on more or less forever, or if the Russian judicial system is able to end this shameful case in a worthy manner.