Complaint by the defence-team

The defenders agree with the City Court’s evaluation that the indictment is in conflict with the criminal process-code and the legislation on state-secrets, and that all of the expert-evaluations must be rejected. But, they demand that the case, due to its unconstitutional basis must be brought to a conclusion (rather than being sent back to further investigations).

TO THE CRIMINAL COLLEGIATE OF THE SUPREME COURT OF RUSSIAN FEDERATION

From defense attorneys Yu. Shmidt and I. Pavlov
of the International Attorney Collegiate “St. Petersburg”,
191187, St. Petersburg, Ul. Gagarinskaya 6-A
3 Floor, tel.: 275 4209, 275 1071
regarding the case of the St. Petersburg City Court
in defense of the defendant, Alexander Nikitin

According to the Oct. 29, 1998 decision of the criminal court collegiate of the St. Petersburg City court, the criminal case accusing NIKITIN A.K. has been returned to the St. Petersburg prosecutor’s office for additional investigation.

We request that this decision must be canceled, and the criminal case must be canceled because of the lack of corpus delicti in the actions of the accused.

1. The defense completely agrees with the court collegiate that the charges brought against Nikitin do not correspond to articles 143 and 144 of the Criminal Procedure Code of RSFSR. This has been discussed in detail in our numerous announcements and motions during the preliminary investigation, as well as in the motion regarding the cancellation of the case addressed to the court July 7, 1998. The defense also agrees with the court’s critique of the expert commissions, particularly, with the conclusion of the additional expert commission carried out May 28, 1997 and the expert commission regarding the damage, and the decision of the court collegiate that the estimated damage is groundless.

In his speech Oct. 29, 1998, following and clarifying the short written motion, attorney Shmidt pointed out these and other circumstances that exclude the possibility of convicting the defendant. Unfortunately, the court failed to understand the position of the defense correctly. Naturally, we could not have demanded that the case, which was at the time in the stage of court hearings, to be dropped. What we were saying was that further interrogation of the remaining witnesses and experts would not be essential for clarifying the truth. Therefore, we suggested that the court investigation should be ended without summoning these witnesses and experts to the court, so that the trial could proceed to the closing speeches of the prosecution and the defense.

2. Thus, the defense agrees with the court regarding the evaluation of the charges brought against the defendant. At the same time, we are absolutely certain that no additional investigation and no expert commissions are necessary and that they will not be helpful in finding the truth.

Firstly, as it is obvious from the records of the court hearings, the court have thoroughly familiarized itself with the open information sources provided by the defendant. And it has found that all the data which Nikitin was accused of extraditing as state secrets have previously been published in open sources, available to the public. In other words, the court has itself done what the investigation and the experts of the 8 Department of the Russian Defense ministry General Headquarters have been so reluctant to do.

Secondly, and this is the crucial evidence that makes it possible to stop the case in the stage of petition discussion; it has now become even more obvious, that the accusation of Nikitin has no legal grounds.

2.1. According to part 3 of art. 15 of the Russian Constitution, “any normative legal act affecting the rights, liberties or duties of the human beeing and citizen may apply unless it has been published official for general knowledge.”

2.2. Between Feb. 6, 1996, and Feb. 24, 1998, Nikitin has been charged six times, and all the charges were based on the “Lists of data of Russian Defense Ministry which must be kept secret,” approved by the Defense Minister of Russian Federation. Four times, the investigation referred to the decree No. 071 of Sept. 7, 1993, and once it replaced this reference to that to the decree No. 055 of Aug. 10, 1996. Once, the investigation referred to both of these decrees. Neither of these decrees have been ever published, both of them are secret.

2.3. On April 23, 1998, in his reply to a petition from the defense, Deputy General Prosecutor General A. Rozanov noted that the application of these decrees violates part 3 of art. 15 of Russian Constitution. Nikitin was charged for the seventh time May 8, 1998, and in the new set of charges, the investigation applied point 1 Art. 5 of the Russian Law “On state secrets” as the legal base for its conclusion that the information Nikitin has collected and extradited constitutes a state secret.

2.4. When the actions Nikitin is accused of committing took place, the Law “On state secret” was acting in the edition of July 21, 1993. Art. 5 of the law was called, “The information that may be considered state secret.” Point 1 of the said article included a complete list of information that may be considered state secret in the military field. Articles 4 and 9 of the Law stated that “the list of information that constitutes state secret … is confirmed by the president of the Russian Federation, must be openly published, and is to be reviewed when necessary.”

2.5. Thus, art. 5 of the Law (in the July 21, 1993 edition) does not include the list of information that constitutes a state secret. As shown above, this article only offers a list of different categories of information, including the data in the military field, that by means of a special procedure may be considered state secret.

2.6. When the Supreme Soviet of the Russian Federation enforced the Law, it simultaneously enforced a decree to enforce the Law. In Art. 2 of this decree, the Supreme Soviet suggested that the Russian President provides it with a project of a State program of protecting the state secrets in 1994-95, in which legal and organizational aspects of realization of the said Law would be described, before Jan. 1, 1994. According to point 3 of the decree, the Russian government also had to submit its suggestions to the Supreme Soviet regarding bringing the Russian legislative acts in accordance with the said Law, before Jan. 1, 1994. However, due to many unforseen circumstances (including the fact that the Supreme Soviet itself seized existing), all the said deadlines were violated. As a result, the presidential Decree “About enforcement of the list of information that constitutes state secret” mentioned in Art. 4 of the Law, was issued with a huge delay: Nov. 30, 1995. There was no such list at the time when Nikitin committed the actions he is now accused of. This list appeared only two months after Nikitin committed them.

Nevertheless, the investigation has several times used this decree (together with the Defense Minister’s decrees) as legal grounds for the charges against Nikitin. However, after repeated orders from the Prosecutor General’s Office, the investigation had to give up on referring to this Decree.

2.7. It is well known that in September 1997, changes were made in the Russian Law “On state secrets.” For example, Art. 5 was renamed “The list of information that constitutes state secrets.” Only after it happened this article could be applied as a legal base for a corresponding accusation alone (without an additional reference to sub-legal normative acts).

2.8. Therefore, the six charges brought against Nikitin before May 8, 1998, had unconstitutional legal grounds. Judging by the actions carried out in response to the defense’s motions on various stages of the preliminary investigation, one can say that the investigation knew well that Art. 5 of the Law in its July 21, 1993 edition could not possibly be used as a self-efficient and sole legal base for an accusation of extraditing a state secret. That is why the investigation, despite the orders it had received from Deputy Prosecutor General Mikhail Katushev on Jan. 27, 1997 (vol. 19, p.c. 1-3), kept on using these illegitimate decrees. And also the Presidential decree No. 1203 of Nov. 30, 1995, which could not be applied to this case (as its application contradicts art. 54 of the Russian Constitution and Art. 10 of the Russian Penal Code). After repeated orders from the Prosecutor General’s Office Apr. 21, 1998 (vol. 21, p.c. 25-26), the investigation had to exclude these references from the set of charges.

As a result, the investigation ended up in even a worse situation than it had been: The seventh (and last) set of charges has no legal grounds at all.

All we have said above obviously proves that there is no corpus delicti in Nikitin’s actions, qualified by Art. 275 and Art. 283 of the Russian Penal Code.

3. In its motion to close the case dated July 7, 1998, the defense also pointed out that it is impossible to ground the accusation on a reference to Point1 of Art. 5 of the Russian Law “On state secrets” in its 1993 edition in general.

3.1. Point 1 of Art. 5 is a complete list of information in the military field that may be considered state secret. It consists of six graphs (parts), and each of these parts, in turn, consists of blocks: a total combination of categories of information that may be considered state secret.

In order to have an accusation that would correspond to the demands of the Criminal Procedure Code, the investigation ought to refer to a concrete graph (part) of point 1. Considering that one graph lists several, although close in class, but at the same time different categories of information, the investigation also ought to provide a text reference in order to designate a concrete category of the information that had been collected and extradited by Nikitin.

A reference to the list in general equals accusing a person of violating the Penal Code (without a reference to an article).

3.2.It is not the carelessness of the investigation that caused the lack of reference to a concrete part of point 1 Art. 5 of the Law “On state secret,” but a desperate situation in which the investigation had placed itself. The thing is that the information that Nikitin stands accused of collecting and passing to a foreign organization is not included in the list provided by point 1 Art. 5 of the Law in its July 21, 1993 edition.

Part 8.2. of the Bellona report describes nuclear and radiation accidents of nuclear power installments of submarines. Part 2.3. discusses certain constructive measures that had been taken in order to improve the safety of exploiting nuclear power reactors of nuclear submarines. Thus, both texts which Nikitin is accused of writing include information concerning nuclear power installments of submarines.

In September 1997, a new category was added to part 3 of point 1 Art. 5 of the Law “On state secret:” “information about nuclear power and special physical installments of an importance to the defense.” The fact that this category of data was made state secret only in 1997 underlines that prior to that, this data was not in the list of information that, according to the law, may be considered state secret. Consequently, this data could not be made state secret by any sub-legal normative acts, including presidential decrees, decrees of the government, or Defense Minister’s decrees, during the discussed period of time.

All the above have been said in accordance with Art. 5 p.2, 325, 331, and 339 p.3 of the Russian Criminal Procedure Code,

that the Oct. 29, 1998 decision of the St. Petersburg City Court’s criminal court collegiate regarding Nikitin A.K. is canceled and that the criminal case against him is dropped.

Attachments: Conclusions of Professor Strashun B.A., Ph.D. in Jurisdiction, and Professor Krasikov Yu.A, Ph.D. in Jurisdiction, on four pages.

November 5, 1998.

Attorneys
Yu. Shmidt (signed)
I. Pavlov (signed)

Please inform us about the date of the case hearings in the Russian Supreme Court.