Last week’s decision by Judge Sergey Golets to send the Nikitin case back for further investigation came as a heavy blow to prosecutor Aleksandr Gutsan, responsible for the investigation conducted by the Russian security police (FSB). The judge said in his decision that the prosecution’s charges were too vague, and that the estimates made by the military experts on the amount of alleged damage to Russia’s security were not convincing and comprehensible.

The prosecutor seemed to have recovered by November 3, when he lodged an appeal to the Supreme Court that the case be sent back to the City Court for a continued trial. In addition, prosecutor Gutsan keeps being surprised by the judge’s decision, as proven by his appearance on a local St. Petersburg TV channel on November 5. It was beyond the prosecutor’s ability, he said, to realise how the judge could question various conclusions made by military experts, rather than taking them for granted.

No criminal content
Nikitin and his defence team also lodged an appeal with the Supreme Court on November 5, demanding that the case be dismissed on the grounds that it is lacking criminal content as well as juridical grounds for the charges. The indictment against Nikitin is still based upon secret and partly retroactive normative acts. Moreover, it is still unclear from the text of the indictment what Nikitin is actually accused of.

The defence team is planning an appeal against the prosecutor’s motion to the Supreme Court shortly.

According to Nikitin’s lead attorney Yury Schmidt, the case may come up in the Supreme Court as early as mid December. The session should take one day and be open to the public.

Aleksandr Nikitin is charged with espionage and disclosure of state secrets while working for the Bellona Foundation. He was arrested by the FSB on February 6, 1996, after writing two chapters of a Bellona report on the risks of radioactive pollution from Russia’s Northern Fleet. He was held in pretrial detention until December 14, 1996, and his freedom of movement has been officially restricted to the city limits of St. Petersburg since his release from custody. If convicted, Nikitin faces up to 20 years in jail.

Soviet legacy
"In the West, the prosecution’s handling of the Nikitin case would almost certainly have led to an acquittal," said Diederik Lohman, head of the Human Rights Watch office in Moscow. "In spite of the seemingly positive decision made by the court a week ago, that decision still does not meet international standards of justice," added Lohman.

According to Lohman, the current criminal procedure law, which dates back to 1960, essentially prohibits a court from acquitting Nikitin on grounds of an unclear indictment. In Western countries, the prosecution’s failure to issue a sufficiently specific indictment or come up with solid evidence will serve as a reason for an acquittal. However, under Russian law, procedural violations by the prosecutor cannot serve as grounds for denying the prosecution to proceed with the case.

The expected Supreme Court decision may become a first step towards an overturning of this law.