Protest by the prosecutor

Gutsan is of the opinion that the City Court drew their conclusion to early, and that it should have used the unconstitutional expert-evaluation as basis, rather than questioning these conclusions.
Comments to the Protest by the prosecutor

Un-official translation

St. Petersburg Prosecutor’s Office
Nov. 1, 1998 No. 13-25-95

To the Criminal Court collegiate of
the Supreme Court of Russian Federation
concerning the criminal case against Nikitin A.K.

According to the Oct. 29, 1998 decision of the St. Petersburg Criminal City court collegiate, the criminal case of NIKITIN ALEXANDER K. born May 16, 1952 in Akhtyrka, Suma Oblast, Ukrainian, Russian citizen, military pensioner, married, resident of St. Petersburg, ul. Tukhachevskogo 5, b. 4, flat 96, who is accused of violating Art. 257 and Art. 283 part 2 of the Criminal Code of the Russian Federation (RF) has been returned for additional investigation.

I think this decision must be canceled and the case must be sent to a new court hearing, because of the following reasons:

When the court has sent the case for additional investigation it has pointed out that the volume of accusation of Nikitin must be specified. In the court’s opinion, the investigative authorities [The FSB, ed. note] have in their decision to charge Nikitin on May 8, 1998 and in the indictment [dated June 29, 1998, ed. note], concerning chapter 8.2, titled “Accidents on nuclear submarines,” of the Report “The Northern Fleet – Sources of nuclear contamination” for the Norwegian environmental organization Bellona violated Articles 143 and 144 of the Criminal Procedure Code (CPC) of the RSFSR [The former Russian Republic of the Soviet Union, ed. note]. They have failed to point out factual and specific circumstances of Nikitin’s actions as the investigative materials have discovered them. Morover, they have failed to mention the specific text that contains information regarding accidents on each submarine, which Nikitin has collected and passed to a foreign organization in violation of the Law “On State Secrets”. And they have failed to point out exactly what part of this information that constitutes a state secret. Thus, in the court’s opinion, the decision to accuse Nikitin as well as the indictment, this information is only evaluated, but not provided, which is a violation of Nikitin’s rights for defense.

Besides, the court has suggested that an additional expert commission regarding the information Nikitin has taken from open sources is carried out in course of the additional investigation.

However, it is obvious from the materials of the criminal case that the preliminary investigative authorities, cf. Art. 144 of the CPC of the RSFSR, both in the decision to accuse Nikitin and in the indictment concerning chapter 8.2, titled “Accidents on nuclear submarines,” of the Report “The Northern Fleet – Sources of nuclear contamination”, have specified when and under what circumstances Nikitin A.K. has collected and passed to a foreign organization (Norwegian public environmental organization Bellona) specific information regarding accidents on nuclear submarines (vol. 21, p.c. 39-48, 134-136) that constitutes state secrets. See the decision of the expert commission of the 8th Chief Department of the Russian General Staff (vol. 19, p.c. 46-76). In particular, both in the decision to accuse Nikitin and in the indictment, the preliminary investigative authorities have pointed out that concerning nuclear submarine K-123, Nikitin has collected and passed to a foreign organization data that discloses constructive insufficiencies of the nuclear power installments of nuclear submarines as a type of military equipment, and the fact of usage of new submarines which use liquid metal in the modern shipbuilding. Similar descriptions were given regarding nuclear submarines K-27, K140, K-222, K-192 and K-131. Therefore, the court’s conclusion that the indictment lacks specifics and is evaluative, is wrong.

For example, the criminal case against Smirnov V.A. has been solved in a similar way, when on May 28, 1997, new evidence has been revealed and the Presidium of the Supreme Court of Russian Federation has changed the [lower] court’s decision (case No. 233-i97pr).

Besides, as it returned the case for additional investigation, the court has called the conclusions of the expert commissions of the 8th Department of the Russian General Staff not concrete and not complete, too early and without any investigation and evaluation of the evidence provided by the case. For example, in the Court’s opinion, the experts have failed to answer question No. 6 regarding the open sources of the information acquired by Nikitin. And, according to the Court, the May 28, 1997 conclusion is contradictive. Therefore, it is unclear for the Court which particular documents and which particular open sources that the commission has investigated, and why these documents were declined. Therefore the court did not accept the expert commission’s conclusion.

Simultaniously, the materials of the criminal case contain concrete materials, examined by the investigator with assistance of specialists, which have been provided by the defendant and by his defense as a proof that allegedly all information which Nikitin A.K. stands accused of, has been taken from open sources. The said documents have been forwarded to the 8th Chief Department of the Russian General Staff, where they were examined and investigated by experts who, along with other questions, answered question No. 6 (vol. 19, p.c. 46-76). The court, having doubted the conclusions of the expert commissions conducted at the 8th Chief Department of the Russian General Staff, however, took no measures to the extend of summoning the experts to the court sessions. The court did not question the experts regarding their conclusions, including the alleged controversies, although the court could have and must have done that in a court session. After having examined all the evidence, the court, considering the results of the questioning of the experts, could itself have ordered any expert commission.

Besides, as the court returned the case for additional investigation, it found the estimated damage (4,5 million denominated rubles) caused by Nikitin as a result of revealing the data which constitutes state secrets in part 2.3 titled “Nuclear power submarines” of the report “the Northern Fleet, sources of Nuclear Contamination,” to be contradictive and unclear in accordance to art. 283 p. 2 of the Criminal Code of Russian Federation, because the experts have evaluated the damage from chapter 2 as a whole as 34 million denominated rubles. Nikitin is, however, only accused of extraditing data which constitutes state secrets in one part of the said chapter, that is, in part 2.3.

These court conclusions are drawn too early and without any analysis of the materials. The alleged controversies the court mentions could have been eliminated during the court session. For example, in course of the court session, the experts Bavykin and Ogoltsov have not been questioned pointedly regarding these circumstances. Besides, the court had an opportunity to summon to court and question the investigator. Such questioning could have eliminated the alleged controversy concerning the 4,5 million denominated rubles damage caused by Nikitin’s authoring of part 2.3 of the report.

By returning the case for additional investigation the Court has too early and without sufficient grounds rejected the conclusion of the preliminary investigation that the information regarding nuclear submarines from K-27 to K-279, which has been collected and passed by Nikitin to a foreign organization, contains information about peacetime losses of military equipment. The court has ruled that this conclusion does not correspond to Art. 5 part 1 of the Russian law “On state secrets.” The investigation has based this conclusion on the conclusion of the expert commission of the 8^th Department of the Russian General Staff, and as said above, these experts have not been summoned to court and have not been questioned regarding their conclusion.

Therefore, in accordance with Articles 325 and 331 of the CPC of RSFSR, and point 1 of Article 36 of the Federal Law “On the prosecution of Russian Federation”

I request:

That the Oct. 29, 1998 decision of the St. Petersburg City Criminal court’s collegiate, stating that the criminal case that accuses Alexander Nikitin of violating Article 275 and part 2 of Article 283 of the Criminal Code of Russian Federation, must be returned for additional investigation, should be canceled, while the criminal case should be sent for a new trial in the same court.

State Prosecutor,
head of the department for supervising
the observance of federal security laws,
junior justice counsellor,
A. Gutsan
(signed).

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