Supplemental complaint by the defence team

Publish date: January 11, 1999

In addition to the earlier filed private complaint we believe it is necessary to draw the attention of the Court Council to the following circumstances:
Converted document

To the Court Council on Criminal Cases of the Supreme Court of the Russian Federation

Private Complaint

In addition to the earlier filed private complaint we believe it is necessary to draw the attention of the Court Council to the following circumstances:

1. The argumentation in paragraphs 2.4 – 2.8 made available in our complaint dated 5.11.98 about the lack of legal ground for charges in disclosure of state secrets filed against Nikitin and, consequently, the lack in his actions of criminal content is not just a personal opinion of the defence. Such argumentation is in a full compliance with the position of the lawmakers.

On 16 March 1995, the chairman of the Security Committee of the Russian State Duma sent to the Chairman of the Government of the Russian Federation a letter no. 314-569. In this letter it was said that the data pertaining to the state secrets was not equally protected, as when the Law on State Secrets of the RF had come into force on 21 July 1993, the Government did not submit to the President the List of Data Pertaining to the State Secrets. As no reaction came from the government, the Chairman of the Security Committee filed a request to the Council of the State Duma to put the question on the parliament’s plenary agenda (letter no. 314-1982).

Having examined the appeal, the State Duma stated that the List of Data Pertaining to the State Secrets “has not so far been submitted by the Russian Government to the President of the Russian Federation for approval, leaving the law enforcement organs of the country being deprived of legal ground to fulfil the functions imposed on them to provide the security of the state, society and the individual.” In Resolution no. 1271-1GD issued by the State Duma it is underlined that the fact of state secrets not being protected brings damage to the security of the Russian Federation. The Duma later in the Resolution appeals to the Government of the RF to “to draft and submit for approval of the President of the RF the List of State Secrets until November 20 1995.” (RF Law Files Volume 45, 6 Nov. 1995, p. 4291).

2. In the cause of the investigation there have been admitted a number of violations of the norms and regulations provided in the European Convention on human rights (EConHR). One of them – art. 6 (3) – is mentioned in paragraph 5 of the submitted by the defence objections to the private protest by the prosecutor. Below, some of the violations, recognised as sufficient in the practice of the European Court on Human Rights, are listed.

2.1. In compliance with art. 6 (1) of the EConHR, a criminal case must be brought to court and settled within reasonable time. This criminal case was launched on October 5 1995. The preliminary investigation appeared to be considerably delayed by the investigative body and the supervising Prosecutor Office in St. Petersburg – the picture is clear from the encloses complaints and appeals filed by the defence at that period. As a result of prejudication and one-sided approach, ignoring of the defence’s argumentation and violation of the rights of the accused, the General Prosecutor Office of the RF sent the case twice for additional investigation. As a result of the third interference of the General Prosecutor office in April 1998, Nikitin received 7th set of charges. As it is known, Nikitin is charged with writing of two chapters in the Report and his authorship was established at the very beginning of the investigation. In the cause of further investigation this insufficient volume of the accusation had been reduced. The practical task for the investigative body was thus not establishing and proving of any new episodes of the accusation, but evaluation of the alleged chapters objectively and in compliance with the law. But this was what the investigative body did not want to do. Thus, we can not say that the evaluation of the case was conducted within “reasonable time.”

2.2. Returning the case for the additional investigation contradicts in its core art. 49 of the Russian Constitution, art. 6 (2) and 13 of the EConHR where it is stated that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law and that each has the right for effective protection in court. The responsibility of proving the guilt rests on the investigative body and if, according to the court, the provided evidence is not sufficient to prove the guilt, and if irreversible uncertainty prevails, the defendant must be pronounced not guilty. Moreover, returning the case for the additional investigation advocates the fact that Nikitin has not received an effective protection against the inconsistent indictment in the St. Petersburg City Court. The additional investigation can continue, as it is known, for unlimited period of time, thus aggravating the violations of the EConHR which already have been made.

2.3. On 14 December 1996 Nikitin was released from custodial confinement and put under city arrest. Longer than two years, Nikitin’s right to freedom of movement, guaranteed by art. 27 of the Russian Constitution and art. 2 of the 4th Additional Protocol to the EConHR, has been limited. As shown above, the delay with the trail on case and consequently ungrounded long-term limitation of his freedom of movement, have been caused by the investigative body. This limitation allowed by the law as a temporary measure has overcome all the reasonable limits. Sending the case for additional investigation, the St. Petersburg City Court has ruled to continue limitation of the Nikitin’s rights for unspecified long period of time.

2.4 We draw the attention of the Court Council once again to the fact that despite the lack of formal references to the decrees issued by the Defence Ministry, the charges de facto are not based on the Law on State Secrets, but rather on those decrees. The decrees served as the basis for conclusions drawn by the experts from Dept. 8 of the HQ. The wording in the last indictment is identical to the corresponding paragraphs of Decrees no. 071 and 055. The text of the indictment contains seventeen direct references to the concrete line items in those decrees and eight references to the decree issues by the Russian President on 30.11.95 no.1203.

Thus, even removing from the last indictment the direct references to the concrete line items in the decrees issued by the Defence Ministry does not prevent violation of art. 54 of the Russian Constitution and art. 7 (1) of the EConHR.


We appeal to the Court Council to take into consideration the above mentioned arguments in addition to those presented in the earlier submitted private complaint.

Enclosed: letter of the Chairman of the State Duma Security Committee (2 pages)

11 January, 1999

Schmidt Y.
I. Pavlov