The Supreme Court agrees with the St. Petersburg City Court that the indictment is so vague that it deprive Nikitin from his right to defend himself with legal means. Moreover, the Court emphasises that the investigation has not been carried out in an objective manner. The Court did however, rather than dismissing the case because of its lack of legal and factual foundation, return it to "additional investigation".
Based on a translated transcription of a video recording of the reading of the verdict.
Supreme Court verdict
On February 4, 1999 the Court Collegium for criminal cases of the Supreme Court of the Russian Federation, consisting of Chairman Karimov and the judges Voroshtsov and Gritskikh, considered the case concerning the appeals of the lawyers Schmidt and Pavlov, and the prosecutor’s protest against the decision of Saint-Petersburg City Court dated October 29, 1998. According to this decision the criminal case against NIKITIN Alexander Konstantinovich, born May 16, 1952 in the Akhtyrka Sumskaya Region and charged of committing the crimes provided by articles 275 and 283 point 2 of the Russian Penal Code, is returned to additional investigation.
After hearing the speech of judge Voroshtsov, the explanations of the lawyers Schmidt, Pavlov and Reznik, and the accused Nikitin who supported the arguments of the appeal, and also the conclusions of the prosecutor Erokhin who supported the protest and demanded the verdict of the City Court to be repealed, the Court Collegium concluded:
Nikitin was accused of collecting information of the nuclear submarines of the Northern Fleet pertaining to state secrets in the military field in August 1995 in St. Petersburg, with the purpose to transfer this information to a foreign organisation, and damaging the external security of Russia. In September 1995 in Murmansk he transferred the above-mentioned information to the representatives of this organisation, i.e.: conducted treason in the form of espionage.
He was also accused of divulging information pertaining to state secret, which he got to know during his military service, when he had access to secret and top secret information. While writing chapter 2.3 of the report for the Norwegian environmental organisation "Bellona", he described the nuclear installations of nuclear submarines of the 3rd generation, which pertains to the state secret in the military field.
Having considered the case, the City Court decided to return the case to additional investigation because of the unclear volume of the indictment, the content of the indictment, and because the preliminary investigation was incomplete. The City Court pointed in its verdict out that the objective side of the crime is not indicated in the indictment, i.e.: the objective and concrete texts of the (alleged) secret and top secret information, which Nikitin had collected and transferred to the foreign organisation in violation of the Federal Law on State Secrets. The City Court considers that the indictment is not clarified and does not allow Nikitin to defend himself with legal means, and does not allow the court to examine the grounds of the indictment.
Moreover, the City Court points out that the materials of the case lack a complete expert evaluation concerning the question of what parts of the collected and transferred information that pertains to state secrets. In particular, the experts have given no answer about the open sources of information used by Nikitin. Therefore the City Court concludes that the experts’ work was not completed during the preliminary investigation.
It is also mentioned in the verdict that the preliminary investigation’s estimation of the damage caused by Nikitin is contradictory and unclear. The bodies of the preliminary investigation state that the damage is equal to 4.5 million roubles, while it according to the experts is 34 million roubles. The City Court stated in its verdict that it in order to clarify the volume of the charges during the additional investigation is necessary to conduct an additional expert examination of the information from the open sources that the accused had used. Also other investigative actions, which are necessary for completing the investigation, have to be carried out.
The prosecution did not agree with the verdict and forwarded a protest demanding that the verdict must be overruled. The protest claims that the City Court’s conclusion about the not concrete and evaluative character of the indictment is not concrete. According to the prosecutor the objective side of the alleged crimes is indicated completely in the indictment. Also the damage is estimated correctly as the damage of 34 million roubles concerns whole chapter 2 of the report, while Nikitin is accused of divulging information pertaining to state secrets only in part 3 of this chapter.
The prosecutor also claims that the Court did not have enough grounds to state that the investigation’s conclusion that the data collected and transferred to the foreign organisation by Nikitin about the nuclear submarines from K-27 to K-279, does not correspond to the content of art. 5 part 1 of the Federal Law on State Secrets. The prosecutor believes that these contradictions can only be eliminated during a continued Court hearing and also by appointing and conducting additional expertise. And there are no grounds for returning the case for additional investigation.
The lawyers Schmidt and Pavlov request in their appeal and supplemental appeal that the verdict must be repealed and the case dismissed. According to the lawyers the indictment against Nikitin does indeed not correspond with the articles 143 and 144 of the Russian Criminal Procedure Code. They also agree with the City Court’s criticism of the expert conclusions. However, they claim that the indictment against Nikitin has no legal grounds, as there in the period of him committing the alleged actions, was no law or special procedure of classifying information in force. The lawyers suppose that there is no corpus delicti in Nikitin’s actions. They base their complaint on expert conclusions of scientists, lawyers, and specialists in this branch of law.
In their supplemental appeal the lawyers point out that the norms of international laws have been violated during the preliminary investigation, in particular, the right for considering the case and conducting investigation during the reasonable time. Returning the case for additional investigation restricts the rights of Nikitin even more, and for an unlimited period. The lawyers believe that the City Court had no grounds to remain the bail in the form of city arrest, as this punishment should be temporary, while its application passed all possible limits.
More over, the lawyers brought objections to the prosecutor’s protest, requesting not to accept it.
Having examined the materials of the case, and discussed the arguments of the prosecutor’s protest and the defence team’s appeal, the Court Collegium concludes:
According to article 20 of Russian Criminal Procedure Code, the Court, the prosecutor, the investigator and the persons conducting inquiry are obliged to take all the measures provided by law for thorough, full, and objective examination of the case. They shall also reveal the denouncing and discharging details for the accused. According to article 232 of the Criminal Procedure Code, the Court shall return the case for additional investigation if the carried out inquiry is incomplete, or if it is necessary to conduct preliminary investigation that cannot be carried out during the trial. The Court shall also return the case for additional investigation if there have been conducted significant violations of the Criminal Procedure Code by the inquiry and investigation bodies.
As it is evident from the materials of the case, the bodies of the preliminary investigation have violated the mentioned requirements of the criminal procedure law. According to the requirements of article 144 of the Criminal Procedure Code, the time, place and other circumstances of the committed crime shall be mentioned in the indictment. In the indictment presented to Nikitin the concrete factual circumstances of the crime, the essence of information pertaining to state secrets and the concrete text of the primary documents (i.e. corresponding chapters of the report) are not indicated. The Court Collegium has considered these violations as significant. They can be eliminated only on the stage of preliminary investigation, by levelling charges against Nikitin that are in accordance with the law.
Moreover, it is evident from the materials of the case that during the preliminary investigation, several times expertise was appointed and conducted in order to define the secrecy level of the information used by Nikitin. During the investigation and the trial, Nikitin claimed that all the information he had used in the report was taken from open sources. However, the experts’ conclusion does not contain the answer on this question, i.e. their work is not complete. The Court Collegium assumes that the investigation bodies did not conduct a full preliminary investigation. Nikitin’s arguments about the sources used for the report (open or closed, secret or not secret) remain unexamined. The point in the City Court’s verdict concerning the estimation of the damage caused by Nikitin’s alleged crime is well grounded. It is evident from the case and the expert conclusions that no special or additional calculations were conducted during the preliminary investigation in order to confirm the amount of 4.5 million roubles. It is possible to eliminate the mentioned violations only on the stage of preliminary investigation; therefore the Court Collegium finds the City Court verdict correct on this point.
During the new investigation the bodies of preliminary investigation have to fulfil the orders of the Court contained in the verdict. Besides, they have to properly apply the law that was in force during the alleged actions of Nikitin.
Therefore, the Court Collegium considers all the arguments of the prosecutor’s protest groundless, and turns it down. However, the City Court’s statement that the data about submarines from K-27 to K-279 does not correspond to the content of the Federal Law on State Secrets, is based on not examined materials of the case, and should therefore be excluded from the verdict. In this part the [prosecutor’s] protest is grounded.
The Court Collegium cannot agree with the arguments of the defence appeal. The Court of first instance had grounds to turn down the defence appeal about the dismissal of the case, as the charges against Nikitin are based on evidences that need additional examination. That is why the Court was not able to make a final decision on this point. Therefore, the Court Collegium cannot accept the defence appeal about the dismissal of the case. The Court decision to remain the bail in the form of city arrest is lawful. The verdict does not contradict with the norms of international law mentioned in the appeal.
Therefore, ruling by articles 332 and 339 of the Russian Criminal Procedure Code the Court Collegium concludes:
The verdict of 29 October 1998 of Saint-Petersburg City Court concerning Nikitin Alexander Konstantinovich must be changed on the following point: The statement that the data about submarines from K-27 to K-279 does not correspondent to the content of the Federal Law on State Secrets, must be excluded. The rest of the verdict is maintained without changes. The protests and appeals [from both sides, ed. note] are turned down.
The decision is signed by all judges.