Constitutional Court legalises change

Publish date: May 3, 1999

Written by: Igor Kudrik

Aleksandr Nikitin's defence cautiously optimistic over Constitutional Court ruling annulling a number of outdated laws that have served Security Police prosecutors

In a landmark ruling that might have a significant bearing on the case of Aleksdandr Nikitin, The Russian Constitutional Court limited the set of circumstances enabling judges to employ the archaic, Soviet-era practise of returning criminal cases to investigators once an accused has stood trial.

The April 20th ruling determined that the courts should not be encouraged to summarily send cases back for further investigation: a practise that unfairly assists the prosecution in obtaining a conviction and severely comprises the right of the accused to a fair trial

The Constitutional Court outlawed the practise of sending criminal cases back to investigators in cases where evidence collected during preliminary investigations is incomplete: it also ruled out the introduction of new evidence while court is in session (Sec 1, Art. 232 of the Russian Criminal Procedures Code).

The Constitutional Court’s function is to supervise the compliance of all laws with the legal principles of the Russian Constitution and International Law. The practise of returning cases to investigators after their failure to obtain convictions in court was deemed a violation of the ‘presumption of innocence’ and the principle of ‘equality of arms:’ pillars of both the Russian Constitution and the European Convention on Human Rights.

The case of Aleksandr Nikitin highlights the folly of the prosecutor-friendly practise. The presumption of Nikitin’s innocence has been compromised by a vicious circle imposed by the uncorrected Russian legal system. Justice has resembled a rugby match, characterised by the passing, back-and-forth — mostly back, of his case between Russian Security Police (FSB) investigators and the courts. The question Nikitin’s defence are asking is ‘will the new ruling break this cycle?’

"The ruling by the Constitutional Court is a big and positive step forward. But it is not complete," Jon Gauslaa, Bellona’s legal advisor cautions. "There are still provisions, which allow courts to send cases back to the investigative body," he says.

Gauslaa specifies that the Constitutional Court did not evaluate the provision (Sec. 2, Art. 232 of the Russian Criminal Procedure Code) that grants judges the right to return cases to investigation if Criminal Procedure Code provisions were violated by the investigators. That provision was not evaluated by the Constitutional Court. In addition, Gauslaa points out, cases can be sent back to the prosecution if a state attorney demands it.

Section 1 and 2, Art. 232, were cited when the courts elected to send the Nikitin case back for ‘additional investigation.’

Aleksandr Nikitin is accused of treason and divulging state secrets for co-authoring a Bellona report on radiation hazards in the Russian Northern Fleet. The case might have ended in October 1998 when the City Court of St. Petersburg heard it or in February 1999, when the Supreme Court of the Russian Federation ruled like its predecessor and sent the case back to the security police for further investigation. On 11 April, the Prosecutor General’s Office granted the FSB three extra months to create a case against Nikitin.