Fifth day of trial: Gutsan called on Soviet history

Publish date: November 29, 1999

Written by: Runar Forseth

Prosecutor Gutsan showed unexpected activity, as today's court session on the legal basis of the case broke its expected time frame by almost two hours.

Fifth day of trial:

“Today the Court was discussing the legal base of the case,” chief of the defence team Yury Schmidt started the following briefing. “We discussed the law on state secrets in its 1993- and 1997-editions, the decrees from the President, and in particular the Ministry of Defence decrees 71:93 and 55:96. The latter decrees are not consistent, and read much like clichés. Although secret, I can still say these decrees violate the law. They are also classified illegally.”

Defence Ministry decrees out of line

Schmidt went on to explain how the law on state secrets allows the leaders of various Government institutions to make lists detailing state secrets. These lists may be kept secret, but must be built upon the official list contained in Article 5 of the Law on State Secrets defining what may be state secrets.

Schmidt stressed that the law clearly states that such detailing lists can not in any way expand on the law. That is, a ministerial list may give further details and exceptions to a point already in Article 5, but can not add new items. This is true for both the 1993 law, which was in power at the time of Nikitin’s alleged crimes, and the 1997 revision. Decrees 71:93 and 55:96 from the Ministry of Defence, which have been the basis for the various expert committees in the case, fail to heed this provision.

“The approved list of possible state secrets also mention secrets not pertaining to the military field,” said Schmidt, “the Ministry of Defence decrees also contain that kind of secrets.” It is not accidental that today in Court we discussed a verdict in the Constitutional Court emphasising that no lists of state secrets can contain items that are not already classified in the law.”

Gutsan calls upon Soviet history

Prosecutor Gutsan tried to give another interpretation of this verdict. “Last year, the prosecutor referred to the case against Smirnov. Then we could not understand why, but today Gutsan explained,” continued Schmidt. Smirnov was convicted in 1980 for treason in the form of disclosing state secrets and for having applied for political asylum in Norway. Thus, he had violated Article 64 of the Soviet Penal Code. In 1995, the Constitutional Court declared that the part of Article 64 that was the basis for convicting Smirnov for his asylum application was unconstitutional. The part of the provision dealing with disclosure state secrets was on the other hand found to be legal. That part of the 1980 verdict was based on secret decrees from the Ministry of Defence.

“You see it is possible to make a ruling on secret governmental decrees,” Gutsan argued in court today. “We reminded Gutsan that there was no law on state secrets in 1980, and no Constitutional provision that prevented such use of secret decrees,” commented Schmidt. “Any country must protect their state secrets and have their own definition of these secrets. In one way it is bad that the Soviet Union used secret decrees, but during those times there were many spies convicted and many of those rightfully,” he said.

“Our argument was that recalling this old practise today is both illegal and stupid. It should have no bearing on the present case,” said Schmidt.

Prosecutor Gutsan unhappy

Prosecutor Gutsan obviously did not like the court’s examination of the legal basis. When the Court read the law on state secrets and then the decrees, prosecutor Gutsan made his statements on the relevance of the Smirnov-case. “Apparently, prosecutor Gutsan does not want to acknowledge that the use of secret decrees is prohibited by the Russian Constitution,” said Schmidt.

Another interesting point was that Gutsan found a phrase in Alexander’s earlier testimony where he says that “the report should be read by a wide audience and help create financing for projects through being convincing”. Gutsan asked: “So, the report should be convincing?” Schmidt answered: “Convincing does not mean untrue or that it involves any disclosure of state secrets.”

Whether leakage is loss of equipment

In his October 1998 ruling, Judge Golets stated that the indictment’s point on loss of military equipment in peacetime should be rejected because it was not in accordance with the Law on State Secrets. The Supreme Court overruled this in February this year, on the grounds that the City Court should not examine the conditions before the final verdict.

Aleksandr Nikitin added, “Golets has not changed his mind, though, and made it clear today that leakage from a generator can not be considered loss of equipment.”

A new experience for Schmidt

“Usually a Russian Court examines the proof, but not the legal basis for a case,” said Schmidt. “Neither I nor any other member of the defence team have ever experienced a court examining the legal base like ours did today. We find it very positive.”

At the opening of the hearing today, Golets stated that he wanted to examine the core of the case and its legal basis. Usually, this kind of analysis is done outside of the courtroom. “Perhaps the Judge was hoping to get more from the prosecutor, whether he had any legal surprises up his sleeve,” said Schmidt. But the prosecutor had nothing but the 1980 Smirnov case. “The case is running smoothly and according to procedural law,” Schmidt concluded.

Norwegian to testify on Wednesday

Present at the briefing today were several journalists and representatives of two consulates, the German and the Canadian.

Tomorrow the first witnesses will be heard in the case, with retired Admiral Chernov and a female employee of the Kuznetsov Naval Academy first out. On Wednesday, at approx. 12:00 the Norwegian co-author of the report, Thomas Nilsen, will testify in an open court session. Tomorrow’s press briefing is scheduled for 14:30, at Restaurant Ambassadour as usual.