A secret indictment
When the FSB levelled its 8th set of charges against Nikitin on July 2, 1999, the content of the charges came as no surprise for Nikitin and the defence. The charges were still based on expert evaluations, which in its turn were based on secret and retroactive legislation (decree 071:93 and 055:96 from the Ministry of Defence, and decree 1203:95 and 061:98 from the President, as well as the 1997-edition of the Federal Law on State Secrets).
What surprised the defence was, however, that the new charges – in contrast to the previous ones – were stamped “secret”. Because of the secrecy, Nikitin and the defence have only been allowed to read the new charges, but not to copy or make transcripts from them, and they have not been allowed to make any transcripts from the finalised case files.
Moreover, the FSB investigator made it clear that also the full indictment, which in contrast to the charges gives a complete overview over both the factual and the legal aspects of the case, would be classified. This implies that Nikitin and the defence throughout the forthcoming trial only will have access to the indictment in the courtroom. At the end of each court session they must leave the indictment behind. They will also be deprived of the possibilities to make copies or transcripts of the indictment for usage outside the courtroom.
Nikitin’s request of declassification
On October 11, 1999, Nikitin requested the City Court to declassify the indictment, so that it could be used in the preparation for his defence. The request is based on Articles 46 and 237 of the Russian Criminal Procedure Code, which gives the accused the right to copy any information from the case files, and to have the indictment delivered to him. The Code contains no restrictions of these rights because of “the secret nature of criminal case”.
As a result of the secrecy of the charges, the preparation of Nikitin’s defence has already been significantly hindered. This hindering is fortified by the fact that neither the defence nor Nikitin himself yet have been allowed to see the full indictment. Even if the document has existed since August 1999, the defence has according to Russian legislation not access to it until the officially announcement of the trail, which is expected to take place on November 11, 1999, a mere 12 days before the start of the trial.
Violations of the European Convention on Human Rights
These circumstances constitute clear violations of the principle on “equality of arms“, which implies that the parties of a criminal case shall have an equal position throughout its proceedings. The principle is a fundamental part of the accused’s right to a fair trial under Articles 6 (1) of the European Convention of Human Rights. Moreover, also the specific provision in Article 6 (3) (b) giving the accused the right to have adequate time for the preparation of his defence has been violated.
If the St. Petersburg City Court approves Mr. Nikitin’s request of declassifying the indictment, it will, however, to a certain degree repair the mentioned violations of the European Convention. And the violations will not be utterly blatant unless the Court decided to maintain the FSB’s total secrecy of the charges.
The indictment should – at least – be handed over physically to the defence. A minimum condition for its ability to conduct a proper defence is that it can make a thorough analysis of the indictment. This is particularly important since the Russian legal system only allows an accused to be acquitted if each paragraph of the indictment is rejected point by point. Thus, it is of huge importance that the defence gets the possibility to analyse the indictment properly, and it goes without saying that this only can be carried out outside the courtroom.
It follows from the above-mentioned that a necessary (but not sufficient) condition for a fair trial is that the City Court abolishes FSB’s secrecy of the indictment, at least to the degree it is necessary for the defence’s possibilities to conduct a proper defence. Thus, the Court’s decision on this question will also be an important indicator when it comes to the question whether the new trial will turn out to be a fair one or not.