Commentary:

On December 15, the Court questioned the experts Romanov and Bakanov from the 8th Department of the Russian Defence Ministry HQ. Both participated in the evaluation of whether chapters 2.3.3 and 8.2 of the Bellona-report contain information that pertains to state secrets, and whether this information could have been taken from open sources or not.

The law messed things up
The experts admitted that the Nikitin case was the first time they had applied any other legislation than secret military decrees.

And they disliked the new times: Our system for classification was created decades ago and has worked well, but now the law has messed things up, Romanov said.

So, it is not surprising that the experts’ attempt on applying the law was not successful. If their evaluation had been based on a proper law application, they would have had to take into consideration the Constitution and the Federal Law on State Secrets. But they have neglected to do this and continued to use the secret decrees they were familiar with.

Once a secret always a secret
The experts also considered it to be irrelevant whether an item of information has been previously published in open sources or not. If the information is secret according to the MoD decrees it is secret until it is de-classified, also if it has been openly published hundred times before. This is the case even with the accident on the “Komsomolets”. According to the logic of the experts all information concerning the World’s most famous submarine accident is still secret. It is a secret that the name of the vessel was Komsomolets, that it was a nuclear submarine, that it sank on April 7, 1989, that the accident happened in the Norwegian Sea, and that 42 sailors died…

However, on January 27, 1997 Deputy General Prosecutor, Mikhail Katushev, wrote an instruction concerning the additional investigation of the Nikitin case pointing out that “transfer of information, which previously has been published in open sources is not a criminal offence”. But a proper evaluation of the open sources has yet to be carried out.

After the performance of the experts of the 8th Department in Court it is not difficult to understand why. Their way of thinking is an unbreakable obstacle that prevents them from being able to evaluate the open sources properly. Even if a source is open, the experts will still consider its information to be secret. And also the information that is taken from this source will be secret.

No wonder then, that the FSB-investigators have continued to use experts from the 8th Department to evaluate the sources of the Bellona-report. They knew that they would get an answer that would satisfy them.

Decrees not normative acts?
The prosecutor tried to get Romanov to confirm that the MoD decrees are not “normative acts”, but “technical norms”. Article 15 para. 3 of the Russian Constitution states that “normative acts” have to be “published officially for general knowledge” if they are to be used as a basis for a criminal case, but it says nothing about “technical norms”.

However, this attempt should lead nowhere. The experts confirmed that the decrees are the underlying legal basis for the charges against Nikitin for having collected, transferred and disclosed “state secrets”. Thus, they are normative acts, which was recognised by Katushev in the above-mentioned resolution. With reference to the decrees he pointed out that “the above-mentioned normative acts are stamped ‘secret’.”

In February 1997 Gutsan copied this phrase in his instruction to the FSB concerning the additional investigation of the case. So then he seemed to look upon the decrees as normative acts, but this is not the first time he has contradicted his own instructions…

Closing remarks
The experts actually did the defence a considerable favour. They confirmed that the accusations against Nikitin are solely based on the secret and retroactive MoD decrees. They also confirmed that their evaluation of the open sources had been highly inadequate. Thus, they demonstrated that the prosecution of Nikitin is a blatant violation of the European Convention, the Russian Constitution and Federal Russian Law.

It must also have been useful for the Court to interrogate the experts, as they not only clarified the background for their evaluation, but also their way of thinking.

A way of thinking that best can be described with the words: “Beyond the law”.