FSB-pressure on Court violates basic legal standards

Commentary:

Today, Aleksandr Nikitin’s defence delivered a petition to the St. Petersburg City Court regarding what seems like a FSB-initiated TV-campaign against Nikitin and Bellona. The campaign is going on in the program “Vne zakona” [Out of law] on the local TV-channel “Petersburg”, which appears as a speaking tube of the FSB. The defence sees the campaign as an attempt to slander Nikitin’s public reputation by discrediting both him and Bellona, and to influence and put pressure on the City Court’s decision in the ongoing trial.


“Tracing Bellona”

Under the vignette “Tracing Bellona”, a series of allusions and lies have been presented as a “documentary”, suggesting that Bellona is a spy-organisation with an “ecological cover”.


The first program televised on November 29 was characterised by hidden allusions: Nikitin is a “carrier of state secrets” whose family lives in Canada [thus, he is not trustworthy]. Bellona had according to the TV-channel’s rather biased selection of sources, “refused to co-operate” on various civilian environmental issues and was “more interested in military issues” [thus, it is an organisation with dubious intentions], etc.

In the second program sent December 6, the program-makers had left the stage of allusions and entered the stage of blatant lies: “Bellona’s work in Russian waters is carried out on behalf of the US Navy”. They also claimed that Bellona-leader Frederic Hauge had “offered to give up all his sources information in Russia if the case against Bellona was dropped”. Then they added: “Such a price is paid only for valuable agents.”


This is indeed a twisted version of the reality. The only thing Bellona has offered regarding their “sources”, is to prove that all the information in the Bellona-report on the radioactive pollution in the Russian Northern Fleet is taken from open written sources.


The programs have obviously been prepared long time in advance, as shots have been made not only in St. Petersburg, but also in distant places like Murmansk and Yakutsk. It is no coincidence that they are shown right now, when the trial is going on. When claiming that Bellona is a spy organisation, TV “Petersburg” is also accusing Nikitin of espionage and thus, the state owned and FSB controlled TV-channel interferes in the ongoing trial.


An attack on the independence of the Court

Such interference from executive state branches like the FSB must be considered as an attack on a fundament of the rule of law, which also the Russian Constitution is built on: The principle of division of powers between the legislative, executive and judiciary powers of the state, and particularly the independence of the courts.


The role of independent and impartial courts is a basic element in the common heritage claimed by the countries that have ratified the European Convention on Human Rights (which Russia did on May 5, 1998). The Convention’s main provision regarding this issue is the first sentence of Article 6 (1): “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”


The purpose of this provision is to secure justice by means of proceedings in court, and to provide for a proper administration of justice. This has both a procedural aspect related to the fairness of the hearing, and an institutional aspect concerning the independence and impartiality of the court. Article 6 (1) creates an affirmative obligation requiring “a state to refrain from interfering in the exercise of a right by an individual” (Gomien, Harris and Zwaak: Law and practice of the European Convention on Human Rights …, 1996).


According to the case law under Article 6 (1), its objective elements demand the separation of power between the executive and judicial branches of the state, in order to secure the independence of the judiciary. One aspect here is the independent position of judges, but an even more important aspect is that the executive branches have no right to interfere directly or indirectly in the proceedings of an ongoing trial.


Such interference is not common among the member-states of the Council of Europe, since the independence of the judiciary is so rooted in most of these states. Therefore, the amount of case law from the European Court that deals with such cases is limited. It has, however, held that if a court is not fully independent from the executive powers of the state, it can not be considered as a “tribunal” in the sense of Article 6 (1), see Beaumartin v. France, November 24, 1995, Series A 296-B (para. 38). If such a court convicts a person, its conviction will in itself violate the provision.


The European Court has also emphasised that the existence of guarantees against outside pressure on a court is an important part of the obligations under Article 6 (1). See for instance Van de Hurk v. Netherlands, Series A 288, April 19, 1994 and Piersack v. Belgium, Series A 53, October 1, 1982. Then it is of course also strictly forbidden for the various branches of state power themselves to put direct or indirect pressure on the court.


Any attempt in that direction must be considered not only as an attempt of putting pressure on the court, but also as an attempt of violating the European Convention. This is also the case with the outrageous series “Tracing Bellona” on the state-owned and FSB-controlled TV “Petersburg”, since it is little doubt that the purpose with the attacks on Nikitin and Bellona is just to influence and put pressure on the Court.


The presumption of innocence

It is also reason to ask whether the programs on “Petersburg” TV violate the presumption of innocence in Article 6 (2) of the Convention: “Everyone charged with a criminal offence shall be presumed innocence until proven guilty according to law.”


One of the aspects of Article 6 (2) is that no official representative of the state must claim publicly that an accused is guilty of a crime before his or her guilt is determined by a court of law. See Allenet de Ribemont v. France (Series A 308, February 10, 1995). Here the European Court found a violation because the police officer in charge of the investigation had said on a press conference that de Ribemont was involved in the murder of French parliamentarian Jean de Broglie on December 24, 1976. Ribemont was released from custody on March 1, 1977, and the case against him was dismissed on March 21, 1980. Thus, even if the statements of the police officer did not lead to a conviction, they still violated Ribemont’s rights under the presumption of innocence.


The European Court has not fully clarified which bodies that are obliged by Article 6 (2), but it is clear that the state can only be held responsible for the deeds of its own representatives. Thus, all official state branches are obliged (the state procurator, the FSB, the MVD, high-ranking politicians etc.), while the state has no responsibility for the actions of private institutions or for the independent part of the media.


The “Petersburg” TV-channel is, however, not a private and independent institution. It is state controlled, and acts as the speaking tube of the FSB serving blackening lies about Nikitin and his employer. Its intention is to damage Nikitin’s reputation, and to influence on the Court’s decision. It goes without saying that such actions is totally unacceptable. Besides, both the content of the statements as such and the general tendentious and biased context they are presented in, are more than suggesting that Nikitin is guilty of espionage. Thus, the statements have also passed the limits for the acceptable under Article 6 (2).

Jon Gauslaa