1. City Court to determine the case
The City Court has withdrawn in order to determine the case. That is in itself an improvement, since the Russian legal system until now only has demonstrated its incapability to determine it. Throughout the last four years the case has been sent back and forth between various law enforcement bodies. Not even the Russian Supreme Court was able to end the case when it dealt with it on February 4, 1999.
I would have had problems with understanding why if I had not worked with the case since August 1996, but later I have been made well aware of the fact that the Russian legal system has lacked proper mechanisms for ending a criminal case like Nikitins. One of his attorneys, Genriy Reznik said it this way in an interview with the Russian weekly Ogonjok in July 1997:The body who determines the case will automatically also be responsible for it. We can not demand heroism.
It is not easy to argue with this statement. However, we should demand heroism, if thats what it takes to determine the case. Russian law enforcement bodies are obliged to determine criminal cases within a reasonable time and to give Russian citizens the right to an effective legal remedy. Nikitin has so far been deprived from these rights, and has because of this brought his case to the European Court of Human Rights (50178/99).
However, the important case right now is the one that on December 29 will be determined here in St. Petersburg. The City Court has carried out a thorough analysis and heard all the evidence. It has questioned Nikitin, the witnesses and the experts. It has evaluated the open sources of the Bellona-report, the case files and the legal foundation of the indictment, and listened to the closing speeches.
Below follows an overview over the trial, which Nikitin should win easily since the prosecutors case has been further weakened throughout the proceedings. However, unlike a soccer-referee, a judge does not indicate when it is scored a goal.
2. November 23 to 26: Evaluation of the open sources
Throughout the first week of the trial the Court questioned Nikitin, concentrating on his connection with Bellona, which in the indictment is presented as a crime. It was however mostly concerned with a detailed comparison of the information about submarine accidents in chapter 8.2 and about third generation naval reactors in chapter 2.3.3 of the Bellona-report, in which the prosecution claims that Nikitin has disclosed state secrets that not could have been taken form open sources.
As both Nikitins defence and the Committee to Protect the Rights, Honour and Dignity of the Sailors of the Submarine Fleet, have pointed out a number of times, it has never been carried out a proper comparison of the Bellona-report and the open sources. Along with the use of secret and retroactive decrees as the basis for the charges, this is perhaps the most remarkable flaw in the investigation, since it is a principle under Russian criminal law that publishing information that already exists in the public domain is no crime.
It is on the other hand satisfactory that the City Court used a considerable amount of energy on the issue, as this indicates that it takes the principles of the law seriously.
The defence showed that a number of books and hundreds of pages have been written about the submarine accidents and the reactor type, which Nikitin is accused of having revealed secret information about. Many of these books are based on the same sources as the Bellona-report, without any of the authors being prosecuted. Besides, several of the accidents mentioned in the report happened more than 30 years ago, and can therefore under no circumstances be considered as a state secret today.
The prosecutors main argument was based on a peculiar definition of the phrase using sources. He claimed that only if the sources were copied word by word they were used. Since the wording in the sources presented by Nikitin is different from the wording in the Bellona-report they were not to be taken into consideration, and if a specific word was not mentioned in the open sources a state secret was disclosed, said the prosecutor.
However, if the Court reasons sensibly concerning these issues and evaluates the content of the information and not its exact wording, only one conclusion is possible: The prosecution has not proven that Nikitin has taken the disputed information from secret sources. On the contrary, Nikitin has even if he according to Article 49 of the Russian Constitution does not have to proven that the information is taken from open sources.
As it is a necessary, but not sufficient condition for convicting Nikitin as charged, that he has disclosed information pertaining to state secrets, which is not available in open sources, this alone is enough to acquit him for all charges.
3. The legal foundation of the indictment
On November 29, the Court discussed the legal foundation of the charges. According to Nikitins experienced defence team, such a discussion has never before taken place in a Russian courtroom. Thus, the Court deserves credit for allowing the discussion. When Nikitin previously has complained on the charges lack of a valid legal foundation, none of the bodies handling his complaints not even the Russian Supreme Court have given him an effective legal remedy concerning the question. That the City Court now seems to be willing to do what the Supreme Court renounced from, is an interesting development.
The defence has all the time been clear on the issue: The use of secret and retroactive Ministry of Defence (MoD) decrees and retroactive Presidential decrees as the basis for the expert-evaluation which the indictment is built on, violates the Russian Constitution (Articles 15 para. 3 and 54) and the European Convention of Human Rights (Article 7).
It repeated its previous arguments about the indictments lack of a valid legal foundation, since it still is based on evaluations from experts who have used secret and retroactive decrees in order to substantiate the allegation that Nikitin has collected, transferred and disclosed information pertaining to state secrets. The defences also emphasised that the secret MoD decrees are not registered in the Ministry of Justice. Besides, the decrees go beyond the limit set in Article 5 of the Law on State Secrets concerning what information that can be/is classified. In stead of defining more precisely the information pertaining to state secrets, they add several items not covered by Article 5.
Facing these arguments, the prosecutor did not deny that the indictment is based on secret and retroactive legislation, but claimed that this was legal. He based this opinion on the Constitutional Courts ruling in the Smirnov case of December 20, 1995. Here the Constitutional Court neglected to abolish the part of the then still applicable Article 64 of the Soviet Penal Code, which inter alia defined disclosure of state secrets in order to damage the outward security of the Soviet Union as treason. Thus, Smirnov who had been convicted for treason in the 1980ies, for disclosure of state secrets and for having applied for asylum in a foreign country, was only partly rehabilitated.
The prosecutors interpretation of the ruling is totally untenable. It is of course not unconstitutional to define disclosure of state secret in order to damage the security of your country as treason. So it is no surprise that the Constitutional Court accepted that part of Article 64. Besides, when Smirnov was convicted, no constitutional provision stating that normative legal acts affecting the rights and duties of the citizens should be officially published existed, as is the case with the present Constitutions Article 15 para. 3.
Thus, the Smirnov-ruling is no carte blanche allowing the state to prosecute people on the basis of secret laws. On the contrary, the Constitutional Court fortified that criminal prosecution for the revelation of state secrets to a foreign country is only legal provided that the list of secret information has been published officially for general knowledge.
Even if the ruling did not directly concern the legality of basing criminal cases on secret legislation, the Constitutional Court took a very clear stand. The prosecutors interpretation of the ruling really that his case has no valid legal foundation. The existence of such a foundation, is the basic condition for convicting Nikitin for any crimes related with collecting, handing over or disclosure of state secrets with or without the intent of treason. As no valid legal foundation exists, he should be acquitted.
4. The witnesses
The questioning of the witnesses took place on November 30 (Chernov and Sopko), December 1 (Nilsen), 2 (Perovsky and Rudenko), 3 (Mormul) and 7 (Ibadulayev). The Court also summoned a witness (Bezvherki) that never showed up, while it saw no point in summoning the rest of the more than 20 witnesses. Some of these will, however, be mentioned below since they either were questioned last year (Fillippov) or had parts of their testimonies read in court (Kudrik and Artemenkov, see Section 6.2). The reason why the remaining witnesses were not summoned was that they had nothing of interest to say.
4.1 November 30: Chernov and Sopko
In fact also some of the witnesses that were summoned and questioned had little to say. This was however, not the case with retired Admiral Yevgeny Chernov, hero of the Soviet Union and Nikitins father in law. Chernov has, together with several other high-ranking officers of the Northern Fleet carried out their own evaluation of the Bellona-report and other points relevant to the case. Their findings were published in 1998, and like Chernov did when being questioned by the City Court on October 23, 1998, he maintained convincingly that the report contains no state secrets and that Nikitin had not violated any regulations while working on the report. The prosecutor did not manage to emphasise on the specifics, and was only able to ask Chernov unclear question concerning disclosure of state secrets in general, without pointing to any of the alleged state secrets in the report.
Galina Sopko, employee of the library of the Kuznetsov Academy where Nikitin according to the indictment got hold of the alleged secret information that later was published in the Bellona-report, confirmed that Vladimir Artemenkov on August 8, 1995 borrowed some books and returned them later the same day, after having let Nikitin read them. This has never been disputed, so her answer was of little interest. She did, however, come up with a point that strengthened the defence, as she confirmed that Nikitin did not enter the library illegally. This contradicts the indictments version of the incident.
4.2 December 1: Thomas Nilsen
Bellona-researcher Thomas Nilsen probably wrote Russian legal history, as the first Norwegian ever to be a witness in a Russian espionage case. Nilsen co-wrote the Bellona-report, and testified partly about the Bellona Foundation and its work in Russia and partly about the background for writing the report on radioactive waste within the Northern Fleet.
His first key-point was that Bellona indeed is an environmental NGO, and not a spy-organisation. He told the Court that Bellona was established in 1986 shortly after the Chernobyl accident. Now the organisation has 25 full time employees, and is financed mostly from private sources, while the Norwegian Ministry of Foreign Affairs contributes with around 10-15% of its income.
The latter is aimed at Bellonas work in Russia, where the organisation has worked since 1989. Nilsen told that Bellona in 1993, supported by local authorities and Atomflot, decided to make a report gathering and confirming relevant information related to the potential sources to radioactive contamination in the Murmansk and Arkhangelsk Region. The report was published in March 1994 and became highly appreciated. A few months later the Norwegian Parliament mentioned the report as its main reason for focusing on the radioactive pollution in the area. Since 1994 it has granted more than 50 million dollars in order improve the nuclear safety there. Also the European Union has granted money, after having attended a Bellona-arranged conference in Murmansk in October 1994.
At that time Bellona enjoyed much support also from Russian authorities, which Nilsen showed by giving the Court a letter dated January 30, 1995 signed by Deputy Nuclear Minster, Nikolay Yegerov. In late 1994 it had become clear that the Northern Fleet represented a particular problem concerning the potential for radioactive pollution. Bellona-representatives had several meetings, among others with the Technical Director of the Russian Navy, Nikolay Yurasov, and with the heads of respectively the technical and the radiological department of the Northern Fleet, Valery Panteleev and Stanislav Golovinsky. Bellona informed them about its plans of making a report on the radioactive waste from the Northern Fleet, and they all supported the idea.
After Bellona in 1994 had met Nikitin, on the recommendation of the then head of the Norwegian Radiation Inspection, Knut Gussgard, and learned that Nikitin was a qualified expert, it was decided that he should take part in the writing of the report. The work developed well, but the FSB-razzia against Bellonas Murmansk office on October 5, 1995 and the confiscation of the background material was a huge setback. The work had to be re-constructed, but in April 1996 a text-version of the report was presented on the G7-summit in Moscow, while the final version was published in Norway in August 1996. Nilsen said that the plan to publish the report in Russia since that would be cheaper, had to be given up because of the FSB-interference. Besides, because of the confiscation of the draft version, neither the idea that a number of qualified consultants should read the report before its publishing could be carried out.
Nilsen also told the Court about Bellonas office in Murmansk, and that Nikitin is still an employee of the organisation. Asked by the defence, he sharply denied the allegations in various Russian media, that Bellona and the Norwegian Intelligence Service shares offices in the same building in Oslo. That could be confirmed by the Russian Embassy in Norway, Nilsen said, pointing to the fact that Embassy personnel have been attending an environmental conference at Bellonas localities.
Nilsen gave a very strong testimony in favour of Nikitin. He stood up as a deeply concerned environmentalist. Thus, he had no problems to counter the prosecutors cross-examination, with truthful answers.
Last year the Court questioned another Bellona-employee, Sergei Fillippov. Like Nilsen, Fillippov made a strong impression, maintaining that Bellona is an environmental organisation and strongly denying that it has any hidden agenda. Fillippov also said that there was no secrecy connected with the preparation of the Northern Fleetreport. The Court found Fillippovs answers so clear that it saw no need for summoning him again.
4.3 December 2: Rudenko and Perovsky
V. Rudenko, a former colleague of Nikitin in the Defence Ministrys Nuclear Safety Inspection had not much to add to what he told the Court on October 23, 1998. Then he said that the information about accidents on nuclear submarines of course was of ecological relevance, and that such information did not pertain to state secrets in 1995.
Vyacheslav Perovsky appeared as a broken man with a bad memory. He said nothing of significance for the core of the charges, which is connected to Nikitins visit to the Kuznetsov Academy. Besides, even if Perovsky did not have high thoughts of Bellonas work, and said that the Northern Fleet represented no threat regarding the danger for radioactive pollution, his statements were of low credibility.
If Perovskys opinion really is that there is no danger for nuclear pollution from the Northern Fleet, why didnt he tell the Bellona-personnel that when he sought them out in 1995? On the contrary, Perovsky participated actively in the writing of the Bellona-report. He was a member of its advisory panel and contributed with a lot of material, particularly to chapters 4 and 7. Why would he have co-operated on the issue in 1995, and why would he have taken part in the presentation of the report on the G7-summit in Moscow in April 1996 when Nikitin was imprisoned, if there were no potential threats?
It was revealed some information that might answer these questions. It became clear that the FSB had raised a criminal case against him, which was closed on November 11, 1999 with Perovsky receiving an amnesty. This is however, not evident of the case-files. In the wake of the FSB-action against Bellona, criminal cases have been raised against Igor Kudrik (co-writer of the report), Aleksandr Pavlov (author of one of the major sources) and Vladimir Artemenkov (who gave Nikitin access to the library of the Kuznetsov Academy). All this is evident of the case-files, but these have no traces of a case against Perovsky.
Thus, the defence has been deprived from information that would have been vital in its preparation for its cross-examination of Perovsky. The existence of the criminal case against him and particularly his later amnesty is information that weakens his credibility.
However, even if Perovsky was the prosecutors man, he also said things that were favourable for the defence. He told that the intention was to have official discussions about the report in Murmansk and other places before its release, thus supporting what Thomas Nilsen had said the day before. Besides, throughout the questioning of Perovsky it was also clarified that the case indeed had started with the FSB falsifying a number of documents.
4.4 December 3 and 7: Mormul and Ibadulayev
While Perovsky appeared as a broken man, this was not the case with retired Admiral, Nikolai Mormul, veteran of the first Soviet Nuclear submarine (K-3). In a testimony strongly supporting Nikitin, Mormul told the Court that Nikitins work had been to the benefit for Russia and he considered Bellonas work to be of high value. Its report should be present on the bridge of all nuclear submarines, he said, adding that if this information is made secret, then there will be real danger. When being asked by the prosecutor about how information about accidents on western nuclear submarines is treated, Mormul answered that the reason why the US Navy has had only two serious nuclear submarine accidents was its openness regarding these accidents.
On December 7, First rank Captain Vladislav Ibadulayev, Dean of Department 25 of the Kuznetsov Academy that handles radiation safety issues, was questioned. He confirmed that Nikitin in the summer of 1995 had asked him how to calculate the amount of radioactivity from spent nuclear fuel, and that the kind of information Nikitin had been interested in was completely open. Thus, also Ibadulayev testified in favour of Nikitin.
Also Valeri Bezverkhi, Dean of Department no. 33 of the Academy, was summoned, but failed to show up. However, the Court did not loose much from his no-show, as the only information he gives in the indictment, is that he on August 7, 1995 got a telephone call from Nikitin, and that he on Nikitins request had put Artemenkov on the line.
The above elaboration shows that all testimonies except for Perovskys went in Nikitins favour, and not even his testimony was particularly bad as his attacks on Bellona had little credibility, and he actually also said things that were useful for the defence. Thus, the questioning of the witnesses further strengthened Nikitins position. While the prosecutor did not manage to get anything that could sustain his feeble case, the defence scored several points in their fight for a full acquittal.
5. The experts
On December 3, the prosecutor used his possibility to summon a number of the experts that have been used by the FSB in order to establish that the Bellona-report contains state secrets, and to evaluate the damage the disclosure of these alleged secrets has caused.
5.1 Oleg Leikin damage expert
The first expert to be questioned was Oleg Leikin of the 1st Research Institute of the Ministry of Defence. When the judge asked the prosecutor if he summoned Leikin as a specialist or an expert, the answer caused some confusion as Leikin was summoned as a witness. On December 7, the prosecutor had to admit that he created a legal collision when using Leikin as a witness. The Court realised that since Leikin earlier had taken part in the investigation as a specialist, Article 67 of the Criminal Procedure Code prohibits that he could take part in the case as an independent expert, as he actually did. Thus, it did not go into the details of the expert-evaluation that Leikin participated in and was expected to defend. The evaluation took place in June 1999 and estimated the damage of the disclosure of alleged secret information in the Bellona-reports chapter 2.3 to approximately $ 20.000.
The matters of state secrets were however discussed. Leikin named the secret decrees No. 071:93 and 055:96 as the only documents that are referred to by the Ministry of Defence when determining whether an item of information pertains to state secrets or not. He added that laws that are not defined by the Ministry are never referred to when such evaluations are carried out. Since neither the Russian Constitution nor the Law on State Secrets are defined by the Ministry, this legislation is not applied by the experts. With his statements Leikin did the defence a considerable favour, as he confirmed that the accusation against Nikitin is based on secret and retroactive legislation.
5.2 Romanov and Bakanov experts on state secret
On December 15, the Court questioned Oleg Romanov and Vyacheslav Bakanov from the 8th Department of the General Staff. Both participated in the expert-evaluation of whether chapters 2.3 and 8.2 of the Bellona-report contain information that pertains to state secrets that could not have been taken from open sources. This was the fourth evaluation of the issue carried out by the 8th Department. Last year the City Court rejected its three previous evaluations because they were incomplete and biased. Nevertheless, the FSB again chose to use experts from the 8th Department. Bakanov even took part in two of the previously rejected evaluations. Thus, it came as no surprise that also the fourth expert-evaluation was based on secret and retroactive legislation, and an incomplete evaluation of the open sources. However, it must have been useful for the Court to question the experts, as they not only clarified the background for their evaluation, but also their way of thinking.
Romanov admitted that the Nikitin case was the first time his Department had tried to apply any law other than secret decrees from the Ministry of Defence. Confirming Leikins statement that the military only uses its own laws, he said that in all previous cases only the Ministrys decrees had been used, while published laws were never referred to.
He seemed to dislike 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 when being questioned on the matter. He also admitted that the experts had not evaluated whether the provisions of the secret decrees were within the limits for classification set by Article 5 of the Law on State Secrets. The reason why the experts had based their evaluation on the 1997-edition of the law and not on the 1993-edition, which was applicable at the time of Nikitins actions, was that there had been no significant changes in Article 5 between 1993 and 1997. However, as the defence has pointed out a number of times, Article 5 of the 1993-edition contained a list of information that can pertain to state secrets and thus, did not classify anything itself, while it in the 1997-edition contain a list of information pertaining to state secrets. Moreover, also the range of what information that pertains to state secrets within the military field is extended in the 1997-edition. Being confronted with this, Romanov had to admit that he was no legal expert.
Nevertheless, the expert-evaluation that Romanov took part in is the basis for the indictments claim that Nikitin has disclosed information that according to Article 5 pertains to state secrets. But his testimony showed that this allegation has no foundation.
Romanov also confirmed that the 8th Department considers it as irrelevant whether an item of information has been previously published in open sources or not. If the information is secret according to the decrees it is secret until it is de-classified, also if it has been openly published ten times before. According to his logic, even the information concerning the worlds most famous nuclear submarine accident is still a state secret. Even if the whole world knows it, it is secret that the submarine was named Komsomolets, that it sank on April 7, 1989 in the Norwegian Sea, and that 42 sailors died in the accident.
However, on January 27, 1997 Deputy General Prosecutor, Mikhail Katushev, wrote an instruction concerning the additional investigation of the case pointing out that transfer of information, which previously has been published in open sources is not a criminal offence. The FSB has several times been instructed to evaluate properly the open sources to the Bellona-report, but such an evaluation has yet to be carried out.
After the performance of the experts in Court it is easy 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, they will still consider its information to be secret, and also information taken from this source will be secret. No wonder then, that the FSB-investigators have continued to use the 8th Department to evaluate the sources. They knew that they would get an answer that would satisfy them.
The prosecutor wanted Romanov to confirm that the decrees are not normative acts, but technical norms. Article 15 para. 3 of the 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 doesnt say anything about technical norms. Thus, the prosecutor tried to substantiate that the decrees could be used in the case even if they are not published.
After first having said that the decrees are normative acts, Romanov gave the prosecutor the answer that he wanted. However, Romanov had then already made it even more clear than before that the experts evaluation of whether the information in the report pertains to state secrets or not, is solely based on the secret decrees.
Thus, the decrees are used as normative act. Katushev recognised this in the above-mentioned resolution. Referring to the decrees, he pointed out that the above-mentioned normative acts, could not be used in the case because they had not been officially published. In February 1997 the St. Petersburg prosecutor copied this phrase in his order to the FSB concerning the additional investigation. So, then he looked upon the decrees as normative acts, but when arguing in Court, he did not hesitate to contradict his own order.
Bakanov could not answer many of the questions he was asked. However, sometimes even silence is an answer, like when he was questioned about the huge differences between what the experts claim that Nikitin copied from the allegedly secret sources, and what actually is written in his notebook. Is this representative for your methods asked the judge, but Bakanov had nothing to say. He also kept silent when being asked why there were so many contradictions between the three expert-evaluations he has taken part in.
Like Leikin, Romanov and Bakanov did the defence a considerable favour. They confirmed that the accusations against Nikitin are solely based on the secret and retroactive Ministry of Defence decrees, and that the military only follows its own laws, and not the Federal law on State Secrets and the Constitution. They also confirmed that their evaluation of the open sources was highly inadequate. Thus, the experts clarified that any conviction of Nikitin on the basis of the experts evaluation would be a blatant violation, of the European Convention, the Russian Constitution and of Federal Russian Law.
6. The case files
The Court also went through the 25 volumes of the case files. This lasted several days and did not reveal much of interest. However, the defence used the opportunity to emphasise on a number of the procedural violations that has occurred throughout the case.
6.1 Witnesses in absentia
On December 16, the Court discussed if and how it should use the testimonies of the absent witnesses Vladimir Artemenkov and Igor Kudrik. Artemenkov let Nikitin into the library of the Kuznetsov Academy where he according to the indictment copied the alleged secret information, which later was published in the Bellona report. Thus, Artemenkov would have been an important witness, but he died on December 23, 1997. Kudrik was one of the authors of the Bellona-report. According to the indictment he received the alleged secret information from Nikitin. Kudrik was not summoned since he now lives in Oslo.
The prosecutor claimed that it was illegal to read the reports from the interrogations of Kudrik. He based this on a provision in the Russian Criminal Procedure Code stating that only if it is impossible to summon a witness, the testimony of this witness shall be read in Court. Artemenkov is covered by this provision since he is dead, while Kudrik is not since it was possible to summon him, argued the prosecutor. However, this provision is not interpreted strictly as it is worded and the real reason for the prosecutors protest against reading Kudriks testimonies, was that they are favourable for Nikitin.
Regarding Artemenkov, whose testimony the prosecutor demanded should be read, the defence pointed to the right to cross examination under Article 6 (3) (d), cf. Article 6 (1) of the European Convention on Human Rights. Emphasising on the fact that Artemenkov was a key-witness, the defence stated that the jurisprudence of the Convention prohibits his statements from being read in Court. However, the defence would accept that his testimonies were read, because they as a whole did not weaken Nikitins case.
The judge then showed knowledge of the finer details of the Convention, pointing out that it does not establish a general prohibition against reading the explanation of an absent witness, but if the witness is important, its explanation can not be used as evidence.
The judge read extracts of the testimonies of Kudrik and Artemenkov. This can in itself not be considered as a violation of Nikitins right, but it remains that Artemenkov is the key-witness against him. He was the only one who, in addition to Nikitin himself, could cast light over the episode at the library of the Kuznetsov Academy, which is the factual core of the accusation against Nikitin for having committed treason through espionage. An eventual conviction of Nikitin would therefore to a considerable degree have to be based on Artemenkovs explanation concerning the incidents at the library.
Besides, an examination of the reports of the interrogations of Artemenkov reveals that he on all previous interrogations said that Nikitin had told him that he worked for Bellona, and even gave him a brochure about the organisation. Then on September 25, 1996, he said that Nikitin never had told him who he worked for. On the same day the FSB who had charged Artemenkov on May 19, 1996, subsumed his actions under a significantly milder provision of the Penal Code than it has used before. Thus, his testimony of September 25 is of low credibility. He seems to have been rewarded for his change of explanation, and the possibility to cross-examining him would have been important for the defence.
If Nikitin is convicted on the basis of the explanations of Artemenkov, who is a key-witness that could not be cross-examined by the defence during the trial, this will violate Article 6 (3) (d) and 6 (1) of European Convention. However, from what was said regarding these issues, the Court seems to be aware of these circumstances.
6.2 Prosecutor enlarges the case-files
On December 17, the prosecutor presented two newly written letters, one from the Ministry of Nuclear Energy (Minatom) and one from the Ministry of Justice (MoJ).
With the Minatom-letter the prosecutor wanted to substantiate that even if Minatom did not find any secrets in chapter 2.3 of the Bellona-report, this did not prevent that the 8th Department of the General Staff according to their competence could find secrets there. The letter deals with the fact that the competence of governmental bodies with the power to classify information is defined by the decrees of each body. However, as the experts from the 8th Department confirmed, their competence is solely defined by the secret MoD decrees. Thus, the Minatom-letter actually confirms that the decrees are normative acts.
At the time of Nikitins alleged illegitimate activity, Russia had no other acts that classified information in the military field as state secrets than the MoD decrees. Collecting, transferral and disclosure of state secrets are criminal offences according to the Russian Penal Code. The decrees establish a duty for Russian citizens not to reveal the information they classify as secret. Thus, they are normative acts, affecting the duties of the citizen and should according to Article 15 para. 3 of the Constitution be officially published for general knowledge to be applicable in the Nikitin case. The decrees are however stamped secret and can therefore neither form the basis for the expert evaluations nor for the charges against Nikitin. Deputy General Prosecutor Mikhail Katushev recognised this in his January 27, 1997-resolution, but his order has been totally ignored by the experts, by the FSB and also by the St. Petersburg prosecutor.
The prosecutor tried to substantiate his ignoring of this order with the letter from the MoJ. This letter says that according to the preliminary expert evaluation MoD decrees No. 071:93 and 055:96 are not normative acts, since they establish no new duties for the citizen, and therefore they dont have to be registered in the MoJ (and they dont have to be officially published). However, if the decrees do not establish any (new) duties for the citizens, they are not normative acts but only technical norms, which nobody can be prosecuted or punished for having violated.
So, the prosecutor first presented material showing that the decrees are normative acts. However, if the decrees are normative acts, they cant be used in the case because they are not officially published. Then he presented material in order to substantiate that the decrees did not have to be published since they are technical norms and not normative acts. But if the decrees are not normative acts they can neither be used in the case. Thus, the prosecutor once more managed to show the Court that his case totally lacks a valid legal foundation, which the Court should have few problems realising.
7. December 22: The closing speeches
7.1 The prosecutor
As expected, the prosecutor had not much to add to his previous attempts on proving Nikitins culpability. In fact he had nothing to add.
He spent most of his time reading the indictment, and then concluded that Nikitin should be convicted to 12 years of imprisonment with confiscation of property in favour of state. This is the minimum penalty for state treason according to Article 275 of the Russian Penal Code. The reason for the prosecutors softness was that Nikitin had no previous criminal record. If this had not been the case, the prosecutor would have demanded 20 years.
As it is evident of the review in Sections 2 to 6 over what actually happened in the City Court throughout the last month, the closing speech of the prosecutor was way beyond reality. He did not even try to prove Nikitins culpability. He just did what the judge did four weeks ago, like he only physically had been present in the courtroom throughout the trial, while he mentally must have been on a completely different planet.
7.2 The defence
The defence started its closing speech with bringing up an issue that had not been much discussed throughout the court hearings. It pointed out that none of the conditions for convicting Nikitin for state treason under Article 275 are fulfilled.
In order to get Nikitin convicted, the prosecution has to prove that the information he collected and transferred to Bellona about Russian submarine accidents pertains to state secrets, and that he knew that the information was secret. The questioning of the experts had proved what the defence has claimed all the time; that they have used only secret decrees in order to evaluate whether the information pertains to state secrets or not. Thus, the information was not classified according to the regulations of the Law on State Secrets, and could therefore not be considered as state secrets. Moreover, Nikitin could not possibly know that the information was secret, since the classification was carried out in secret and/or retroactive decrees, and not in the legislation that was officially published in 1995. On the contrary, this legislation gave a clear impression that ecological relevant information could not be classified as state secrets, see for instance Articles 41 and 42 of the Constitution and Article 7 of the Law on State secrets.
The prosecution also has to prove that Nikitin had the intent of treason; that his intention was to damage the outward security of Russia. However, it was proven that he did not have this intention. On the contrary his intention was to attract attention and financial support in order to improve the nuclear safety in Russian Northern areas, and within the Northern Fleet. Thus, he did not write the report in order to damage the security of Russia, but in order to strengthen its environmental safety.
Finally, the prosecution has to prove that Bellonas purpose with writing the Northern Fleet Report was to undermine the outward security of Russia and that Nikitin must have realised this. However, Bellona had the same intention as Nikitin with the report. As it was shown through the testimony of Thomas Nilsen, Bellonas work in Russia and on the Kola Peninsula was in 1994 and 1995 strongly supported also by Russian local and central authorities. Before Bellona employed Nikitin, the organisations work had led to fundings from the Norwegian Parliament and the European Union in order to improve the nuclear safety in the region. Thus, there is simply no way that Nikitin could have realised that Bellonas real purpose was to undermine the security of the Russian Federation, simply because the organisation never have had such intentions.
Nikitin has not collected information that pertains to state secrets, he had no bad intentions with his actions and Bellonas aim was not and is not to undermine the security of Russia. None of the objective and subjective conditions in Article 275 for convicting him for state reason through espionage is fulfilled. Thus, the Court has to acquit him for this crime, concluded the defence. Besides, according to Article 49 of the Constitution, the prosecutor has to prove that all the conditions of Article 275 are fulfilled, but he has not been able to prove that any of the conditions are fulfilled. On the contrary, Nikitin has even if he according to Article 49 doesnt have to proven his innocence.
The defence then continued to Article 283 of the penal code, under which Nikitin is accused of having disclosed state secrets about nuclear reactors of the third generation,
In order to get Nikitin convicted for this crime, it is not necessary to prove that he or Bellona had any intentions of damaging the security of Russia. But it still has to be proven that the information was secret, that Nikitin knew that the information was secret, and that he despite of this wanted to disclose it. However, as pointed out above, the disputed information was not classified according to regulations of the Law on State Secrets, and can therefore not be considered as state secrets. Because of this, Nikitin could not know that the information was secret. Thus, neither the objective nor the subjective conditions for convicting him under Article 283 of the Penal Code is fulfilled. He has also regarding this part of the indictment proven his innocence.
Moreover, since the alleged damage for the so-called disclosure of state secrets is estimated to approximately 20.000$, it seems rather ridiculous to talk about serious consequences for the state, especially since the amount is not related to state security, but to alleged losses in the possibility to exploit Russian reactor technology commercially.
The defence also used much of its closing speech to emphasise on what had been further clarified throughout the proceedings. The cases lack of a valid legal foundation had been proven through the explanations of the experts. It had been clarified that Nikitin had obtained all the disputed information from open sources, and with the exception of Perovskys testimony which was of low credibility because of the pressure he had been under from the FSB, all the witnesses had testified in Nikitins favour. Thus, Nikitin should be acquitted for all the crimes that he is accused of concluded the defence that also used some energy on the prosecutions many procedural violations throughout the case.
The latter caused the prosecutor to accuse the defence for inappropriate behaviour and for attacking the State Prosecutor not on the basis of the law, but on a purely emotional basis. The prosecutor added that the defence throughout the case had not at all touched the core of the charges. The defence countered this with pointing to the fact that it had not attacked the person of the prosecutor. Since it was his responsibility to supervise that the FSB had conducted the investigation in conformity with Russian law, it was however only natural that he was one of the main characters in the closing speech of the defence.
Concerning the prosecutors claim that the defence had not touched the core of the charges, chief defender Yury Schmidt just shook his head and said that the defence had talked about the core of the charges for almost four years. And as the description above shows the defence did this also throughout the trial in the City Court, and in its closing speech. Hopefully also the Court will realise this.
8. Closing remarks
After having followed the trial closely, it is not difficult to agree with the defence. If Nikitin is not acquitted, the Russian legal system will loose much of the credibility it has gained through the City Courts ability to within the limits set by the obsoleted Criminal Procedure Code conduct the court hearings of the case in a fair and equal manner.
A conviction will be a dramatic setback for the rule of law in Russia. A conviction will mean that the secret and retroactive Ministry of Defence decrees is given higher value than the regulations of the Constitution and the Federal Law, and that the latter regulations are worthless when colliding with the secret legislation. A conviction will mean that FSB-investigators can continue to fabricate charges against whoever they want whenever they want and with the help of their expert-henchmen, get them convicted. A conviction will mean that it is not the State Duma that was elected on December 19, which is the real legislative authority of Russia since a legal act adapted by the Duma at anytime can be overturned by a secret and if need be retroactive decree. A conviction will mean that the dark forces have regained control over the judiciary. A conviction will be a tragedy, not only for Aleksandr Nikitin, but even more for Russia itself.
December 29, 1999 will be the moment of truth for the Russian legal system. Its faith is now in the hands of the St. Petersburg City Court. Hopefully the Court will be able to live up to its responsibility. The way the proceedings have been conducted might indicate that it will, but very few will know before judgement day.