Commentary:

Today prosecutor Gutsan showed the Court the aces he had hidden up his sleeve. The aces turned out to be two newly written letters, one from the Russian Ministry of Nuclear Energy (Minatom) and one from the Ministry of Justice.

These letters confirms that the charges have a valid legal foundation and that the secret decrees of the Ministry of Defence are not normative acts. Therefore they don’t have to be registered, he said triumphantly, demanding the letters to be attached to the case-files. The defence had no objections. On the contrary, it strongly supported Gutsan’s demand, because what he did was to contradict himself in a most astonishing way.

Minatom: Decrees are normative acts

The Minatom-letter deals with the fact that the competence of each governmental body with the power to classify information as state secrets is precisely defined by the decrees of these bodies. Minatom’s competence is not based on the secret MoD decrees, and when their experts are asked to evaluate whether information pertains to state secrets or not, they base their evaluation on the law. The Ministry of Defence’s competence is on the other hand defined by the MoD decrees, and its experts use these decrees and not the law when they evaluate whether an item of information is secret or not.

According to the Minatom letter, this is the reason why Minatom did not find any secrets in chapter 2.3 of the Bellona-report, while the experts of the 8th Department of the General Staff did find secrets also here.

However, if a decree classifies an item of information as a state secret, as the MoD decrees do, it also establishes a duty for the citizens not to reveal this information. Persons violating this duty may be punished according to several provisions of the Penal Code.

Thus, the Minatom-letter indirectly confirms that the MoD decrees No. 071:93 and 055:96 are “normative acts, affecting the rights, liberties or the duties of the citizen” that according to Article 15 para. 3 of the Constitution shall be “officially published for general knowledge”. But the MoD decrees are stamped “secret”, and can therefore neither form the basis for the expert evaluations nor for the charges against Nikitin. Deputy General Prosecutor Katushev recognised this in his order on the additional investigation on January 27, 1997, but as the experts from the General Staff confirmed, this order has been totally ignored, not only by themselves, but also by Katushev’s subordinate Gutsan.

Ministry of Justice: Decrees are not normative acts

Gutsan tried to substantiate his ignoring of the order from his superior with the letter from the MoJ. This letter says that according to “the preliminary expert evaluation” decrees No. 071:93 and 055:96 are not normative acts, since they establish no duties for the citizen. Therefore they don’t have to be registered, and because they don’t establishes any duties for the citizen, they neither have to be officially published.

However, if the decrees are not normative acts or establishing any duties for the citizen, but only “technical norms”, nobody can be prosecuted for violating them. So Gutsan’s final ace turned out to be a kind of attempt on committing juridical suicide.

Perhaps he will explain why he has used so much energy in order to prove that he has based his case on technical norms and not on normative acts in his closing speech on December 22. However, as a believer of the independence of the judiciary and the quality of its participants, I am glad Gutsan chose to have his closing speech behind closed doors.

Maybe he has some common sense after all, since he wants to spare the world from what will be a highly feeble performance. However, after having made a complete fool out of himself today, I find that hard to believe.