Analysis of the prosecutor’s appeal

1. Introduction
On December 29, 1999 the St. Petersburg City Court acquitted Aleksandr Nikitin because it found no corpus delicti in his actions. The verdict ascertains that the shaping of Russian legislation in 1995, when Nikitin’s alleged actions took place, made it impossible for him to realise that the information about submarine accidents that he included in chapter 8.2 of the Bellona-report about the nuclear pollution within the Russian Northern Fleet pertained to state secrets. On the contrary, the legislation gave the impression that such information could not pertain to state secrets. Moreover, the Court ruled the indictment to be “a blatant violation of the Russian Constitution” since it was based on secret and retroactive laws. Besides, it found no proofs for Nikitin having disclosed information about third generation naval reactors in chapter 2.3.3 of the report. Thus, with reference to the presumption of innocence in Article 49 of the Constitution and Article 6 (2) of the European Convention on Human Rights it acquitted him of all charges.

The prosecution almost immediately announced that it would appeal the verdict, and in a specified appeal dated February 3, 2000, it demands that the acquittal must be cancelled, claiming that it contradicts the facts of the case as well as the law, and that it based on an incomplete evaluation of the case. A closer examination of the appeal shows that it is built on eight main theses:

• The 1993-edition of the Law on State Secrets gives a sufficient legal basis for the charges.
• The Court’s law application is “arbitrary and selective” when it concludes that the demand in the Constitution’s Article 15 (3) that “normative acts” must be officially published also applies for subordinate legislation.
• Nikitin had the possibility to figure out that he included state secrets in the Bellona report.
• The Court’s assumption that the experts of the 8th Department of the General Staff solely based their evaluation on the secret and retroactive decrees is wrong.
• The Court assumes wrongly that the charges are so vague that they have hindered Nikitin’s defence.
• Even if Nikitin’s actions ended in September 1995, the Court is mistaken when concluding that decree No. 1203:95 of November 30, 1995 is used retroactively in violation with the prohibition in Article 54 of the Constitution
• The Court has without special knowledge ignored the experts’ opinion, when it concludes that Nikitin has not disclosed any information about third generation naval reactors that was not known before.
• The Court should have summoned FSB-investigator Maksimenkov to the court session for questioning.

Each thesis is badly substantiated. Thus, the possibility for the appeal being approved is small, unless the Supreme Court comes under political pressure.

2. “The 1993-edition of the State Secrets law is a valid basis for the charges”
Article 15 (3) of the Russian Constitution states that “no regulatory legal act affecting the rights, liberties or duties of the man and citizen may apply unless it has been published officially for general knowledge.” The prosecutor’s opinion is that Article 15 (3) only applies for federal laws like the law on State Secrets, and not for subordinate legislation like the secret Ministry of Defence decrees No. 071:93 and 055:96, which are the basis for the charges against Nikitin. The decisive factor concerning the range of Article 15 (3) is, however, not related to the level of the legislation, but to its content; whether the legislation affects the rights and duties of the man and citizen or not.

2.1 The decrees affects the rights and duties of the citizens
Article 5 of the 1993-edition of the law on State Secrets, which was in force at the time of Nikitin’s alleged actions, contained a list over “information that can pertain to state secrets”. The classification itself should be carried out in accordance with the procedure described in Article 9 of the law; by a presidential decree and by ministerial decrees. Thus, it was not the law, but the decrees that classified the information and established a duty not to reveal the information. Consequently, the decrees affected the rights and duties of the citizens and are covered by the demand of publication in Article 15 (3) of the Constitution.

However, the decrees that the charges are based on are not published, and can therefore not be used in the case. Deputy General Prosecutor, Mikhail Katushev, underlined this on January 27, 1997:

“During the evaluation, the expert committee of the 8th Department of the General Staff of the Russian Armed Forces used the “Contemporary list on information considered secret,” adopted by the Government of the Russian Federation resolution No. 733-55 of September 18, 1992 and enforced by Decree of the Ministry of Defence, and the “Temporary list of information within the Russian armed forces that is classified as state secrets,” enforced by Defence Ministry decree No. 071 of 1993.

The above-mentioned normative acts are stamped “secret” and have therefore not been published officially for general knowledge.

In accordance with Article 15 (3) of the Constitution of the Russian Federation and the ruling of the Constitutional Court of the Russian Federation of December 20, 1995, criminal prosecution for revelation of state secrets to a foreign state is only legal provided that the list of secret information has been published officially for general knowledge. There are no exemptions for persons who obtained such information during their military service.”

Despite of this unambiguous order from the General Prosecutor’s office not to base the charges on secret legislation, the FSB and the St. Petersburg Prosecutor’s office have continued to use such decrees as basis for the charges until this very day.

2.2 The 1993- and 1997 editions of the State Secrets law differs significantly
The prosecutor admits that there is a terminological incongruity between the 1993-edition of the law on State Secrets and the Constitution, which was first corrected in October 1997. But nevertheless he claims that there is no difference between the 1993- and 1997-editions of the law.

However, the 1997-edition classifies several items of information that were not mentioned in the 1993-edition. Moreover, he ignores the fundamental difference that Article 5 of the 1993-edition had the headline “Information that can pertain to state secrets”, while it in the 1997-edition read: “Information constituting state secrets.” Thus, the 1993-edition was directed towards Russian authorities authorising them to classify information covered by the categories mentioned in Article 5’s listing of possible state secrets, but before the law was changed in October 1997 it did not classify anything itself. In stead the classification should be carried out by an officially published presidential decree, but no such decree was issued before on November 30, 1995 (No. 1203:95), two months after the actions Nikitin is accused of. To base the charges against him for having collected, transferred and disclosed state secrets on this decree, therefore violates the prohibition in the Constitution’s Article 54 against retroactive legislation.

At the time of Nikitin’s alleged actions (August-September 1995) the only normative act in force that classified information within the military field as state secrets was Decree 071:93 of the Ministry of Defence. This is, however, secret and as the City Court points out, it therefore violates Article 15 (3) of the Constitution to base the criminal charges on it.

The prosecutor points out that Article 9 of the law on State Secrets and several other normative acts presupposes that the decrees containing the detailed ministerial lists of secret information may be kept in secrecy, since the suitability of classifying these lists shall be evaluated continuously. Thus, he claims that the lists are not invalid even if they are not published. However, the point is not whether the lists as such are valid or not, but whether they are published or not. If they are unpublished, it follows from Article 15 (3) of the Constitution that they can not be used as the basis for a criminal charge. The prosecutor ignores the fact that this is the basis for the acquittal. Rather than discussing the range of Article 15 (3), he presents a row of claptrap without legal substance.

2.3 Abuse of international law
The prosecutor points out that Russia is entitled to limit the rights of its citizens in order to protect national security. He refers to Articles 55 (3) and 29 (4) of the Constitution, and to Article 29 of the Universal Declaration of Human Rights and Article 10 of the European Human Rights Convention.

However, Article 55 (3) of the Constitution, which allows the State to restrict the rights and freedoms of the citizens “by federal law”, is placed in Chapter Two of the Constitution: “Rights and freedoms of Man and Citizen”. It follows from the editing of the Constitution, and from its Article 16 (which gives the provisions of its Chapter One supreme value) that the restrictions allowed in Article 55 (3) only apply for the rights and freedoms guaranteed in Chapter Two, and not for the rights and freedoms guarantied in Chapter One “the Fundaments of the Constitutional System”. Since Article 15 (3) is placed in Chapter One the rights and freedoms guaranteed here (the right to protection against arbitrary prosecution based on secret legislation) can not be limited.

It is also noteworthy that Article 7 of the European Convention corresponds with Articles 15 (3) and 54 of the Russian Constitution. Article 7 belongs to the fundamental provisions of the Convention and it establishes a safeguard against arbitrary prosecution that according to its Article 15 can not be limited, not even in situations of war or national emergencies. Since the Convention is ratified by Russia and according to Article 15 (4) of the Constitution, shall apply if it contradicts internal legislation, the rights and freedoms of Articles 15 (3) – and 54 – can not be restricted.

Besides, Article 55 (3) demands that any restriction of the citizens’ rights and freedoms shall be carried out by federal law. However, in the present case various subordinate legislation is used to limit the constitutional rights. Thus, even if Article 55 (3) had been applicable for restricting the rights of Article 15 (3), the attempt on restricting these rights would have been invalid.

2.4 Abuse of the Constitutional Court
The prosecutor refers to the Constitutional Court verdict of December 20, 1995 (the Smirnov-case) and to its verdict of March 27, 1996, where Nikitin and three others were allowed a free choice of legal counsel. He takes some sentences of the verdicts out of their context in order to substantiate that Article 5 of the 1993-edition of the law gives a sufficient basis for the prosecution of Nikitin.

From item 4 of the Smirnov-verdict the prosecutor quotes a sentence where the Constitutional Court says that the demands of Article 29 (4) of the Constitution (that the list of information constituting state secrets shall be established by federal law) is fulfilled by the list of information that can pertain to state secrets in Article 5 of the 1993-edition of the law on State Secrets. However, the verdict did not evaluate whether this list was in accordance with the Constitution or not, but the constitutionality of Article 64 of the then still applicable Soviet Penal Code. The quoted statement is a part of an evaluation, where the Court underlines:

” … the State has the right to classify some information in the field of military, economical and other kinds of activity if distribution thereof can inflict the damage to the defence of the country and security of the state. In this connection article 29 para. 4 of the Constitution of the Russian Federation stipulates that the list of information constituting state secrets is determined by federal law. The State has also the right to determine the means and the ways of protecting state secret, including establishing criminal liability for its disclosure and transferral to the foreign state.

However, by virtue of the specified constitutional norm, the criminal liability for transferral of state secret to the foreign state is lawful only on the condition that the federal law contains the list of the information constituting state secret, and that the law is officially published for general knowledge. The legal decision, including the court verdict, can not be based on the unpublished normative legal acts, which follows from article 15 para. 3 of the Constitution of the Russian Federation” (my underlining).

When acquitting Nikitin, the City Court quoted the above-mentioned and stressed that it is a condition for implementing criminal liability for collecting, transferring and disclosure of state secrets, that the decrees containing the list of state secrets is officially published. This list was, as pointed out above, not published in August-September 1995, and since the decrees used by the prosecution in order to establish that Nikitin has collected, transferred and disclosed state secrets, were “unpublished normative acts”, he could not be made subject to criminal liability. This essential point of the acquittal is not commented in the prosecutor’s appeal.

The second verdict dealt with the constitutionally of Articles 1 and 21 of the law on State Secrets and established that the citizens had the right to a free choice of legal counsel without their counsel having to go through a security clearance. Here the prosecutor has picked out a sentence where the Constitutional Court says that the Russian legislator according to Articles 29 (4) and 55 (3) of the Constitution “has the right” to establish the list of information pertaining to state secrets.

However, the prosecutor ignores that nobody questions the legislator’s right to establish such a list, and that the decisive point is that this list has to be officially published if it shall be used as the basis of a criminal charge. This follows from the Constitution’s Article 15 (3) and the above quotation of the Smirnov-verdict. Thus, the prosecutor’s “conclusion” that the Constitutional Court eliminated the terminological discordance between Article 29 (4) of the Constitution and the 1993-edition of the law on State Secrets, is not grounded. It is also self-contradictory since the prosecutor elsewhere admits that the discordance first was corrected when the law was changed in October 1997.

2.5 The prosecutor contradicts the opinion of the legislator
One main point in the acquittal is that Russian legislation lacked a legislative basis for prosecuting people for collecting, transferring and disclosing state secrets between December 12, 1993 (when the Constitution was adopted) and November 30, 1995 (when decree 1203:95 classifying various items of information as state secrets was published). The prosecutor completely ignores that the Court based this assumption on the fact that the Security Committee of the State Duma in resolution No. 1271-1 GD October 27, 1995 urged the Government to submit to the President for approval the list over secret information, so that it could be issued. Until this happens “the law-enforcement bodies of the country are deprived of a legal basis for performing the functions, assigned to them, on providing the security of the state, society and individual”, the legislator pointed out.

Thus, the prosecutor’s assumption that the Court’s conclusion that Article 5 of the Law on State Secrets in the 1993-edition can not be used alone is “arbitrary and not grounded on the law” is utterly wrong. When assuming this, the prosecutor contradicts not only the legal opinion of the St. Petersburg City Court, but also the legal opinion of the Russian Constitutional Court, of his superior Deputy General Prosecutor, and of the Russian legislator.

3. “Arbitrary and selective law application”
As pointed out above, the prosecutor claims that the City Court drew Article 15 (3) too far when it states that its demand for publication of “normative acts” not only applies for federal laws, but also for subordinate legislation. The prosecutor bases his assertion on a number of presidential decrees and thus, gives this subordinate legislation higher value that the Constitution. However, it was Decree 071:93 and 055:96 that classified the disputed information in the Bellona-report, and thus it was these that established a criminal liability for collecting, transferring and disclosing the information. Consequently, the decrees affected the rights and duties of the citizens and the demand of publication in Article 15 (3) applies also for the decrees. No subordinate legislation can change that they had to be published if they should form the basis of a criminal charge.

Nevertheless, the prosecutor claims that the Court “arbitrary and selectively” has used a number of law provisions in order to rule out Decree 071:93 and 055:96. The Court has established that these decrees can not be used as basis for the criminal case, because they are not published. This evaluation is based on Article 15 (3) of the Constitution, and on the Constitutional Court’s ruling in the Smirnov-case. The Court also refers to other constitutional provisions (Article 54, and Articles 41 and 42), to provisions in the law on State Secrets (Articles 6 and 7) and to a number of other federal laws, while it did not use provisions of various decrees older than the Constitution. This is what the prosecutor denotes as “arbitrary and selective” law application

The prosecutor points to the fact that the law on State Secrets says that previously issued subordinate legislation about state secrets shall remain in force to the extent it does not contradict the Constitution or the law. He refers to the President’s Decree No. 20 from January 1992, which says that while awaiting new legislation in the field of state secrets, the existing legislation is still applicable. He also refers to the President’s Decree No. 302 from March 1992, which said that decrees regarding state secrets were not subject to obligatory publication. Besides, he claims that the Government’s Decree concerning state secrets No. 733-55 of September 1992 remained valid after the Constitution was adopted. This is “proven” by the Government’s Decree No. 798 of August 1995 concerning various OSCE-documents. The 1995-decree seemingly made some changes in the 1992-decree and “confirmed” that it did not violate the Constitution.

However, Nikitin’s actions took place in 1995, when the new Constitution and the new law on State Secrets were in force. Thus, the provisions of decrees older than 1993 are of no interest. Besides, the core of the Court’s verdict is not that the decrees concerning state secrets are invalid as such because they are unpublished, but that they can not be used as basis for the criminal charge because they are unpublished. This state of the law was established when the Constitution was adapted. In August-September 1995 only the secret Decree 071:93 classified the information Nikitin included in the report and it is his alleged violation of this decree that makes him subject to criminal liability. Thus, the use of this decree as the basis for the charges against him is invalid.

The prosecutor also claims that Decree 733-55, which was enforced by Decree 071:93 of the Ministry of Defence and later replaced by Decree 055:96, is not “subject for registration”. He bases this on two letters from the Ministry of Justice from 1993 and December 1999. The latter was included in the case files, but the Court “completely ignored it”. However, the Court did not base its decision on an assertion that the decrees should have been registered, but on the fact that they are not officially published, as they should have been if they were to be used as the basis for a criminal charge. Nevertheless, the prosecutor continues to claim that neither the Constitution, the presidential decrees, the federal law, nor various subordinate legislation demands an official publication of the legislation that is to be used as the basis for a criminal charge.

In order to reach this conclusion, the prosecutor does not touch the main point of the verdict, that secret decrees according to Article 15 (3) of the Constitution can not form the basis of criminal charges for collecting, transferring or disclosing state secrets. In stead he ignores the Constitution and the federal law and bases his legal opinion on various subordinate legislation. If anything deserves to be denoted as “arbitrary and selective law-application”, this is it.

Besides, the prosecutor also ignores that the decrees not only have to be published, but also that their content have to be within the limits set by Article 5 of the law on State Secrets to be applicable. However, the secret decrees do not only clarify what the law establishes, they establish several categories of secrets that go beyond the limits of Article 5. The Court has for instance ruled that information on losses of military equipment in times of peace is not covered by Article 5 and that the classification of such information is illegal. Thus, the decrees are invalid as basis for the charges both because of their secrecy and because they go beyond the limits of the law.

4. “Nikitin had the possibility to figure out that the information was secret”
The verdict states that Nikitin could not figure out that the information he included in the Bellona-report was secret, since the decree that classified the information itself was secret. The prosecutor claims that this is wrong since Nikitin was familiar with a Soviet decree from 1980 dealing with state secrets, and had signed a vow of silence when retiring from service in November 1992. However, when stating this, the prosecutor ignores that a completely new legal regime concerning state secrets in Russia had developed after Nikitin’s retirement.

The law on State Secrets was adapted in July 1993. Its Article 7 says that information about accidents with significance for the environment can not be classified. It also limited the possibility to classify ecological relevant information in general. In December 1993 the new Constitution was adapted. This prohibits the use of secret and retroactive legislation to the disadvantage of the individual (Articles 15 (3) and 54), and also establishes that the citizens has the right to ecological information and that those who conceals such information is subject to criminal liability (Articles 41 and 42). Thus, what before was concealed was now supposed to be open information.

The prosecutor also claims that the espionage-provision in the Penal Code (Article 275) sets as no condition for imposing criminal liability that “the list of state secrets is officially published”, and that it neither is a condition for liability that the person collecting, transferring or disclosing secrets must have had the possibility to familiarise himself with the list. However, even if these conditions are not mentioned directly in the provision, they are implicated in its demands related to subjective culpability. It is impossible to have the intents of treason or deliberately wanting to disclose state secrets, if one does not know that the information is secret. A condition for knowing this, is that the list of state secrets must either have been officially published for general knowledge or the person in question must at least have had the possibility to familiarise himself with the list.

The list of secrets used in the Nikitin case is not officially published and he was not familiarised with it. Thus, taking into consideration the new legal regime concerning state secrets, the Court correctly ascertains that he could not know that he included classified information in the report.

5. “The experts did not only use the secret decrees”
The Court emphasises that the conclusion of the experts of the 8th Department of the General Staff, which is the basis for the charges, is solely based on the secret Decrees 071:93 and 055:96 from the Ministry of Defence. This statement is based on the testimonies the experts gave in court, and on a written statement from FSB-investigator Maksimenkov saying that a previous expert-commission refused to use any other legislation than the secret decrees of the Ministry of Defence.

In order to substantiate that the Court is mistaken, the prosecutor refers to the expert conclusion of May 27, 1997, which was rejected as evidence both by the City Court on October 29, 1998 and by the Supreme Court on February 4, 1999. He also refers to the new conclusion of June 10, 1999, which regarding the law application refers to the rejected conclusion from May 1997. Here the experts rattle off a number of laws, including the Constitution and the law on State Secrets, which they “have used”. However, an examination of their evaluation shows that they have explained away the Constitution and the law, and that their evaluation is solely based on the secret decrees. The experts confirmed this when being interrogated by the City Court last December.

The prosecutor also claims that the Court should have questioned more experts. However, the prosecutor could have summoned more experts if he had wanted to, but he abstained from this when being asked by the Court. Thus, it is the prosecutor’s own “mistake” that only two experts were summoned. He also claims that investigator Maksimenkov should have been summoned to testify about the declaration he wrote stating that the experts only would use the secret decrees. However, there is no reason to doubt that the content of this declaration is correct – and again, if it was so important, why did not the prosecutor summon Maksimenkov himself?

6. “The Court is mistaken when claiming that the charges are too vague”
The verdict also points out that the charges presented to Nikitin in July 1999, are too vague when claiming that he has collected, transferred or disclosed information that is secret “according to points 2, 4 and 6 of item 1 of Article 5 of the law on State Secret”. This has hindered his defence, the Court states, referring to the fact that the charges are based on a number of provisions in the secret decrees. The prosecutor claims that since the decrees only “establish the level of secrecy” of the information and since the indictment quotes the alleged collected, transferred or disclosed secret information, Nikitin’s defence is not hindered. However, the decrees go beyond the law’s limits for classifying information, and it is obviously harder to prepare the defence without knowing exactly which provisions the prosecution claims have been violated. Thus, the Court indeed has a point.

This part of the appeal also states that the Court “without noticing it” has changed the law and “deprived” the Defence Ministry from the possibility to work out detailed lists of information pertaining to state secrets, when it says that the charges were so vague that they hindered Nikitin’s defence. However, all previous charges/indictments have been ruled to be too vague to be in accordance with Article 144 of the Criminal Procedure Code. It is hard to figure out how a closer specification in the charges of the kind of secrets that allegedly has been collected, transferred and disclosed, can “deprive” the Ministry from the possibility to work out its detailed lists.