Russian Justice at the crossroad

Publish date: April 12, 2000

Written by: Jon Gauslaa

When the Russian Supreme Court on April 17, 2000, will handle the Nikitin-appeal, Russian Justice will stand at the crossroad. One road leads towards the rule of law, the other back to the quasi-jurisprudence of the Soviet era, writes Jon Gauslaa, legal advisor of Bellona.

On April 17, 2000, the Russian Supreme Court will handle the prosecution’s appeal in the Nikitin-case. The Court was supposed to do this on March 29, but then it postponed the hearing after a representative of the Prosecutor General’s office demanded to take part in the case and needed more time for preparations. Since the case has been going on for more than four years and the prosecution has had three months to prepare the appeal-case, there were no grounds of fact for the Supreme Court to meet this demand. The Court could also easily have decided the case, with a reference to the Russian Constitution’s prohibition against basing criminal cases on secret and retroactive legislation.

This prohibition was the main reason for the St. Petersburg City Court’s acquittal of Nikitin on December 29, 1999, which was a victory not only for Nikitin, but also for the rule of law in Russia. The Supreme Court’s delay has now created an uncertainty regarding the outcome of the case, which until recently was almost non-existing.

Even if the development of Russian justice as a whole has been positive since 1993, the rule of law has not yet reached the point of no return in the Russian society. This will not happen before also the bodies of the prosecution, at least as a principal rule, acts in accordance with the basic principles of the rule of law.

The prosecution has never done that in the Nikitin-case. Its appeal, which is signed by Mr. Aleksandr Gutsan, is for instance grounded on a claim that the acquittal is based on an “arbitrary and selective” law application.

This is, however, very far from the truth. When the City Court concluded that the indictment against Nikitin is “a blatant violation of the Constitution”, it did the same as courts in any other country governed by the rule of law would have done. It based its decision on the fact that the principle legal acts of the society are to be found in the Constitution, and not in secret and retroactive subordinate legislation.

Thus, from an isolated legal angle there should be no reason to be worried about the outcome of the case. The political development in Russia is, however, uncertain. Neither the Russians nor the outside world knows much about the real position of the newly elected president. His background is, however, far from “liberal” and several observes has assumed that the delay of the appeal-case was a consequence of the election of Mr. Putin.

Besides, it is not a positive signal that the case was postponed because the General Prosecutor demanded to take an active part in the case. The General Prosecutor has previously demanded that the FSB should not base its case on secret and retroactive decrees, because this has been considered as a violation of the Constitution. The fact that the General Prosecutor now wants to participate in the case indicates that the supreme body of Russian prosecution now will support an appeal based on a legal foundation, which it previously has denoted as “in violation of the Constitution”.

Nevertheless, the Supreme Court has no other alternative than to confirm the ruling of the City Court. That would be a major step towards establishing the rule of law in Russia. An accept of the prosecution’s appeal would on the other hand mark a dramatic breach with the positive tendency of the recent years, and mean a return to the quasi-jurisprudence of the Soviet era, when the security forces literally were raised “above the law”.

Thus, Russian Justice will be standing at the crossroad on April 17. Only a few know where the road will lead. The man who acquitted Nikitin, Sergei Golets, is however not in doubt. In an interview printed in several western newspapers, including Philadelphia Inquirer on January 10, 2000, he comments his own ruling the following way:

“The court drew attention to the fact that the KGB [he deliberately used this phrase] must now abide by the law, and pay attention not only to their own interests, … Because the court is guided by reasons of law, not reasons of KGB ‘necessity.’ … although we have a new president and although Putin was head of the FSB… the verdict will stand. And lawyers throughout the world will be able to see whether Russia is a state based on law, or whether law is just a smoke screen to hide any arbitrariness.”

We will probably get the answer on April 17. Then the world also will get an indication concerning into which direction Putin’s Russia will develop.