Appeal to the Presidium of the Supreme Court by the Prosecutor General

Publish date: May 30, 2000

Appeal by the Prosecutor General

The Office of the Prosecutor General
103793 GSP Moscow
Ulitsa Bolshaya Dmitrovka, 15a

PROTEST (for review)
May 30, 2000

On the case of A. K. Nikitin

On December 2[9], 1999 the St. Petersburg City Court handled the case of Aleksandr Konstantinovich Nikitin, born in 1952, Captain of the First Rank, pensioner of the Armed Forces of the Russian Federation (RF), not previously convicted, accused of committing crimes punishable under Article 275 and Article 283, part 2 of the Criminal Code of the RF. Nikitin was acquitted of committing crimes punishable under Article 275, and Article 283, part 2 of the Criminal Code of the RF because of the absence of a crime in his actions.

On April 17, 2000, the Judicial Collegium on Criminal Cases of the Supreme Court of the RF upheld the verdict without changes and did not approve the Prosecutor’s Office’s protest.

I believe that the existing judicial decisions need to be changed because the conclusions of the courts, set forth in the verdict and the decision, do not correspond to the factual circumstances of the case, and this flaw can [only] be corrected under a new investigation.

The agencies of preliminary investigation charged Nikitin with state treason in the form of espionage and disclosure of state secrets which became known to him during his term of service and which led to serious consequences. His crimes were committed under the following circumstances:

Before his retirement in November 1992, Nikitin served in the military, which included serving as the chief of an inspection group of the nuclear safety of atomic sites of the Ministry of Defence of the RF. He had Grade 1 access to state secrets and was allowed access to that kind of information. He possessed information about the location of atomic submarine (APL) bases of the Northern and Pacific fleets, bases of special service APLs and storage ships, on all construction and repair enterprises (both civilian and Naval), information about the tactical-technical characteristics and factory and tactical numbers of APLs and atomic surface ships and about all types of reactors that they use. Upon his retirement, Nikitin signed a document promising not to divulge information that contains state secrets, which were entrusted to him and which he got to know during his service.

In February 1994, while in Norway, Nikitin became acquainted with an employee of the Peace Research Institute of Norway, R. Bathurst, who had previously worked with American intelligence agencies and maintained contact with them. In the Spring of 1994, in Murmansk, he became acquainted through R. Bathurst with employees of the Norwegian public organisation Bellona, and on their suggestion wrote a summary of the organisation’s Report #1 entitled "Sources of Radioactive Contamination in Murmansk and Arkhangelsk Counties," which he sent to their representatives.

In the winter of 1995, Nikitin entered into an official contract of co-operation with this foreign organisation for payment of around $1,200.

Under the terms of the contract, Nikitin took upon himself the responsibility of using his knowledge in the sphere of nuclear and radioactive safety of atomic sites to write several chapters of Version #2 of the Report, then entitled "The Northern Fleet- A Potential Risk of Radioactive Contamination of the Region," and in addition, provide that foreign organisation with consulting services.

During his collection of secret information on August 8, 1995, Nikitin, with the help of his acquaintance V. S. Artemenkov, an associate professor at a department of the Naval Academy, using his military ID, which he did not give up upon retiring, illegally entered the territory of the Academy, obtained in the special library top secret and secret information on incidents and accidents on APLs, and made notes from them, which contained state secrets: information on construction flaws, features of components and uses of Russia’s nuclear reactors located on APLs, and on the use of APLs as weapons and military technology.

From September 19-23, 1995 in the city of Murmansk, Nikitin, using the information containing state secrets which he had obtained, prepared the text of section 2, chapter 8, entitled "Submarine Accidents" in the Report of the Norwegian organisation Bellona "The Northern Fleet- A Potential Risk of Radioactive Contamination of the Region," which was then sent to Norway.

The main argument for the acquittal of Nikitin is that, according to the Court’s opinion, the information collected by him and sent to the foreign organisation is based on "other information" and therefore his actions cannot be classified as state treason and the spreading of state secrets.

A large part of the court decision is made up of investigation and interpretation of a series of articles of the Constitution of the RF and deductions on correspondence with federal laws which define responsibility for the spreading of state secrets and what constitutes a state secret contrary to the requirements of Article 314 of the Criminal Procedure Code of the RSFSR, and its statutes.

Putting forth its interpreting of some Articles of the RF Constitution, the court did not take into account the statute set forth in Article 2 part 2 of the Constitution stating that "Laws and other legal acts in effect on the territory of the Russian Federation before the current Constitution came into effect can be applied to the extent that they do not violate the RF Constitution."

This statute shows that after the RF Constitution came into effect on December 12, 1993, during the period that Nikitin committed criminal acts, the July 21, 1993 revised version of the Law of the RF "On State Secrets" continued to be in effect.

The law was officially published for general knowledge and required all citizens to follow it without any hesitation.

Regarding unpublished normative acts the appropriate explanation was given by the Constitutional Court of the Russian Federation on the concrete criminal case.

In the December 20, 1995 verdict on the case of A. A. Smirnov, accused under Article 64 of the Criminal Code of the RSFSR, the RF Constitutional Court ruled: "The realisation of the demands of Article 29, Part 4 of the Constitution of the Russian Federation is guaranteed by the July 21, 1993 law of the RF "On State Secrets," in which state secrets are defined, as well as information that relates to state secrets. Therefore, bringing criminal charges for giving state or military secrets to a foreign state does not contradict the Constitution of the RF, and its Articles 15 (Part 3), 29 (Part 4) and 55 (Part 3)."

A different interpretation of the system of norms, which regulate state secrets, would mean the recognition of the possibility of bringing harm to the external security of the RF without any punishment.

The acting law was totally adequate for citizens to understand what kind of information makes up a state secret and is protected by the government. Above all, this relates to the holder of secrets, to whom the understanding of "state secret" is especially explained.

The case explains that without any doubt, Nikitin knowingly gathered information containing state secrets with the goal of giving it to a foreign organisation, that he understood the character and content of this information, and also its protected nature. This is shown by the character of his activities: using an illegal method to enter a closed regime area, the territory of the Naval Academy, with the intent to gather secret information, his obtaining of closed collections of information concerning APLs, through illegal means at the special library of the Academy, to which he did not have permitted access, the taking of notes from documents labelled "Top Secret" and "Secret" information, which contain state secrets.

Agreeing with Nikitin’s assertion that he used open sources in his work, the court indicated in its decision that it verified this assertion by studying a series of open sources named by Nikitin, including two reference books– "Jane’s Fighting Ships, 1987-88" and "1995-96." As a result of this study, the court came to the conclusion that the information pertaining to several APLs has already been examined in detail and widely distributed in earlier editions of books with a large circulation, especially the reference book "Jane’s 1987-88," which was not put under expertise and which is not in the text put together by Nikitin for the Report.

The basis and the objectivity of the investigations, undertaken by the court, are doubtful. The conclusions made on the basis of that investigation cannot be recognised as conforming to the facts of the case, because the "Jane’s" reference books were presented by the defence only during the trial, they were not presented to experts who studied these sources during the preliminary investigation. In addition, both reference books are in English, and in the absence of a translation, the experts were not able to examine them. At the same time, the Court, which also did not have a translation, analysed the texts itself and came to the conclusion that they were some of the sources from which Nikitin obtained the information to write the sections of the Report which were assigned to him.

The court established that the search warrant, which was executed on October 5, 1995 at Nikitin’s place of residence, was put together by an unauthorised person, and on this basis excluded it from the evidence.

During the search, a blue notebook with notes written in red ink was seized. As was established during the investigation, it was precisely these notes from secret and top secret files, which were made by Nikitin and used by him to write sections of the Report for the use of a foreign government, which is sufficient reason to bring criminal charges against him.

Despite the violation of the law, proven during the course of the search, the fact that Nikitin made notes in his notebook that contained state secrets, plus his later spreading of the secrets, is proven by the coinciding of different, indubitable proof: Nikitin himself did not and does not deny his ownership of the notebook and his authorship of the notes contained within. A court ordered handwriting analysis established that the notes within the notebook were written by him. In addition, the expertise established that the information, obtained by Nikitin from closed sources and transferred to the notebook, contained government secrets.

I consider the conclusion of the Court on the shortcomings, flaws and violations which took place during the preliminary investigation to be correct, and the decision of the court of the 1st instance not to send the case for further investigation conforms to the position of the state prosecutor.

Definitely, the state prosecutor did not suggest that the case be sent for further investigation on this basis, and the Court, taking into account the April 20, 1999 decision of the Constitutional Court of the RF, was deprived of the possibility of doing that.

However, the need to send the case for further investigation to correct its shortcomings and eliminate violations is obvious.

For instance, in the sentence it is indicated that the accusation is built factually on the conclusions of an expert commission of the General Staff of the Defense HQ of the RF, based on secret decrees of the Ministry of Defence of the RF. Without the accusation being made more concrete, the rights of the accused to defend himself is violated.

During the court hearing of the case, participants of the trial raised many questions with the experts. In order to decide them, and also taking into account doubts about the court’s conclusions on the results of the investigation of open sources in English, I believe that another expertise is needed.

The relationship between the open publications presented to the court by Nikitin and the section of the Report prepared by him for the Norwegian organisation Bellona has to be established through investigation and expert review.

The conclusion of the court collegium of the Supreme Court of the RF that Nikitin was accused of actions undertaken at a time when no criminal responsibility for those actions was established, based on the criminal law in effect during the time that Nikitin collected and transferred information that included state secrets, which envisioned responsibility for the provision of state secrets to a foreign government but did not envision responsibility for the very same actions undertaken in the service of an international organisation, is also baseless.

I suggest that this assertion is mistaken. The provision of state secrets to a representative of a foreign organisation clearly violates the interests of state security, and responsibility for the spreading of state secrets cannot be excluded.

On the basis of the above, governed by Articles 371 and 376 of the Criminal Code of the RSFSR,

I request that:

The December 29, 1999 verdict of the Saint Petersburg City Court and the April 17, 2000 decision of the judicial collegium on criminal cases of the Supreme Court of the RF regarding Aleksandr Konstantinovich Nikitin must be changed.

The case must be sent back to the Saint Petersburg Prosecutor’s Office for further investigation.

Attached: Criminal Case in 28 volumes.

Deputy Prosecutor General of the RF
S. G. Kekhlerov