Supreme Court verdict

Case No. 78-000-29

D E C I S I O N

The court collegium on criminal cases of the Supreme Court of the Russian Federation
consisting of:

Presiding – Karimov M. A.
Judges – Vorozhtsov S.A. and Sergeyev A.A.

on April 17, 2000 examined in judicial session the case on the prosecutor’s protest against the verdict of the St.-Petersburg City court from December 29, 1999 where

NIKITIN, ALEKSANDR KONSTANTINOVICH, born on May 16, 1952 in Akhtyrka, Sumskaya oblast, in the Ukrainian SSR,

was acquitted of charges stipulated in Article 275 and Article 283 para. 1 of the Penal Code of the Russian Federation, because of the lack of the content of the alleged crimes in his actions.

Nikitin was charged with committing crimes in 1995 stipulated in Article 275 and Article 283 para. 2 of the Penal Code of the Russian Federation with the circumstances established by the bodies of the preliminary investigation. During the court hearing, the state prosecutor asked to qualify Nikitin’s actions in accordance with Article 275 and Article 283 para. 1 of the Penal Code of the Russian Federation.

When acquitting Nikitin because of the lack of the content of the alleged crimes in his actions, the court took into consideration the fact that in the period from December 12, 1993 to November 30, 1995 there was no legislative determination of the information pertaining to state secrets, and in this connection the qualification of Nikitin’s actions by the bodies of preliminary investigation is not based on the law.

The state prosecutor lodged an appeal against the verdict requesting to cancel the verdict and send the case for new trial to the same court but with the different judges. The appeal claims that the court’s decision about the lack of the content of the alleged crimes in the actions of the accused, is ungrounded, as the court’s conclusions are in discordance with the actual facts of the case, the criminal law was applied wrong, and the examination was not complete. In particular, the appeal states that the charges against Nikitin in accordance with para. 2, 4 and 6 of part 1 of article 5 of the Law "On State Secrets" in the edition of 1993, are correct as there is just a terminological discordance between the Constitution of the Russian Federation (para. 4 of article 29) and this provision. The appeal claims that the Court has interpreted incorrectly the provisions of the Constitution of the Russian Federation regarding publishing of the laws and the subordinate legislation about the protection of state secrets. The appeal’s author believes that the court made a conclusion about the lack of possibility for Nikitin to familiarise himself with such provisions, which came in force after his retirement, without considering his obligations before retirement. The reference to the peculiarity of such cases disputes the correctness of the court’s statement about violation of the Russian Constitution by the bodies of preliminary investigation, who applied the legal acts enforced after Nikitin had committed the alleged actions. Besides, it is stated in the appeal that the conclusions of the court regarding non-concrete charges, lack of examination of some evidences of Nikitin’s guilt, illegal search at Nikitin’s flat on October 5, 1995 when his notebook was confiscated, are ungrounded.

The lawyers Schmidt Y. M., Matinov M. A. and Pavlov I.Y. levelled objections to the appeal in favour of the accused, where they expressed disagreement with the appeal’s arguments. Schmidt and Matinov demanded to leave the verdict unchanged and to reject the appeal.

After hearing the report of judge Sergeyev A.A., the speech of the prosecutor Yerokhin I.I. who supported the appeal but suggested sending the case for new investigation [rather than to a new trial], the explanations of lawyers Schmidt Y. M., Matinov M.A., Pavlov I.Y. and the acquitted Nikitin A.K., who demanded to leave the verdict unchanged, the court collegium finds the verdict legal and well-grounded.

As it is evident from the charges from July 2, 1999, he was charged with state treason in the form of espionage for having collected information pertaining to state secrets in August 1995, and transferring this information to the foreign organisation in September the same year. Besides he was charged with disclosing state secrets expressed in passing over the chapter [2.3.3] of the report written by him to the foreign organisation in May-September 1995. The chapter contained the information, constituting state secrets, which he got to know during his service in the Russian navy.

According to the provisions of para. 4 of article 29 of the Russian Constitution adopted on December 12, 1993 and which was in force during Nikitin’s alleged actions, the list of information constituting state secrets shall be determined by the federal law. This demand was first fulfilled by the federal law "About changes and additions in the Law of the Russian Federation "On state secrets" from October 6, 1997.

Taking into consideration that during the period of Nikitin’s alleged actions there was no list of information constituting state secrets, which could satisfy the Constitution’s requirements, the information which was collected and transferred by him to the foreign organisation as well as the disclosed information, cannot be recognised as containing state secrets. Because of the fact that the objective side of the crimes stipulated by articles 275 and 283 of the Penal Code of the Russian Federation consists only of the mentioned actions together with the information pertaining to state secrets, the same actions with other [not secret] information cannot be recognised as state treason and disclosure of state secrets. Taking this circumstance into consideration, the Supreme Court finds that the court of the first instance had grounds to find lack of the content in Nikitin’s actions of the alleged crimes stipulated by Article 275 and Article 283 para. 1 of the Penal Code of the Russian Federation.

The following circumstance also testifies about the lack of the content in his actions of the crimes stipulated by Article 275.

Para. 2 of article 54 of the Russian Constitution states that no one can be held liable for any act which, at the time it was committed, was not considered to be in breach of the law. Article 9 of the Penal Code of the Russian Federation states the same.

The criminal law valid when Nikitin [allegedly] collected and transferred information constituting state secrets (article 64) stipulated responsibility for disclosing state secrets to the foreign state, and there was no responsibility for disclosing state secrets to the foreign organisation, what he was charged with. Therefore, Nikitin was charged with actions that were not subject to criminal liability in the period when he committed them.

The appeal’s arguments about the correctness of charging Nikitin according to part 1 of article 5 of the Law "On State secrets" in the edition of July 21, 1993, are groundless. Regarding Nikitin this law might not be applied, since it did not contain the list of information constituting state secrets, and article 5 of the mentioned law contained only the information which could pertain to state secrets. While para. 4 of article 29 of the Russian Constitution requires the information constituting state secrets to be determined by federal law. As article 5 of the Law "On State secrets" in the edition of July 21, 1993 and para. 4 of article 29 of the Russian Constitution mention different objects, the Court cannot agree with the appeal’s claim about [only] a terminological discordance in these provisions.

The Court can neither agree with the appeal’s arguments that it was correct to charge Nikitin according to article 5 of the Law "On State secrets" in the edition of July 21, 1993 because he was presented with the charges in accordance with the amendments and additions of October 6, 1997, after article 5 was changed.

The appeal’s arguments about the City Court’s wrong understanding of the constitutional provisions regarding the necessity to publish the laws and the subordinate legislation about the protection of state secrets are groundless. The Court’s conclusion about the necessity to publish the list of information constituting state secrets is based on para. 3 of article 15 of the Russian Constitution, which states that laws are subject to official publication, unpublished laws are not applied, any normative legal enactment affecting human and civil rights, freedoms and duties cannot be applied unless they have been officially published for general information. The reference in the appeal to the number of subordinate legislative acts, which entered into force before the Constitution, is groundless, because when the Constitution came into force these acts could be applied only to the extent they do not contradict the Constitution.

The appeal’s claim about the possibility to evaluate Nikitin’s actions under the legislation that came into force after he committed these actions is not based on the law.

The arguments that Nikitin had no right to collect, transfer, and disclose secret information to the foreign organisation because of his obligations adopted before his retirement, cannot be accepted because at the moment of him committing the mentioned actions, the list of information constituting state secrets was not available.

The court’s conclusion about the non-concrete charges against Nikitin is well-grounded. According to the charges, the information he collected, transferred and disclosed to the foreign organisation constituted state secrets according to para. 2, 4, 6 of part 1 of article 5 of the Law "On state secrets" (with amendments and additions from October 6, 1997). However, each of the mentioned paragraphs contains several categories constituting state secrets. It is not indicated, neither in the charges nor in the indictment to which category the information Nikitin allegedly collected, transferred and disclosed belongs. At the same time, Nikitin is charged with collecting, transferring and disclosing information, which is not indicated in the mentioned paragraphs of article 5 of the Law "On state secrets" (with amendments and additions from October 6, 1997).

The mentioned circumstances cannot be the ground for cancelling the verdict and sending the case for new investigation, because during the period of Nikitin’s alleged actions there was no list of information constituting state secrets, what was described in details above.

The Court cannot agree with the appeal’s arguments about the incomplete examination of the case. According to the requirements of articles 118 and para. 3 article 123 of the Russian Constitution the court has no right to initiate the measures for proving the guilt of the accused. The parties of the case, including the state prosecutor agreed to finish the trial in the volume of the examined evidences.

The Court collegium agrees with the conclusion of the court of first instance about the illegality of the search at Nikitin’s flat on October 5, 1995, as it was conducted by the investigator who did not deal with the case.

The appeal’s arguments that the search was conducted by the oral instruction of the investigation cannot be accepted. According to para. 3 of article 132 of the Russian Criminal-Procedure Code the investigator can instruct the other investigator to conduct investigative actions only in case if it should be done in other region. The search on October 5, 1995 took place in the region of the investigation, what excluded the possibility of entrusting its performing by the other investigator.

Taking the above mentioned into consideration, the court collegium finds that there is no grounds stipulated by law to send the case neither for new investigation nor for new court hearing, and therefore the appeal shall not be accepted.

Ruling by articles 332 and 339 of the Russian Criminal-Procedure Code, the Court collegium on criminal cases of the Supreme Court of the Russian Federation

HAS DECIDED

To live without changes the verdict of St.-Petersburg City court from December 29, 1999 regarding Nikitin Alexander Konstantinovich, and reject the prosecutor’s appeal.

Presiding – Karimov M. A.
Judges – Vorozhtsov S.A. and Sergeyev A.A.

Correct copy: judge of the Supreme Court Sergeyev A.A.
of the Russian Federation (stamp) (signature)

Copies sent to
1. St.-Petersburg City court
2. The Prosecutor’s office of the Russian Federation

The case sent in 28 volumes to St.-Petersburg City court

19.04.2000