The battle won

4ef44a2d4be5a3a25a7a5025d09e77f0.jpeg Photo: Thomas Nilsen/Bellona

On April 17, 2000 the Russian Supreme Court confirmed the St. Petersburg City Court’s acquittal of Aleksandr Nikitin. The Supreme Court found the acquittal “legal and well grounded”. Thus, it confirmed that the accusations against Nikitin of treason in the form of espionage for having collected and transferred state secrets to a foreign organisation (Article 275 of the Russian Penal Code) and disclosure of state secrets (Article 283) were never based on the law. A closer survey of the Supreme Court verdict shows that:

· No secret information was collected, transferred or disclosed by Nikitin;
· Nikitin was not acquitted because of a “hole in the law”;
· Nikitin would have been acquitted also if he had committed his acts today;
· There is no doubt whatsoever about Nikitin’s innocence.

No secret information
One main point of the Supreme Court verdict is that the information about accidents on nuclear submarines and third generation naval reactors, which was published in Bellona’s report about the nuclear waste within the Russian Northern Fleet “cannot be recognised as containing state secrets”. No secret information was collected, transferred or disclosed by Nikitin. Thus, there was “no content in Nikitin’s actions of the crimes he were accused of”.

The Supreme Court also emphasised on the fact that at the time of Nikitin’s actions treason in the form of espionage was defined by Article 64 (a) of the then prevailing Russian Penal Code. This provision stipulates criminal liability only for transferring secret information to a foreign state and not for transferring information to a foreign organisation, which Nikitin was accused of. Therefore, “Nikitin was charged with acts that were not subject to criminal liability” at the time when they were committed, which violates Article 54 of the Constitution as well as Article 10 of the Penal Code.

No “hole in the law”
It follows from the above-mentioned that Nikitin was acquitted because the accusations against him had no valid legal foundation. Nevertheless, both the St. Petersburg based newspaper “Chas Pik” and the infamous TV-station “Petersburg TV” have claimed that he was acquitted because of a “hole in the law”.

However, since the enforcement of the Constitution in 1993 the state of the law in Russia has not been based on the totalitarian notion that all acts that the State has not explicitly permitted are illegal, but on the principle that no one may be held guilty of a criminal offence on account of an act which did not constitute a criminal offence when it was committed. This principle is the core of the rule of law and the first and foremost safeguard for the individual against arbitrariness and encroachments from state bodies.

Moreover, the Supreme Court did not rule that Nikitin’s alleged collection, transferring and disclosure of the information in the Bellona-report was lawful because of a “hole in the law”, but because Russian authorities saw no need for classifying this information. The Supreme Court confirmed each and all points of the City Court’s verdict. This verdict did not only reject the prosecution’s claim that the disputed information could be and was classified according to secret and retroactive military decrees, but also emphasised on the fact that the information could not be classified because of its ecological significance.

It follows from Articles 15 (3) and 54 of the Constitution that a criminal charge can not be based on secret and retroactive legislation. Thus, only officially published legislation had significance for the evaluation that had to be carried out in order to determine the case. The City Court attached considerable importance to the fact that according to the officially published Russian legislation in 1995, when Nikitin’s alleged “crimes” took place, information of ecological importance was not and could not be classified as state secrets.

Article 5 of the Law on State Secrets contained a list over various types of information that could be classified, but it did not classify anything itself. Besides, Article 7 stated that information about accidents creating danger for the environment and other information of ecological significance could not be classified. These principles are also expressed in more general terms in Articles 42 and 41 of the Constitution. The Supreme Court fully entered upon these viewpoints. Thus, it confirmed the legal opinion of the City Court’s acquittal:

· The Constitution has higher legal value than secret subordinate legislation;
· The disputed information was not classified as state secrets;
· The information could not be classified because of its ecological significance.

Nikitin would have been acquitted also if he had committed his acts today.
The above-mentioned media have also tried to spread the impression that Nikitin would not have been acquitted if he had committed his acts today and not in 1995. This is a blatant lie, as the Supreme Court points out that Nikitin was “charged with collecting, transferring and disclosing information, which is not indicated in … Article 5 of the Law ‘On state secrets’ (with amendments and additions from October 6, 1997)”.

Thus, the charges violated the limits for classifying information as state secrets set in the 1993-edition of Article 5, and also in the still valid 1997-edition of the provision. If the same information had been collected, transferred and disclosed today it would still not have been secret and Nikitin would still have been acquitted.

As pointed out above, the basis for the acquittal is that the actions Nikitin was accused of were not defined as a crime and that the disputed information was not secret in 1995. The latter is in its turn based on the fact that he was accused of collecting, transferring and disclosing information that could not be classified according to Article 5 of the Law on State Secrets (not even in its 1997-edition), and that there before November 30, 1995 was no list over secret information that fulfilled the demands of the Constitution.

Since the current list over secret information fulfils these demands, the Court could of course not have based its acquittal on the lack of such a list. However, even if the reasons for the acquittal would have had to be changed to some degree, the two remaining points are still valid and give a more than sufficient basis for the acquittal.

Besides, the Court could also have emphasised on Nikitin’s lack of subjective guilt. He lacked the intent of treason demanded in Article 275 of the Penal Code and he could not deliberately having disclosed state secrets, which is the demand of Article 283, when the information was classified only in secret legislation, which partly was adapted after his arrest. It was, however, not necessary for the Court to go into these issues since not even the objective demands of the provisions were violated (the information was not secret).

The appeal rejected
The prosecution claimed in its appeal that the City Court’s acquittal was in discordance with the facts of the case, based on a wrong application of the criminal law, and on an incomplete examination of the case. The Supreme Court rejects each and all of these points, characterising them as “groundless”, “not based on the law” and “unacceptable”:

· The appeal’s argument that Nikitin could be charged on the basis of Article 5 of the 1993-edition of the Law on State Secrets is considered to be “groundless”. This edition of the provision could not be applied since it did not classify any information as secret.

· The claim that the City Court interpreted Article 15 (3) of the Constitution wrongly when it ruled that also subordinate legislation has to be officially published if it is to be used as the basis for a criminal charge, is also considered as “groundless”. The subordinate legal acts that are used in order to substantiate this claim are irrelevant, since they can be applied “only to the extent they do not contradict the Constitution”.

· The appeal’s claim that Nikitin’s acts can be evaluated according to legislation that came into force after he committed these acts is “not based on the law”.

· The argument that Nikitin’s acts were illegal because of his obligations adopted before his retirement, can “not be accepted”, because the disputed information was not secret at the time when Nikitin committed the acts he was accused of.

· The charges were indeed so vague that they hindered Nikitin’s defence, since they did not indicate to which category of secrets the disputed information belongs. However, this can not justify that the case is returned to additional investigation, as the prosecutor demanded when the appeal case was heard. The information was not secret and will never be no matter how many times the case is investigated.

· The prosecution’s arguments that the City Court’s verdict was based on an incomplete examination of the case and that the search at Nikitin’s flat on October 5, 1995 was legal, are also totally rejected by the Supreme Court.

The Supreme Court rejected each and all of the points in the prosecution’s appeal, and it did this in such an unambiguous way that the verdict leaves no doubt of Mr. Nikitin’s innocence of the crimes he for more than four years was accused of.

Closing remarks
The Supreme Court ruled that there were no grounds for sending the case for a new court hearing or to a new round of investigation. It left verdict of the City Court without changes and rejected the appeal of the prosecution on all points.

Thus, the acquittal has now reached full legal affect. Nikitin is finally a free citizen after a more than four year long battle. Although there still exists a theoretical possibility that the acquittal is appealed to the Presidium of the Supreme Court by the Prosecutor General, the grounds of the judgment are so clear and unambiguous that this possibility seems unlikely. And if such an appeal should be launched, it will undoubtedly be rejected.

Moreover, even the FSB seems to have accepted the acquittal. It returned the computers it had confiscated at the search of Bellona’s Murmansk office on October 5, 1995 to Bellona without objections, and had no objections against Nikitin getting a new passport.

Nikitin could pick up his passport on May 18, which was the day that the battle finally was won. The premises of the Supreme Court’s verdict show that it evaluated the case independently and on the basis of the law, and not on “FSB-interests”. Thus, not only Nikitin and Bellona emerged victorious from the battle, but also all other forces that are obliged to establish the rule of law in Russia.