Analysis of the Prosecutor General’s appeal

Publish date: July 31, 2000

Written by: Jon Gauslaa

A closer analysis of the Prosecutor General’s appeal against the acquittal of Aleksandr Nikitin shows that it lacks legal substance. Thus, the Presidium of the Supreme Court is obliged to reject it.

1. Introduction

When acquitting Aleksandr Nikitin on December 29, 1999 the St. Petersburg City Court acknowledged that the Russian Constitution and not the secret and retroactive military decrees that the prosecution’s case was based on, was the supreme law of the land. On April 17, 2000 the Collegium on Criminal Cases of the Russian Supreme Court confirmed this verdict, and in its rejection of the appeal signed by the Prosecutor of St. Petersburg. It also added several remarks that fortified the legal value of the acquittal. Thus, the acquittal was not only a personal victory for Mr. Nikitin, but also a victory for the emerging independence of Russian Courts and the rule of law in Russia.

Given the unambiguous nature of the two verdicts, it was a major surprise that the Office of the Russian Prosecutor General on May 30, 2000 had appealed the acquittal to the Presidium of the Supreme Court. The appeal demands that both verdicts must be cancelled because they “do not correspond with the factual circumstances of the case,” and that the case must be sent back to the FSB for additional investigation.

After a short and tendentious rendering of the factual part of the indictment, the Prosecutor General attempts to substantiate the following allegations:

  • The acquittal is based on a wrong law-application and a wrong evaluation of the facts;
  • The City Court’s evaluation of the open sources is questionable;
  • Even of some evidence was obtained in violation of the law, it still has to be counted in;
  • The case must be sent to further investigation so that its shortcomings can be corrected.

    Each and all of these allegations are characterised by a total lack of legal substance.

    2. Tendentious rendering of the indictment

    The author of the appeal has made some peculiar choices concerning what parts of the indictment to focus on and thus, draws a biased and untruthful picture of Nikitin’s actions.

    It is for instance underlined that Nikitin during his military service had access to secret information about the location of the bases of nuclear submarines, special nuclear service submarines and storage ships, and on the construction and repair enterprises of the Russian Navy. He has, however, never been charged with collecting, transferring or disclosing such information. Moreover, his acquaintance with Robert Bathurst is highlighted and the false allegation that the latter “had maintained contact” with the US intelligence is repeated.

    The description of Nikitin’s use of “his military ID to illegally enter” the Naval Academy where he obtained “top secret and secret information” is also untruthful. There was nothing illegal in this visit. As a former student he did not use his military ID to enter the Academy, but made an agreement with his former teacher, Mr. Artemenkov, after having told him whom he worked for and what was the intention of his visit. And as the acquittal confirms, he obtained no secret information at the Academy.

    3. The law application and the evaluation of the facts

    The purpose of the tendentious rendering of the indictment is obvious. The author of the appeal attempts to convince the Supreme Court’s Presidium that Nikitin is a criminal. The prosecution has, however, made several similar attempts, but neither the City Court nor the Collegium of the Supreme Court had any problems with seeing through them.

    A large part of the acquittal consists of interpretations of provisions of the Russian Constitution and deductions on consent with federal laws that define responsibility for the disclosure of state secrets and what constitutes a state secret. The Prosecutor General claims that Article 314 of the Criminal Procedure Code, which states that the descriptive part of an acquittal shall give an account for the indictment, the facts of the case, the evidence that the acquittal is based on and the Court’s reasons for rejecting the evidence of the prosecution, prohibits a Court from making such interpretations and deductions.

    The Prosecutor General ignores that the prosecution in order to get Nikitin convicted for collecting, transferring and disclosing state secrets, has to prove that the disputed information in the Bellona-report constituted state secrets in 1995. Its main proof was the expert evaluations of the report. The Court did, however, not agree with the experts and its law interpretations are the reasons for rejecting their evaluations as evidence. Thus, the verdict does indeed fulfil the requirements of Article 314 of the Criminal Procedure Code.

    The opinion that the Prosecutor General really advocates is that a Russian Court is not allowed to interpret the law independently, which only leaves it with one alternative: To enter upon the law interpretation of the prosecution. Thus, what we in reality are witnesses to here, is nothing but a fierce attack of the independence of the courts.

    The Prosecutor General also claims that the City Court did not take into account Article 2 (2) of the Russian Constitution, which states that laws that came into effect before the Constitution in December 1993, are applicable to the extent that they do not violate it. With this, the Prosecutor General tries to substantiate that the 1993-edition of the law on State Secrets alone gives a sufficient basis for bringing charges against Nikitin.

    However, nobody has claimed that the 1993-edition of the law on State Secrets lost its legal force when the Constitution entered into force, but its Article 5 only said that various kinds of information “can” be classified as state secrets, without classifying anything itself. The classification was supposed to be carried out in accordance with Article 9, by a presidential and – if needs be – ministerial decrees. However, no presidential decree existed before on November 30, 1995, two months after Nikitin according to the indictment ended his illegal actions, while the existing ministerial decrees were secret.

    In his eagerness to justify his position, the Prosecutor General refers to the fact that the Russian Constitutional Court in its verdict in the Smirnov case of December 20, 1995, states that bringing charges for transferring state secrets to a foreign state does not in itself contradict the Constitution. However, the condition is still that the charges fulfil the demands of the Constitution. As both verdicts confirm, the charges against Nikitin did not fulfil these demands since they were based secret and retroactive decrees. Thus, they violated Articles 15 (3) and 54 of the Constitution and had to be rejected.

    Besides, the Prosecutor General’s use of the Smirnov-verdict is highly misleading, as the Constitutional Court after having ascertained that the State has a right to establish criminal liability for the transferral of state secrets to a foreign state, continues:

      ”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 referred to this statement and stressed that it is a condition for implementing criminal liability for collecting, transferring and disclosure of state secrets, that the legislation containing the list of state secrets is officially published. Article 5 of the 1993-edition of the Law on State Secrets gave a list of information that “can be classified”, but not of information that “constitutes state secrets”. The latter list was first issued after Nikitin had committed the actions he is accused of. And since the decrees used in order to establish that he had collected, transferred and disclosed state secrets were unpublished normative acts, he could not be made a subject to criminal liability.

    Nevertheless, the Prosecutor General, tries to convince the Presidium that the 1993-edition of the law on State Secrets made it “totally adequate for the citizens to understand what kinds of information that constitutes a state secret. ” However, even if it gave a hint regarding what kinds of information that “could be classified”, it did not indicate what kinds of information that actually was classified as state secrets.

    Moreover, the shaping of Russian legislation in 1995 strongly suggested that the information he included in the Bellona-report could not pertain to state secrets. See, for instance, Articles 41 and 42 of the Constitution, and Article 7 of the Law on State Secrets, which prohibits that information about accidents that affects the environment is classified as state secrets. Thus, Nikitin could not realise that the information dealing with the amount of radiation caused by the accidents could constitute state secrets.

    The Prosecutor General’s allegation that the “facts of the case explain that without any doubt, Nikitin knowingly gathered information containing state secrets with the goal of giving it to a foreign organisation,” and that he “understood the protected nature” of the information, is therefore groundless. As both verdicts emphasise: This information did not pertain to state secrets neither according to the 1995-legislation nor the present legislation.

    Finally, the Prosecutor General claims that the Supreme Court is mistaken when it concludes that Article 64 of the Soviet Penal Code, which was still in force in 1995, stipulated criminal liability for transferring information to a foreign state, but not to a foreign organisation. While the wording of Article 64 is very clear, the Prosecutor General’s assertion that the Supreme Court’s interpretation is “baseless” is only substantiated with a vague reference to its purpose. The European Court of Human Rights has, however, in several rulings established that such an extensive interpretation of provisions that stipulates criminal liability is forbidden under Article 7 of the European Convention. See for instance Kokkinakis v. Greece, May 25, 1993 (Series A No. 260-A, p. 51-52).

    4. The evaluation of the open sources

    The Prosecutor General claims that “the main argument for the acquittal” was that the court(s) found that the disputed information “was based on ‘other information’ and therefore his actions cannot be classified as state treason and disclosure of state secrets”. The fact that the information was already available in the public domain was, however, only a supporting argument and not the main argument of the acquittal. The main argument was, as pointed out above, that the courts’ found that the disputed information neither was classified as state secrets in 1995 or today. Besides, the indictment was “a blatant violation of the Russian Constitution” and given the shape of the Russian legislation in 1995, Nikitin could not figure out that the information could pertain to state secrets. Thus, the author of the appeal has simply not understood the main points of the acquittal.

    The City Court’s examination of the open sources led to the conclusion that the information on the third generation reactors “was disclosed not by the defendant while writing chapter 2.3 [of the report], but before that” in several open sources. It also pointed out that the information concerning the accidents on submarines K-27 and K-123 was not disclosed in chapter 8.2, but in books “which were published earlier”, particularly in the 1987-88 edition of Jane’s Fighting Ships. These accidents are however, only two of the almost 20 accidents which Nikitin were accused of having collected and transferred secret information about. Thus, the acquittal’s point regarding the open sources had its main significance concerning the part of the charges related to the information about third generation reactors. For this information Nikitin was, however, “only” accused with disclosure of state secrets without the intent of treason, while the accusation of treason through espionage was solely related to the information about the submarine accidents.

    The appeal’s only concrete comments about the City Court’s evaluation of the open sources is related to its examination of the 1987-88 and 1995-96 editions of Jane’s Fighting Ships. The Court’s conclusion that especially the 1987-88 edition contained much information about the accidents on K-27 and K-123 can not “be recognised as confirming to the facts of the case,” the Prosecutor General ascertains. With this he seems to suggest that the Court had no right to examine these sources since the experts had not examined them and they were in English. In order to correct this “flaw” a new expert evaluation and a linguistic analysis must be carried out during the additional investigation.

    It should be unnecessary to point out that these arguments are pointless. The Prosecutor General ignores that the experts, as the City Court underlines, had refused to examine the Jane’s-edition. Moreover, he gives no reason for why this should exclude the Court from carrying out its own evaluation even if the books are in English, which after all is a universal language that even one or two Russian judges may be able to understand…

    5. The illegally obtained evidence

    The Prosecutor actually admits that the Criminal Procedure Code was violated during the search of Nikitin’s apartment on October 5, 1995, when various objects were confiscated including a notebook. According to the prosecution, the notebook includes the “secret information,” which later was published in the Bellona-report. Thus, it belongs to the main material evidence of the case. Since Nikitin did not deny that the notebook was his and that he made its notes, the Court made a mistake when it excluded the notebook from the evidence because it was confiscated at an illegal search.

    With this reasoning the Prosecutor General demonstrates a shocking lack of knowledge regarding the Russian Constitution. Article 50 (2) of the Constitution states that “no evidence obtained in violations of the federal law shall be allowed.” Thus, the City Court was obliged to exclude the notebook from the evidence and lived up to this obligation.

    Besides, even if Nikitin did not deny that the notebook and the notes were his, this does not prove that it contains any state secrets. The Prosecutor General claims that it is proven “indubitably” by the expert evaluations that the notebook “contained state secrets.” However, both the City Court and the Supreme Court rejected the expert evaluations and they found no state secrets, neither in the notebook nor in the report. Thus, even if one leaves out of account the law-violations that were committed when the notebook was confiscated, it would still have been without any validity as evidence.

    6. The need for sending the case to additional investigation

    While the St. Petersburg prosecutor in his appeal claimed that the City Court was mistaken when ruling that the indictment was so vague that it had hindered Nikitin’s defence, the Prosecutor General agrees with this part of the verdict. As a result of this, he has changed the demand for a new trial, to a demand of sending the case to further investigation. In order to justify this, the Prosecutor General sets forth a bizarre line of arguments:

      He considers the City Court’s conclusion on “the shortcomings, flaws and violations, which took place during the preliminary investigation” to be correct and claims that its verdict confirms that the Court in reality wanted to send the case to further investigation. However, Aleksandr Gutsan who appeared for the prosecution at the trial, had asked for a conviction and not for the case to be sent to further investigation. Because of this, and the decision of the Constitutional Court on April 20, 1999, that limited the possibilities for sending cases to further investigation, the City Court was “forced” to acquit Nikitin. The Prosecutor General gives no explanation why the Court – if it had this point of view – did not give a single hint of it in the verdict. Instead it used 10 pages to interpret the Constitution and a number of federal laws in order to substantiate that there were (and are) no state secrets in the disputed chapters of the Bellona-report.

      When it comes to the concrete mistakes that should be corrected through the additional investigation, the Prosecutor General points out that it is necessary to carry out yet another expert evaluation of the open sources. As before, the relationship between the open sources and the part of the Bellona-report prepared by Nikitin “has to be established”, but this time it must be paid more attention to the English sources (Jane’s).

      The Prosecutor General also claims that there is a need for concretising the accusations so that the violation of “the rights of the accused to defend himself” can be corrected. This is even exemplified with a reference to the “indication” in the verdict that the accusations are built “on the conclusion of an expert commission … based on secret decrees.” It seems like the experts now have to carry out an evaluation of the possible state secrets in chapter 2.3 and 8.2, which is based only on the list in Article 5 of the 1993-edition of the law on State Secrets over the types of information that “can” be classified…

    It is quite remarkable that the Prosecutor General’s Office has let the process against Nikitin go on for almost five years, without ensuring that the now so “obvious” violations of his right for defence were brought to an end. If these violations are so obvious, why did not the Prosecutor General ensure that the corrections were made before?

    Moreover, the Prosecutor General ignores that these violations were repaired by the acquittal. His prescription for correcting them will only fortify the violation of Nikitin’s rights to have the charges against him determined within a reasonable time and for a legal remedy against the use of secret and retroactive decrees as the basis for the charges against him. Moreover, since the acquittal had reached full legal force, the demand of cancelling the verdict and sending the case to further investigation is in reality a demand for the case to be reopened. Thus, also the prohibition against twice prosecuting a person for a crime he has been acquitted of will be violated if the Prosecutor General’s appealed is approved.

    7. Closing remarks

    Even if the Russian legal system – on paper – is based on the principles of the rule of law, the appeal of the Prosecutor General shows that the prosecuting authorities have huge problems with accepting this fact. As pointed out above, the appeal is in reality nothing but a fierce attack on the independence of Russian Courts. However, both the City Court and the Supreme Court verdict, and also a number of other recent Russian Court decisions, show that there is an increasing level of understanding for the basic principles of the rule of law among Russian judges. Hopefully the Presidium will fortify this tendency on August 2.