Prosecutor General attempts a reverse

Publish date: July 25, 2000

Written by: Jon Gauslaa

The Prosecutor General’s appeal against the acquittal of Aleksandr Nikitin gives way not only for a reopening of the Nikitin case, but also for a return to the jurisprudence of Russia’s totalitarian past.

When the Russian Supreme Court on April 17, 2000 confirmed the acquittal of Aleksandr Nikitin, it was reason to believe that the case against him finally had been brought to an end. However, on May 30, 2000 the Office of the Russian Prosecutor General appealed the acquittal to the Full Presidium of the Supreme Court, demanding that the acquittal should be cancelled and the case reopened and sent to additional investigation.

This is apparently the first time since the downfall of the Soviet Union that the Prosecutor General has used his power to appeal an acquittal that has reached legal force to the Full Presidium. Nikitin and his defence attorneys were first informed about this disturbing development on July 19, more than seven weeks after the appeal actually was sent and only two weeks before the hearing of the appeal, which is scheduled for August 2, 2000.

Fortified violations
The Prosecutor General’s demand for sending the case to additional investigation is based on what he calls an obvious need “for correcting the shortcoming, flaws and violations” of Nikitin’s rights before the case again is sent to Court. By using this argument the Prosecutor General ignores that these violations were repaired by the acquittal and that his prescription for correcting them will strongly fortify the violation of Nikitin’s rights.

A question that springs to mind is also if these violations are so obvious, why did not the Prosecutor General make sure that they were corrected a long time ago? After all he has had – if not all the time in the world – more than four years at his disposal.

If the appeal will be approved, the length of the criminal proceedings against Nikitin – which on August 2, 2000 will have lasted 1764 days (since October 5, 1995) – would be prolonged for an unlimited period. He will then face new and endless rounds of investigation, expert evaluations, linguistic analyses, trials and appeals.

Consequently, the violations of Nikitin’s rights under Article 6 (1) of the European Convention on Human Rights to have his case determined within “a reasonable time” would be strongly fortified. Moreover, a reopening of the case would deprive him from the remedy against the prosecution’s use of secret and retroactive legislation as the basis for the case against him, which he was given by the acquittal. Thus, the violation of his rights under Article 13 of the Convention would also be reinstated and fortified.

New violations
An acceptance of the protest would also involve a number of new violations. Nikitin and his attorneys were, as mentioned above, notified of the General Prosecutor’s appeal only two weeks before the hearing of the appeal case. As a result of this the defence is given far less time to prepare for the hearing than the prosecution. This violates the principles of equality of arms and of the case parties’ access to the case documents, which both are basic elements of the right to a fair trial under Article 6 of the European Convention.

It is also reason to underline that while the prosecution according to Article 371 of the Russian Criminal Procedure Code has the right to appeal an acquittal confirmed by the Supreme Court to the Court’s Full Presidium, the defence has no similar right to appeal a conviction. Thus, the very provision blatantly violates the principle on equality of arms.

A legal system that gives the prosecution the right to appeal an acquittal that has reached legal force and demand the investigation to be reopened also violates the prohibition against twice prosecuting a person for a crime he has been acquitted of. This basic rule of law principle is expressed in Article 4 of the 7th Protocol to the European Convention, and also in Article 14 (7) of the International Covenant on Civil and Political Rights.

A return to the past?
The European Convention, its Protocol and the Covenant are all ratified by Russia and if they stipulate other rules than the domestic law, it follows from Article 15 (4) of the Russian Constitution that the rule of the international treaties shall apply.

However, by using the need for correcting the “violations” of Nikitin’s rights as the basis for the demand of having the case reopened, the Prosecutor General demonstrates a blatant lack of understanding of the content of the rights of the citizens’ and of Russia’s obligations under these fundamental human right treaties. These rights and obligations are designed in order to prevent the kind of oppressive prosecutions that characterised the legal system of for instance the Soviet Union. It is sad to discover that this kind of prosecution is still being advocated at the highest level of the Russian prosecuting authorities.

The question to be decided on August 2 is actually not only whether the Nikitin case will be reopened, but also whether Russia will join the community of countries ruled by law or return to its totalitarian past. The Prosecutor General’s position has now been clarified. He wants to turn the clock backwards to the time when the State was guarded at the expense of the truth as well as the legal protection of its citizens.

It is, however, not the Prosecutor General, but the Presidium of the Supreme Court that has the power to decide this question. The Presidium has no other lawful alternative than to reject the appeal. Based on the decision of the Supreme Court’s Collegium of criminal cases on April 17, it may also be reason to hope that it will be able to do this, but it would be far too daring to in advance predict the outcome of the case.