Nikitin case: The aftermath

Publish date: October 3, 2000

Written by: Jon Gauslaa

Was the acquittal of Nikitin "the first and the last acquittal" or was it a victory for the Russian rule of law that will benefit also future Nikitins?

When Aleksandr Nikitin was acquitted on September 13, 2000 it was time to celebrate. However, all things must pass and now when the events are behind us, it is time to look at them in their proper perspective. The acquittal was obviously a huge victory for Nikitin and Bellona, but to what extent was it also a victory for the rule of law in Russia?

The acquittal was based on the fact that the Russian legislation on state secrets was not brought in line with the demands of the Constitution when Nikitin co-wrote the Bellona-report in 1995. The charges against him for having collected, transferred and disclosed state secrets were not based on the law, but on secret and retroactive decrees. Since a conviction would have been arbitrary and retroactive, any other decision than an acquittal would have been almost the same as admitting that Russia has no legal system at all.

However, the federal law on state secrets was brought in line with the Constitution in October 1997 when also the scope of information that constitutes state secrets was widened. So, how much weight will the acquittal carry? Was it “the first and the last acquittal” as the leading Russian daily “Segodnya” suggested on its front page on September 14, or will the acquittal also come to the benefit of other individuals charged on an arbitrary basis?

When answering this question, it should be underlined that Nikitin was not acquitted on narrow procedural grounds, but on grounds based on fundamental rule of law principles.

To charge a person for offences defined by legislation that had not come into force at the time of the alleged offence and for offences where the criminal liability is determined by laws that not are accessible to the citizen, are blatant violations of the rule of law. This lies at the heart of the principles of legality and protection from arbitrariness, which are enshrined in the European Convention on Human Rights and in all other national and international instruments based on the rule of law, including the Russian Constitution.

The Russian Courts rejected prosecutor’s arguments that the charges could be based on secret decrees, on retroactive decrees or on the 1993-edition on the law on state secrets, which did not classify anything itself, but only said that various kinds of information “could be classified”. For outsiders this may seem so obvious that it must be hard to understand why the acquittal created such fuzz. However, one has to remember that it took five years of legal hand-to-hand fighting, which brought us from a district Court in St. Petersburg named after Felix Dzierzinsky (the founder of the KGB) to the Presidium of the Russian Supreme Court, to win the case.

The prosecution would not have based its case on secret and retroactive legislation if it had not been sure that this would have been sufficient to win the case. It used all available legal remedies in order to get the acquittal cancelled, and the arguments of its appeals, shows that its aim was not only to get Nikitin behind bars, but also to defend its right to base criminal charges on secret and – if need be – retroactive legislation.

The acquittal deprived the prosecution from this right, by establishing that criminal charges have to be based on the officially published legislation and not on secret and retroactive legislation. Besides, the acquittal is also based on the principle that the officially published legislation has to clearly indicate whether an action is a criminal offence or not, if it shall be used as the basis for a criminal charge. This legal opinion fully corresponds with the jurisprudence of the European Court of Human Rights. See for instance the Kokkinakis v. Greece case from 1993.

Thus, the acquittal will benefit other Russian citizens charged on an arbitrary basis, and also citizens charged with crimes related to state secrets. Such charges must from now on be based on the listing in the officially published law of information that pertains to state secret and not the listing in the secret/retroactive decrees, which still goes far beyond even the extended 1997-edition of the law on state secrets. Thus, “the next Nikitin” will escape conviction if the charges against him are based on secret and retroactive legislation, or on any other arbitrary basis, but perhaps not if the charges are based on the law and the wording of the law clearly covers the information he has dealt with.

The acquittal of Nikitin is nevertheless a milestone for the development of the rule of law in Russia, which will stand notwithstanding what types of information that is – or will be – classified as state secrets under the officially published Russian legislation.

The principles established in the acquittal will force those who want to widen the scope of secret information to pay attention to the limitations of the Constitution and the federal law. The various types of information that pertains to state secrets must from now on be determined by the officially published law, and not by the secret decrees of the Minister of Defence. Moreover, it will not be the “experts” of the 8th Department of the General Staff who will determine whether a concrete item of information is secret of not, but the Courts. These are huge steps forward.

When one of the experts of the 8th Department, Oleg Romanov, testified during the trial against Nikitin in St. Petersburg City Court, he admitted that the charges were based on the secret and retroactive decrees of the Ministry of Defence. He found it hard to understand why he had been asked also to evaluate whether the disputed information in the Bellona-report was secret according to the law on state secrets and the Constitution:

“Our system for classifying secret information has worked well for decades. Now the law has messed things up”. It turned out that Romanov was right, although in the end it was the Courts that ruled in accordance with the law, that not only “messed up”, but in fact rejected the system where convictions could be based on secret legislation.

It is also noteworthy that even if the scope of state secrets was widened in 1997, the exception for information of ecological importance in Article 7 of the law on state secrets is still prevailing. In its ruling of April 17, 2000, the Supreme Court states that Nikitin was charged with collecting, transferring and disclosing information that were not secret, neither according to the 1993-edition of the law on state secrets nor the more far-reaching 1997-edition. Thus, in contrast to what from time to time have been said, the Court does not hint that Nikitin would have been convicted if he had done his actions today and not in 1995. On the contrary it indirectly states that he still would have been acquitted.

Besides, the Supreme Court confirmed all points of the City Court’s verdict. The latter contains a comprehensive discussion of the prevailing Russian legislation both in 1995 and today. This discussion suggests that Nikitin was acquitted not only because the charges violated the Constitution, but also because the disputed information could not be classified because of its ecological relevance, and because of his lack of subjective culpability.

The Courts could have been clearer on these issues, but since the charges were based on secret and retroactive legislation, they did actually not have to address them at all. The charges’ lack of a valid legal foundation was a sufficient ground for the acquittal, and the City Court in particular went much longer than it had to in discussing the other aspects of the case. By carrying out this discussion, the Court demonstrated that it was guided by the law, and not by the reasons of ‘necessity’ of the FSB or the Prosecutor’s Office. Thus, the acquittal is a cornerstone in the development of the Russian rule of law.

However, no building consists of the cornerstone alone, and to finish the construction will take years of hard fighting. Yet, the conditions for this fight have been considerably improved by the acquittal and also by other recent court decisions. Despite this positive development, there is however still a clear need for caution. This caution is however, not created by the legal opinions of the Courts that acquitted Nikitin, but by the general political development of the Russian society under its new president.

Nevertheless, the acquittal of Aleksandr Nikitin was a victory for the rule of law, and unless the Russian society again will develop towards totalitarianism, it will also benefit other individuals charged on an arbitrary basis. Besides, the increased independence of Russian Courts could serve as a safeguard against a development in totalitarian direction, at least when it comes to attending the basic rights and freedoms of the citizens.

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