Case no. 476p2000 pr



D E C I S I O N

OF THE SUPREME COURT PRESIDIUM

OF THE RUSSIAN FEDERATUION

Moscow September 13, 2000

The Supreme Court Presidium of the Russian Federation consisting of:

Presiding – Lebedev V. M.

Judges – Verin V. P., Vyacheslavov V. K., Zhuykov V. M., Kuznetsov V. V.,

Merkushov A. Y., Petukhov N. A., Popov G. N., Radchenko V. Y., Sviridov Y. A.,

Smakov R. M.

examined the case on the General Prosecutor deputy’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, Ukrainian, higher education, married, retired 1st rank captain, not previously convicted,



was acquitted of the 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. City arrest restriction for him was abolished.

On April 17, 2000 by the ruling of the Court collegium on criminal cases of the Supreme court of the Russian Federation the decision was remained without changes and the prosecutor’s appeal was rejected.

After hearing the report of Popov G. N., the judge of the Supreme Court of the Russian Federation, the speech of the general prosecutor’s deputy Kekhlerov S. G., who supported the appeal, the speech of lawyer Schmidt Y. M., Supreme Court Presidium of the Russian Federation

d e t e r m i n e d :

the organs of the preliminary investigation charged Nikitin with state treason in the form of espionage and disclosing information pertaining to state secret.

According to the indictment he committed his crimes with the following circumstances.

Before retirement in November 1992, Nikitin served as a chief-inspector of the Inspection of Nuclear safety department of nuclear installations of the Defence Ministry of the Russian Federation. He possessed permission no. 1, which let him access to the state secret documents. When he retired he signed not to disclose the classified information, which he had been entrusted or had learned in course of his service.

In February 1994, while in Norway Nikitin got acquainted with Robert BATHURST, a member of the Norwegian World Problems Institute, who had earlier served in the US intelligence. Later Nikitin kept connection with him. In Spring 1994, NIKITIN met the representatives of the Norwegian public organisation Bellona. After their offer he wrote his review of this organisation’s report titled “Sources of Radioactive Pollution in the Murmansk and Arkhangelsk Regions”, and sent it to their representative.

In the winter of 1995, Nikitin signed a contract for cooperation with this foreign organisation for the fee of $1,200.

According to the contract, NIKITIN was obliged to participate in writing some parts of the second version of the report, later titled “The Northern Fleet– Potential Risk of Radioactive Pollution of the Region”, as well as offer his services as a consultant to this foreign organisation. He had to use his knowledge of nuclear and radiation safety of the nuclear installations.

On August 8, 1995, while collecting classified information, NIKITIN used his officer’s ID card, which he did not return upon retirement, and assisted by Artemenkov V. S. (senior lecturer of the academy) illegally penetrated to the territory of the Kuznetsov Naval Academy, received secret and top secret books about incidents and accidents onboard nuclear submarines in the special library, and copied the information from it constituting state secret: data, disclosing design faults, particularities of assembling and operation of Russian nuclear reactors onboard nuclear powered submarines, and data on the operation and utilisation of the nuclear powered submarines as weaponry and military machinery.

In the period from September 19 till September 23 1995 in Murmansk, on the basis of the obtained information pertaining to state secret, Nikitin prepared text of part 2 chapter 8 titled “Nuclear submarine accidents” for the report of the Norwegian organisation Bellona “The Russian Northern Fleet – Sources of Radioactive Contamination”, which was transferred to Norway.

It is stated in the appeal that the court’s conclusion about the lack of the appropriate law (satisfying the demands of article 29 part 4, article 15 part 3, article 55 part 3 of the Russian Constitution, and the list of information constituting state secret, disclosing of which stipulates criminal liability), is wrong. The Law “On State Secrets” of July 21, 1993 was in force at that time.

Besides, it is stated in the appeal that the circumstances of the case were not completely examined and that is why it has to be sent for new investigation.

The Supreme Court Presidium of the Russian Federation does not find any grounds to accept the appeal due to the following reasons.

It is evident from the case files that organs of preliminary investigations really used the provisions of article 5 of the Law of the Russian Federation “On State Secrets” of July 21, 1993, while levelling the charges against Nikitin regarding state treason in the form of espionage and disclosing information pertaining to state secret.

However, on each episode of the charges, while giving reasons for the secrecy of the discussed information, the investigation organs always referred to the alterations and additions put in force by the Law of the Russian Federation “On state secret” in edition of October 6, 1997, i.e. the law which was adopted and came in force after the alleged Nikitin’s actions. This law has no retroactive force. The experts used precisely the provisions from this law while giving their conclusions about the secrecy of the information disclosed by Nikitin.

Such a formula of the accusations led to the non-concrete charges, mentioned in the verdict, and which could not be eliminated.

That is why the court of first instance and the court collegium of the Supreme Court of the Russian Federation had grounds to come to such a conclusion about illegal charging Nikitin with above mentioned actions basing on the alterations and additions which were adopted to the Law of the Russian Federation “On state secret” on October 6, 1997.

The case files also show that the organs of preliminary investigation had been examining the criminal case against Nikitin for 2 years, and there were all opportunities for thorough, full and objective examination of the case.

Moreover, on October 29, 1998, the court of first instance sent the case for additional investigation, requesting the investigation organs to check some arguments of Nikitin regarding the sources he collected information from (open or closed, classified or not classified) for the report, presented by Norwegian public organisation “Bellona”, specify his actions and the essence of the information pertaining to state secret, i.e. to correct the fails of the preliminary investigations, which were indicated in the present appeal.

After caring out additional investigation actions, and acknowledging the preliminary investigation complete and the evidences enough, the investigation organs wrote the indictment and after the prosecutor had confirmed it, the case was sent to the court.

The court fully examined the case files, presented by the investigation, with the active participation of the state prosecutor. In particular, the court accepted all the appeals of the parties, the persons, whose testimonies were essential for the case, were interrogated in the court, the expert evaluations were conducted, the necessary documents were received and examined, including the ones about the personality, and material evidences. With such circumstances the court made the right conclusion about the lack of the content of the alleged crimes in Nikitin’s actions, and also about the exhaustion of collection and obtaining of new evidences regarding his guilt.

There is no grounds to accept the appeal.

Taking the above mentioned into consideration and ruling by article 378 part 1 of the RSFSR Criminal-Procedure Code, the Supreme Court Presidium of the Russian Federation

d e c i d e d:

to reject the appeal of the General Prosecutor deputy of the Russian Federation regarding the case of Nikitin A. K.

Chairman V. M. Lebedev

Correct: chief of the secretariat

of the Supreme Court Presidium T. A. Amelina

of the Russian Federation