November 6, 2001 was not only the eve of the 84th anniversary of the October revolution, but also the date of another fight that might turn out to have historical significance for Russia. The venue of the latter fight was not St. Petersburg’s winter palace, but the Supreme Court building in Moscow. And the participants were not the defenders of Kerensky’s provisional Government and Trotsky’s Red Guards, but the attorneys of the Ministry of Defence and human rights lawyers Yury Schmidt and Mikhail Matinov.
Nikitin wins again
At the end of the day, the Appeal Collegium of the Supreme Court ruled that the secret decree 055:96, regarding the "the list of classified information in the Russian Armed Forces", is invalid. The decree was issued in August 1996, and has been the legal basis for a number of criminal cases, including the case of Aleksandr Nikitin, who after five years of prosecution was acquitted of espionage and disclosure of state secrets by the Presidium of the Supreme Court on September 13, 2000.
It was Nikitin himself who launched the complaint against the decree, claiming that it had extended the list of state secrets way beyond the limits drawn in the Federal Law of State Secrets. His complaint also focused on the fact that the use of an unpublished decree as basis for criminal charges violates Article 15 (3) of the Russian Constitution.
On September 12, 2001 the Military Collegium of the Supreme Court ruled in Nikitin’s favour. The Ministry of Defence (MoD) appealed the decision, but the Appeal Collegium concluded that the former ruling was "correct and in accordance with the law". Its decision is final and can not be further appealed.
The direct effect of the decision is that ten provisions of decree 055:96 have lost their legal force. The general effect of the ruling is however, much wider, said Nikitin’s attorney Yuri Schmidt after the announcement of the verdict.
– It is a success. Although the ruling, for procedural reasons was limited to ten provisions, the grounds of the judgment states that the whole decree has been invalid since the moment it was created, Schmidt said. The ruling will therefore without doubt affect other cases, like for instance the ongoing case against Grigory Pasko in Vladivostok.
The prominent lawyer explained that the MoD would have to prepare a brand new list of state secrets. – This list have to be of a considerably lesser size than the present one. According to decree 055:96 almost any kind of information pertains to state secrets, and on top of everything, the decree itself is a secret. This situation has to be changed, he said.
– We’ll meet again
During the court session on November 6, the MoD-attorneys informed the Court that a new list of classified information in the Russian Armed Forces already is being prepared. Yuri Schmidt then asked whether the new list was going to be published or not. When the attorneys answered that no such plans existed, Schmidt made Vera Lynn’s words his own:
– In that case, gentlemen, we’ll meet again?
Unlike Ms. Lynn, who neither knew where nor when the next meeting would take place, Schmidt knows very well where he will meet the MoD-attorneys again; at the Constitutional Court in Moscow – probably some time next year.
He also has reason to be optimistic on the outcome of that case. Although secret decrees are still being used as normative acts in Russian criminal cases, Article 15 (3) of the Constitution states that no normative acts that affects the rights and freedoms of the citizens, can be applied unless they have been officially published for general knowledge.
Thus, it may only be a question of time before not only decree 055:96, but the whole system where each Russian ministry is allowed to make its own secret lists over secret information which later are used as basis for criminal cases, is thrown at the scrap heap of history.