Prosecution’s actions arbitrary and abusive

Publish date: July 26, 2004

Written by: Jon Gauslaa

The European Court of Human Rights denotes the Russian Prosecutor General’s actions against Aleksandr Nikitin as ”arbitrary and abusive”. Yet, since Nikitin was acquitted despite of these actions, the Court found no violations of his rights under the European Convention on Human Rights.

European Court on Human Rights:

Aleksandr Nikitin first applied to the European Court on Human Rights in Strasbourg in July 1999, claiming that his rights to have the criminal charges against him determined within a reasonable time under Article 6 (1) of the European Convention of Human Rights was violated.

He also claimed that his right under Article 13 of the Convention to an effective remedy against the alleged violations of his rights under the Convention, most notably the fact that the charges against him in violation of the Convention’s Article 7 were based on secret and retroactive decrees, was violated.

Vicious circle
At the time of lodging the Strasbourg application, Nikitin had been charged with treason through espionage and disclosure of state secrets for almost four years, but the charges had not been decided on the merits. Thus, no other counts than the above-mentioned could be brought up before the Strasbourg Court.

The main purpose of the application was that it should function as a safe-guard against the outcome that Nikitin and his defence in the summer of 1999 feared almost as much as a conviction: That the trial, as had happened in October 1998, again would be stopped and the case sent back to the Russian secret police, the FSB, for further investigation, entering a vicious circle of bouncing between the FSB and the courts.

This did, however, not happen. In stead Nikitin was acquitted on all counts, first by the St. Petersburg City Court in December 1999, and then by the Russian Supreme Court in April 2000.

An unsuccessful move
At this stage, there was every reason to believe that the case against Nikitin was over, and that the Strasbourg application had fulfilled its purpose. However, in a move that took Nikitin’s defence by complete surprise, the Prosecutor General appealed to the Presidium of the Supreme Court in May 2000, attempting to quash the acquittal that now had reached legal force.

The prosecution’s move turned out to be unsuccessful. On September 13, 2000 the Presidium rejected the appeal. Thus, after five years of proceedings, Nikitin was finally cleared of all charges.

The acquittal gave him a remedy against the violations that were invoked in his original Strasbourg application. Thus, most of it was withdrawn and replaced with claims that the appeal to the Presidium could constitute violations of the principles of fair trial laid down in Article 6 of the Convention, and of Nikitin’s right under Article 4 of the Convention’s Protocol No. 7 not to be tried twice for an offence he previously had been acquitted of.

"Arbitrary and abusive"
The European Court shared this point of view. It examined the application in November 2003 and ruled that it was admissible for a full hearing on its merits, as it raised ”serious questions of facts and law under the European Convention and its Protocols."

Nikitin had therefore no reason not to raise the issues. Besides, in the ruling on the merit, which was made public on July 20, 2004, the Court denotes the Prosecutor General’s appeal to the Presidium as ”arbitrary and abusive”.

However, since the Presidium rejected the appeal, the Court found that Nikitin had not been ”tried again” in the sense of Article 4 of Protocol No. 7. Neither had his right to a fair trial under Article 6 been violated, since the arbitrariness of the Prosecutor General’s appeal had not been ”prejudicial for the determination of the criminal charges in [Nikitin’s] case.”

Winners and losers
Yet, it is evident of the ruling that if the Presidium had approved the appeal of the Prosecutor General rather than throwing it out, the Strasbourg Court would have found violations of both Article 6 and Article 4 of Protocol No. 7.

Thus, by winning the Presidium case, Nikitin did in fact remove much of the foundation for his Strasbourg case. Still, this is by far a more preferable outcome than it would have been to lose the case in the Presidium and win in Strasbourg. The latter would after all have meant that the criminal case could have lasted many years beyond September 2000.

It is also reasonable to hold that in addition to Nikitin himself, who was fully acquitted, his case has another winner, namely the Russian courts. In this particular case, they acted independently and stood firm against whatever pressure they may have been subject to. The loser is the Russian prosecuting authorities. Not only did they lose the Nikitin case. They have now also been left with little honour by the Strasbourg Court.

The full text of the decision of the European Court can be found on its web-site (search for application No. 50178/99).

Nikitin case history 1995-2004

1995. In February 1995, Aleksandr Nikitin, a former Russian navy officer, started working with Bellona on the report named ”The Russian Northern Fleet. Sources of Radioactive Contamination.”

On October 5, 1995, the Russian secret police, the FSB, searched Bellona’s office in Murmansk. The FSB seized the draft version of the report, and instituted criminal proceedings against Nikitin, charging him with treason through espionage and disclosure of state secrets. The basis for the charges was that the report contained information about accidents on Russian nuclear submarines, that allegedly was classified as state secrets.

1996. Nikitin was arrested in February 1996 and spent ten months in pre-trial detention before he in December was released on the order of the then acting Russian Prosecutor General. The charges were, however, not dropped.

1998. Nikitin, who after his release from custody, was made subject to travel restrictions, was first tried for treason through espionage and disclosure of state secrets in October 1998.

After six days of hearing, the St. Petersburg City Court stopped the trial on October 29, on the ground that the indictment was so vague that it hindered Nikitin’s defence and also made it impossible for the court to examine the merits of the case. The court therefore remitted the case for further investigation.

1999. On February 4, 1999, the Russian Supreme Court upheld the decision of the City Court.

On July 18, 1999 Nikitin applied to the European Court on Human Rights in Strasbourg, claiming that the criminal proceedings against him constituted violations of Articles 6 and 13 of the European Convention on Human Rights.

On November 23, 1999 the St. Petersburg City Court resumed Nikitin’s trial on the same counts as the year before.

The court acquitted Nikitin on December 29, 1999, having found that he was charged on the basis of secret and retroactive decrees. Besides, the court found that there were no state secrets in the materials he had collected for Bellona as information on environmental issues could pertain to state secrets under Russian legislation.

2000. The Supreme Court upheld this decision on April 17, 2000, underlining that the charges based on secret and retroactive acts were incompatible with the Russian Constitution. The acquittal thus, acquired full legal force, and the restrictions on Nikitin’s freedom of travel were lifted.

On May 30, 2000 the Russian Prosecutor General appealed the acquittal to the Presidium of the Supreme Court, in order to have it quashed and to re-open the criminal case against Nikitin. The grounds invoked by the Prosecutor General was inter aliathat the Supreme Court’s decision was based on wrong application of the criminal law, and that the indictment against Nikitin had been so vague that it had hindered his defence.

On September 13, 2000 the Supreme Court Presidium dismissed the Prosecutor General’s appeal, and upheld the acquittal.

After the decision of the Presidium, Nikitin’s appeal to the European Court was re-drafted. The original counts were withdrawn, and replaced with claims that the Prosecutor General’s appeal to the Presidium constituted violations of Article 6 of the Convention and Article 4 of Protocol No. 7 to the Convention.

2003. On November 13, 2003 the European Court rules that Nikitin’s application to the Court was admissible as it raises ”serious questions on facts and law under the Convention and its Protocols."

2004. On July 20, 2004, the European Court states that the Prosecutor General’s appeal to the Presidium was an ”arbitrary and abusive” action. Yet, since the appeal was rejected it did as such not constitute violations of Article 6 and Article 4 of Protocol No. 7.

At the same time this ruling marked the final end point of the Nikitin case.