Volume 9 Number 4

Fall 2000

Feature

The Nikitin Case Through the Eyes of the Acquitting Judge
     Interview by Viktor Tereshkin for the EECR

A soul-wrenching marathon that stretched out over five long years, the Alexander Nikitin trial came to an end in the Russian Supreme Court on September 13, 2000. The case represents the first acquittal since October 1917 of a person who, accused of treason and betraying state secrets, had been arrested by the security services and thrown in jail. This cause célebre will doubtless inspire books and films. Any such dramatization will have to assign a pivotal role to Saint Petersburg city-court judge Sergei Golets, who, on December 29, 1999, found the "prisoner of conscience" Nikitin innocent.

In the courtroom, from a distance, he looked much older. But, up close, he turns out to be good-looking and young—only 41. He has worked as a jurist for 20 years, 5 of them as a procuratorial investigator. Having served in the military, he has been a judge for 15 years and was a member of the Party.

EECR: You have a great deal of experience as a judge. How does the Nikitin case compare with others over which you have presided?

Judge Golets: It was my most difficult case, in terms of its character and the need to delve into specialist literature. Before reaching a decision, the lay assessors and I read about 1,500 normative acts, some classified, others not. Luckily, the court administration relieved us of other work so we were able to spend a month and a half preparing for the case. Usually, Russian judges do not have so much time. I would like to note that both of my lay assessors are extraordinarily responsible and qualified people. One is a submarine captain of the first rank in the reserves; the other spent many years building and testing equipment on nuclear submarines. This was a coincidence—they are my only lay assessors. But neither had any trouble following the trial and the evidence.

The decision we took on December 29 was unique, one of a kind. It was the first case in which I had to analyze and apply constitutional norms. I’d also like to note that, because of supporting legislation passed by the Duma, which echoes constitutional language, a judge can now apply both national and international norms. Russia has taken upon itself the obligation, when national laws fall short of human-rights norms, to uphold the norms of international law, specifically those of the European Convention on Human Rights. This is exactly what we had to do in this case, and it caused the procurator to protest. The procuracy objected that our reasoning analyzed and applied constitutional norms.

The most important mistake made by the investigators, in my opinion, was that they stubbornly ignored the defense’s assertions that one must pay attention not merely to questions of fact but also to questions of law. The defense lawyers argued that it was imperative to examine carefully the legal basis of the charges and not to stop at the opinions of experts from the general staff of the Ministry of Defense—who, after all, are not lawyers. But the prosecution did not want to listen. Otherwise, the case might never have gone to trial and could have been settled by a judicial ruling on the law, perhaps by appeal to the Constitutional Court.

Another important aspect of the case struck me as soon as I reviewed it. According to the material gathered by the investigators, Alexander Nikitin went to the Naval Academy library, copied down "secret" information, later left for Murmansk, where he worked on the report, and then handed it over to Norway. All this was discussed in court, and these details appear in the decision. During the trial, the investigators gave evidence that Nikitin was under surveillance throughout this period. His conversations about planning to gather the material were recorded; they knew he was at the library; and that he had copied down the information. Several weeks passed before he left for Murmansk, a few days passed while he worked on the material, and only then did he deliver the material to Norway. Why did the FSB, which kept Nikitin under uninterrupted surveillance, allow the transfer to a foreign government of material that it was convinced constituted a state secret? Watch any spy film: they nab the spy while he is stealing the information or when he is attempting to hand it over. Yet here it appears that people who were in authority—experienced and well-informed people, working on an important case—allowed purportedly vital secrets to slip through their fingers. They claimed that this was a huge blow to Russia’s defense capabilities. Someone must pay for such a mistake! Imagine if we had found Alexander guilty. He would serve out his sentence, but the alleged blow to national security would not have been erased. We would therefore have had to include in our decision dicta about the FSB’s grave failures. This would have been a first in the history of Russian jurisprudence.

This aspect of the case struck me as very strange. And the strangeness could not be hidden. For one thing, the defense talked about it all the time.

EECR: Yes, defense lawyer Yuri Schmidt brought this up at many press conferences: if Nikitin was really a spy, the FSB agents who allowed these state secrets to slip away should have been in the dock beside him. And if the report did not contain any state secrets, the FSB agents who fabricated the accusations—in the best tradition of the KGB—should be put on trial. But let’s turn away from the dealings of the Chekists, as they still call themselves. What do you think of the significance of this case for Russian jurisprudence?

JG: With this decision, we upheld the principle of judicial neutrality and insulation from outside forces. The decision is an important one, because it shows that, despite the nature of the accusation and the fact that it came from the FSB, the court followed both the letter and spirit of the law. The court looked more deeply into the case than had the investigators. And here lies another significant aspect of our decision, one that is important for other judges. We answer only to the law. Not to the public that stood on the Fontanka embankment in front of the courthouse waving their placards: "Nikitin’s Trial—Disgrace to Russia." Nor to letters from the United States Senate. Nor to letters from writers, or Duma deputies either. Judicial decisions must comply with the law alone. And here lies both the strength of a judge and his shield. A judge needs neither 20 bodyguards, nor an armored car, nor machine guns. All that is useless.

EECR: And what lessons can be drawn from this world-famous case?

JG: The principal lesson is that judges should be guided by how their decisions affect the government’s prestige. I am convinced that our decision, although it was disputed by the procurator general, redounds to Russia’s prestige. It shows international bodies that a Russian court is capable of making a decision in line with the law.

EECR: Was any pressure brought to bear upon you during the case?

JG: That is the stock question that journalists ask judges. It is a question that has been asked of all my colleagues, and this is not the first time I have heard it either. I can say that even in Soviet times no pressure was personally brought to bear on me. I cannot speak for others. One has to understand an important feature of the judiciary: unlike the police or procuratorial investigators, judges—together with their lay assessors—personally make their own decisions, and for each decision they bear a personal responsibility. No one has the right to prevent a judge from making this or that decision. And judges understand that no matter who may tell them to do what, they will answer personally and individually for their decisions. The administrative heads of the city court never asked me how things were going or what kind of decision was possible. Everyone knew perfectly well that the decision would appear in the verdict, and the judge would be responsible before higher judicial authorities and society. A judicial decision is not secret, and anybody can read it and draw his own conclusions. Thus I was completely free in my decision making. Our only task was to make sure that neither the prosecution nor the defense got wind of what the decision would be in advance. We tried to make sure that we did not reveal our thinking by the questions we posed or by our behavior. Still, a clever person schooled in the subtleties of law could have guessed what our decision would be after October 1998, when we sent the case back for further investigation and development. It was right there in the document—that the grounds were not legally sufficient. But the prosecution did not develop this, focusing instead on other issues despite the fact that the defense was pushing hard on this very point. But it would not have been worthwhile for the prosecution to pursue it.

EECR: You obviously knew this case backward and forward. The defense lawyers and journalists noticed this repeatedly. Didn’t it strike you that when Nikitin was in jail, and his lawyers were fighting to replace his pretrial detention with an order that he not leave the area, some Saint Petersburg judges, who were reviewing his file, behaved very oddly? Instead of observance of the law, there was a scurrying about to keep Nikitin in his cell. Was this unprofessionalism on the part of the judges? And is this a common phenomenon?

JG: Unprofessionalism among judges is not a very common phenomenon, but it is not as rare as it ought to be either. The official figures state that every year about a hundred judges are removed from the bench. This is 100 out of 15,000 judges countrywide. Maybe that’s not very many. Maybe it is a lot, given the importance of the work. In some years the number goes up a little, in other years it goes down. The statistics are public knowledge. As regards the case at hand, a judge—because of various factors, human and psychological—has difficulty making major decisions, he wants to stretch things out a bit. It’s like going to the dentist. You know you need that root canal, but you put it off. This, I think, is what happened with the Nikitin case at this particular stage: there was some dithering over reviewing the request from the defense. He could have been released from jail, everything appeared in order. But you don’t want to offend the security organs. And in general—you’d rather not pick a fight with the powers-that-be.

EECR: It would be interesting to hear your thoughts on the role of the procuracy in the case. Did the procurator, Alexander Gutsan, strive to observe the law or to prove that Nikitin was a spy? Don’t you think that the procuracy, in the form it currently exists in Russia, is a holdover from the Soviet era?

JG: You know, I was glad that it was Gutsan who took part in the investigation and trial and that he did not hand the case over to a lesser-known procurator. In terms of his qualities, Gutsan is a professional with a capital P, and the government’s case was quite well put together. But they missed one critical point: instead of building a proper legal foundation, they took the path of least resistance. You need to keep in mind that the procuracy has its own way of handling cases, and it is a famously hierarchical system. If there is an order from above not to yield an inch, the procurator must follow that order. The system has some built-in indicators of performance—the number of procuratorial protests (or appeals) that are filed and the number of judicial decisions that are reversed after appeal. And for poor performance, procurators get slapped. So they must file more protests. They start campaigns, set targets. That’s the way they do it. This year, the procuracy has protested a huge number of our decisions. I think this is not always right. The procuracy has long been in need of reform; in particular, it should no longer be charged with investigations. Twenty years ago, when I started working in the procuracy, I was astonished that after I investigated a case, I then went to the procurator for warrants, to the very same procurator who then prosecuted the case in court. We were all within the same organization and all of us shared the same interests. Starting from the smallest point to the largest, we were all invested in having the case proceed as we planned it.

EECR: With two lay assessors, you acquitted Alexander Nikitin. And along the way, you revealed a number of violations of the Criminal Procedure Code on the part of the FSB and the investigators. Didn’t this cause you to worry about your future, your career?

JG: May I start by answering broadly? First, I am a fatalist. As we say, if you are fated to be hanged, you are not going to drown. Second, some Russian citizens think you can buy or scare judges. Or that demonstrators can march and wave flags, and we will tremble. Or that they can send a sponsor with a sack of dollars, and we will look the other way. They are wrong, terribly wrong. People who have worked as judges for ten years are not in it for the money. We are government employees, and our salaries are not high. For example, if you translate rubles into dollars, I earn $200 a month. But people work as judges because they find it interesting to sort out cases and make the right decisions.

With the Nikitin case, my biggest headache was trying not to overlook some legal issue, not to neglect some relevant act, not to make a mistake in construing a constitutional provision or international norm. I tried to do everything I could to render a well-grounded decision. And when people know that a judge has made such a decision, according to the law—and not under the influence of demonstrators, letters from within Russia or from abroad, or phone calls from the FSB—they can still disagree with the decision. They can be upset with it. But they cannot feel insulted by it.

Yes, the procurators made a mistake, but the court corrected it. We did not allow the most awful thing of all to happen—we did not allow a person to be punished who did not bear criminal responsibility.

Viktor Tereshkin is a correspondent for the northwest region for the national information agency, Natural Resources. He lives in Saint Petersburg.

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