Volume 9 Number 4

Fall 2000

Feature

The Nikitin Case and Russia’s Legislative and Social Reforms
     Mikhail Matinov and Yuri Schmidt

Late in 1995, Alexander Nikitin was arrested by Russia’s federal security service (FSB) and accused of high treason, specifically, for espionage and disclosure of state secrets. On September 13, 2000, the presidium of the Supreme Court, the highest judicial authority in Russia, made the final decision in the case, declaring Nikitin innocent. For five years, much public attention in Russia and abroad was focused on Nikitin. Why? What was the significance of his case?

Obviously, people were interested out of compassion for an unfairly accused person and because of concerns about the environment in northwest Russia. Yet other factors made this case additionally significant. These various factors were connected with fundamental changes in Russia. To suggest what these are, we must first briefly outline the implementation of laws concerning espionage and the disclosure of classified information and explain how such crimes are prosecuted.

In Soviet and post-Soviet times, these two crimes have played a specific role. They were the favorite instruments of state power for the purpose of political repression. In 1917–20, these offenses were applied broadly to fight any counterrevolutionary tendencies. From 1920–53, thousands of cases, characterized as "cases against enemies of the people," were prosecuted. From 1960–80, the state fought dissent and the first steps of the democratic movement by means of trials of well-known dissidents based on these crimes. In the 1980s, an accusation of high treason became a technique to slow down the development of glasnost, freedom of speech, and access to information.

In each period, the different cases were notable for features specific to the social and economic context. Yet they also shared certain common features. These were:

• The attempt to impose political order through the elimination of a particular person or group of persons;

• Strict political control over the investigation of cases and their consideration in court;

• Prejudged, preplanned, and inevitable guilty verdicts, combined with long prison sentences or death sentences.

By the end of 1995, when the Nikitin case was opened, legal and social reforms in Russia were in a state of deep sleep. A catalyst was required to rouse their further development, and, to some extent, this was provided by the charges against Nikitin. The unique feature of this case was that it reflected the main problems of both legal and social life, dealing not only with environmental well-being but with Russia’s legal, moral, and spiritual health as well.

When we first became involved with this case, we understood that no effective defense could be carried out within the framework of existing criminal law, criminal procedure, or law-implementation practice. We needed to get away from the common approach in such legal situations, to break through the standard meanings of "freedom of speech" and the "right of access to information," to bring existing procedural and substantive law norms into compliance with the Constitution, to work out new tactics of defense, and to give public opinion a new role in Russia. Only the successful achievement of these goals could bring about Nikitin’s acquittal. Since 1917, no similar case investigated by the KGB, or its successor, the FSB, had ended in acquittal.

The defense, sustained over a five-year period, was based on five crucial points:

• The information used by Nikitin in his report "The Northern Fleet—A Potential Risk of Radioactive Contamination of the Region" was obtained from publicly available sources, in other words, from published books and periodicals. This negated the accusations against him of gathering and disclosing state secrets.

• The information contained in Nikitin’s report could not be considered classified, in any case, neither in 1995 (when the actions were committed) nor currently. According to Art. 42 of the Constitution, everyone has a right to a healthy environment, truthful information on its status, and to compensation for damages caused by the violation of environmental norms. The Law on State Secrets prohibits the classification of information with regard to states of emergency and accidents, jeopardy to the security and health of citizens, and the consequences of accidents and status of environment. Nikitin’s report described the ecological problems connected with accidents on nuclear submarines. This information, therefore, could not be classified as secret according to federal law.

• As a result of unusual circumstances, there was a gap in Russian legislation, and no classified information—defined as such—existed in Russia at the time Nikitin wrote his report. After the adoption of the Constitution on December 12, 1995 (which had come into force on December 25, 1993), the classification of information as secret was possible only by including such information in the "list of information constituting state secrets," which was to be adopted as federal law, and in the "list of information related to state secrets," to be adopted by presidential decree. A relevant presidential decree was issued on November 30, 1995. The federal law was adopted on October 6, 1997. Thus, between December 25, 1993, and November 30, 1995, no legal definition of classified information existed in Russia. Therefore, there was no legal basis for treating any information as classified during this period of time. Nikitin committed the supposedly incriminating actions in August and September of 1995.

• The legal basis for the accusation was a law on state secrets as amended on November 30, 1997, plus secret decrees of the minister of defense that were never published. As stated above, Nikitin was prosecuted for actions committed between August and September 1995. His work was therefore completed two years before the law—the supposed basis for his indictment—was enacted. Article 54 of the Constitution states that legal acts establishing responsibility may not be applied retroactively. Furthermore, Art. 15 of the Constitution declares that normative acts dealing with the rights and obligations of citizens may not be implemented unless they are published and available to everyone. An accusation based on the law described above, which only became effective in 1997, or on unpublished normative acts, violates the Constitution.

• The evidence used by the FSB was obtained in violation of criminal procedure. The investigation used materials confiscated during the search of Nikitin’s apartment. This search was carried out by an officer who was not authorized to do so. According to Russian criminal procedures, any evidence obtained by illegal means has no legal value and cannot support an accusation.

All five positions were clear and self-evident from the very beginning of the investigation—at least to the defense—and they were all finally supported by the Court. It was obvious from the outset that Nikitin was being prosecuted without legal grounds. Strategically, the defense decided to not state its position in all its aspects immediately but thought it best to act step by step. We had to begin by having the lawyers of Nikitin’s own choice admitted to the case instead of the lawyer who was proposed by the investigators.

The second step was to obtain access to the secret orders of the minister of defense, which had served as the grounds for the declaration of the information as classified. In this connection, the Nikitin case resembles one of the notorious trials of the nineteenth century, the famous Dreyfus affair, where the accusation was based on materials unknown to the defendant. Next was the request for expertise independent of the FSB’s and without the participation of military experts. After that, the defense asserted the unacceptability of any implementation of unpublished acts. The defense also argued that Nikitin’s liability should be determined on the grounds of the Law on State Secrets. Furthermore, an issue was raised concerning the inappropriate retroactive application of the Law on State Secrets, as amended in October of 1997. Finally the defense addressed the question of the complete absence of legal grounds for classifying any information as a state secret in the period between December 25, 1993, and November 30, 1995.

Such a strategy could seem illogical. But, given the circumstances, we decided not to present our entire defense all at the same time. The effect would be too overwhelming and might have brought about negative consequences for Nikitin (there were serious reasons to expect this). It was the first time a criminal case investigated by the FSB was likely to be ruined completely. There was no hope that such a possibility would be immediately tolerated and vindicated by the court. It was better that our legal stance, as a whole, be divided into several parts and then accepted by the court bit by bit. By conducting such a piecemeal strategy, the defense also brought about a number of innovations in the law and in the practice of law implementation. These are as follows:

• On March 27, 1996, the Constitutional Court ruled unconstitutional the existing procedure of admitting only specially selected lawyers to act as counsel in criminal cases involving classified information. This decision allowed any lawyer to be chosen by the defendant—and not by the FSB, as had been the case before—to conduct the defense.

• In October 1997, based on the Constitutional Court’s decision, the Law on State Secrets was amended, and a further amendment to the law brought it into compliance with the Constitution, thereby eliminating the contradictions pointed out by the defense.

• The procurator general and Supreme Court issued an instruction directed against any implementing of unpublished acts and instructions.

• The direct implementation of the Constitution and international treaties in judicial practice was initiated on a broad scale.

Appeals of interim decisions made by trial courts to remand cases back to the relevant investigative authorities (for example, the military, procuracy, or FSB) for further investigation brought the accusatory function of the court another step closer to elimination. Additionally and crucially, the case toppled the monopoly on information, held by the security services, concerning the investigation of criminal cases, specifically those carried out by FSB. For as long as any could remember, information concerning charges was provided to the public by the investigative authorities only. Such information was deliberately filtered and, as a result, could become completely misleading. Nikitin’s defense held numerous press conferences and provided journalists and human-rights organizations with accurate information concerning his case. The loudly broadcast truth about the Nikitin case helped attract attention and compassion from millions of people all over the world. And finally, the Nikitin case stopped other FSB attacks on environmentalists. The risk of opening other criminal cases similar to this one was minimized.

It was fittingly symbolic that the acquittal was rendered two days before the beginning of the year 2000. The defense addressed the Court in its closing arguments with the following words:

"We are on the eve of a new millennium. Your response to the issues raised in this case will define what, from its past, the Russian judiciary will leave as refuse and what it will take into the new age." The response was a highly professional verdict that fully complied with the law.

Both authors were members of Nikitin’s legal-defense team. Yuri Schmidt is the chairman of the Russian Lawyers Committee in Defense of Human Rights and has defended several individuals in high-profile human-rights cases. Mikhail Matinov is also one of the founders of the Russian Lawyers Committee in Defense of Human Rights.

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