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Perspective
Volume VII, No 2 (November-December 1996)

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The Nikitin Case: Rule of Law?
By DIEDERIK LOHMAN
Amnesty International(1)

The case of Aleksandr Nikitin is not just the story of an innocent man imprisoned for the last nine months on charges of high treason.(2) It has come to symbolize the struggle between two incompatible systems in the Russian Federation. Nikitin, a retired navy officer and environmental activist, represents progressive forces that seek to cure Russian society from the problems which it inherited from the Soviet Union and to establish a healthy democracy. The Federal Security Service (FSB) represents the forces still saturated with the Soviet mentality, suspicious of initiatives originating from individual civilians, conservative and authoritarian. With politicians refusing to stop the FSB's advance, the future of Russia's democratization process and its shaky rule of law is in the hands of the judiciary--a daunting task and major test of independence for an institution that only too recently practiced "telephone justice" (i.e., sentences handed down by telephonic instructions from a "superior authority").

The image of Muscovites hauling down the statue of Feliks Dzerzhinsky in Lubyanka Square in August of 1991 symbolized the change that had taken place in the position of the KGB in the late 1980s. Much like the entire Soviet leadership, the previously all-powerful KGB had been thoroughly discredited by the streams of compromising facts which Gorbachev's glasnost' had unleashed. In the euphoria over the prospect of a democratic Russia immediately after the break-up of the Soviet Union, the security service was sized down, stripped of many of its powers, renamed, and supposedly placed under democratic supervision.

The break with the past had occurred, but was it sufficiently radical? As studies of revolutions have consistently shown, a complete break with the past is impossible. One can replace some key politicians and bureaucrats but not the whole bureaucracy, as that would leave the country ungovernable. Russia and the KGB are no exceptions to that rule. It is probably an illusion to believe that the KGB legacy can be eradicated easily; old dogs don't usually learn new tricks. Such a state of affairs may not be particularly desirable but it does not have to pose an insurmountable obstacle to the democratization of the FSB's activities. Openness in its work and tight democratic control are of vital importance here and it is exactly in this regard that Boris Yel'tsin and his colleagues have failed hopelessly.

When the hard reality of transition dawned on the initially euphoric Russian leadership, the direction of policies started to change. As politicians became preoccupied increasingly with fighting for their political survival, attention to democratic principles and human rights faded. As the leadership fought off attacks from political opponents, it increased the powers of the former KGB. For example, the power to carry out criminal prosecution--a right which led to frequent arbitrary prosecutions in Soviet times--was reinstated. At the same time, governmental openness rapidly decreased and more and more information came to be qualified as state secrets.

Whether it is a sign of poor political judgment or an indication of his meager commitment to democracy and human rights, Boris Yel'tsin ignored an obvious but vital rule with respect to the successor of the KGB: to prevent a relapse of old habits (which are known to die hard) it was necessary to remove from control the main initiators and perpetrators of Soviet suppression of dissent. The current head of the FSB in Moscow is Anatoli Trofimov, who was in charge of the prosecutions of Sergei Kovalev, Yuri Orlov, Viktor Orekhov and other well-known dissidents. In St. Petersburg the security service is headed by General Viktor Cherkesov, another known dissident hunter.

It can hardly be considered surprising that an organization in which the work culture has changed little and which is led by those who previously were actively involved in "defending communism" will not change voluntarily in a democratic direction. It is rather more likely that it will seek re-establishment of its former unlimited powers. This is exactly what we have observed over the last few years. Unfortunately, politicians have granted the security organs additional powers as time passed. In 1996 the case against Aleksandr Nikitin, if successful could constitute a major step towards the KGB's full recovery.

The Case
Aleksandr Konstantinovich Nikitin was arrested on 6 February 1996 by officers of the FSB and accused of high treason in the form of espionage (Article 64, Criminal Code 1960). Nikitin's work for the Norwegian environmental organization "Bellona Foundation" lies at the base of the charges. As an employee of this organization, he was involved in drafting a report on the ecological dangers of nuclear contamination caused by the Russian Northern Fleet, and specifically nuclear submarines. Until 1992, Nikitin worked in the Russian Northern Fleet and later at the Ministry of Defense in Moscow. At that time he had security clearance; when he left the ministry he took on the obligation not to divulge secrets that had become known to him during his service.

After nine months of criminal investigation the FSB finally issued the formal indictment. Apart from the charges of high treason in the form of espionage, Nikitin is also accused of having misused a military identity card and contacts in the military to gain access to secret documents. At present, Nikitin's lawyers are plowing their way through 5,000 pages of files on the case in Kafkaesque circumstances. They are not allowed to take the files home. Files may be copied but only by hand. Those files that are labeled "SECRET" may be copied but the notes must remain at the FSB headquarters in St. Petersburg. The lawyers can only work with the files during office hours.

This article will not take up the question of Nikitin's guilt or innocence; rather it attempts to place the Nikitin case in the context of political developments in Russia. Other publications have argued Nikitin's innocence quite convincingly.(3) The methods of criminal investigation used by the FSB in this case are of major importance because they show clearly that the FSB has acted out of political considerations, that the FSB does not consider itself bound by the rule of law. How else can any of the following violations of criminal procedure and other irregularities be explained?

Directly after Nikitin's arrest, the FSB deprived him of the right to a lawyer of his own choice. Only the Constitutional Court could force the FSB to undo this gross violation of human rights. Other procedural violations relate to the appointment and work of two expert committees which were charged by the FSB with assessing whether the Bellona report contains state secrets. The FSB has refused to appoint to these committees experts proposed by the defense and the FSB-picked expert committees have refused to look into claims by Nikitin and Bellona that all information in the Bellona report can be found in openly available sources, claiming that they are "not competent" to look at that issue. The FSB and the expert committees have ignored the constitutional right to live in a decent environment and to have reliable information about the condition of the environment.(4) Instead they have used two unpublished decrees of the Ministry of Defense which predate the Law on State Secrets as a basis for the assessment. To make matters worse, copies of the decrees of the Ministry of Defense still have not been given to the defense.(5)

Other factors indicate that the FSB is more interested in getting Nikitin convicted than in establishing the truth in this case. The FSB has used the media to depict Nikitin as a traitor who sold his country's interests for a pittance; the term "presumption of innocence" apparently has no place in the FSB dictionary. In its attempts to disinform Russian society, the FSB has even gone as far as to claim that the Bellona report has no relation whatsoever to environmental issues. Such a statement is as ridiculous and dangerous as saying that the Chernobyl accident had no environmental consequences.

Legal and Political Consequences
In states that adhere to the rule of law, as Russia does according to Article 1 of its Constitution, all government action (including that of the security services) is bound strictly by law. The utter contempt shown by the FSB for the principle of rule of law would have led in most democratic societies to the immediate dismissal of the case for reasons of procedural violations. In Russia, however, this may not happen. Russian politicians currently are unwilling to intervene and it is questionable whether the now formally independent judiciary will be able to resist pressures from the FSB. In fact, it could well be that the FSB has deliberately violated the principle of rule of law in an attempt to force judicial endorsement of its behavior. The conviction of Aleksandr Nikitin in court would sanction the arbitrary methods used by the FSB in the case and thus would recognize in effect that the FSB is not bound by the rule of law--an extremely dangerous precedent! Considering the past behavior of the leading figures of the FSB in Moscow, St. Petersburg, and other cities, such a verdict could have significant consequences.

One can safely assert that the next victims of the arbitrary practices of the FSB would not be average Russian males but the more vocal members of Russian society--people like Nikitin who take the initiative to address problems that may be embarrassing for the government, the military or the FSB, but still have to be solved, people who work in the sphere of the civil society. It is exactly this sphere of activities that was repressed so fiercely by the KGB in Soviet times and it will be the FSB's playing field for further repression. The importance of a civil society for the development of democracy is well-known. Western governments and foundations, such as the Soros Foundation and the European Union's TACIS program, have been channeling a lot of money to non-governmental organizations and structures in Russia. These organizations provide governments with information, make them aware of certain pressing problems, and closely monitor the activities of the government. Such activities are of vital importance for a functioning democracy.

One effect that the prosecution already has had on the civil society is called preventive self-censorship. Non-governmental organizations will be careful from now on not to concern themselves with the field of environmental problems caused by nuclear installations. The FSB has thus effectively reclaimed this field as its exclusive domain. The paradox is that the Bellona report demonstrates just how harmful it is to leave such an important and dangerous issue to the military and the security service.

For a closer look at the potential consequences it is useful to review a similar case which occurred in 1992. Vil Mirzayanov, a chemistry professor, was arrested in October 1992 for allegedly having leaked state secrets (Article 75 Criminal Code 1960).(6) Mirzayanov had written an article for a weekly newspaper in which he pointed out that Russia's huge chemical warfare pile was not being destroyed, despite Russia's commitment to do so. As in the Nikitin case, the accusation was based on a list of offenses against state secrets that was adopted in 1980 and had never been published. Another similarity is that the FSB refused to appoint specialists proposed by Mirzayanov to the expert committee which was to assess whether the article contained state secrets. Criminal proceedings against Mirzayanov were closed after political intervention by the Procurator General. The procurator ruled that information constituting a state secret had not been divulged, basing his decision mainly on the fact that the list of state secrets had never been published and thus could not be applied.

Despite the existence of such a precedent, one cannot expect that the case of Nikitin will end necessarily in a similar way. The decision to halt the Mirzayanov case was made by a political figure, not a judge. Political figures and interests change quickly and regularly. Indeed, the procurator who closed the Mirzayanov case has since been removed and a new person has taken his place. Generally speaking, the political climate has changed considerably since 1994 to the disadvantage of persons like Mirzayanov and Nikitin, creating an atmosphere favorable to another FSB attempt to reassert its powers.

In February 1996 Russia was already deep into the presidential campaign. Politicians were highly reluctant to undertake any actions that might compromise their positions after the unpredictable outcome of the elections. Even the otherwise articulate progressive media refused to do more than report dry facts on the case, in accordance with a self-imposed ban on criticism of Boris Yel'tsin until his re-election. The hope that after the elections there would be more support for Nikitin proved to be idle.

On the other hand, the FSB grossly underestimated the changes that had already taken place in Russia. Its refusal to respect Nikitin's right to a lawyer of his own choice was appealed in the Constitutional Court, and on 27 March 1996 the court ruled that the FSB's refusal was unconstitutional. Suddenly the FSB was confronted with a professional, highly skilled defense team which was determined to defend Nikitin to the best of its abilities. It immediately became apparent how little basis existed for the charges against him.

It is now up to the judiciary to restate Russia's continued commitment to the rule of law. Considering the incomplete state of the criminal investigation, an independent judge will have no choice but to send the case back to the FSB for further investigation and to release Aleksandr Nikitin. It is, however, questionable how independent the judge(s) will be. In the court hearings concerning Nikitin's release on bail, the judges were clearly influenced by the FSB. We must hope the judiciary will not allow one of its judges to give in to the FSB pressure and disgrace the entire judicial system.

As with many happenings, there may be a good side. If Aleksandr Nikitin is acquitted by a court, this will indicate that the judiciary in Russia is maturing slowly into an independent power and that it felt comfortable enough to withstand the undoubtedly enormous pressure from the FSB to convict him. But that is not all. In case of a defeat, the FSB will suffer tremendous loss of face. For almost a year it has been spreading false information depicting Nikitin as a traitor who sold his country's interests for a pittance. Suddenly it would become clear that all that propaganda was a lie. We may hope that politicians and the media will highlight the blunders of the FSB. Maybe such a defeat would allow environmentalists and human rights activists to work for a few years without being hindered by the FSB. And by the time the FSB recovers, Russian civil society and democracy may have become strong enough to place the FSB under real democratic control.

Notes:
1 The opinions expressed in this article do not necessarily correspond to those of Amnesty International.
2 See, for example, Boris Altshuler, "Human Rights and State Secrecy," Perspective, vol. VII, no. 1, September-October 1996.
3 All the information in the parts of the Bellona report relate to the charges against Nikitin can be found in other publicly available sources. See, among others, Amnesty International, "Federal Security Service (FSB) versus Prisoner of Conscience Aleksandr Nikitin: Return to Soviet Practices" (EUR 46/42/96, September 1996) (http://www.amnesty.org). See Bellona's web site for a wide selection of documents on the Nikitin case: http://www.grida.no/ngo/bellona/
4 Russian law (Article 42 and the Law on State Secrets of 1993, respectively) contains the right to reliable information about the condition of the environment and prohibits the classification of environmental information as "state secret"; international law allows restrictions on freedom of expression only in extreme circumstances of a direct military or political threat to the entire nation.
5 Such actions are in violation of the constitutional provision that normative legal acts which restrict the rights and freedoms of citizens cannot be applied if they have not been published officially (Article 15).
6 See also Vil S. Mirzayanov, "Chemical Weapons: An Exposé," Perspective, vol. IV, no. 4, April-May 1994.

Copyright ISCIP 1996
Unless otherwise indicated, all articles appearing in this journal have been commissioned especially for
Perspective.




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