Current Status, September 1997:
The Nikitin case

This Current Status focuses on the case which trigged off national and international concern about people's right to have access to information on the environmental situation in the new Russia; a right which has been relentlessly suppressed by various state bodies striving to keep public attention away from the hazardous mess that is the military nuclear complex, cloaking the embarrassing information in secrecy and justifying their actions by proud phrases about "guarding the national security".

On October 5 1995, at around 9:00 p.m. Moscow time, FSB started what was to become its major spy operation in recent years. The office of Bellona in Murmansk and the apartments of Bellona employees and contact persons in Murmansk, Severodvinsk and St. Petersburg were ransacked. A number of people were brought in to interrogation the same night, and from the Bellona office in Murmansk documents and computers were confiscated. Roughly estimated some 100 persons were interrogated during the months to come, in Moscow, St. Petersburg, Murmansk, Severodvinsk and even in some Siberian cities.

No information was given as to what was going on, until FSB issued a press release on October 18. A criminal case had been launched, explained the FSB, based on disclosure of state secrets in "Bellona's materials" - materials confiscated by FSB during their search of the Murmansk office on October 6. The materials of concern, as revealed later, were related to the upcoming report "The Russian Northern Fleet - sources of radioactive contamination". In order to prevent leakage of the secret information abroad, it had been necessary to interfere on the night of October 5, wrote FSB. The truth, though, is that by October 5 the information had already "leaked" abroad: The draft version of the report was already transferred to the Bellona head office in Oslo, and FSB was very well aware of the fact (as evidenced during the process, the telephone lines of Bellona's office and employees in Murmansk and St. Petersburg were tapped at least from July 1995). So, in case FSB was really interested in "guarding national security", measures should have been taken much earlier than October 5. FSB then, must have had other intentions; patiently waiting for the information to "leak" abroad and only then starting their "investigative procedures" in order "to prevent" the very same leakage.

On October 19 1995, the draft version of the report was examined by experts in Murmansk, who concluded that the report contained state secrets in accordance with "three decrees of the Minister of Defence". This was stated by the head of FSB's Murmansk office at a press conference a few days later. No comment was made on how this conclusion complied with the Russian Constitution and Federal law, which guarantee the citizens access to information on hazardous environmental issues.

Through October, November and December Bellona worked in libraries and public archives to reassemble the documentation confiscated by FSB. All the files were restored during these months, thus proving an important fact: All the information in question was available from public sources. The sources were consequently submitted to FSB, which, as it turned out later, took no notice of them; persistently working towards their goal.

The arrest of Aleksandr Nikitin
On December 5 1995, Bellona was unofficially informed that the text of the report was sent for expert assessment in Moscow, by a group of experts from the headquarters of the Ministry of Defence. The experts concluded by the end of January 1996: 6 out of 8 chapters in the report allegedly contained state secrets.

Early in the morning on February 6 1996, Aleksandr Nikitin was apprehended in his home in St. Petersburg, later the same day to be charged with high treason through espionage and divulging of state secrets. At the Prosecutor's office in St. Petersburg, were the charges were levelled, Nikitin was introduced to a lawyer: A retired KGB officer. Refusing such "councel", he was transfered to FSB custody, where he was to spend the next ten months.

Two months without councel
The practise established by FSB for investigations related to state secrets presumed that the lawyer of an accused should be submitted to security clearance in order to work with such a case. In order to achieve clearance, a lawyer would agree to not travel abroad for at least five years and to let FSB tap his telephone lines. More over, the security clearance procedure would last for at least one month, while in the end a lawyer could well be dismissed; this "would depend on his biography", as it was put by one FSB investigator. Taking the above-mentioned into consideration, FSB, as a rule, would propose their own, already cleared, lawyer. The lawyers thus provided by FSB were all former KGB officers. The same happened in the Nikitin case.

With the hindsight of the present, it should be said that at this point FSB was prevented from performing investigations as planned; since, by the rule of the Constitutional Court of the Russian Federation on March 27 1996, Nikitin was granted independent councel of his choice. Thus, famous Russian human-rights activist and dissident in the Soviet times, Yury Shmidt, finally was accepted as Nikitin's lawyer.

The charges
Having received access to his client and the files of the case, Shmidt was surprised to discover that the charges against Nikitin were based on the information in chapter 8 of the report (Nuclear submarine accidents) and paragraph 2.3.3 (description of nuclear safety faults in third generation reactors). The real shock, though, came upon discovering, among other things, that the information on the very fact that the submarine "Komsomolets" sank in the Norwegian Sea in April 1989 was assessed as a state secret disclosed by Nikitin (this according to the expert group's conclusion).

Only two and a half months after the arrest, did it occur to the FSB investigators that the shipwrecks of three nuclear-powered Soviet submarines were well-known throughout the world. Thus, on April 11 the FSB investigator reduced the contents of the charges, leaving the rest of chapter 8 (Reactor accidents and Fires resulting in loss of life) still there, together with sub-chapter 2.3.3 mentioned above.

Experts' assessments of the report
On June 24 1996, FSB submitted the report for a second expert assessment. The evaluation was to be conducted by the Ministry of Defence headquarters (Directorate 8), the Ministry of Atomic Energy, and by three other state bodies. The latter later refused to take part in the evaluation, referring to their incompetence towards the questions put in front of them.

The results came in late September 1996. Experts from the Ministry of Defence still regarded a part of chapter 8 (Reactor accidents and Fires resulting in loss of life), together with sub-chapter 2.3.3, as containing state secrets; while the Ministry for Atomic Energy, refusing to analyse chapter 8, claimed that sub-chapter 2.3.3 (description of nuclear safety faults in third generation reactors) did not contain any state secrets. Nevertheless, sub-chapter 2.3.3 was not removed from the charges against Nikitin; FSB preferred to refer only to the conclusions they found favourable. The Ministry of Defence based its evaluation on secret decrees issued by the Minister of Defence in 1993. The decrees were not shown to Nikitin, nor to his lawyer. In fact, to this day the FSB investigators insist that not even they have seen the decrees in question.

Custody
Throughout 1996 the defence council made a number of appeals to release Nikitin from custody. The appeals were considered in court on several occasions; each time Nikitin was returned to jail.

On September 30 1996 the investigator declared that the investigation was over. The defence council started reading through the case files. At the same time Nikitin refused to do this, protesting against the numerous violations committed by the investigative body of FSB against his fundamental human rights and Russian and international legal regulations.

The report
On April 17 1996, the Bellona Foundation released a preliminary version of "The Russian Northern Fleet - Sources to radioactive contamination" at the G-7 summit on Nuclear Safety in Moscow. A copy of the report was prevented from being brought to Nikitin in custody, and was confiscated on this occasion. On April 24 FSB issued an order stating that the report would be confiscated upon discovery, as it contained state secrets. Copies of the report was confiscated on various locations in Russia with reference to this order the following weeks.

In August 1996 Bellona published the complete version of the report. On October 22, 1505 copies of the report were confiscated by St. Petersburg customs. The reports were shipped by Bellona to Russia for free distribution. The confiscation was done on order from FSB in St. Petersburg. According to FSB the report was declared "banned literature" in Russia; any attempt to ship the report to Russia would be stopped. Later, the confiscated reports were transported to the FSB headquarters in St. Petersburg, on the pretext that customs "did not have a room for storing literature containing state secrets".

Letting alone the definition of the report as "illegal", the very attempt at banning the report was ridiculous. Russian, English and Norwegian copies of the preliminary version had been available on the World Wide Web since April, and the printed version was already in wide distribution throughout the world. On October 26 Bellona Web launched the full Russian version for free, world wide access.

No visas for Bellona
From October 1996 and up till today, Norwegian Bellona employees have persistently been refused visas to Russia, without any explanation given. An explanation, though, came in June 1997 from the Russian Ambassador in Norway Mr. Fokin. According to Mr. Fokin, Bellona was refused visas due to its work on human rights issues, rather than the environmental issues which should be the foundation's major concern.

Aleksandr is released from custody
On December 14 1996 Aleksandr Nikitin was released from custody by personal order from the General Prosecutor of the Russian Federation, Mr. Skuratov. The circumstances surrounding his release bears closer scrutiny:

On December 11, at 4 p.m. Moscow time, the Prosecutor's office in St. Petersburg received a teletyped order from the General Prosecutor's office to release Nikitin from custody. Having received the order, FSB and the Prosecutor's office in St. Petersburg prepared the indictment and a number of other documents with falsified retroactive dates, giving the impression that the case, at the time of the General Prosecutor's order, had already been transferred to the court system. On December 14, Nikitin's release became reality only because the General Prosecutor personally teletyped the St. Petersburg Prosecutor's office.

After his release Nikitin was put under city arrest in St. Petersburg, and the case was transferred for additional investigations. Upon doing that, the Deputy General Prosecutor of Russia, Mr. Katyshev, stated that the case contained "no hint of espionage"; while possible disclosure of state secrets was to be investigated.

Additional investigations
The additional investigation was launched in February 1997, lasting to September 17. During this period Nikitin was summoned to FSB 7 times, to fulfil various procedures. No investigative work was performed, except the formation of another expert commission consisting of officers from Directorate 8 of the Ministry of Defence. This commission made its conclusions in the end of May.

This time, the experts claimed that there were state secrets in the descriptions of accidents on-board six nuclear powered subs in chapter 8 of the report. Previous expert assessments had counted 34. The experts once again concluded that state secrets were disclosed in paragraph 2.3.3 of the report as well. More importantly; this time the conclusion was based on a secret decree issued by the Minister of Defence on September 1 1996 - when Nikitin was spending his seventh month in custody.

On June 17 1997, reworked charges were levelled against Nikitin; the fourth variation so far. Having read through them, Nikitin asked for one week to file his depositions. The FSB investigator refused to do that, granting Nikitin one day to prepare the depositions. In spite of this, the next day the investigator was in Moscow, filing a request to the General Prosecutor's office to prolong the investigation for another three months; as it would be necessary to conduct certain "investigative procedures" after having received Nikitin's depositions. The prolongation was granted, and the very first "investigative procedure" carried out by the investigator was a long term holiday. Thus, none of the depositions filed by the accused were taken into consideration when levelling the fifth set of charges.

The fifth set of charges
On September 9 1997, Nikitin was confronted with the fifth variation of charges of espionage and divulging of state secrets. In spite of the last expert group's conclusions, which stated that state secrets were disclosed only in the description of the accidents onboard 6 subs, the FSB investigator included data on all 34 subs, in accordance with earlier expert conclusions. The charges were solely based on secret military decrees. Both the use of secret laws in itself, and the fact that they are given retroactive force, are blatant violations of fundamental principles of legal protection. These principles are guaranteed both by the Russian Constitution and the European Convention on Human Rights.

More over, as evidenced on September 17, FSB had removed all traces of the attempt at avoiding the release order in December, including the falsified documents, from the case files (refer to "Aleksandr is released from custody" above).

The defence council demands restoration of the documents
On September 17 the defence council filed an appeal to FSB in St. Petersburg to restore the missing case files. The answer came on September 30 and it was negative. On October 1 1997 the defence council had to file another appeal, this time addressed to the General Prosecutor's office in Moscow. As soon as the documents are restored the defence council and the accused are ready to start reading through the case files.

Conclusion
Throughout the process it has become obvious that the definition of state secrets is - at best - unclear in today's Russia. The numerous expert groups' conclusions varied with each new group established. Thus, for example, the first military expert group claims that all of chapter 8 contains state secrets, the second expert group (consisting of the same people as the first one) states that state secrets are revealed only in the description of 34 accidents in the chapter, while the last one limits the "classified information" to six submarines in the whole chapter. When it comes to paragraph 2.3.3, still present in the charges, the expert group from the Ministry for Atomic Energy found no state secrets at all.

This situation may hamper further international co-operative attempts at solving the nuclear security and safety issues in Russia, and prevent foreign financial contributions. Nobody can guarantee that some FSB boss will not, on some occasion, get a desire to be promoted and initiate another "big spy case".

Having conducted investigations for two years, FSB has not come even one step closer to a legally valid proof of Nikitin's being guilty of any crime. The case has been characterised by blatant violations both against the Russian Constitution and internationally recognised principles of legal protection. Letting alone the fact that the information related to nuclear accidents is a matter of environmental security and, as such, according to the Russian Constitution, can not be classified.

From the FSB point of view, based on an inherent longing for "the good old days", the Nikitin case probably should have been a conclusive message to environmentalists and others trying to pry into the sacred area of military activities. Effectively employing KGB-styled methods and a veil of secrecy and uncertainty, the FSB may well succeed in this.

--If this was a lesson to be taught, it is not that bad after all, claimed one high-ranking Moscow FSB official in an interview.

On the other hand, FSB itself apparently did not digest the lesson to act in accordance with the Constitution - so far. --It is only our [FSB] job to be thorough in the investigation, not to decide whether or not the new charges is constitutional - that's for the courts to decide, said FSB spokesman Kolpachkov in the end of September 1997.

--Taking into account the content of the charges and the way the investigation has been conducted, there is little reason to expect a fair trial, as no fair court would agree to accept the case for consideration in its present state, said Nikitin's lawyer Yury Shmidt.

Reviewing these last two years, it can be said that the Nikitin case is not only a case against the individual Alexandr Nikitin; but a case where the whole legal system of Russia is standing on trial.

The only legally justifiable conclusion of this case is its unconditional dismissal. Only the General Prosecutor can make such a decision, thus showing that the Rule of Law in Russia is stronger than the paper it is written on.