NIKITIN CASE VERDICT
St. Petersburg City Court, 29 December, 1999
----------------------------------------------------------------------------------------
Comment:
The first part of the verdict reproduces the main points of the indictment against Nikitin. Then follows an overview over the evidence of the case, starting with the phrase “After having investigated the materials of the present criminal case, the court came to the following conclusions”, and ending with a listing of various open sources that have been examined by the Court. The Court’s own evaluation starts after this listing with the phrase “The Court examined the above mentioned literature ….”.
---------------------------------------------------------------------------------------
2000-01-19 17:05
Case No. 02 - 1. 
Not secret.
 

VERDICT 
The Russian Federation 

Saint-Petersburg City Court consisting of:
Presiding - judge GOLETS, S. Y.,
Citizen judges – AKHMEDOV, G. S., GOLTSOV, I.A.,
Court Secretary SEMYONOVA V.P.,
With participation of State Prosecutor GUTSAN, A.V.,
Defence Attorneys SCHMIDT, Y. M., MATINOV, M.A. and PAVLOV I. Yu. 

On December 29, 1999 the St.-Petersburg City Court, considered in a closed judicial session the criminal case against the accused 

NIKITIN, ALEKSANDR KONSTANTINOVICH, born on May 16, 1952 in Akhtyrka, Sumskaya oblast, in the Ukrainian SSR, (ethnic) Ukrainian, citizen of the Russian Federation, with higher education, married, captain of the 1st rank, pensioner of the Armed Forces of the Russian Federation, no prior convictions, place of residence: St. Petersburg, Ul. Tukhachevskogo, 5 - 4 - 69, for having committed the crimes stipulated in Article 275 and Article 283 para. 2 of the Penal Code of the Russian Federation, has established:
During the preliminary investigation, the defendant NIKITIN was accused with, being a citizen of the Russian Federation, bringing damage to the external security of Russia, in August 1995 in St.- Petersburg, having collected data, which constitutes state secrets, with the purpose to transfer it to a foreign organisation, and in September 1995 in Murmansk, having passed over the information to a representative of this foreign organisation, i.e.: having committed State Treason in the form of espionage (Article 275 of the Penal Code of the Russian Federation). Besides in the spring - autumn of 1995 in Murmansk he disclosed information constituting state secrets, which he got familiar with during his military service. The disclosure had serious consequences (Article 283 para. 2 of the Penal Code of the Russian Federation). 

The State prosecutor, basing on the court sessions, based his accusations against NIKITIN on Article 275 of the Penal Code RF, and dropped the accusation related to Article 283 para. 2 of the Penal Code RF, because he found it necessary to qualify his [Nikitin’s] actions under Article 283 para. 1 of the Penal Code RF. 

As it is evident from the materials of the criminal case submitted by the body of the preliminary investigation, the crimes were accomplished under the following circumstances. 

The defendant NIKITIN has, after having graduated from the Sevastopol Naval Engineer College, served in the Northern Fleet until 1985. Between September 1985 and July 1987 he studied at the Naval Academy named after the admiral of the Fleet of the Soviet Union N.G. Kuznetsov (VÌÀ), in Leningrad, majoring in: “Organisation of exploiting and repairs of naval nuclear reactors”. After graduating from the Academy, he continued to serve in Moscow, at the Inspection of Nuclear safety of nuclear installations of the Defence Ministry of the Russian Federation. During his service he had acquired permit No. 1 to information pertaining to state secrets. Since 1987, serving in the Inspection, and since 1989 being the chief of the above-mentioned Inspection, he had access to the information pertaining to state secrets. Because of the post he occupied he had knowledge about the following: About the bases of nuclear submarines of the Northern and Pacific fleet of the USSR navy, about the bases of nuclear submarines of special assignments and laid-up ships, about all shipyards and ship-repairing enterprises of the Navy. Besides, he had access to information on tactical-technical characteristics, factory and tactical numbers of nuclear submarines, nuclear surface ships, and about all types of reactors in use. 

In November 1992, because of staff redundancies and his own desire, he retired as a captain of the first degree, and moved on a constant residence to St. Petersburg to his wife – CHERNOVA, T.E. When he retired he signed a subscription about not to disclose the information pertaining to state secrets, which he had been entrusted to or had learned in course of his service. 

Throughout the next two years he was engaged in various commercial activities, in particular in AOZT “Konnors” (Petersburg), which was selling cars. 

Then, the defendant, together with his wife and under her initiative, decided to move abroad for permanent residence in Canada. With this purpose they sent the appropriate application to the Canadian embassy in Moscow. 

Besides, in order to fulfil short-term trips abroad, NIKITIN has on January 12, 1994 received in OVIR of the Police Department of St.-Petersburg, on general terms, an international passport. 

In February and December 1994 and April 1995, NIKITIN used this passport to travel to Norway. 

During his stay in Norway in February 1994, together with his father-in-law retired rear-admiral of the USSR Navy, Hero of the Soviet Union, CHERNOV Y.D., and with assistance of the latter, he got acquainted with Robert BATHURST – an employee of the Norwegian Institute of World Problems (PRIO), who as it was established during the investigation, earlier had served in the USA intelligence. 

Later, NIKITIN and BATHURST corresponded with each other, and in the spring of 1994, in Murmansk, the latter introduced him to the representatives of the Norwegian public organisation "Bellona". They asked him to review the Version No. 1 of this organisation’s Report named “Sources of radioactive pollution in Murmansk and Arkhangelsk areas” 

After having familiarised himself with the report in the spring of 1994, NIKITIN wrote such a review and sent it to the representatives of "Bellona" in Murmansk. NIKITIN kept in touch with the representatives of this organisation over the phone and during his trips to Murmansk. In the winter of 1995 the defendant signed a contract on co-operation with this foreign organisation for a fee of USD 1200. 

Further, as the bodies of preliminary investigation established, the events developed as follows. 

According to the contract, NIKITIN was obliged to write some sections of Version No. 2 of the mentioned Bellona-report, later titled “The Northern Fleet – Potential Risk of Radioactive Pollution of the Region”, using his knowledge in the field of nuclear and radiation safety on nuclear installations. He should also render this foreign organisation consulting services. 

Throughout his work on the report from February to September 1995, NIKITIN prepared the text of the parts and chapters that were entrusted to him. 

In August, 1995 the defendant asked his acquaintance – a retired Navy officer (formerly also an employee of the Inspection of Nuclear Safety of Atomic Installations in the Defence Ministry of the Russian Federation) RUDENKO, V. L., about special literature on accidents on nuclear submarines. NIKITIN was told that such literature is present at the first Central Scientific Institute of the Armed Forces of the Russian Federation, at the Main Technical Management of operation and repair of the Russian Navy, and at the Naval Academy. 

In order to get access to this literature, the defendant called his acquaintance - senior lecturer of the Naval Academy, ARTEMENKOV V.S., on August 7, 1995. He asked for permission to enter the Navy’s special library containing literature on nuclear accidents on nuclear submarines. 

Knowing that NIKITIN as a retired Navy officer, had had access to secret and top secret information, including the data on nuclear reactors on the nuclear submarine fleet and surface ships, ARTEMENKOV told him that such literature indeed exists in the Academy’s special library. He agreed to provide NIKITIN with this secret and top secret literature. They agreed that NIKITIN should visit the Academy the next day. 

On August 8, 1995, the defendant using his officer’s identification card, which he did not return upon retirement, received a paper with permission signed by ARTEMENKOV, entered the territory of the Naval Academy. In the office of the faculty he received from ARTEMENKOV the top-secret books “Incidents Onboard Nuclear-Powered Submarines 1965-1983”, issued in 1987, and “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987”, issued in 1990. He also received the secret books “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989”, issued in 1990, and ” Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1991", issued in 1992. ARTEMENKOV had received the literature in the library containing secret documents before meeting NIKITIN. By giving it to NIKITIN he violated the acting rules of secret office-work. 

Taking advantage of these circumstances, NIKITIN being guided by standard and special shortenings, and also conventional signs known to him from his service, copied from the secret and top secret books, the below-mentioned information about accidents and incidents on the nuclear submarines of the USSR Navy, taking place in the period from 1965 to 1989: 

From the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983" (1987 edition), it is copied from pages 103-104 information about the USSR Navy nuclear submarine K-27, concerning an accident that occurred when the reactor parameters were checked while the submarine was at full speed. 

The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN discloses information on construction failures, peculiarities regarding the construction and operation of nuclear submarine K-27 as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 
 

    From the top secret collection “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition) he copied from pages 95-96 information concerning an accident on the nuclear submarine K-140, which occurred while modernising work were carried out. 
The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-140 disclosed information on construction failures and peculiarities regarding the durability of domestic nuclear reactors installed at nuclear submarines, and also about the usage and operation of nuclear submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition) he copied from pages 104-106 information concerning an accident on the nuclear submarine K-123, concerning steam generator operation and emission of coolant into the reactor-compartment. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-123 disclosed information about construction failures in the nuclear power installations and about the nuclear submarine as military technology, and also about the usage of newly developed nuclear power installations in military shipbuilding. According to Article 5, item 1 paragraph 2 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition) he copied from pages 97-99 information about an accident on the nuclear submarine K-222, which occurred while the submarine was being repaired on a naval shipyard. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-222 discloses construction failures and peculiarities in the automatic control system of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the control system of armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition) he copied from pages 96-97 information about an accident on the nuclear submarine K-320, which occurred while the submarine was under construction at the naval shipyard and hydrologic tests were carried out. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-320 disclosed construction failures and peculiarities in the construction and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the secret book “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989” (1990 edition) he copied from pages 67-71 information about an accident on the nuclear submarine K-192, which occurred when the submarine was returning from active service back to its base. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-192 disclosed information about peculiarities in the construction of the nuclear reactors, and failures in the operation of domestic nuclear reactors installed on nuclear submarines. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (1990 edition) he copied from pages 53-54 information about an accident on the nuclear submarine TK-208, which occurred during an ordinary start of the nuclear installation. The expert commission at the General Staff of the Russian Armed Forces concluded on June 10, 1999 that the information copied by NIKITIN about TK-208 discloses information about construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (1990 edition) he copied from pages 54-56 information about accidents on nuclear submarines K-279, K-447, K-508, K-209, K-210, K-216, K-316, K-208, K-462, K-38, K-370, K-371, K-306 and K-367, concerning the bodies of indemnification, regulation and emergency protection, and also cases of decompression and leaky steam generators. The expert commission at the General Staff of the Russian Armed Forces concluded on June 10, 1999 that the information copied by NIKITIN about the mentioned nuclear submarines disclosed information about construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

That NIKITIN with the purpose of the subsequent transfer to the foreign organisation ”Bellona” collected information from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition), the secret book “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989” (1990 edition) and the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (1990 edition of) about accidents and incidents, which have occurred in the period between 1965 and 1989 on nuclear submarines in the USSR navy with the tactical numbers: K-27, K-320, K-140, K-123, K-222, K-192, K-208, K-447, K-508, K-209, K-210, K-216, K-306, K-316, K-462, K-38, K-370, K-371, K-367, K-279, which according to the conclusion of the expert commission at the General Staff of the Russian Armed Forces of June 19, 1999 pertains to state secrets. Besides, it is also disclosed information about losses of armament and military technology in the times of peace. According to paragraph 6 of item 1 of Article 5 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions of October 6,1997) this information is confidential and constitutes state secret. 

In the period from September 19 to September 23, 1995, in the Murmansk office of the foreign organisation “Bellona”: at Ul. Rusanova, house 7, - using a personal computer belonging to this organisation, and being assisted by other person, he prepared the text of paragraph 2 of chapter 8 named “Nuclear-powered submarine accidents” of the report of the Norwegian organisation Bellona “The Northern Fleet – potential risk of radioactive pollution of the region”. NIKITIN added the information that he had picked up at the Naval Academy, including secret information. In this way he handed over the information to the organisation presented by other person, who subsequently forwarded the finalised report, version 2, to Norway. 

In the text of section 2 of chapter 8 of the mentioned report, NIKITIN has contributed with information from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (edition of 1987), the secret book “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989” (edition of 1990) and the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (edition of 1990) about the following accidents and incidents in the period between 1965 and 1989 on nuclear submarines of the USSR Navy: 

On the accident on the nuclear submarine K-27, concerning failures at checking of the parameters of the nuclear installations in operation. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information transferred by NIKITIN about K-27 discloses information on construction failures and peculiarities regarding the construction and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

On the accidents on the nuclear submarine K-140, concerning failures that occurred while it was repaired and modernised at the shipyard. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information transferred by NIKITIN about K-140 discloses information on construction failures and peculiarities regarding the durability of domestic nuclear reactors installed at nuclear submarines, and also about the usage and operation of nuclear submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

From the top-secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (edition of 1987) he copied from pages 104-106 information about the accident on K-123 concerning steam generator operation and emission of coolant into the reactor-compartment. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the publishing of the information copied by NIKITIN about the nuclear submarine K-123’s construction failures in the nuclear power installations and about the nuclear submarine as military technology, and also about the usage of newly developed nuclear power installations in military shipbuilding, which used “liquid metal” as coolant, is confidential and constitutes state secrets according to Article 5, item 1 paragraph 2 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997). 

On the accident on the nuclear submarine K-222 while its main power installations was examined at the shipyard. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information transferred by NIKITIN about K-222 discloses information about construction failures and peculiarities in the composition and the operation of the automatic control system of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

On the accident on the nuclear submarine K-192, concerning failures which have occurred at its return from active service to the base. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information transferred by NIKITIN about K-192 discloses information about peculiarities in the construction of the nuclear reactors, and failures in the operation of domestic nuclear reactors installed on nuclear submarines. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

On the incidents (failures) on the nuclear submarines K-208, K-279, K-447, K-508, K-209, K-210, K-216, K-316, K-462, K-38, K-371 and K-367. The expert commission at the General Staff of the Russian Armed Forces concluded on June 10, 1999 that the text transferred by NIKITIN about the mentioned nuclear submarines disclosed information about construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

Besides, NIKITIN also transferred to the foreign organisation information that was used in the text of section 2 of chapter 8 of the report “the Northern Fleet – potential risk of radioactive pollution of the region” about the nuclear submarines of the USSR Navy with the tactical numbers K-27, K-123, K-140, K-222, K-192, K-208, K-447, K-508, K-209, K-210, K-216, K-316, K-462, K-38, K-371, K-367 and K-279. The expert commission at the General Staff of the Russian Armed Forces concluded on June 10, 1999 that this text discloses information about losses of armament and military technology in the times of peace. According to Article 5, item 1, paragraph 6 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

Besides, the body of preliminary investigation refers to the fact that in February 1995 in Murmansk, he signed a contract with the foreign organisation “Bellona” to contribute for a fee to several chapters of the report “the Northern Fleet – potential risk of radioactive pollution of the region”. In order to fulfil the part of the work he agreed to take part in, he wrote section 3 of chapter 2 of the mentioned report named “Nuclear Power Installations” in the spring of 1995. He also described naval reactors of the 3rd generation, and referred to construction peculiarities, which he became familiar with while carrying out his service in the Russian Navy. In particular he wrote about problems with the circulation, the system of cooling down and equipment for controlling the state of the reactor on various levels of power and the system of shutting down the reactor when the submarine overturns. 

The expert commission at the General Staff of the Russian Armed Forces concluded on June 10, 1999 that it in the text written by NIKITIN is disclosed information about technical characteristics of armament and military technology, and about technical solutions used on 3rd generation nuclear submarines. According to Article 5, item 1, paragraph 6 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions of October 6, 1997) this information is confidential and constitutes state secrets. 

In September 1995 in Murmansk he handed over his writings, which included information pertaining to state secrets, to the representative of the foreign organisation “Bellona” KUDRIK I.V. The latter forwarded the work of NIKITIN to Norway. Thus, the body of the preliminary investigation concluded that NIKITIN had disclosed information pertaining to state secrets. 

The defendant NIKITIN, interrogated in the court, did not admit guilt, and stated that he neither had committed state treason nor disclosed information pertaining to state secrets. According to the official written contract with “Bellona”, he participated in the writing of the chapters of the report as the investigation had established. However, he did not contribute with secret or top secret information about nuclear submarines in his work. He obtained all the information from open sources, or he knew that open or public available information existed about the topic that interested him. During this period he had not knowledge about the use of personal computers, so that his written notes were transcribed to the PC by other employees of the Murmansk office of Bellona. 

After having investigated the materials of the present criminal case, the court came to the following conclusions: 

As it is evident from the submitted materials of the case, the body of the preliminary investigation has based the charges in order to substantiate the guilt of the defendant, on a number of proofs, which were examined by the court: 

- The testimony of NIKITIN, who during interrogations as a witness, confirmed his participation in the said Report; in particular, in the updating of separate sections of chapter 1; in the writing of section 3 of chapter 2 named” Nuclear Power Installations” and of some parts of chapter 4. In addition he corrected chapter 8. NIKITIN insisted that “the information was taken from his memory, and also with the use of the open sources”. He did not deny that he had got familiar with some of the information during his service in the Northern Fleet. He claimed that he understood well, which information is secret and top secret and that the chapters he had written have no such information. In addition he explained that he had no access to any secret or top secret information after 1992; i.e.: after he quit his service and was transferred to the reserves (volume 1, sheet 113-116, 126-128). Moreover, he claimed that he while working on the report had used open sources, but he added that some information could have been taken from sources with the stamp “secret”, which he had familiarised himself during his service. NIKITIN also reported that he some times had visited the Kuznetsov Naval Academy, including on August 8, 1995, when he was meeting with ARTEMENKOV. He confirmed that some of the information it the report came from the books he received from ARTEMENKOV; but he could not remember which (Volume 1, sheet 133-139). 

- The testimony of NIKITIN as an accused confirmed that he had visited the Academy on August 8, 1995, using a pass issued for his name and an identification card as an officer from the days of his service. NIKITIN explained that he went to ARTEMENKOV’s faculty, where the latter produced two top-secret books about incidents on nuclear submarines from his safe. They together looked through these books, trying to find information on the level of radioactive pollution in course of the accidents. ARTEMENKOV was in the same room all the time, or came up to the table at which he sat and they looked through the books together. According to NIKITIN’s testimony, he could only find a few pieces of information that he copied in his notebook (Vol. 1, sheets 182-184). He denied that he familiarised himself with the secret books “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989”, and “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1991, while visiting the Naval Academy. He explained that he had familiarised himself with this literature earlier, during his service in the Navy (Vol. 1, sheet 188-189). 

- The testimony of the witness RUDENKO V.L., a former employee of the Inspection of nuclear safety of atomic installations, concerning NIKITIN’s question to him in the summer of 1995 about the books or reports that would contain information regarding nuclear accidents in the nuclear submarine fleet. As the witness explained, also in the court session, he had told NIKITIN that such literature exists and can be found at the First Central Scientific Institute of the Defence Ministry, at the Main technical management of the Russian Navy, and at the library of the Kuznetsov Academy. NIKITIN had told the witness about his intentions; that he wished to receive information about accidents on nuclear submarines from somebody he knew at the Academy where he had studied. 

- The testimony of the accused ARTEMENKOV [V.] S., which were announced according to Article 286 of the Russian Criminal Procedure Code, where he told that NIKITIN had contacted him on the telephone on August 7, 1995, asking if special literature concerning accidents on nuclear submarines were available at the secret library of the Naval Academy. NIKITIN had asked for his assistance in familiarising with the literature. On August 8, 1995, NIKITIN, using a pass prepared for him in advance, had arrived to the faculty of the Naval Academy. ARTEMENKOV had earlier on this day before the meeting with NIKITIN, received at the special library of the Academy the books: the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983”, issued in 1987; the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987”, issued in 1990; the secret book “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989”, issued in 1990; and the secret book “Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1991", issued in 1992. The books were given to NIKITIN for familiarising in room no. 385 of the mentioned faculty. NIKITIN familiarised himself with them in room no. 383 of the same faculty, and approximately after an hour or 1-1/2 hours later he returned the said collections. NIKITIN had said that in the collections “is nothing related to radiation safety and environmental problems”. ARTEMENKOV then decided that NIKITIN would not use the information he obtained from the books (Volume 2, sheets 102-112, 125-132, 152-156). 

- The testimony of the witness SOPKO, G.D., also interrogated by the Court, confirmed that ARTEMENKOV had handed over the mentioned collections and descriptions on August 8, 1995. 

- The report of the investigation of the records of the daily circulation of the secret and top secret literature of the special library at the Naval Academy, shows that ARTEMENKOV on August 8, 1995, had received the above-mentioned 2 top secret and 2 secret books (Volume 6, sheets 46-49, 206-209). 

- The telephone conversation between ARTEMENKOV and NIKITIN is recorded on an audiocassette, and taken down in shorthand by the operative division of the FSB and obtained on August 7, 1995. In this conversation NIKITIN agreed with ARTEMENKOV upon visiting the Naval Academy in order to familiarise himself with the literature concerning accidents on nuclear submarines. And from the recording and shorthand notes of the telephone conversations between NIKITIN and KUDRIK, it is evident that on August 8 and 18, 1995, he told KUDRIK about his visit to the Naval Academy, and his familiarising with its literature (Volume 8, sheets 15-20, 68-70, Volume 15, sheets 1-5). 

(Interrogated in the court session, the defendant NIKITIN confirmed that the contents of the telephone conversations were correctly reproduced. The Court has examined the basis for the investigative bodies’ decision on telephone tapping the defendant, and found it to be correct, as well as the contents of the above-mentioned conversations.) 

- The passes for entering the Naval Academy, issued in defendant’s name, confirms that NIKITIN arrived faculty No. 33 of the Naval Academy on August 8, 1995, at 9.45 and left in at 12.45 (Volume 15, sheets 7,8). 

- Hand-written notes, confiscated in course of the search at NIKITIN’s place of residence on October 5, 1995. He had made the mentioned notes personally, what is confirmed by the conclusion drawn by handwriting experts; (Vol. 5, sheets 103-104; Vol. 10, sheets 80-84). 

- The protocol of the comparative survey of NIKITIN’s hand-written notes from the books “Incidents on nuclear submarines 1965-83”, issued in 1987, and “Technical incidents on the “Navy’s nuclear submarines 1984-87”, issued in 1990, which have been obtained from the Naval Academy, and chapter 8 of the report “The Northern Fleet – the potential Risk of Radioactive Pollution of the Region”, confiscated in course of the search at NIKITIN’s place of residence (Volume 6, sheets 132-192). 

- The record of the comparative survey of the mentioned hand-written notes of NIKITIN from the books “Description of the characteristic incidents at the Navy’s ships and boats in 1989”, issued in 1990, and “Description of the characteristic incidents at the Navy’s ships and boats in 1991”, issued in 1992, and the chapter 8 of the report “The Northern Fleet – the potential Risk of Radioactive Pollution of the Region”, confiscated in course of the search at NIKITIN’s place of residence (Vol. 6, sheets 193-202). 

- Documents: the books, “Incidents on nuclear submarines 1965-83”, issued in 1987, “Technical incidents on the “Navy’s nuclear submarines 1984-87”, issued in 1990, “Description of the characteristic incidents at the Navy’s ships and boats in 1989”, issued in 1990, and “Description of the characteristic incidents at the Navy’s ships and boats in 1991”, issued in 1992 – which are labelled with the respective secret labels: “secret” and “top secret”. The books arrived from the Naval Academy in a separate sending examined by the Court. 

- The conclusion drawn by the expert commission of the General Staff of the Russian Armed Forces on April 18, 1996, according to which the books “Incidents on nuclear submarines 1965-83”, issued in 1987; “Technical incidents on the Navy’s nuclear submarines 1984-87”, issued in 1990; “Description of the characteristic incidents at the Navy’s ships and boats in 1991”, issued in 1992; and “Description of the characteristic incidents at the Navy’s ships and boats in 1989”, issued in 1990; contain information, which constitutes state secrets. (Volume 10, sheets 58-62). 

- The conclusion drawn by the expert commission of the General Staff of the Russian Armed Forces on January 30, 1996, September 10, 1996 and May 28, 1997, according to which the information about accidents and incidents on the nuclear submarines of the USSR navy in section 2 of chapter 8 of the report, “The Northern Fleet – the potential Risk of Radioactive Pollution of the Region”, constitutes state secrets (Volume 10, sheets 6-13, 106-128, Volume 19, sheets 46-76). 

- The conclusion of the additional expert commission of the General Staff of the Russian Armed Forces from June 10, 1999, which had been carried out according to the instructions of the Court. The experts came, concerning the factual information, to the same conclusions as the previous experts. A comparative analysis of the texts in the secret and top secret collections about accidents and incidents on nuclear submarines and boats, with the hand-written notes, written with a red pen in the notebook with blue cover, shows that the author being guided by common and special terms and shortenings copied the following from the mentioned books: 

from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983" (1987 edition) concerning the accident on K-27. The mentioned transcript discloses K-27’s construction failures, peculiarities regarding the construction and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997); items 6 and 7 in the “List of information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation”, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation”, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 
 

    from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983" (1987 edition) concerning the accident on K-140. The mentioned transcript discloses K-140’s construction failures and peculiarities regarding the durability of domestic nuclear reactors installed at nuclear submarines, and also about the usage and operation of nuclear submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “On State Secrets”; items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the Armed Forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 
from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (1987 edition) he copied from pages 104-106 information concerning an accident on the nuclear submarine K-123, concerning steam generator operation and emission of coolant into the reactor-compartment. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the information copied by NIKITIN about K-123 disclosed information about construction failures in the nuclear power installations and about the nuclear submarine as military technology, and also about the usage of newly developed nuclear power installations in military shipbuilding. According to Decrees No. 071 and 055 of the Defence Minister of the Russian Federation, and also Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997) this information is confidential and constitutes state secrets. 

from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983" (1987 edition) concerning the accident on K-222. The mentioned transcript discloses K-222’s construction failures and peculiarities in the automatic control system of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the control system of armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “On State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

from the top secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983" (1987 edition) concerning the accident on K-320. The mentioned transcript discloses K-320’s construction failures and peculiarities in the construction and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

from the secret book “The Description of the Common Incidents Onboard Vessels and Service Boats of the Navy in 1989” (1990 edition) concerning the accident on the nuclear submarine K-192. The said transcript discloses K-192’s peculiarities in the construction of the nuclear reactors, and failures in the operation of domestic nuclear reactors installed on nuclear submarines. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

from the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (1990 edition) concerning the accident on the nuclear submarine TK-208. The mentioned transcript discloses TK-208’s construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

from the top secret book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” (1990 edition) he copied information about incidents regarding decompression of the nuclear power installation at the nuclear submarines K-279, K-447, K-508, K-209, K-210, K-216, K-316, TK-208, K-462, K-38 and K-370, and also information about negligence in the indemnification, regulation and emergency protection on the nuclear submarines K-306 and K-367. The mentioned transcripts discloses the nuclear submarines’ construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “On State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

The transcript of the mentioned books about accidents and incidents, which have occurred in the period from 1965 to 1989 on nuclear submarines in the USSR Navy with the following tactical numbers: K- 27, K- 320, K- 140, K- 123, K- 222, K- 192, K- 208, K- 447, K-508, K- 209, K- 210, K- 216, K- 306, K- 316, K- 462, K- 38, K- 370, K- 371, K- 367 and K- 279, also contain information about losses of armament and military technology in the times of peace. According to paragraph 6 of item 1 of Article 5 of the Russian Federal Law “On State Secrets” dated July 21, 1993 (with changes and additions of October 6,1997); item 3 and 13 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; item 242 (column II) of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and item 235 (column II) in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

The analysis of the text in section 2 of chapter 8 of the mentioned report of Bellona, and the text copied into the notebook with blue cover from the secret and top secret books about accidents and incidents, which had occurred in the period from 1965 to 1989 on nuclear submarines in the USSR navy, according to the experts’ the opinion to make the conclusion that it is transferred information from the text in the notebook to the text in the report: 

about nuclear submarine K-27, disclosing information on construction failures and peculiarities regarding the construction and operation of the nuclear submarine as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “On State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

from the top-secret book “Incidents Onboard Nuclear-Powered Submarines 1965-1983” (edition of 1987) he copied from pages 104-106 information about the accident on K-123 concerning steam generator operation and emission of coolant into the reactor-compartment. The expert commission at the General Staff of the Russian Armed Forces, concluded on June 10, 1999 that the publishing of the information copied by NIKITIN about the nuclear submarine K-123’s construction failures in the nuclear power installations and about the nuclear submarine as military technology, and also about the usage of newly developed nuclear power installations in military shipbuilding, which used “liquid metal” as coolant, is confidential and constitutes state secrets according to decrees No. 071 and 055 of the Defence Minister of the Russian Federation, and also Article 5, item 1 paragraph 2 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997). 

about the nuclear submarine K-140, disclosing information concerning construction failures and peculiarities regarding the durability of domestic nuclear reactors installed at nuclear submarines, and also about the usage and operation of nuclear submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

about the nuclear submarine K-222, disclosing information concerning construction failures and peculiarities in the automatic control system of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the control system of armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

about the nuclear submarine K-192, disclosing peculiarities in the construction of the nuclear reactors, and failures in the operation of domestic nuclear reactors installed on nuclear submarines. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

about the nuclear submarines K-208, K-279, K-447, K-508, K-209, K-210, K-216, K-316, K-462, K-38, K-371 and K-367, disclosing construction failures and peculiarities in the construction and the operation of domestic nuclear reactors installed on nuclear submarines, and also about usage and operation of the submarines as armament and military technology. According to Article 5, item 1 paragraphs 2 and 4 of the Russian Federal Law “About State Secrets” dated July 21, 1993 No. 5485-1 (with changes and additions October 6, 1997); items 6 and 7 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; items 300 and 317 of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and items 287 and 305 in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

The text of the report of the foreign organisation ”Bellona” about the nuclear submarines in the USSR Navy with the following tactical numbers: K- 27, K- 320, K- 140, K- 123, K- 222, K- 192, K- 208, K- 447, K-508, K- 209, K- 210, K- 216, K- 306, K- 316, K- 462, K- 38, K- 370, K- 371, K- 367 and K- 279, also contain information about losses of armament and military technology in times of peace. According to paragraph 6 of item 1 of Article 5 of the Russian Federal Law “About State Secrets” dated July 21, 1993 (with changes and additions of October 6,1997); item 3 and 13 in the “List over information pertaining to state secrets” enforced by the decrees of November 30, 1995 No. 1203 and January 24, 1998 No. 61 by the President of the Russian Federation; item 242 (column II) of the “Temporary list of secret information in the armed forces of the Russian Federation, enforced by the Decree of the Ministry of Defence of September 7, 1993 No. 071; and item 235 (column II) in the “List of secret information in the armed forces of the Russian Federation, enforced by the decree of the Ministry of Defence of the Russian Federation August 10, 1996 No. 55; this information is confidential and constitutes state secrets. 

After the experts of the General Staff during the additional investigation June 10, 1999, on the instructions of the Court, had carried out a detailed analysis of the open literature NIKITIN had provided to them, which allowed them to conclude on May 28, 1997, that the hand written notes in the notebook confiscated at NIKITIN’s residence, contained transcripts of the above-mentioned secret and top secret books, which NIKITIN had familiarised himself with on August 8, 1995 at the Naval Academy. These transcripts disclose information that constitutes state secrets, and according to the conclusion of the experts were the part of section 2 of chapter 8 of the report of the foreign organisation “the Northern Fleet –potential risk of radioactive pollution of region.” 

During the court hearing the experts confirmed the correctness of the conclusion, given by them, and have also specified that the information contributed by NIKITIN to the report from the open sources is about 60-70 %, while the rest could not be obtained from the open sources. Besides, the experts pointed out that it is not important for them whether the information obtained by NIKITIN about the submarines was available in the open sources or not. They are guided only by the decrees of the Minister of Defence of Russia, which say if the Ministry of Defence declassified the information or not. 

- the report of Military Unit No. 20601 saying that in course of his military service NIKITIN had familiarised himself with the book “Incidents Onboard Nuclear-Powered Submarines 1965-1983”, while the book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987” had not arrived to the special library of the mentioned Military Unit (vol. 12, sheet 39). 

- the report of Military Unit No. 27177, - the publisher of the book “Technical Malfunctions Onboard Nuclear-Powered Submarines of the Navy 1984-1987”, which provides a list of the libraries of the Navy bases where the book had been distributed (Vol. 12, sheets 112-113), the reports of these military units, where the mentioned books are available, showing that NIKITIN did not familiarise himself with it during his service (vol.12 sheets 207-222). 

- material evidence: a request to issue a pass for NIKITIN, signed August 7, 1995, and pass no. 32 into the building of the Kuznetsov’s Naval Academy of August 8, 1995, issued in his name, and also the protocol of the examination of the mentioned documents, which testify that NIKITIN had visited the Kuznetsov’s Naval Academy (Vol. 6, sheet 50, vol. 15, sheets 6-8). 

- the conclusion of the criminal experts, according to which the signature on pass no. 32 of August 8, 1995, which allowed exit from the building of the Kuznetsov’s Naval Academy, had been made by ARTEMENKOV himself (Vol. 10, sheets 141-143). 

- the testimony of the witness KUDRIK I.V, announced according to article 286 of the Criminal-Procedure Code, who told about the circumstances of writing the report, “The Northern Fleet – the Potential Risk of Radioactive Pollution of the Region”, and about its authors. Particularly, he told that the working group of the report writers consisted of himself, Norwegian citizen Thomas NILSEN and also NIKITIN, who had directly participated in writing chapter 1, part 3, chapter 2 “Nuclear power installations”, partially part 4 of chapter 2, various parts of chapter 4 and chapter 8 titled “Accidents on nuclear submarines”. Witness Kudrik also informed that the result of their common work was the version of the report, which was confiscated by the investigation. In the course of work NILSEN received translations of the prepared chapters of the report, including the ones prepared without his participation. According to KUDRIK, NILSEN had the whole text of the report in the Norwegian language. He came with a portable computer, on which he printed the prepared text (Vol. 3, sheets 169-175, 176-177, 178-184 and 187-192). 

- the testimony of witness MORMUL N.G, who had participated in the writing of certain chapters of the report, “The Northern Fleet – the Potential Risk of Radioactive Pollution of the Region” and who confirmed that he participated in writing chapter 8 of the report, but said that he did not write in the way it was published, because it now contains data on accidents at nuclear submarines, which he does not have. This data could be obtained from Pavlov’s book. 

In course of the search at the Murmansk office of Bellona, computers and floppy discs, which contained files with the text passed by NIKITIN of part 2 of chapter 8 of the report “The Northern Fleet – the Potential Risk of Radioactive Pollution of the Region” have been confiscated (vol. 5, sheets 132-145). 

In course of examination of the Polyarniye Zori hotel in Murmansk, an application form has been confiscated. The form testifies that NIKITIN had stayed at the mentioned hotel between September 19 and 23, 1995 (vol. 5, p.c. 188-189, 192). 

The environmental expert commission of “Lenkompriroda” had drawn a conclusion that the report “The Northern Fleet – the potential Risk of Radioactive Pollution of the Region” does not touch on the environmental problems. In certain chapters (which NIKITIN has nothing to do with) problems of environmental safety are touched upon. The content of chapter 8 part 2 of the mentioned report of the foreign organisation does not relate to the ecology and ecological researchers (Vol. 10 sheet 154-160). 

Alongside with the above-mentioned, the court pays attention to the report of the chairman of “Lenkompriroda” (vol.10 sheet 94) that actually “Lenkompriroda” is not authorised to carry out any judicial-ecological examination. 

- According to the conclusion drawn by the Russian Defence Ministry’s Inspection for nuclear safety of atomic power installations regarding the former head of the group, head inspector NIKITIN, the latter had knowledge about the secret and top secret data in the field of arrangement, rules of operating the nuclear power installations of nuclear submarines and ships, applications of the new nuclear power installations in the military shipbuilding and providing their nuclear safety. (Vol. 12, sheets 32-33). On October 10, 1992 NIKITIN signed a form in which he promised not to disclose the classified information which he learned while in service (vol. 12, sheet 41). 

- In course of the search at NIKITIN’s place of residence on October 5, 1995, hand-written notes have been confiscated which, according to the handwriting expert commission conducted for this case, have been made by NIKITIN himself (vol. 5, sheet 102-108, vol. 10, sheet 292-296). 

At the same time, the court pays attention that the given evidence is received with infringement of the requirement of Article 69 of the Criminal Procedure Code, about what will be told below. 

- the conclusion on chapter 2.3 of the report “The Northern fleet - potential risk of radioactive pollution of the region" is confirmed by the results of the additional experts’ evaluation performed by the expert commission of the General Staff of Russian Armed Forces for detecting the level of secrecy of the documents. In their conclusion of June 10, 1999 the experts came to the following conclusion: 

In chapter 2.3.3 of the mentioned report under title “The nuclear power installations” in the subchapter “Third generation reactors” in the paragraph beginning with the words: “A new block system...” there is information about the presence of the circulation mode. This discloses the possibilities and partially principles of providing low-noise operation mode of the modern reactors at nuclear power submarines, and not only possibilities of organising cooling of the active zone at complete or partial power failure, as it is mentioned in the report, but also information about new design and technical solutions used in the reactors of the 3rd generation nuclear power submarines. 

Thus, the experts believe that in chapter 2.3 of the “Bellona” report, from the text extracts, the information about technical characteristics of the armament and military machinery is disclosed as well as technical solutions used in the reactors at 3rd generation nuclear power submarines. This information is confidential and constitutes state secret according to Article 5 item 1 paragraphs 2 and 4 of the Law “On State Secrets”; items 6 and 7 of “The list of the information pertaining to state secrets” authorised by the decree No. 1203 of November 30,1995 and No. 61 of January 24,1998 of the President of the Russian Federation; item 317 paragraph 1 and item 355 paragraph 2 of “The temporary list of the information to be classified in the Armed Forces of the Russian Federation” authorised by the decree no.071 of September 7,1993 of the Minister of Defence; item 305 paragraph 2 of “The list of the information to be classified in the Armed Forces of the Russian Federation” authorised by the decree no. 055 of August 10, 1996 of the Minister of Defence (vol.24 sheets 140-165). 

At the same time, according to the conclusion of the Ministry of Atomic Energy of the Russian Federation (Minatom) (vol.10 sheets 202-205), in chapter 2.3 of the report version no.2 there is no information constituting state secret according to Minatom’s competence. 

- the testimony of witness PEROVSKY, interrogated in this connection in the Court, who also explained that based on his special knowledge obtained during his service and work, he came to a conclusion that some information from the Bellona-report may constitute state secrets. 

However, in this part defendant NIKITIN told the court that chapter 2.3 “Nuclear Power installations” of the report “The Northern Fleet – potential risk of radioactive contamination of the region” was written directly by him with the use of the open sources. 

The expert commissions at the General Staff of the Russian Armed Forces repeatedly investigated the open sources of the information, which were used by the defendant while writing chapter 2.3 of report of the foreign organisation. In particular, in the conclusions from May 28, 1997 and June 10, 1999 the experts came to a conclusion that by compilation of the information from the sources, to which NIKITIN refers, it is impossible to receive those concrete data on design features of the reactors of the 3rd generation nuclear power submarines given in the report, which are recognised as constituting state secret (vol.19 sheets 46-76, vol.24 sheets 140-165). 

During the court hearings the following open sources of the literature were observed and examined, as presented by the defendant: 

Pavlov A.S., The military ships of the USSR and Russia.1945-1995, Yakutsk, 1995 

Burov V.N., The domestic military ship-building, Sudostroenie, 1995. 

P.L. Olgaard, Nuclear ship accidents, (translated) Copenhagen, Danish Technical University, 1994. 

2 editions of – Jane’s Fighting ships, 1987-1988 and 1995-1996. 

L. Osipenko, L. Zhiltsov, N. Mormul, The atomic underwater epic, Moscow, Borges, 1994. 

D.A. Romanov, The tragedy of submarine “Komsomolets”, St.-Petersburg, 1993. 

Bellona report version no. 1, The Sources of Radioactive Contamination in Murmansk and Arkhangelsk counties, 1994. 

Morskoy Sbornik no. 4-8, 1995 

A.N. Batyrev, V.D. Kosheverov, O.Y. Leykin, The naval nuclear installations of the foreign states, St.-Petersburg: Sudostroenie, 1994. 

A.A. Sarkisov, V.N. Puchkov, The physical basics of operating reactor insatallations, Energoatomizdat, 1989. 

V.A. Kuznetsov, The naval nuclear installations, Leningrad: Sudostroenie, 1994 

Half a century in the nuclear installation production, Construction-Design Bureau, Nizhny Novgorod, 1997. 

The submarines of Russia, Central Construction-Design Bureau, St.-Petersburg, 1996. 

The Court examined the above mentioned literature with the purpose of direct perception and due to the non-concrete expert evaluation of June 10,1999 (this question was not solved by the experts during the court hearing), which only pointed out in the part concerning the open sources which had been used by the defendant while writing chapter 2.3, that “... from the presented sources, ... it is impossible to obtain the data on design features of the 3rd generation nuclear reactors”. 

The examination showed that the complete, detailed data on design features, parameters and operating description of the cooling system, which operated independently of the batteries on the 3rd generation nuclear power submarines, was disclosed not by the defendant during writing chapter 2.3, but before that in the magazine “Morskoy sbornik” 4:1995, and in the above mentioned book by D. A. Romanov. Besides, the court believes that the events concerning nuclear submarine K-27 (events of 1968), K-123 (events of 1982) are revealed thoroughly and in details, not in chapter 8.2 of the report written by NIKITIN, but in the books by A. Pavlov and N. Mormul, which were published earlier for wide range of the readers. Especially much information was given in Jane’s Book 1987-1988, which the experts refused to examine. 

Moreover, it remains unclear which exactly version of the report, version no.2, was presented to the experts of the General Staff. As it comes from the case files (vol. 5, sheet 1-2) on 17.11.1995 witness Kudrik voluntary gave out (as he pointed out) the final version of the report, version no. 2 of 90 pages. Besides, the witness commented that chapter 8 was placed on the diskette which he also gave out to the investigation. Later the defendant was also charged with writing this chapter. 

However, it is evident from the case files (vol. 5 sheets 3-100) that the report contains 97 pages while neither the diskette itself nor its content was examined or attached to the case files. And at the present time the diskette is not available. 

According to the covering note of the preliminary investigation of December 5,1995 the report containing 104 pages was sent for expert evaluation to the General Staff of the Russian Armed Forces (vol. 10 sheet 4). But according to the conclusion of the experts of the General Headquarters of the Russian Ministry of Defence of 15.02.1996 it is clear that the experts were given different texts on 11 and 26 sheets for examination, regarding the charges against the defendant (vol. 10 sheet 24). According to the experts of the General Staff of the Russian Armed Forces of 10.09.1996 (vol. 10 sheet 108) they received the version of the report on 99 sheets for examination. The investigator’s decision of 23.04.1997 regarding assigning the additional expert’s evaluation does not say anything about the volume of the report, version no. 2 has only the reference that the report is sent in the version presented by witness Kudrik (vol.19 sheet 14) as it was said above. 

It is not clear from the text of the experts’ evaluation of 28.05.199[7] which version of the report (or its part), in which form and in which volume they were examining (vol.19 sheet 47). 

The volume of the report submitted on 10.06.1999 to the experts’ commission for the examination also remained unclear (vol.24 sheet 73, 141). 

Moreover, the court would like to emphasise that the body of preliminary investigation has attached other versions of the report to the case files, version no. 2, which vary in volume and content. These are the version presented by the witness Perovsky (vol.1 sheets 14-107) on 93 sheets; the version presented by the witness Kudrik on 90 pages, mentioned above; the version confiscated on October 5, 1995 during the search in Bellona’s office in Murmansk (vol.16 sheets 163-244) on 81 sheets. Neither of these were subjects of expert evaluation, except for the version presented by Kudrik. 

At the same time the court examined the evidence – the protocol of the search at Nikitin’s flat of October 5, 1995 submitted by the body of preliminary investigation (vol.5 sheet 102-108). During the search the defendant’s notebook was found and confiscated. The notebook had blue cover and notes in red ink (vol.5 sheet 107 – protocol 66, vol.6 sheet 41). These notes were the foundation for the charges against NIKITIN. The court finds that this evidence was obtained with the violations of Articles 69 and 70 of the Russian Criminal Procedure Code. 

As it comes from the presented materials, the investigative action – FSB investigator Osipenko conducted the search at Nikitin’s flat on October 5, 1995. 

However, the criminal case was launched on October 5,1995 (vol.1 sheet 2) and given to the FSB investigator Maksimenkov. According to the decision of the chief of the FSB investigation body on October 6,1995 the investigation team was established (vol. 5 sheet 3). Osipenko was not included in the team. Only on April 1, 1996 Osipenko was included in the investigation team in a proper way in accordance with the decision of the chief of the FSB investigation body (vol.1, sheet 4). 

At the same time it is evident from the case files that nobody entrusted investigator Osipenko with conducting the investigative actions, search at defendant Nikitin’s flat. And he did not have the rights to do that. 

Taking into consideration the above mentioned, the court finds that this evidence (protocol of the search of 5.10.1995) due to the requirements of Article 69 para. 3 of the Russian Criminal Procedure Code, is obtained with the violations of the law and should be excluded as unacceptable. 

Alongside with above-mentioned, the court also comes to the following conclusions. 

In accordance with the universally recognised postulate the constitution of the State (in this case the Russian Constitution) lies in the base of any legal, and also criminal liability. And no liability exists which contradicts the constitution. 

According to its Article 15 para. 1, the Russian Constitution has supreme legal force and is direct acting and applies throughout the territory of the Russia. Laws and other legal enactment must not contradict the Constitution. The supreme legal power and direct action of the Constitution mean that a law or enactment contradicting the Constitution in one or another way, can not be applied. And the appropriate legal relations are regulated directly by the norms of the Constitution. 

Moreover, in accordance with Article 29 para. 4 of the Russian Constitution each person has the right freely to seek, receive, pass on, produce, and disseminate information by any legal method. 

This provision of the Constitution was later concretised in the “Law of the Russian Federation on Mass Media” (with the Additions and Amendments of 13.01.1995 no. 6, 6.06.1995 no.87, 19.07.1995 no.114, 27.12.1995 no.211) which pointed out the following: 

“Article 1. Freedom of Mass Communication 
In the Russian Federation, the retrieval, receipt, production and dissemination of mass communication, the foundation of mass media, the possession, use and disposal of these media, the manufacture, acquisition, storage and use of technical facilities and equipment, raw and auxiliary materials designed for the production and spread of products of mass information media; shall not be liable to restrictions, with the exception of those prescribed by the legislation of the Russian Federation on mass media. 

Article 3. Inadmissibility of censorship
No provision shall be made for the censorship of mass information, that is, the demand made by officials, state organs, organisation, institutions or public associations that the editor's office of a mass medium shall get in advance agreement on a message and materials (except for the cases when the official is an author or interviewee) and also for the suppression of the dissemination of messages and materials and separate parts thereof. 

Article 4. Inadmissibility of misuse of mass media freedom
No provision shall be made for the use of mass media for the purposes of committing criminally indictable deeds, divulging information making up a state secret or any other law-protective secret, calling for the seizure of power, violently changing the constitutional system and the state integrity, fanning national, class, social and religious intolerance or strife, propagating war and also for the spreading of broadcasts propagandising pornography or the cult of violence and cruelty”. 

(In the edition of the Federal law of 19.07.1995 no. 114) 

However, in accordance with the provisions of the Constitution, the List of information pertaining to state secrets is stipulated by the Federal Law while the possible limitations of rights, freedoms of the man and citizen is stipulated only by the Federal Law (Article 55 para. 3 of the Constitution). 

At the moment of NIKITIN’s committing of the above-mentioned actions, no such a law existed. The only legal act, which regulated the legal relations in the field of protecting the state secrets, became the decree of the Russian president no. 1203 of 30.11.1995. 

In this connection it is necessary to note, that before adopting the Constitution of the Russian Federation in 1993, the protection of the state interests was carried out by the order determined by the Russian President’s decree No. 20 of January 14,1992. According to this decree the appropriate chiefs pending the edition of the new legal acts of Russia stipulating the protection of the Russian state secrets, were instructed to apply the legal acts which came into force before. Later the Russian government issued the decision No. 733-55 of February 18,1992 “About the temporary list of the information constituting state secrets”. It was of general declarative character, it was not subject to official publishing and it was declared secret by the confidential decree of the minister of defence No. 052 of October 13,1992. 
 

    Along with the above-mentioned basic constitutional provisions directly regulating the issue, there are some other norms of the Constitution, which are connected with this. For instance, according to Article 15 para. 3 of the Russian Constitution any normative legal enactment affecting human and civil rights, freedoms and duties cannot be applied unless they have been officially published for general knowledge. 
At the same time, according to Article 41 para. 3 of the Russian Constitution the concealment by officials of facts and circumstances creating a threat to people's lives and health entails responsibility in accordance with federal law. In accordance with Article 42 of the Russian Constitution each person has the right to a healthy environment, reliable information about the state of the environment, and compensation for damage caused to his health or property by ecological offences. 

According to Article 54 of the Russian Constitution no law establishing or aggravating liability can be used retroactively; no one can be held liable for any act, which at the time it was committed, was not considered to be in violation of the law. Later this provision was concretised in Article 10 of the Penal Code of the Russian Federation. 

The Federal Law referred to in Article 29 para. 4 of the Russian Constitution is the Law of the Russian Federation “On state secrets” of July 21, 1993 which was significantly changed on October 6, 1997. 

According to Article 1 of the mentioned law, the provisions of the present Law are mandatory for execution within the Russian Federation territory and outside it, also by citizens of Russia who have assumed obligations or are obligated by virtue of their status to comply with the requirements of the legislation of the Russian Federation on State secrets. At the same time, suspension of the access to the state secrets does not exempt the citizen from the assumed obligations about not divulging the information pertaining to state secret. 

However, the valid Russian Constitution demands that the list of information PERTAINING TO STATE SECRETS shall also be determined by the FEDERAL LAW. This constitutional demand was fulfilled completely only during the updating of the “Law on state secret” in October 1997 when Article 5 of the Law received the list of information constituting state secrets, instead of the list of information that can pertain to state secrets (as it was written in the 1993 edition of the Law). 

According to Article 9 para. 4 of the Law, the President of the Russian Federation shall approve the List of Information referred to as state secrets, (which corresponds with Articles 84 and 90 of the Russian Constitution). Simultaneously, according to Article 9 para. 4 of the Law in both editions (July 21, 1993 and October 6,1997) the List of Information referred to as state secrets is approved by the President of the Russian Federation, and is subject to publishing and revising when needed. 

As it is evident of the case files, at the moment when Nikitin committed the above mentioned alleged actions (from February till September 1995) Article 5 Item 1 of the “Federal Law on State secret” (in the part regarding the charges against the defendant) was worded as follows: 

"The following information can pertain to state secrets.
Item 1. Information in the military field: 

paragraph. 2. - about directions of the development of armament and military technology;
 

- about the contents and results of special programs, scientifically research and 
experimental design work on developing and modernising of armament and military 
technology; 
paragraph. 4. - about tactical-technical characteristics and the possibilities of combat usage of various kinds of armament and military technology;
 
 

- about characteristics and composition or technology regarding the production of 
new types of propellant or military explosives for military usage; 
 

paragraph. 6. - about stationing, real designations;
 

- organisational structure, arms, strength of troops, and the condition of their military logistics;”
 

It should be mentioned that this Federal Law in the new edition of October 1997 received rather detailed amendments, which were included in the above mentioned Article 5 item [1], including paragraphs 2 and 6. 
The examination of Article 5 of the Law (irrespective of its edition) shows that it by itself does not establish the degree of secrecy, i.e.: it does not classify any information, as the classification shall be carried out according to the special procedure, described in article 9 of this Law, partially – through the decrees of the Minister of Defence (Lists of information pertaining to state secret) and partially – through the Decrees of the President of Russia. 

The given circumstance also means, that in the initial form Article 5 of the discussed Law “On state secret” can not be a sole basis for accusation of espionage or disclosure of state secret. It should be complemented by other normative acts. 

In addition to Article 5, the following normative acts were used in the defendant’s case: the decree of the President of Russia No. 1203 of 1995 (in the edition of January 24,1998 - Articles 6 and 7), decree of the Defence Ministry No. 071 of September 7,1993 (articles 242, 287, 300, 317, 612 etc.), decree of the Defence Ministry no. 055 from August 10, 1996 (articles 275, 287, 305, 582 etc.). 

While discussing these documents in Court, the experts clarified that all these documents are normative. In their opinion, the charges against NIKITIN on the base of secret and unpublished decrees of the Ministry of Defence are acceptable, as well as charges on the base of the changes which were made in the President’s decree up till 1998, i.e.: in the edition of January 24, 1998, and the Law on State Secret in edition of October 6,1997. They pointed that out in their conclusion. 

Besides, the expert Bakhanov, in particular, explained to the Court that the experts’ commission used only two decrees of the Defence Ministry no. 071 and 055. Basing on these decrees the experts’ commission concluded that the information collected and revealed by Nikitin contains state secrets. In fact, when writing their conclusion, the “Law on state secret” was not applied. The given circumstance proves to be true also by the confidential explanation note received earlier by the investigation from the Department of the General Staff of the Russian Armed Forces, where it is said that that according to the order of the Russian Defence Ministry, the experts’ evaluations regarding the degree of secrecy, is conducted only on the base of the decree of the Minister of Defence of Russian Federation, at that period - decree no. 071 (vol. 13, sheet 137). 

In this connection, it is also necessary to note that Article 5 of the discussed “Law on state secret” has no provisions which could allow to relate the information “about the losses” of armament and military equipment in the times of peace to state secrets. But nevertheless, the defendant is accused of collecting and transferring this information to the foreign organisation, what is indicated by the experts’ committee. 

The above-stated position of the experts raised doubts in the court also on the following grounds. 

As it is evident of the case files and the above-stated circumstances, Nikitin finished writing the material for the Bellona report in September 1995. 

The President’s decree of November 30,1995 and the decree of the Defence Ministry No. 055 of August 10, 1996 were not in force then, while decree No. 071 of 1993 as well as decree No. 055 of 1996 were secret. At the same time, according to the order of the Defence Minister of August 10,1996, the secret decree of the Russian Defence Ministry No. 071 was not in force after September 1, 1996. It follows from the given provisions that application of the mentioned normative acts as the basis for charges against Alexander Nikitin is in direct violation of the Russian Constitution (article 15 para. 3 and article 54). 

Thus, article 5 of the Law (in the edition existing for the period of the actions the defendant is charged with) can not be used as formal basis for the charges without attaching additional normative acts, which could form the lawful legal base of the charges. The circumstances about the insufficiency of the “Law on state secret” is evident of the experts’ explanations given in the courtroom. Such normative acts [that the experts have used] may only be used provided that they are officially published and had come in force before the alleged actions of Nikitin.

The Court believes that the body of the preliminary investigation realised the above-mentioned circumstance. As already specified, it is obvious from the case files that the charges were based on the conclusions of the experts’ commission at the General Staff of the Russian Armed Forces. These conclusions were in turn based on the secret decrees of the Minister of Defence of the Russian Federation, which was indicated in the indictment for this criminal case. 

Besides, the Court believes that the presented charges are not concrete in connection with the provisions of Article 5 of “The Law on State secret”. 

As the files of the criminal case show, the charges against the defendant NIKITIN (vol. 24 sheets 44-55) were formally presented only on the base of Article 5 item 1 paragraphs 2, 4 and 6 of “The Law on state secret” in the edition of 6.10.1997. However, the factual charges were based on the normative acts indicated in the experts’ conclusion and in the indictment, but not mentioned in the formula of guilt in the decision of launching the criminal case against Nikitin, in particular: 
 
 

1. On the List of information pertaining to state secret, confirmed [and entered into force] by the decrees of the President of the Russian Federation no. 1203 of November 30, 1995 ( in the edition no. 61 of January 24, 1998); 
2. On the Temporary list of the information pertaining to state secrets within the Russian armed forces, which was enforced by the decree of the Minister of Defence No. 071 of September 7,1993; 

3. On the List of the information pertaining to state secrets within the Russian armed forces, confirmed [and enforced]by the order of the Minister of Defence No. 055 of August 8,1996;
 
 

As it is evident of the above mentioned provisions of Article 5 of the “Law on state secret” (in the edition of 6.10.1997, which came into force after the alleged actions of NIKITIN, and which was suggested by the body of the preliminary investigation) its paragraphs 2-6 contain precisely designated components – categories of the information protected by the state, essentially distinguished on the contents (e.g. paragraph 2:
 

- about plans of building up the Russian armed forces and other Russian troops; 
- about directions of the development of armament and military technology; 

- about the contents and results of purpose-oriented programs ... aimed at creating and modernising models of weapons and military technology;
 
 

Paragraph 6: - about stationing, real designations;
 

- organisational structure, armament, strength of troops, and the condition of their
military logistics; 
- about military-political and operational situation).
 
 

Nevertheless, when presenting the charges to the defendant, these categories were not described in details, and it remained unclear which of them the charges are based on. It can only be assumed about the presence of some categories in the charges. No appropriate explanation is present in the conclusion of the experts’ commission. As it was already mentioned, it was specified in the court that the examination of the allegedly disclosed information was carried out on the base of the decrees of the Ministry of Defence. Therefore, it is necessary to believe that the charges against Nikitin have remained not concretised with the reference to the basic Law on State Secret. That prevented the defendant to defend himself by the legal ways and belittled his rights for defence. 
As mentioned above, after the adopting and entering into force of the Constitution of the Russian Federation in 1993, the precise order of informing about the items of information pertaining to state secret was established for the citizens of Russia. This order was determined by 3 accessible and published normative acts: 

1. The Constitution of the Russian Federation – Article 29 para. 4: “The list of information constituting state secrets is determined by federal law”. 

2. “The Federal law on state secret” authorised by the President of the Russian Federation on July 21, 1993 – Article 5: “Information, which can pertain to state secrets” (in the edition of the Federal law of July 21,1993) or 

Article 5: “List of information constituting state secrets” (in the edition of the Federal Law of October 6,1997, no. 131 FZ) 

Article 4 para. 2: “The President of the Russian Federation shall: approve the state programs in the field of protection of State secrets; approve the composition and structure of the Interdepartmental Commission for protection of State secrets and the Regulation on this Commission upon presentation by the Government of the Russian Federation; approve, upon presentation by the RF Government, the Roster of officials of state authorities empowered to classify information as a state secret, as well as the List of Information constituting state secrets; conclude international treaties of the Russian Federation on joint use and protection of information constituting a state secret; determine powers of officials in ensuring protection of State secrets in the Administration of the President of the Russian Federation; 

- within the limits of his powers, resolve other problems arising in connection with referring information to a state secret, classifying or declassifying and protecting it. 

Article 9 para. 4: “In order to pursue uniform state policy in the field of classification of information, the Interdepartmental Commission for State Secret Protection shall, on the basis of proposals from the State authorities and in accordance with the List of information constituting State secrets, form the List of information constituting state secrets. This List shall specify the State authorities empowered to handle such information. The aforementioned List shall be approved by the President of the Russian Federation, it shall be openly published and revised as required”. 

[3.] According to the above-mentioned Law "The List of the information constituting state secret" was authorised by the decree of the President of the Russian Federation on November 30, 1995. 

Thus, after the publishing of “the Law on State Secrets” and the entering into force of the Constitution of the Russian Federation, i.e.: after December 12, 1993, new constitutional rules, which have never existed before and which were different in quality, began to work. These rules gave an opportunity to a citizen of Russia to determine whether this or that information pertains to the category of information constituting state secrets, however, - not earlier than November 30, 1995 (i.e.: not earlier than the date of publication authorised by the President "of the List..."). 

In other words, at the moment of finalising the report “The Russian Northern Fleet: Sources of Radioactive contamination” (August-September 1995) and Nikitin’s participation in it, the mentioned document did not exist and the defendant had no possibility to familiarise with it. 

This circumstance was also confirmed by the experts’ commission of the General Staff of the Armed Forces of the Russian Federation in their conclusion of May 28,1997 (vol. 19 sheet 52), where it is indicated that “... according to Article 9 para 4 of “the Law on State Secrets” the List of information constituting state secrets should be formed, in order to pursue uniform state policy in the field of classifying information. The President of the Russian Federation shall approve the List and it shall be openly published. In the period of the events under examination, i.e.: in August 1995, such a list, approved by the President of the Russian Federation, was not available”. 

Besides, as it the case files show, the defendant NIKITIN left the military service in November 1992 and had due to this fact no real opportunity to familiarise himself neither with the decree of the Minister of Defence No. 071 of September 7,1993 nor the decree of the Minister of Defence No. 055 of August 10,1996 (which are both secret), and as stated above, the unpublished decision of the government of the Russian Federation no. 733 (confirmed by the above-mentioned decree No. 071 of the Ministry of Defence). 

At the same time the Court wants to state that according to Article 6 of “the Law on state secrets” of the Russian Federation: “The referring of information to state secrets and its classification shall be carried out in accordance with the principles of legality, soundness, and opportuneness. 

The legality in referring information to state secrets and classifying it, means that it shall be conformity between the classified information and the provisions of Articles 5 and 7 in this law and the legislation of the Russian Federation on state secrets”. 

Article 7 of “The Law on State secret” of the Russian Federation: The following information shall not be referred to state secrets and classified: about accidents and catastrophes endangering the safety and the health of citizens, and about consequences thereof, as well as about natural disasters, their official forecasts and consequences; about the condition of the ecology, public health, sanitation, demography, education, culture, agriculture, as well as about crime activity; 

These provisions are concretised in “the Law on Radiation Safety” of the Russian Federation of December 5,1995, in particular in the following: 

** Article 2. Legal regulations in the field of ensuring radiation safety. 

1. Legal regulations in the field of ensuring radiation safety are performed by the present Federal Law and other normative legal acts of the Russian Federation as well as by the other normative legal acts of the subjects of the Russian Federation. 

1. The Federal Laws, other normative legal acts of the Russian Federation, laws and other
normative legal acts of the subjects of the Russian Federation may not establish norms reducing the requirements to the radiation safety and their guaranties stipulated by the present Federal Law. 

2. According to the Constitution of the Russian Federation the conventional principles and norms
of the international law and international treaties of the Russian Federation in the field of ensuring radiation safety, are parts of the legal system of the Russian Federation. 

If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law of the Russian Federation in the field of radiation safety, the rules of the international treaty shall apply”. 

In connection with the above-mentioned circumstances, the court finds, that any citizen of the Russian Federation, in this case – the defendant Nikitin, has not (had not) a real opportunity to determine that the information is related to the concept "information constituting state secret", if – 

- this information is not included in "the List of information constituting state secret", determined by the Federal law or authorised by the Decree of the President of Russia; 

- the given list is not officially published for the general knowledge; 

- the content of this information consists of the data on the condition of the ecology (about accidents and catastrophes endangering safety and health of citizens, and about consequences thereof). 

The court believes that in that case the citizen has the right to consider that, according to the law, this information is not secret and can not contain the information constituting state secret. 

The given circumstances have been reflected in the decision of the Constitutional Court of the Russian Federation no. 17 - P of December 20,1995: 

” ... the state has the right to classify some information in the field of military, economical and other kinds of activity if distribution thereof can inflict the damage to the defence of the country and security of the state. In this connection article 29 para. 4 of the Constitution of the Russian Federation stipulates that the list of information constituting a state secret is determined by federal law. The state has also the right to determine the means and the ways of protecting state secret, including establishing criminal liability for its disclosure and transferral to the foreign state. 

However, by virtue of the specified constitutional norm, the criminal liability for transferral of state secret to the foreign state is lawful only on the condition that the federal law contains the list of the information constituting state secret, and that the law is officially published for general knowledge. The legal decision, including the court verdict, can not be based on the unpublished normative legal act, which follows from article 15 para. 3 of the Constitution of the Russian Federation". 

At the same time, according to para. 1 paragraph 1 of the decree of the President of the Russian Federation no. 104 of January 21,1993, it is established that: 

“The legal acts, which have not passed the state registration or have been registered but not published in the appropriate order, do not entail legal consequences as they are invalid. They may not serve as the lawful base for regulating appropriate legal relations or for any sanctions to the citizens, officials and organisations for default of the instructions; it is impossible to refer to the specified acts in the resolution of disputes". 

In this connection it is also necessary to mention that much later than the criminal case against the defendant was launched (October 5, 1995), the Law was essentially amended on the basis of the Decrees of the President of Russian Federation No. 490 of May 16, 97 and No. 963 of May 13, 98 "About the order of publication and coming into force of the acts of the President of the Russian Federation, the Government of the Russian Federation and normative legal acts of the federal bodies of the executive authorities”, which radically changed its content, by adding 10 new provisions. They have specified in new paragraphs 8 and 10, that from the present time it is admissible not to publish the acts of the Federal bodies of the executive authorities containing information constituting state secret. 

The above-mentioned provision of Article 54 of the Russian Constitution shall be taken into account when applying the last law on the events concerning the accusations against the defendant. 

The court finds that while Nikitin was working on the report (August-September 1995) it would be wrongful to apply Article 5 of the law of the Russian Federation “On State Secrets” in order to solve the question regarding which concrete information that can be related to the category “information constituting state secret”. The mentioned article contained the list of information as its disposition specifies which could be pertained to state secret only after observance of the special procedure, i.e.: after inserting the information constituting state secret to the List [of secrets]. 

It is necessary to admit that in the discussed period in Russia there was such a situation in the field of protection of state secrets that the Supreme legislative body of the country – the State Duma of the Federal Assembly of the Russian Federation – required to pay attention to it. In the resolution No. 1271-1 GD of October 27, 1995, it is written: 

“On September 21, 1993 the Law of the Russian Federation “On State Secrets” came into force. According to this law the President of the Russian Federation shall approve upon presentation by the Government of the Russian Federation, the List of Information referred to as state secrets. 

However, till now the Government of the Russian Federation has not submitted for approval such list to the President of the Russian Federation. In this connection the law-enforcement bodies of the country are deprived of a legal basis for performance of the functions, assigned to them, on providing security of the state, society and individual”. Further, the State Duma of the Federal Assembly of the Russian Federation has decided to ask the Government of the Russian Federation to prepare and present for approval to the President of the Russian Federation, the List of information referred to state secret not later than November 20, 1995. 

As it is known and was already stated before, the above mentioned List was confirmed by the decree of the President of the Russian Federation only on November 30, 1995. 

The new edition of the Law of the Russian Federation "On State Secrets", which was put into force by the Federal law on October 6, 1997, has put the law in conformity with the requirements of the Constitution. And hence, only from this moment there was a possible independent application of Article 5 of the Law of the Russian Federation "On State Secrets". That is without the reference to "The List of the information referred to state secret", which was confirmed by the decree of the President of the Russian Federation on November 30, 1995. 

Thus, in the period from December 12, 1993 to November 30, 1995, there was no legislative definition of the information pertaining to state secrets. Due to this fact, referral of any information to a category pertaining to state secret in the discussed period for the qualification of the actions, was arbitrary and not based on the law. In the current case this concerns the qualification of the actions of the concrete defendant – Citizen A. K. NIKITIN who is a civilian, regarding the reference to state secrets of the information related to the features of operation of the nuclear installations on the nuclear power submarines. 

At the same time the Court considers the position of the state prosecution which has dismissed the charges against the defendant regarding the material damage caused by his actions to the protected state interests of Russia. 

Taking into account the above-mentioned circumstances, the court finds that at the present time the opportunities of collecting and obtaining the new evidences are exhausted. 

Therefore, taking into the consideration Article 49 of the Constitution of the Russian Federation and also Article 6 para. 2 of the European Convention on human rights, ratified by the Russian Federation, and having examined the evidence on the case, the Court comes to a conclusion concerning the lack of the content of the alleged crimes in his actions. 

Basing on the above stated, ruling by Articles 301-303 and 310-317 of the Criminal Procedure Code of the RSFSR, the Court 
 

HAS RULED:
NIKITIN Aleksandr Konstantinovich is acquitted of the charges presented to him regarding committing the crimes stipulated by articles 275 para. 1 and 283 para. 1 of the Penal Code of the Russian Federation, –due to the lack of the content of the alleged crimes in his actions. 

To dismiss the restriction chosen in the form of city arrest for A.K. Nikitin. 

After the entering into force of the verdict to destroy the material evidences stored in the separate box according to the inventory (paragraphs 1-10, 14). 

To return 1 videotape, 1 reel of the recording tape and 4 books marked “Secret” and “Top Secret” to the Investigation Department of St.-Petersburg FSB because of the ownership. 

To return 2 personal computers “Dell” to the Russian department of the organisation “Bellona” in Mu rmansk because of the ownership. 

After the entering into force of the verdict to destroy 1553 copies of the report “The Russian Northern Fleet: Sources of Radioactive contamination”. 

The verdict can be appealed to the Court Collegium on criminal cases of the Supreme Court of the Russian Federation within 7 days of its announcing. 

The Chairman: signature 

The Jurors: signatures

PEN World Congress Moscow 2000