Igor Sutiagin has endured arguably the harshest treatment of those affected by “spy mania.” Although a court has recognized the negligent manner in which his case investigation was conducted, he has, in contrast to most other “spy mania” defendants, remained in pretrial custody throughout the entire investigation and trial period. His future also remains uncertain, as the charges against him are still standing and a new court hearing is imminent.
Igor Sutiagin was born January 17, 1965, and lives in Obninsk, a provincial town about seventy miles south-west of Moscow. He is married and has two daughters. Since 1989, he has worked at the Institute of U.S.A. and Canada Studies of the Russian Academy of Sciences, a leading Russian think-tank specializing in Russia’s relations with the United States and Canada, first as a researcher and, since 1998, as head of the subdivision for Military-Technical and Military-Economic Policy. He is the author and co-author of more than one hundred articles and books on military policy, nuclear weapons, and non-proliferation treaties in Russia, the United States, and various countries in Asia. He also co-authored a comprehensive 693-page research report entitled “Russian Strategic Nuclear Forces.”17 Sutiagin regularly freelanced for a variety of publications and organizations, including for the U.K.-based consultancy firm Alternative Futures, to supplement his salary at the Institute.
At about 8:00 a.m. on October 27, 1999, FSB officers came to Igor Sutiagin’s apartment with a search warrant. They searched the apartment, confiscated all his archives, and brought Sutiagin to their office “for questioning as a witness.” That afternoon, FSB officers conducted searches at Sutiagin’s office, at the private apartment of Joshua Handler, an American PhD student, and at the office and apartment of a researcher of the Institute for the Study of Disarmament. Security officers confiscated computers, disks, documents, and books during these searches.
For the next three days, officers forcibly held Sutiagin at the FSB office although he had not formally been detained. According to his relatives, the officers “strongly recommended” that he not leave the building. They repeatedly interrogated Sutiagin in the absence of a lawyer. On October 29, 1999, the FSB formalized Sutiagin’s detention and transferred him to a pretrial detention center in the city of Kaluga. A day later, Russian state television announced Sutiagin’s arrest, saying he was suspected of “collecting and passing on state secret information on the creation of the most recent generation of nuclear submarines.”18 State television also—incorrectly—reported that Sutiagin had “confessed to everything.”19
On November 5, 1999, the FSB charged Sutiagin with treason.20 He was indicted more than a year later, on December 19, 2000, after the FSB finalized its investigation. Although the charges against Sutiagin remain classified, they can be reconstructed from a court decision that has been made public. The decision paraphrases the indictment as follows:
According to the indictment, between June 1998 and July 1999 Sutiagin collected classified information from “unknown sources” that he passed on to Kidd and an associate of his, Nadya Locke. It also alleges that Sutiagin collated and analyzed information from the Russian and foreign press, which he then provided to Kidd and Locke. According to the indictment, Sutiagin was aware that his foreign interlocutors intended to use these materials to damage Russia’s national security interests, thus rendering his actions treasonous.22
The summary of the indictment lists eight separate episodes when Sutiagin met with Kidd or Locke in the U.K. or a third country. At these meetings, Sutiagin allegedly received new tasks from his interlocutors and provided them with the materials he had gathered in the preceding period. The materials Sutiagin allegedly provided to Kidd and Locke concerned Russia’s early rocket warning system; strategic, anti-aircraft and submarine-based rockets; nuclear weapons; new tanks, aircraft, submarines, and communication systems; as well as Russian military plans and budgets.23
The initial trial date was set for December 2000. However, as frequently happens in criminal trials in Russia, a number of extensive, and sometimes unexplained, delays dragged the court hearings out to the end of 2001. Although the trial was closed, the eventual court decision was made public and contains some details of the proceedings. From the decision, it is clear that Sutiagin rejected all the charges against him. He confirmed that he had gathered information for the consultancy firm Alternative Futures but said he did so by using exclusively public sources and on the basis of a legal contract. He said that he did not understand how the investigation came to the conclusion that Sean Kidd and Nadya Locke were U.S. intelligence agents or why he is charged with providing them with information “to be used to damage Russia’s national security.” The court heard witnesses for both the prosecution and defense, as well as Ministry of Defense experts who assessed whether the materials Sutiagin allegedly passed on to his foreign interlocutors were classified. The content of their testimony remains largely unknown.
On December 27, 2001, the court issued a decision to return the case to the FSB. It noted that the FSB committed numerous violations of criminal procedure that “may have influenced the comprehensiveness, completeness and objectivity of the investigation into the circumstances of the case.” On that basis, the court decided to send the case back for further investigation. The court observed that the charges and indictment were so vaguely formulated that they “interfered with Sutiagin’s right to a defense.” With scarcely veiled skepticism, the court added that if, after the new investigation, the prosecution “conclude[s] that there is sufficient evidence to indict Sutiagin,” the charges must be worded with sufficient precision. Paradoxically, while rebuffing the FSB in such clear terms for a poorly conducted investigation, the court decided to leave Sutiagin in pretrial detention, without properly motivating its reasons. 24
Sutiagin unsuccessfully appealed the decision and, in April 2002, the case was returned to the FSB for further investigation.25 In July, Sutiagin was suddenly moved from the pretrial detention center in Kaluga to the FSB’s Lefortovo prison in Moscow. In August, the additional investigation was finalized and Sutiagin began to prepare his defense. However, Sutiagin’s deteriorating health and limitations placed by the FSB on access to the case materials dragged this process out to almost a full year. In August 2003, the case went to court again, this time the Moscow City Court. In September 2003, this court granted a request from Sutiagin for his case to be heard by a jury. The new trial is expected to start imminently.
Sutiagin repeatedly appealed to the procuracy and courts to secure his release from pretrial detention, but to no avail. Both the courts and the procuracy invariably refused his requests, each time referring only to the severity of his alleged crime.26 In October 2002, the Moscow City Court additionally reasoned that a single-entry Italian visa in Sutiagin’s passport, issued in 1999, confirmed that Sutiagin might try to abscond.
Just as in the other “spy mania” cases, the FSB showed little respect for Sutiagin’s right to a fair trial: the charges against him were vaguely worded; his assertion that he only used open sources were never verified; investigators based the charges on secret decrees that Sutiagin was not allowed to see; the FSB violated numerous rules of criminal procedure; and officials publicly denounced Sutiagin as a spy prior to and during his trial. The authorities continue to refuse to release Sutiagin from pretrial detention in violation of international standards.
The indictment accuses Sutiagin of providing materials (or intending to do so) to his foreign interlocutors on thirty-six themes. However, the indictment did not specify exactly what materials he was supposed to have handed over. In court, Sutiagin complained that twenty-eight of the themes were so vaguely formulated that he could understand what kind of concrete materials the prosecution had in mind. As a result, he could not prepare his defense appropriately. In its decision of December 2001, the court agreed with Sutiagin’s complaint. It stated that “the formulation of the indictment, which does not allow Sutiagin I.V. to know exactly what he is accused of, violates his right to a defense…”
In its decision, the court listed numerous sections of the indictment that it considered to be too vague. For example, the indictment stated that Sutiagin provided Kidd and Locke with materials on “the battle capabilities of the early warning system for rocket attacks, and its main tactical and technical characteristics.” According to the court, “neither in the charges nor in the indictment does the investigator state concretely what materials on this theme, and in what quantity, Sutiagin collected, kept for handover, and handed over to Kidd.”
The court further criticized the investigation for failing to “analyze, or even cite the testimony of Sutiagin about the circumstances under which he collected and kept the materials, as well as about the concrete content of the materials.” It pointed out that, in accordance with Russian procedural rules, the indictment should contain an analysis of evidence, including the testimony of the defendant.
In conclusion, the court stated:
Sutiagin has consistently maintained that all materials he provided to Kidd and Locke had previously appeared in the public domain. In his testimony to the prosecution, Sutiagin listed numerous Russian and foreign publications that he had used to produce the materials for his interlocutors. His lawyers provided the FSB with copies of many of these publications. Yet the investigation neglected to verify these claims.
In its ruling, the court criticized the investigation for this failure. In particular, it noted that Ministry of Defense experts questioned during the trial had confirmed that they had not verified Sutiagin’s assertions that he had received certain pieces of information from English-language publications. It also stated that “Sutiagin repeatedly filed requests in which he asked [the investigation] to verify whether specific information had not been declassified.” In these requests Sutiagin had drawn attention to newspaper articles in which top Russian military officials had publicized the information that the prosecution claimed was classified. The court furthermore pointed out that the prosecution had failed to identify any of the sources from which Sutiagin was supposed to have received classified information, and that it did not identify exactly what materials he was supposed to have received from them.
As part of the investigation, Ministry of Defense experts carried out several assessments to determine whether the materials provided by Igor Sutiagin to his foreign interlocutors were classified. They conducted these assessments on the basis of secret Ministry of Defense Decree No. 055. Sutiagin, who never had a security clearance, did not know the contents of the decree at the time of his alleged criminal activity. He has also not been allowed to see the decree—including the provisions that have been used in the case against him—to prepare his defense.
A 1993 federal law on state secrets (significantly amended in 1997) and a presidential decree of 1995 classify fairly broadly defined areas of military life as state secrets.27 Because Decree 055 is secret, its precise nature is not known.28 The 1995 presidential decree elaborated on what information would be considered a state secret under the more general terms of the 1993 law. It is possible that Decree 055 provides a further, more detailed elaboration. It may also be possible that certain provisions of Decree 055 widen the scope of the law and presidential decree. Charges under such provisions would be based on secret legislation and therefore violate both Russian and international law.29
As neither Sutiagin nor the court have been permitted to see Decree 055, it has not been possible to determine whether the provisions of the decree used in the Sutiagin case provide a more detailed breakdown of the general themes of the law and presidential decree or actually classify new types of information. As the court pointed out in its ruling, the fact that Sutiagin cannot examine these documents, or at least the provisions that are invoked against him, violates his right to prepare a defense.
Sutiagin has complained of numerous violations of the rules of criminal procedure. In court, he charged that many of the expert assessments were carried out in violation of the law, and that much of the evidence was obtained in violation of established procedure. He asked the court to declare these expert assessments and evidence inadmissible. In its decision, the court indeed noted dozens of violations in the conduct of expert assessments but ruled that, as it was returning the case to the FSB for further investigation, it did not need to resolve the issue of admissibility of evidence. The court did not discuss the alleged violations in obtaining evidence.
In the course of the investigation, state-run media, the FSB, and other officials repeatedly made public statements asserting Sutiagin’s guilt, in violation of the presumption of innocence.30 These statements included the following:
One aspect of the Sutiagin case sets it apart from the other spy cases: four years after his arrest, Sutiagin still remains in jail waiting for a court to rule on his innocence or guilt. None of the other “spy mania” defendants spent as much as half of this time in pretrial detention.36 In certain complex criminal cases, such a long period in pretrial detention may be lawful, provided there are compelling reasons to keep the person in detention and the state exhibits “special diligence” in the conduct of the case.37 In Sutiagin’s case, the FSB, procuracy, and courts never advanced compelling arguments for Sutiagin’s prolonged detention and the FSB’s conduct of the case, which caused very significant delays, was far from diligent.
In their repeated decisions to prolong Sutiagin’s detention, the FSB, procuracy, local courts, and the Supreme Court of Russia have failed to carefully examine all the relevant facts to determine whether a genuine requirement of public interest existed for Sutiagin’s continued detention. Generally, the authorities referred only to the severity of the alleged crime to justify keeping him in detention, even after the court acknowledged the weak grounds the prosecution presented for the charges. In October 2002, in requesting extensions of the pretrial detention term, the prosecution even argued that there was a risk that Sutiagin would abscond since he had an Italian visa in his passport. The court accepted this alleged flight risk at face value. It did not examine whether the visa was still valid or entertain the possibility of withholding Sutiagin’s passport to ensure he would not leave Russia.
Even if the decisions to repeatedly prolong Sutiagin’s detention had been based on solid grounds, the authorities clearly did not exhibit “special diligence” in the conduct of this case. Although the Sutiagin case is arguably complex and some delays in proceedings may be attributable to the defendant and his lawyers (in particular, a several month long delay that occurred during the first trial due to an illness of one of the defense lawyers), the government’s conduct throughout the case has caused the vast majority of the delays. In particular, due to the FSB’s poor investigation of the case the Kaluga court decided to send it back to the FSB for further investigation—delaying the case by many months.
17 Pavel Podvig and others, Strategicheskoe iadernoe vooruzhenie Rossii (Moscow: The MIT Press, 1998).
18 RTR television, Vesti (News), October 29, 1999. See: http://afnet.integrum.ru/artefact3/ia/ia5.aspx?lv=6&si=gEBfdX2R&qu=2&bi=434&nd=1&f=0 (retrieved October 9, 2003).
20 Article 275 of the criminal code, see footnote 4.
24 In Soviet times, pretrial custody was the norm rather than the exception for criminal defendants. In line with European pretrial detention standards, Russian legislation has been reformed to make non-custodial measures of restraint the norm. However, in practice, little has changed.
25 The Supreme Court rejected his appeal in March 2002.
26 The procuracy is the agency that is responsible for prosecuting criminal cases in court as well as conducting criminal investigations in certain categories of crimes.
27 For example, the law states that information “on the contents of strategic and operative plans, documents of the battle department for the preparation and conduct of operations, the strategic, operative and mobilizational deployment” is classified. Classifying broad areas of information as state secret and criminalizing their disclosure may also violate freedom of speech standards. Article 19 of the International Covenant on Civil and Political Rights does specifically provide for restrictions on freedom of speech “for the protection of national security.” However, according to the U.N. Special Rapporteur on Freedom of Opinion and Expression, the right to freedom of expression and information can be restricted for the purpose of protecting national security only in the most serious cases of a direct political or military threat to the entire nation. 'See: Report of the Special Rapporteur, Mr Abid Hussein, pursuant to Commission on Human Rights Resolution 1993/45'. Reference E/CN.4/1995/32, 14 December 1995, para. 48. This briefing paper does not examine whether Russia’s state secrets legislation is consistent with this principle.
28 The text of a few of the decree’s provisions became public in the Nikitin and Pasko cases after courts required the FSB to provide the text to the defendants. Human Rights Watch does not know whether any of the provisions that have become public are used as the basis for the charges against Sutiagin.
29 Article 15(3) of Russia’s constitution holds that “any normative acts that affect the rights, freedoms and obligations of people and citizen cannot be applied if they have not been published for general knowledge.” Article 7 of the European Convention on Human Rights states that “no one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed.” The European Court of Human Rights has held that, in order to be considered a “law” in the sense of article 7, a legal act must be “adequately accessible: the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case.” In the Silver case, the Court held that legal acts that were not published did not meet this requirement (Silver case, judgment of 25 March 1983, para 88.) See also article 15 of the ICCPR.
30 Article 6(2) of the European Convention on Human Rights states that “everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law.” For a similar provision, see article 14(2) of the ICCPR.
31 See RTR, Vesti, October 30, 1999, at RTR television, Vesti (News), October 29, 1999. See: http://afnet.integrum.ru/artefact3/ia/ia5.aspx?lv=6&si=gEBfdX2R&qu=2&bi=434&nd=1&f=0 (retrieved October 9, 2003). The FSB indeed conducted a search at Joshua Handler’s apartment. However, it never charged Handler with any wrongdoing and his name does not appear in the charges or indictment against Sutiagin.
32 “Esli my slomaemsia i uidem s Kavkaza – nachnetsia razval strany (If we fail and leave the Caucasus – the country will start to fall apart),” Komsomolskaia Pravda, December 20, 2000. The full text of the interview can be found on the FSB’s official web site: http://www.fsb.ru/smi/liders/patrush3.html (retrieved October 9, 2003).
33 As cited on http://www.Sutiagin.ru/hron/001220.html (retrieved October 9, 2003).
34 “Kaluzhkii gubernator schitaet obviniaemogo v shpionazhe sotrudnika Instituta SSHA I Kanady RAN Igoria Sutiagina vinovatym ‘pered obshestvom’ (The Governor of Kaluga considers the employee of the Institute of USA and Canada, Igor Sutiagin, who has been charged with espionage, guilty “before the public”),” published on news website Rosbalt.ru, see: http://www.rosbalt.ru/2001/12/3/main/society/27395.html (retrieved October 9, 2003).
35 “Sutiagin eshche do suda publichno priznalsia FSB v sotrudnichestve s inostrannoi razvedkoi (Sutiagin publicly confessed his cooperation with foreign intelligence to the FSB before the trial),” Itar-Tass news agency, December 27, 2001. The statement can be found at: http://www.fsb.ru/smi/remark/2001/011227-1.html (retrieved October 9, 2003).
36 Grigorii Pasko spent twenty months in pretrial detention, Valentin Danilov – nineteen months, Valentin Moiseev – seventeen months, and Alexander Nikitin ten months. Vladimir Shchurov and Vladimir Soifer were never held in pretrial detention. Pasko and Moiseev went back to jail after being convicted. They served thirty-three months and four-and-a-half years respectively in prison in total.
37 In order to determine whether the time a person has spent in pretrial detention is reasonable, the interests of the accused person must be weighed against the public interest, with due regard for the principle of the presumption of innocence. The European Court of Human Rights has formulated a set of two questions to make this determination. First, the grounds given by the national judicial authorities for continued detention must be “relevant and sufficient.” Second, the national authorities must have displayed “special diligence” in the conduct of the proceedings. The Court has accepted four basic reasons for refusing bail: the risk that the accused will fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice; or commit further offences; or cause public disorder. A state may not advance these reasons in the abstract but has to “examine all the facts arguing in the specific case for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release.” (See: Smirnova v Russia, judgment of July 24, 2003, paras. 56 to 64) In determining whether a state observed the “special diligence” requirement, the Court has assessed three factors: the complexity of the case, the conduct of the detainee, and the conduct of the authorities. In cases when the length of proceedings is primarily attributable to the conduct by the authorities, the Court has found a violation of Article 5(3). (See: Toth v Austria, judgment of December 12, 1991, para 77).