РОССИЯ

September 21, 1998

President of the Russian Federation
Boris Yeltsin
Kremlin
Moscow

Via Fax

Dear President Yeltsin,

On behalf of Human Rights Watch, the largest non-governmental human rights organization based in the United States, I extend my greetings.

I am writing to you regarding the case of environmental activist Aleksandr Nikitin, who will face high treason charges in the St. Petersburg City Court this fall. If convicted, Nikitin faces a maximum twenty-year prison sentence. Human Rights Watch is deeply concerned that a clear conflict of interest will serve to deny Mr. Nikitin's right to a fair trial: the Federal Security Service (FSB), the very agency that brought the charges, can now essentially select two-thirds of the panel that will try Mr. Nikitin.

In June 1998, Mr. Nikitin requested the Supreme Court to consider his case in first instance, as he believed he would be more likely to receive a fair trial in Russia's highest court. However, the Supreme Court ruled against accommodating the request, holding that this would strip Mr. Nikitin of his right to appeal. The Supreme Court further maintained it had no reason to believe the St. Petersburg City Court could not give Mr. Nikitin a fair trial.

When the criminal investigation was finalized, the FSB asked Mr. Nikitin whether he preferred his case to be heard by a panel of three professional judges or of one professional judge and two lay assessors. Mr. Nikitin requested the former. In accordance with article 15 of Russia's criminal procedure code, cases that involve a maximum punishment of more than fifteen years imprisonment or the death penalty must be heard by three professional judges. However, the St. Petersburg City Court appointed one professional judge to preside over the trial, pursuant to a decision of the Russian parliament to temporarily suspend article 15 due to a lack of professional judges. The two lay assessors have not yet been appointed. Under article 21 of the Law on State Secrets, citizens and officials in Russia can gain access to state secrets only after undergoing a security clearance by the FSB. Article 21 makes an exception for, among others, judges, procurators and lawyers participating in cases relating to state secrets. Because lay assessors are not listed among the officials who enjoy this exemption, they presumably need FSB security clearance before hearing a case related to state secrets. Although in legal practice, the professional judge's assessment generally has more weight than those of the lay assessors, according to Russian law, the voices of the judge and the lay assessors have equal weight.

Participation of lay assessors in court hearings is general practice in Russia's lower courts, and every court has a list of potential lay assessors. Formally, the secretary of the presiding judge picks the lay assessors at random. As far as Human Rights Watch is aware, the FSB vets these lay assessors only after they have been selected for a trial related to state secrets. Human Rights Watch appreciates the necessity of such a procedure to protect classified information. However, when the FSB influences the selection of lay assessors in relation to a specific trial, the impartiality of the selection process is questionable. The FSB's prior conduct in the Nikitin case gives us reason to fear that its grounds for rejecting lay assessors would extend beyond pure security concerns.

Taken together, these circumstances essentially enable the FSB to handpick the two lay assessors who will hear the Nikitin case, and who, strictly interpreting the law, could form the majority voice in the case. This blatant conflict of interests favoring the prosecution is unlikely to produce an impartial panel capable of ensuring Mr. Nikitin a fair trial.

We therefore ask you to take all possible measures to ensure that Mr. Nikitin will face a fair trial.

We look forward to your reply,

Respectfully yours,

Holly Cartner
Executive Director
Human Rights Watch
Europe and Central Asia division

Similar letters have been address to Prime Minister Yevgeny Primakov and President of the Supreme Court Vyacheslav Lebedev

cc:

President Bill Clinton

Teimuraz Ramishvili, Head, Ministry of Foreign Affairs Department for International Humanitarian Cooperation and Human Rights

Erik Jurgens, Council of Europe Parliamentary Assembly, Special Rapporteur Nikitin Case

Rudolf Bindig, Council of Europe Parliamentary Assembly, Speical Rapporteur Russia

Allard Plate, Secretary, Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights

Hans van den Broek, Commissioner, European Commission, contacts with Eastern Europe