The Sutyagin case doesn't indict all Russian justice
By PETER SOLOMON
UPDATED AT 5:02 PM EDT Wednesday, Apr. 14, 2004
Western and Russian observers alike were dismayed last week, when the Moscow City Court convicted researcher Igor Sutyagin of espionage. An apparent miscarriage of justice was one reason, but also troubling was the realization that even jury trials, which occupy a special place in the criminal-justice reform in Russia, could deliver such results. Alarming as it was, the Sutyagin decision is not typical of the much-improved administration of justice in Russia today, nor does it represent how most Russian judges now deal with cases involving state secrets. But cases such as Mr. Sutyagin's hurt the courts' reputation, and suggest that the state security service, the FSB, still finds it hard to deal with the court system's growing transparency.
Mr. Sutyagin was a researcher at the U.S.A.-Canada Institute in Moscow, and had done work for Canadian universities. So there was much interest when, in 1998, he admitted selling to a British firm (allegedly connected to U.S. intelligence) analytical information about Russia's military spending and preparedness (drawn, he insisted, from published and non-classified sources). Arrested by the FSB, he underwent a long trial in the Kaluga regional court on the charge of espionage. In December, 2000, the judge sent his case back for more investigation, saying that the evidence was too vague, and investigators had committed procedural violations.
Three years passed before Mr. Sutyagin's new trial; much had evolved in that time. The FSB transferred the case from Kaluga to federal investigators, so the new trial was held in Moscow City Court, where certain judges had a reputation for reliability in politically sensitive cases. Meanwhile the FSB was finding it harder to win judges' co-operation: In four cases involving alleged passing of sensitive information to foreigners, judges in different regions delivered one conviction with a moderate sentence, two convictions with suspended sentences (that is, no jail time), and one outright acquittal.
Another important change was that the Sutyagin defence team opted for the new trial to take place before a jury. Russian juries have an acquittal rate of about 15 per cent, compared to 0.8 per cent in trials heard by judges. The Moscow judge on the new Sutyagin case selected a jury in November, 2003, but just one month later, a scientist accused of selling classified information to China was acquitted by another jury in Krasnoyarsk, Siberia. This alerted the FSB to the new challenge of convincing juries. In February, the security police submitted a bill to the Duma that would remove crimes against the state from the purview of juries.
Meanwhile, both judge and jury in the Sutyagin trial (still in the preliminary phase) were replaced. The new judge, Marina Komarova, had already delivered convictions in two other politically sensitive cases.
The Moscow trial itself was closed, but details found their way into the Russian media. According to the defence team, the judge unreasonably and unfairly refused to ask the jury to rule on whether the information sold by the accused was secret. Her decision might find justification in the Criminal Procedure Code's prohibition against including legal concepts in jury charges, but her refusal to let the defence call expert witnesses to deal with the definition of state secrets was likely a procedural error.
To be sure, Russian law on what constitutes a state secret is vague and complex, and secrets may be defined in government regulations that are themselves inaccessible. But the judge's failure to open this hornet's nest undermined the main argument of the defence. Whether it reflected legal interpretation, personal bias or outside pressure, it has discredited the proceedings.
Mr. Sutyagin's lawyers will appeal the verdict, and his 15-year sentence, to the Russian Supreme Court; they have already complained to the European Court of Human Rights in Strasbourg. The Supreme Court's record in enforcing procedural standards is good, but the threat of review by the Strasbourg court should tip the balance. Hundreds of complaints against Russian court decisions await consideration in Strasbourg. Last year, the Supreme Court reminded judges that agreements signed by the Russian Federation and decisions of the Strasbourg court were binding in Russian law. To date, Russia has accepted all three decisions rendered against it by the court in Strasbourg.
So the Sutyagin case is atypical; 15 years of judicial reform (including the provision to judges of security of tenure, decent salaries and a large dose of self-government) have made judges far more independent than in Soviet times. The accusatorial bias in criminal proceedings has been reduced substantially, through new adversarial trials and tightened rules of evidence. The "returns to supplementary investigations" as an alternative to acquittals has been eliminated. The realm of administrative justice has gained the most: Large numbers of citizens now bring complaints against government officials to court, and win 80 per cent of the time.
However, ensuring fairness in the handling of political crime represents a special challenge for a country with Russia's past. And the Sutyagin case reveals persistent defects: a lack of clarity and transparency about what constitutes a state secret, and what procedures a court should follow in making determinations. If they wish to move forward, Russian authorities must be clearer about what kinds of non-classified information are still restricted in order to protect state security.
Peter H. Solomon, Jr. is the director of the Centre for Russian and East European Studies at the University of Toronto.
See also: The Russian rule By ROBERT AMSTERDAM
