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. Last Updated: 07/27/2016

Top Court: Citizens Can't Challenge President

The Supreme Court ruled on Tuesday that private citizens have no right to challenge presidential decrees in court.

Ecologist and human rights campaigner Alexander Nikitin, who brought the appeal, said the ruling in effect puts the president above the law.

"In the existing legal environment our president has become untouchable," Nikitin said in court Tuesday. "This is against citizens' constitutional right to challenge any decision of the state bodies in court."

In a heated debate after the ruling, Judge Alexander Fedin destroyed any notion of a balance of power.

"We have joined European conventions, but show me a country in Europe where presidential or governmental decrees are challenged in court," Fedin told journalists. "Do you think that Russia must rush headlong to get ahead of Europe?"

Legal experts said the court essentially wimped out in deciding not to consider Nikitin's appeal, which is part of his ongoing campaign to stop secret decrees from being used to accuse academics, environmentalists and journalists of spying.

Nikitin had asked the court to consider three articles of the 1996 presidential decree No. 763, which explicitly permits secret orders to be used in criminal prosecution. Nikitin said the decree violates the Constitution, which says citizens' rights may not be infringed upon by laws that are not made public.

A former navy officer, Nikitin was arrested in 1996 on charges of treason and espionage after writing a report for the Norwegian environmental group Bellona that divulged information about the navy's dumping of nuclear waste into the North Sea.

To a considerable extent, the case against him was based on the Defense Ministry's secret Order No. 055, which gives a list of data the military considers to be state secrets.

Nikitin was acquitted in December 1999, but Order No. 055 has continued to be used against other high-profile defendants, including military journalist Grigory Pasko, arms analyst Igor Sutyagin and businessman Viktor Kalyadin.

Nikitin first challenged presidential decree No. 763 in December, when he filed a complaint to the Constitutional Court asking it to consider whether the decree was constitutional. A ruling later that month said that private citizens do not have the right to challenge presidential decrees in the Constitutional Court; that prerogative belongs to lawmakers, governors, prosecutors and to the Supreme Court. Citizens can only challenge laws in the Constitutional Court.

Nikitin took his case to the Supreme Court, which ruled against him in January saying that it also cannot rule on presidential decrees. Nikitin then appealed to the Supreme Court collegium that hears appeals, which issued its ruling Tuesday.

Nikitin's lawyer Leonid Saikin said the Supreme Court was not asked to rule on the constitutionality of the presidential decree but on whether it was in compliance with two federal laws, one on state secrets and the other on people's rights to obtain and disseminate information.

The Civil Procedural Code gives the court the power to do this, Saikin said.

Judge Fedin, however, refused to consider the case, saying there were no federal laws allowing the court to consider a citizen's challenge of a presidential decree.

Mara Polyakova, chairwoman of the Independent Council of Legal Experts, said the Supreme Court was wrong not to consider Nikitin's appeal.

"Even if there is a gap in legislation, the court must follow the Constitution," Polyakova said. "The Supreme Court was obliged to consider Nikitin's complaint, but it just didn't want to take the responsibility of considering this decree."

Amendments to the Civil Procedural Code now before the State Duma give the Supreme Court the right to judge whether presidential decrees conform to federal law.

The amendments are expected to be approved by the end of the year, Polyakova said.

Nikitin was not going to wait, his lawyer said.

Once the Supreme Court issues its written statement spelling out which laws it based its decision on, Nikitin will go back to the Constitutional Court to challenge these laws, Saikin told journalists.

A second option, Saikin said, would be to ask the chairman or deputy chairman of the Supreme Court to file the appeal asking the Constitutional Court to consider presidential decree No. 763.