The case of Grigory Pasko

Below follows an overview over the case against Grigory Pasko and the Pacific Fleet Court’s conviction of him, as well as over some of the juridical weaknesses of the conviction and of the verdict’s contradictions with basic human rights standards. The full text of the verdict and Pasko’s appeal are available by way of the links given in the frames to the right and below.

Background
Grigory Pasko used to work as an investigative journalist for the newspaper of the Russian Pacific Fleet, "Boyevaya Vakhta" Battle Watch. His publications were focusing primarily on nuclear safety issues in the Russian Pacific Fleet.

The Russian Security Police (the FSB – former KGB) arrested Pasko on November 20, 1997, accusing him of having committed treason through espionage when working with Japanese journalists from "NHK" TV and the newspaper "Asakhi Simbun".

After several postponements the trial against Pasko started at the Court of the Russian Pacific Fleet in Vladivostok in January 1999. The closed trial was subject to a considerable amount of international attention because of its environmental and human rights aspects.

On July 20, 1999 the Court acquitted Pasko of treason through espionage (Article 275 of the Russian Penal Code) because it did not find it proven that he had handed over secret information to the Japanese, or had had the intention to do so. Still, Pasko was sentenced to three years in prison for ‘abuse of his official position’ (Article 285 of the PC), although he was never charged with the said crime. He was however, released under a general amnesty.

Pasko appealed the verdict demanding a full acquittal, while the prosecution appealed insisting that he was a spy. In an additional appeal the prosecution paid particular attention to the ‘fact’ that there still is an official state of war between Russia and Japan since no peace treaty have been signed between the two countries after the end of World War II.

For unknown reasons the hearing of the appeal case in the Military Collegium of the Russian Supreme Court dragged out for months, before it took place in November 2000.

The hearing ended with the Court cancelling the first verdict and sending the case back for a re-trail at the Pacific Fleet Court. The basis for the decision was that the Pacific Fleet Court had not carried out a full examination of the case, and that there were contradictions between the verdict and the facts that the Court had found established through the trial.

The re-trial was first scheduled for March 22, 2001, but was postponed several times before it started on July 11. On Christmas Day 2001 Pasko was convicted to four years of forced labour for treason through espionage and taken into custody in the courtroom.

Both sides have appealed. The defence demands a full acquittal, while the prosecution demands a more severe sentence than the four years that Pasko was convicted to, pointing out that this is eight years below the minimum penalty prescribed for in Article 275 of the PC. The appeal case has not yet been scheduled. Pasko is currently placed in a pre-trial detention centre in Vladivostok, and will be so until the determination of the appeal case.

The verdict
The indictment against Pasko accuses him for having handed over the following items of "secret" information to Japanese journalists representing "NHK" and "Asakhi Simbun":

1.) the time and place of the departure of a train with spent nuclear fuel in October 1997;

2.) a draft to an article Pasko was writing on the decommissioning of submarines,

3.) a report on the financial situation of the Pacific Fleet;

4.) the instruction manual for the rescuing of spacecrafts;

5.) a report on the decommissioning and handling of laid up submarines;

6.) a questionnaire regarding the decommissioning of liquid missile fuel;

7.) a list of submarine accidents;

8.) a report of the decommissioning of weapons and armament;

9.) a sketch of a base for storage of spent nuclear fuel and radioactive waste;

10.) hand-written notes taken at a meeting in the Pacific Fleet staff on September 11, 1997.

Of these documents Pasko was acquitted of all ten episodes related to the "NHK" and of the nine first episodes related to "Asakhi Simbun". The Court did not consider the disputed information related to these episodes to be secret, and it did not find any proofs indicating that Pasko had transferred the documents or collected them with the intention to do so.

The Court also acquitted Pasko for having transferred the notes from the staff meeting to the Japanese, but it convicted him to four years for having taken the notes and kept them at home, with the intention to transfer them to journalist Tadashi Okano of "Asakhi Simbun".

Thus, Pasko was not convicted for having transferred any documents with a "secret" stamp or any other items of secret information to the Japanese, as Russian President Vladimir Putin said publicly at his visit to France in January 2002. He was simply convicted to four years of hard labour for having kept his own hand-written notes at his flat.

A verdict full of flaws
The Court’s elaboration of the proofs that supposedly shows that Pasko’s intention was to hand over the notes does not endure a critical light. Besides, the Court has not attached weight to the fact that the search of Pasko’s flat that led to the confiscation of the notes was carried out illegally, a violation that according to Article 50 (2) of the Russian Constitution should lead to the disqualification of this ‘evidence’. In addition, the Court has based its assumption that the notes contain secret information on secret legislation.

· Untenable evidence evaluation
According to the verdict Pasko took the notes at a meeting, which was held on September 11, 1997, and they were confiscated at his flat on November 20, 1997. In the period between September 11 and November 20, Pasko met Mr. Okano several times. Thus, if his intention was to hand them over, he had every chance to do so long before the search.

The Court also points out that since Pasko did not use the notes as the basis for an article in "Boyevaya Vakhta", his intention must have been to hand them over. The possibility that he did not have the time to write the article or that he gave up the idea is ruled out. Besides, the Court’s logic is slightly odd, as it seems to indicate that Pasko would not have run into trouble if he had published the allegedly "secret" information from the notes in an article.

· Procedural violations
No proper protocol was kept over what was confiscated at the search of Pasko’s flat on November 21, 1997. Moreover, no persons representing him were present in the rooms that the investigators searched. The officers carrying out the search could thus, install whatever they wanted in the file of confiscated documents, and the notes were obtained in clear violation with the procedures described in the Russian Criminal Procedure Code. The Pacific Fleet Court acknowledged this at the first trial and issued a separate decision on the issue reprimanding the FSB-investigator in charge of the case.

The Court did also at the second trial admit that the search was carried out illegally and that evidence had been confiscated in violation of the law. It did however not attach any weight to these violations, although Article 50 (2) of the Russian Constitution states unambiguously that any evidence obtained in violation with the law should be disqualified.

· Use of secret, unregistered legislation
The Pacific Fleet Court’s assumption that the notes contain secret information is based on the secret decree 055:96 issued by the Ministry of Defence, although Article 15 (3) of the Russian Constitution prohibits use of secret legislation as basis for criminal charges.

The Court has tried to disguise this by not referring to the decree in its verdict. Its assessment of whether the Pasko’s notes contain state secrets or not, is however based on an expert evaluation from September 14. 2001. When being interrogated in court, the experts admitted that their evaluation was solely based on decree 055:96.

Thus, the Court’s conclusion that Pasko’s notes include state secrets regarding the activity of ‘radio-electronic warfare units during exercises’; on ‘the real names of military units’ and on ‘the composition of forces taking part in exercises’; is not based on the law on state secrets or any other published legislation, but on Articles 129, 240 and 384 of decree 055.

In addition to being a secret document, decree 055:96 has never been registered as a normative legal act in accordance with Russian law. On September 12, 2001 the Russian Military Supreme Court ruled that parts of decree 055 were "illegal and invalid" and cancelled these parts. The decision reached legal force on November 6, 2001, when the Supreme Court’s Appeal Collegium confirmed it, but it has later been cancelled by the Presidium of the Russian Supreme Court, who has ordered a re-evaluation of the matter.

Whatever the reason for this decision is, the fact remains that decree 055:96 was used as a normative legal act in the Pasko-case, and that the conviction is based on the decree. This contradicts Article 15 (3) of the Russian Constitution as it was interpreted by the Russian Constitutional Court in the Smirnov-verdict dated December 20, 1995, and by the St. Petersburg City Court in its acquittal of Aleksandr Nikitin on December 29, 1999. The latter verdict was confirmed without changes by the Supreme Court’s Collegium of Criminal Cases on April 17, 2000 and by its Presidium on September 13, 2001.

Human rights violations
It follows from the above-mentioned that the conviction of Grigory Pasko raises several questions related to the development of the rule of law in Russia and the protection of human rights. Below follows a short overview over some of the issues.

· Freedom of speech
A common opinion among those who have followed the case, is that the charges that formally were brought against Pasko are an excuse for prosecuting him for his exposure of the Pacific Fleets untenable handling of nuclear waste.

Amnesty International (AI) says for instance in its statement issued in connection with its adoption of Pasko as a prisoner of conscience on January 7, 2002, that the prosecution appears to be "motivated by political reprisal for exposing the practice of dumping nuclear waste". If this is the case, the case may well involve a violation of Article 10 of the European Convention on Human Rights (EConHR), which Russia ratified in May 1998.

· The impartially and independence of the Court
Both AI and the International Helsinki Federation (the IHF) have expressed serious concerns about the fairness of that trial, and the impartiality and independence of the Court. Both the way parts of the proceedings in the Court were carried out, and the fact that he was tried within the military court system gives reason to express such doubts.

One of the main witnesses against Pasko was for instance the first deputy commander of the Russian Navy and former commander of the Pacific Fleet, admiral Zakharenko. Mr. Zakharenko, who was not on the original list of witnesses, focused particularly on Pasko’s notes and the damage they had created. His testimony was thus, an important part of "the chain of evidence" against Pasko. As the deputy commander of the Navy, Mr. Zakharenko is the superior of the judge, which clearly has not helped the judge to evaluate the case independently and impartially. Therefore, also Pasko’s right under EConHR Article 6 (1) to have his case tried by an independent and impartial tribunal may have been violated.

· Determination within reasonable time
At the of time writing the Pasko-case has been going on for almost four and a half year, and it is impossible to predict when it will be finally determined. Throughout the proceedings, there have been a number of unjustified postponements. Thus, based on the jurisprudence of the European Court of Human Rights, it is reason to believe that Pasko’s right to have the charges against him determined within a reasonable time under Article 6 (1) of the EConHR has been – or at least will be – violated.

· Presumption of innocence
No proofs indicating that Pasko had the intention to hand over the notes to the Japanese has been established. On the contrary, the fact that he kept the notes for months without handing them over clearly indicates that he did not have this attention. In the verdict the Court is not even near giving a convincing elaboration for its evaluation of the evidence, and its ruling is based much more on loose suppositions than on concrete facts.

Thus, Pasko was convicted despite the prosecution was not even close to fulfilling its burden of proof. This contradicts the presumption of innocence, which is a principle expressed both in Article 49 of the Russian Constitution and in EConHR Article 6 (2).

· Use of secret and too vague criminal legislation
The use of the secret decree 055:96 as the de facto legal foundation for the verdict is as a violation, not only of Article 15 (3) of the Constitution, but also of EConHR Article 7. The wording of Article 7 prohibits the use of criminal law retroactively, but through the jurisprudence of the European Court the provision has been given a broader range.

The Court has established that Article 7 demands that only the law can prescribe the content of what is a criminal offence. Moreover it prohibits that criminal law is interpreted extensively to the disadvantage of the accused, and demands that the law-violations are clearly defined in the wording of the law. These principles have been developed through the Kokkinakis v. Greece case (A/260-A, 1993, para. 51-52), G. v. France (A/325-B, para. 24-27, 1995), S.W. and C.R. v. UK (A/335-B and -C, 1995), and clearly also prohibit basing criminal convictions on secret (and not-registered) legislation.

The definitions of the various kinds of state secrets that are given in the provisions of decree 055:96 that are used in the Pasko-case are also very general and broad. Also this might imply a violation of Article 7. Moreover, even the officially published provisions of the Law on State Secrets, which the Court has referred to in its verdict, are so general that it is highly questionable whether or not it is in accordance with Article 7 to base a conviction on these provisions.

Conclusive remarks
It seems clear that the Pasko-case involves a number of possible violations of the principles of legal protection of the individual against encroachments from state bodies that are drawn up in the Russian Constitution and the European Convention on Human Rights. Throughout recent years these principles have been given increased attention and weight in Russia, which for instance was demonstrated through the acquittal of Aleksandr Nikitin.

If the conviction of Grigory Pasko stands, we will however, face a considerable backlash for the development of the Russian rule of law and a step backwards towards arbitrariness.

Jon Gauslaa