Supreme Court’s answer to the Defence’s request, December 15, 2002

December 15, 2002
No. 3n-00139/98
Povarskaya 15, 121069 Moscow

To the lawyer of the city collegium Reznik G.M.
Shmidtovsky proezd 3, 123100 Moscow

To the of St. Petersburg Collegium lawyer Pavlov I.Y.
PO Box 2, 191028 St Petersburg

To the lawyer of Primorsk region Collegium Pyshkin A.F.
Fokina 9-9, 690000 Vladivostok

Your request to the chairman of the Russian Supreme Court on Pasko case has been examined.

The Court’s conclusions about Pasko’s guilt in collection of the secret information pertaining to state secret, illegal storage of them at home with the purpose of transferral to the representative of the foreign state damaging the external security of the Russian Federation, despite the arguments in the request, are proved by the witnesses Ushakov, Ryazantsev, Dorogin, Polutov, Yefimov and other persons as well as by the experts’ conclusions, search protocols, telephone conversation reports between Pasko and the Japanese citizen Okano, and the material and other evidences examined in Court and analysed in the verdict.

The Court correctly qualified the criminal actions of Pasko by article 275 of the Russian Criminal Code.

The request’s arguments about the Court’s violation of the adversarial character of the judicial process at the second trial, about its accusatory tendency while examining evidences, were checked in the case files and are not confirmed.

As it comes from the state prosecutors’ protest against the verdict of the Pacific Fleet from July 20, 1999, the protest really draws attention to the proofs of the four episodes in the charges against Pasko regarding state treason incriminated by the preliminary investigation bodies. However, in the protest the prosecution did not express its agreement with the Court’s re-qualification to article 285 of the Russian Criminal Code, of the rest of the episodes in the charges against Pasko, including the episode on September 11, 1997.

On the opposite, the protest pointed out to the groundlessness of this re-qualification and the necessity to qualify Pasko’s actions under article 275 of the Russian Criminal Code, as state treason. In this connection the protest challenged the complete verdict and demanded sending the case for the new hearing.

Besides, as it is correctly mentioned in the request, the legality of the first Court’s qualification of Pasko’s presence at the meeting was challenged by the defence in its cassational appeal.

At the second hearing, according to article 353 of the RSFSR Criminal Procedure Code, the Court examined the case in the general order and was not bound by the conclusions of the previous verdict, the applied qualification in it and the convict’s sentence. Therefore, the reference in the present appeal to the deterioration of Pasko’s conditions as a result of application of the law on more serious crime during the second trial is groundless.

It is not possible to agree with your opinion that the Military Collegium of the Russian Supreme Court’s exclusion from the verdict, regarding Pasko’s illegal presence at the meeting on September 11, 1997, by itself excludes the responsibility of the convicted for state treason in form of espionage.

According to the criminal law, state treason in the form of espionage is expressed not only in transferral, but also in collection and storage of state secrets with the purpose of transferral to the foreign state or their representatives by the person who does not possess them at work.

As it was determined in Court, on September 11, 1997, Pasko was present at the meeting dedicated to the recent military exercises without proper permission, collected and kept the information pertaining to state secrets, which was not and could not be entrusted to him at his service, because he due to his position and duties he had no clearance. This was proved by the witnesses, the former chief of the Pacific Fleet, Zakharenko, his deputy rear admiral Ryazantsev and the rear admiral Dorogin.

In particular, witness Zakharenko said in Court that Pasko did not apply to him to get the permission, and the latter never received such a permission.

Witness Dorogin said that presence at the meeting devoted to the military exercises analyses requires clearance no.1, which Pasko did not have.

Despite the request’s argument, it was determined in Court that state secrets are present in Pasko’s notes made at the meeting on September 11, 1997.

The Court correctly grounded the verdict on the conclusions of the experts from October [sic.] 14, 2001, according to which Pasko’s notes briefly represent information on the composition of the forces taking place in the military exercises. Besides, the information on the activity of the units of radio electronic warfare during exercises, namely, about the means and methods of protection of the classified information falls under paragraph 5 of part 4 of article 5 of the Law of the Russian Federation “On state secrets” from July, 21, 1993 no. 5485-1 (amended by the Federal Law on October, 6, 1997 no. 131-F3) and Article 77 of the List of information pertaining to state secrets, confirmed by the Decree of the President of the Russian Federation no. 1203 from November 30, 1995, and according to par. 129 and note 1 to par. 240 of decree 055:96, constitute state secret.

The argument in the request regarding expert Karikh, stating that no secret information is revealed in Pasko’s hand-written notes about radio-electronic warfare unit’s activity as the information on this unit is allegedly not secret, is also wrong.

In reality, Karikh explained in Court that information about the methods of protection of the classified information had been understood as radio-electronic warfare regiment, which possessed the appropriate equipment to withstand the enemy’s technical means.

Due to the fact that the mentioned regiment took part in the wide scale exercises then the secrecy grade of its activity should not be considered equal to the level of the regiment, but to the level of a navy base, flotilla, forces group.
The sub-units of complex technical control did not act independently at the exercises, but under command of the radio-electronic warfare regiment. Thus, paragraph 2 of p. 129 of Defence Ministry Decree no.055-96 for determining the degree of secrecy may not be applied in this case.

The case files do, unlike what is claimed in the request, not contain any data on the incompetence of the experts, their interest in the outcome of the case, or the “legal” nature of the expert evaluation.

The arguments of the request do not correspond to the case files that the Court went beyond the charges by extending the period of [Pasko’s] keeping of the information and its transferral from one week to two months.

It is obvious from the charges dated April 28, 1998, and the indictment dated August 28, 1998, that the investigation bodies incriminated Pasko’s storage of the various information pertaining to state secrets, including the notes about the results of the Pacific Fleet exercises, from 1996 till November 20, 1997, i.e.: until the day of his detention.

The mentioning in the descriptive part of the indictment about the transferral of the state secrets by Pasko in the middle of September 1997 is related to the [part of the] indictment that was acknowledged groundless at the second hearing. It is not related to the episode on September 11, 1997.

So, there are no grounds to believe that the Court went beyond the levelled charges.

It is also a wrong claim in the request that at the moment of putting into force the Russian Constitution (December 25, 1993) Russia had no law, which could determine the list of information pertaining to state secret from December 25, 1993, until December [sic.] 9, 1997, the illegal disposal of which could lead to the criminal liability.

In the decision of the Russian Constitutional Court from December 20, 1995, concerning the constitutionality of several provisions of par. “a” article 64 of the RSFSR Criminal Code after citizen V.A. Smirnov’s appeal, it is stated that “realisation of article 29(4) of the Russian Constitution is guaranteed by the Russian Law “On State secret”, which determines the definition of state secrets, and information pertaining to state secret is indicated. Later, on November 30, 1995, Presidential decree no.1203 approved the open ”List of information pertaining to state secret”.

Due to the fact that collection and storage of the secret information for its transferral to the foreign citizen, committed by Pasko, is a continuous crime, and it was stopped on November 20, 1997, then the Court was right to use the above mentioned act and the law “On state secret” no.131-F3 edited on October 6, 1997, while examining his criminal case [unreadable] control of telephone conversations between Pasko and Tadashi Okano, faxes they had sent to each other, and also other evidences which in aggregate allowed the Court, contrary to your opinion, to make a grounded conclusion [unreadable] about off-duty relations when Pasko fully and precisely fulfilled all Okano’s tasks. In August- September Okano showed a great interest to the exercises of the Pacific Fleet what shows casually the relevant connection between Okano’s interest and Pasko’s visit to the meeting on September 11, 1997, with its detailed description on the unregistered papers.

The violations of the Criminal-Procedure Code during the search at Pasko’s flat and writing protocol of the seized materials were known to the Court. All the doubts concerning these protocols were thoroughly examined in the court hearing, and the Court mentioned that in the verdict and did not find grounds to acknowledge the protocol invalid in the part about seizure of the documents from Pasko. The mentioned doubts did not influence the fact that these notes belonged to Pasko and were kept at his place.

Besides, the experts acknowledged authenticity of the signatures of witnesses Onoprienko and Shabalenko on page 8 of the search examination protocol where the data on examination of the hand-written notes is described as well as on the most of the pages of this protocol. Witness Shabalenko, who was interrogated in Court many times, stated that all the signatures in the protocol were made by him personally.

Witness Onoprienko had doubts during the first trial regarding only one signature. At the second trial he had doubts regarding three of his signatures.

However, the experts concluded that Onoprienko’s signatures are very simplified and they are all different from each other.

The other arguments in the request were known to the court and were examined during the trial and during cassation. They were all analysed in the verdict and in the cassational decision.

The request’s statement that the arguments of the cassational appeals were not disproved in the cassational decision, and that the Military Collegium of the Russian Supreme Court allegedly violated the principle of the presumption of innocence, is unfounded and does not correspond to the case files.

The sentence for Pasko was chosen by the Court in accordance with the law demands, considering all the circumstances of the case and his personality.

Due to the above mentioned, there are no grounds for reconsideration of Pasko case in the supervisory order.

The deputy chairman of the Russian Supreme Court
N.A. Petukhov
(sign.)