The Presidium of the Russian Supreme Court’s acquittal of Aleksandr Nikitin on September 13, 2000 was considered as a victory for the rule of law. However, the case against Grigory Pasko, which contains more or less all the features of the Nikitin-case, shows that the rule of law is still under pressure in Russia. Pasko’s trial will resume at the Court of the Russian Pacific Fleet in Vladivostok on June 4.

Pasko worked for the newspaper of the Russian Pacific Fleet as an investigative journalist when he was arrested in Vladivostok on November 20, 1997. The FSB accused him of treason through espionage under Article 275 of the Russian Penal Code, claiming that he had handed over to the Japanese TV-channel NHK "secret" information on nuclear safety issues in the Pacific Fleet. Amnesty International adopted Pasko as a prisoner of conscience in February 1999 (AI Index EUR 46/07/99). In July the same year, the Court of the Pacific Fleet acquitted him of treason through espionage, but found him guilty of ‘abuse of official authority’ under Article 285 of the Penal Code, although he never had been charged with that crime. Pasko was sentenced to three years, but released since he had served 20 months in pre-trial detention.

The Military Collegium of the Russian Supreme Court cancelled the verdict on November 21, 2000, and returned the case to the Vladivostok Court, for a new evaluation of the charges of treason through espionage. Observers have considered the decision as a negative signal regarding the legal development in Russia.

"The Nikitin-case of the Far East"
There are a huge number of similarities between the two cases. Thus, it is no overstatement to denote the Pasko-case as "the Nikitin-case of the Far East". While Nikitin was accused of having revealed information on radioactive safety issues in the Russian Northern Fleet, Pasko is accused of having revealed similar information regarding the Pacific Fleet. In both cases the disputed information is related to the condition of the environment and can thus, according to Article 7 of the Federal Law on State Secrets and Article 42 of the Russian Constitution, not be classified as state secrets. Besides, the information Pasko is accused of having "revealed" was in all essentials already available in the public domain.

The charges against Pasko are – like the charges against Nikitin – based on the conclusions of the experts of the 8th Department of the Russian General Staff. The conclusions are even drawn by the same individuals, and based on the secret decrees of the Ministry of Defence and not on the officially published legislation on state secrets. When one of the experts was confronted with their use of secret decrees at the trial against Nikitin in St. Petersburg in December 1999, he said that they considered any other legal acts than the decrees of the Ministry of Defence as irrelevant. Thus, also the charges against Pasko lack a valid legal foundation and violate Articles 15 (3) and 54 of the Constitution.

A closer analysis of the case materials, also leaves a highly unclear picture of what actions Pasko actually are accused of, and of why his actions are considered as punishable. Most of what the prosecution seems to try to "prove" has little significance for the charges. Thus, in conformity with the Nikitin-case, the case also lacks a proper factual foundation.

Moreover, the case is characterised by several other violations. The investigation is mostly carried out by persons without authorisation. A number of investigative steps have been taken without necessary Court orders. Consequently, most of the material that the prosecution refers to as "evidence" (although its content is absolutely innocent) is illegally obtained and should be excluded from the case according to the Russian Criminal Procedure Code. Some evidence is even directly falsified. The Vladivostok Court addressed the latter in a separate ruling on July 20, 1999. Nevertheless, the charges are still based on illegally obtained and falsified evidence.

The last acquittal?
While Nikitin obtained full redress, the outcome of the Pasko-case is highly uncertain. In a country truly ruled by law, the Nikitin-acquittal would have formed a precedent that also would have determined the Pasko-case. However, it takes more than one decision to establish a precedent and particularly in a legal system where traditionally little or no importance has been attached to previous court decisions.

In its edition of September 14, 2000, the leading Russian daily "Sevodnya" stressed that the acquittal of Nikitin is no guarantee against a negative legal development. Under the headline "the first and the last acquittal" it pointed out that the legal basis for the acquittal had been developed in the liberal political climate that ruled Russia in the early 1990’ies. However, now this climate was gone and thus, one would see no more acquittals.

Whether Sevodnya’s gloomy predictions will come true or not, remains to be seen, but several features in the Russian society may seem to lead towards totalitarianism. In particular, the independent parts of the media have been put under strong pressure. Since Pasko is a journalist also the process against him could be seen as a part of this pattern. It is also noteworthy that an increasing number of persons with tight connections to the KGB/FSB have obtained leading positions in the society. It may still be too early to draw bombastic conclusions on whether this tendency also will reflect itself in the form of designs against the independence of the Courts. The decision of the Supreme Court to cancel the acquittal of Pasko is, however, not a positive signal.

The new trial in Vladivostok is expected to continue for at least two months. Whatever the decision will be, it will likely be appealed to the Military Collegium of the Supreme Court. Thus, the final outcome of the case – which might be even more significant for the development of the rule of law in Russia than the Nikitin-case – lies well into the future.