Appeal lodged by the prosecutor
(with comments by Pasko)
TO THE MILITARY COLLEGIUM OF THE SUPREME COURT
OF THE RUSSIAN FEDERATION
Regarding the criminal case of Pasko G.M.
On July 20,1999 the Military Court of the Pacific Fleet found Pasko G.M., captain of the 2nd rank, guilty of committing the crime stipulated by article 285, part 1 of
the Penal Code of the Russian Federation.
The bodies of preliminary investigation had charged Pasko with state treason in the form of espionage, i.e.: according to article 275 of the Penal Code of the Russian
The action was re-qualified since Pasko, in the Court’s opinion was holding an official position, used his official rights in violation of the service interests, committed
his actions with the intention to make profit, and his actions resulted in sufficient violation of state interests protected by law.
Since the Court’s conclusion contradicts with the factual circumstances established by the Court and set up in the verdict, the re-qualification is ungrounded. The
verdict must be overruled and the case submit for a new court reconsideration on the following grounds:
The Military Court established for certain that Pasko transferred to a citizen of Japan the director of NHK TVRCo information pertaining to state secrets,
namely the information about place and date of the train departure with spent nuclear fuel, and obtained a fee in US dollars for it.
In particular, on the third page the verdict says:
"In June-July, 1996 Pasko transferred to the director of NHK information intended for internal use only, namely, information about the place and an approximate
date of the train with spent nuclear fuel departure. In July, 1996 he made a video footage of the train by a camera obtained at the NHK office, later he handed over
the materials to the director of the office for a fee, no less than $ 500".
According to the prosecutors Osipenko’s and Pogodin’s statement, the Military Court of the Pacific Fleet allegedly established for certain that I transferred
information about the place and date of the departure of the train with spent nuclear fuel to a citizen of Japan from NHK for a fee.
Firstly, I had no information about the place and the date of the departure. Moreover, I point to the phrase used by the court "the approximate date".
Secondly, the persons, who I, as a journalist, interviewed in order to perform the editor’s task, had not that information either. Thirdly, that information does
not constitute state secrets. Fourthly, the case files do not contain evidences that I transferred that information to anybody, neither to a citizen of Japan.
Fifthly, there is no evidence that I obtained a fee, and no testimony about the concrete place, rate, and time of obtaining.
The state prosecutors refer to a quotation from the verdict which says that in "June-July 1996" I allegedly revealed "information for internal use only" to the
director of NHK. As we see, the prosecutors consciously said in the appeal that the information about the train constitutes state secrets, though the verdict
determine the information to be for internal use only. Thus, neither the investigation nor the Court ESTABLISHED FOR CERTAIN the merits of the
information. The phrase "no less than $ 500" is in discordance with legal norms, in particular with article 314 of the Criminal Procedure Code of the
RFSR. Besides, the witness Takao Dzun and others told that when paying fee to journalists they ALWAYS wrote out a receipt. The case files do not contain
such receipts, only an unfilled receipt form, from an unknown source, which may well be planted by irresponsible FSB officials.
When analysing the experts’ evaluation about the secrecy degree of the information revealed to the citizens of Japan the Court pointed out (page 15):
"The Court found Pasko guilty on the basis of the evaluation of the experts from the 8th department of the General Staff of the Armed Forces of the Russian
Federation. The Court considers the experts’ evaluation to be in accordance with the "list of information to be classified in the armed forces", as well as with the list
of information pertaining to state secret stipulated by the Law "About State Secrets" and with presidential decrees (1995 No. 1203 and 1998 No. 61).
The Court agreed with the conclusions of the experts (page 14):
" Transferral of authentic information about date and place of the train with spent nuclear fuel departure to representatives of foreign organisations is transferral of
information that constitutes state secrets and that is stamped "top secret" in the autumn of 1996, in October 1997 and also at present time.
The prosecutors state that the Court agreed with the experts’ conclusion that the data about the place and date of the departure of the train with spent
nuclear fuel constitutes state secrets. But the prosecutors consciously said no word about the fact that the 8th department of the General Staff had no right to
make such an expert evaluation. For this purpose the interdepartmental committee on state secrets was created.
The prosecutors also ignores article 7 of the Law "On State Secrets", which stipulates that information about accidents and catastrophes, about the condition
of the ecology and public health shall not be classified as state secrets.
Information about the train with spent nuclear fuel is information about the condition of the ecology, about the condition of the object that endangers health
and safety of the citizens. Thus, even in case I had known the information about the transportation of top dangerous nuclear fuel through the inhabited
territory of Russia, I would have had the right to reveal that information and, as a journalist, HAD BEEN OBLIGED to do that. Unfortunately, I did not have
that information, as it is evident from the facts of the case.
The following is the basis for the Court’s conclusion that the facts of Pasko’s obtaining and transferring information about the place and date of the departure of the
trains with spent nuclear fuel in 1996-1997, i.e.: information constituting state secret, to citizens of Japan are proved:
Page 13 "Deka testified that in 1996 at the office, he heard Pasko tell the director of the TVRCo office that he planned to go "to some locality" from which "some
day the train with spent nuclear fuel departs".
Page 12 " Takao Dzun (the former director of TVRCo NHK office in Vladivostok) testified that Pasko came to the office in October 1997 on the eve of his
business trip to the place from which the train with nuclear waste departed…"
The Company twice obtained video footage (about the train transporting spent nuclear fuel) from Pasko, it paid him extra fees from 500 to 1000 USD for these
footages. The footages were watched when Pasko was present, he gave needed comments. Takao Dzun does not remember whether Pasko told him about the
place and date of the train departure, probably he told about that as well".
As it is evident from the appeal, the prosecutors found me guilty without grounds. The prosecutors refer to the testimony of the witness Deka, which told that I
allegedly told director of NHK about my purpose to go to "SOME locality", from which "SOME day" the train with spent nuclear fuel departed. The appeal
does not indicate the concrete place, time and date of the train departure. And you won’t find them among the facts of the case. If I revealed them, why do the
case files not contain that concrete information?
The case files contain no evidence that I twice obtained from NHK "extra fees", no fact of when, where, from whom.
The state prosecutors refer to the following paragraph from the verdict: "Takao Dzun does not remember whether Pasko told him about the place and date
of the train departure, probably he told about that as well". I.e.: it is obvious that the bodies of the investigation and the Court made an assumption/guessing
without a single concrete fact.
The Court thoroughly examined the personality of Pasko, and the purposes and motives of his activity, as well as personality of the citizens of Japan that Pasko
co-operated with, and the companies NHK and "Asahi Simbun" presented by those citizens.
The appeal sets up that "the Court thoroughly examined the personality of citizens of Japan". The statement does not correspond with the factual
circumstances, since the Court did not find it essential to call the Japanese to the Court either as defendants (although the investigation claims they ordered
confidential information, obtained it and worked for Japanese intelligence) or as witnesses, which the Court were obliged to under Article 20 of the Criminal
Procedure Code of RSFSR.
Ralin, Kaimirov, Kolesnik testified that the former directors of the NHK office Nasu Hirouki and Takao Dzun regularly showed interested in information about
military industry, military units location, quantity, capacity (quantity of military units on Kurily, Kamchatka, Southern Primorye), military industry located in Primorsk,
Komsomolsk-na-Amure, arround Krasnoyarsk.
The prosecutors’ reference to the testimonies of Ralin, Kazimirov, Kolesnikov, which said that Japanese journalists allegedly took interest in the military
industry, is not a relevant argument for cancelling the verdict. Journalists’ interest in military industry as such does not form a crime, even when the
journalists are foreign. Besides, criminal proceedings were not launched against journalists who were citizens of Japan – and even the Ministry of Foreign
Affairs had no complaints to them.
Moreover, the Court established that in November 1997 a group of journalists from NHK was apprehended by the frontier guards near to settlement Hasan for
violating the regulations on the State border. One of the citizens of Japan had a file with a small hidden camera.
The fact that above-mentioned citizens of Japan and companies had a purpose to obtain confidential information, endangering the State sovereignty and security was
confirmed by official references from the FSB Department in Primorski krai, by the FSB of Russia and by external intelligence of the Russian Federation. The Court
examined the references, which correspond with other evidences evaluated in the court.
The court established also that Tadashi Okano, a citizen of Japan, works as a military reporter for "Asahi Simbun" newspaper.
The Court did not take the above-mentioned facts into consideration in the verdict, and neither the fact that the Peace Agreement between the Russian Federation
and Japan is not negotiated so far.
Apprehension of the Japanese journalists near to the settlement of Hasan is not related to me. The prosecutors of the Pacific Fleet build a criminal
background out of a thoroughly legal activity, carried out by myself, and of the Japanese journalists. The state prosecutors mentioned in the appeal some
references from the FSB of Russia and the external intelligence. To my regrets, the Court of the Pacific Fleet did not evaluate the fact of the illegal origin of
these references in the case files. The claim that "the Court did not take into consideration the fact that the Peace Agreement between the Russian Federation
and Japan is not negotiated " is utterly illiterate.
The Court established for certain that citizens of Japan regularly entrusted the defendant Pasko to obtain data and documents about the Pacific Fleet and he fulfilled
orders for fees, obtained data and documents constituting state secrets from the departments of the Pacific Fleet and the officials.
The Court, though it found those facts to be in accordance with the factual circumstances of the case, came in the verdict to a wrong conclusion, which contradict to
the examined evidences. E.g. page 17: "Examination of the evidences during the court hearing did not confirm the fact that Pasko collected with the purpose to
transfer or transferred information pertaining to state secrets to the representatives of the foreign organisations".
Page 18 "During the court hearing the evidences that Paso divulged state secret or committed uncompleted criminal actions to assist a foreign state, organisation or
their representatives in hostile activity damaging external security of the Russian Federation were not found"
In addition to the fact that Pasko collected and transferred to the citizens of Japan information about the place and date of the departure of the train with spent
nuclear fuel (a state secret), the Court established for certain three other facts of collecting information pertaining to state secrets by order and for a fee of the
citizens of Japan ("The questions about the ways of securing liquid rocket fuel in Russia"; decommissioning of nuclear submarines; transportation of spent nuclear
fule), i.e: the Court found and proved the content of the crimes provided by Article 275 of the Russian Criminal Code in his actions.
The Court did not establish the fact that the Japanese entrusted me to collect data about the Fleet, paid me fees and that I handed over documents to them
the case files contains NO EVIDENCE.
In the appeal the state prosecutors tell about some other items additional to the item regarding the train: questions of securing liquid rocket fuel in Russia,
decommissioning of nuclear submarines and transportation of spent nuclear fuel. It’s obvious that the transportation of spent nuclear fuel is related to the
item regarding the train. The Court did not examine the item with the questionnaire thoroughly, since it’s worthless. It was established that the questionnaire
was made by the Ministry of Finance of Russia, was officially sent to the Pacific Fleet and handed over to me by an officer of the Fleet Command.
Moreover, the Court wrongly, on bogus grounds, qualified Pasko’s actions under article 285 para. 1 of the Russian Penal Code and thus, applied the law that was
not to be applied.
Under such circumstances the grounds, provided by article 342 para. 4, and article 346 para. 2 of the Russian Criminal Procedure Code, for dismissing the verdict is
On the base of the above-mentioned, governed by article 325 of the Criminal Procedure Code of the RSFSR I request that:
The verdict of the Military Court of the Pacific Fleet dated from July 20, 1999 on the case of 2 rank captain PASKO Grigory Mihailovich must be dismissed and
submitted to a new reconsideration to the same Military Court with other judges.
The Court correctly indicated that the evidences of collecting with the purpose to transfer and transferring information that pertains to state secrets were not
found. So, the question is why the prosecutors are confident that other judges will find such evidences, since the case files does not contain them.
LIEUTENANT COLONEL OF JUSTICE OSIPENKO K.P.
LIEUTENANT COLONEL OF JUSTICE POGODIN V.K.
July 20, 1999
(seal) the copy is correct: