(with comments and explanation )
Cassational protest (additional)
August 29, 2000, N 2/2190
On July 20, 1999 a well – founded Cassational protest was made by the State prosecutors Osipenko, K. P. and Pogodin, V. K. to a verdict |passed on the Captain of the 2nd rank Pasko Grigoriy Mikhailovich by the Pacific Fleet Court, in which they propose to cancel the verdict, because Pasko’s actions were wrongly and incorrectly qualified, and to send the case for a new trial.
However, that protest about the cancellation does not, besides the above-mentioned reasons and the following consequence, does not raise the question about an unfair punishment, which has been set in the verdict.
The wrong qualification of Pasko’s actions involved his conviction for committing a less grave crime, than his actions had been considered as by the investigative bodies. So while the Military Fleet Court was fixing the punishment, it did not take into consideration the character and the extent of the guilty’s actions for the society, and it fixed a punishment that was obviously too mild and not responding to the crime committed by the convict Pasko.
In this connection and in addition to the cassational protest, I ask to consider the incompatibility of the gravity of the crime and the obviously mild punishment as a consequence of the wrong and incorrect qualification of his actions under para. 1 of article 285 of the Penal Code of the Russian Federation, and that the provision that was not considered applicable to be applied.
Under these circumstances, the punishment given to Pasko, is obviously unfair because of its mildness. I mean, there are more reasons provided by para. 5 of article 342 of the Criminal Procedure Code of the RSFSR, which involved the cancelling of the verdict.
According to what has been expounded above and according to article 325 of the Criminal Procedure Code of the RSFSR I demand:
the verdict of the Pacific Fleet Court of July 20, 1999, passed on Pasko, G. M. to be cancelled, and that the case is sent for a new trial in the same Military Court, but with different judges, according to the reasons that are set forth in the cassational and additional protests.
The Military Prosecutor of the Pacific Fleet,
Major – General of Justice Suchkov, V. N.
The case can not be sent to the Military Court of the Pacific Fleet because the chairman of the Court, Major – General Volkov, S spoke out about the fairness of the fixed sentence passed on me repeatedly and publicly, although he did not take part in the trial. He also knew that the protest of the verdict had been declared and that the verdict had been appealed against. Besides, soon after the verdict had been declared, Volkov shouted at me and said Ii didn’t have a right to stand for the State Duma, to get a salary, to go to holidays etc. in presence of 10 officers.
I have reasons to believe that in that case Volkov is an interested person. Here is the evidence of his interest: because of his fault the materials of the case were, at first, sent to the Military Collegium of the Supreme Court of RF and my lawyers and me had not been shown the minutes of the trial, and then the materials returned to the Pacific Fleet Court. It has led to senseless expenditures of the means of the State and to the dragging out the time of consideration of the case by the Military Collegium. Taking into consideration that Volkov is the chairman of the Pacific Fleet Court, this Court can not and should not consider this case again.
In the first prosecutors’ protest on the Court’s verdict passed on Mr. Pasko it was indicated that the verdict should be cancelled because of the Court’s illegal re-qualification of the journalist’s “corpus delicti”. According the prosecutor’s opinion the verdict has to be cancelled and the case has to be returned for the new trial where it shall be considered by different judges.
After 13 months the additional prosecutors’ protest was sent to the Military Collegium of the Supreme Court. There are affirmed the illegal qualification of Pasko’s “felonious acts” and are proposed to cancel the sentence and to send the case for the new trial where it shall be considered by different judges.
It seems like there was no need for the additional prosecutors’ protest. The reason of new protest is just an additional prosecutors’ argumentation that a principle of fairness is broken by Pasko’s sentence, because the wrong qualification of the “crime” entailed the undeservedly mild punishment. But it is a formal occasion to write a new protest. Its main purpose is that the prosecutors consider seriously that Pasko is a spy, and it does not matter what the public opinion is or what his lawyers think (even if they have got irreproachable arguments, concerned the absence of evidence of the journalist’s guilt). And it is a threat to Pasko’s lawyers too: They said that the forthcoming consideration was not just a legal formality but a fight to death! A signature below the new protest is for confirmation of these vague threats: not the proper prosecutors in the journalist’s case, but the Military Prosecutor of the Pacific Fleet himself …
So there really will be a serious fight.