Decision No 2-00139/98 of The Military Collegium of the Supreme Court of the Russian Federation

consisting of:

Chairman – major-general of justice Zacharov L.M.,

Judges: major-general of justice Koronetz A.N., major-general of justice Petrochenkova A.Y.

examined during the hearing on November 21, 2000 the criminal case concerning the protest of the state prosecutors Osipenko K.P. and Pogodin V.K.; the appeals of the charged Pasko G.M. and his lawyers Gerin Ya. M., Kotlyarov O.S., Pyshkin A.F., Rimkunasa I.I. against the verdict of the Military Court of the Pacific Navy dated July 20, 1999; as well as the appeals of lawyers Gerin, Kotlyarov, Rimkunas against the Court’s decision dated February 16, 1999 regarding the rejection of the demand that the Court’s judges has to be removed from the process.

According to the decision dated July 20, 1999, 2^nd rank captain PASKO Grigory Michaylovich, born on May 19, 1962 in the Kreschenovka Novovoronzovskiy district in the Hersonskaya region, was convicted according to article 285, part 1 of the Russian Penal Code and sentenced to three years of imprisonment at a general regime penal colony. He was set free from the punishment in accordance with point 5 of the State Duma Decree dated 18 June 1999 "Declaration of amnesty".

After hearing the report of major-general Zacharov; the speeches of the charged Pasko and lawyer Pyshkin who supported the arguments in the appeals, as well as the speech of lawyer Marov, who has considered Pasko’s conviction to be illegal and groundless, and demanded the verdict to be cancelled, and the case to be closed because of the lack of the content of the alleged crimes in his actions;

after hearing the speech of the public defenders Tkachenko and Siminov; after the speech of military prosecutor of the General Military Prosecution the colonel of justice Adonin, who supported the protest of the prosecution and asked the case to be sent to a new court hearing because the prior conclusions did not correspond to the case’s circumstances stated in the verdict, and because of the non-correct application of the Penal Code, the Military Collegium has determined:

Pasko was found guilty of abusing his official authorities, which he committed under the following circumstances indicated in the verdict:

He served as a chief of the military training department of the newspaper "Military watch". Having his own mercenary interests, Pasko used his official authorities in contradiction with the service interests, violated the Russian legal acts as well as the regulations on distribution and publishing of collected information. He did this by constant collecting various materials about navy activities, and other information he had learned in course of his service. He later transferred this material to the representatives of Japanese mass media and got payment for these activities, i.e. practically he was involved in the other paid activities instead of doing his service.

In 1995-1997 he got admission to the secret military units 40752 and 63916 in order to prepare the articles for the newspaper "Military Watch". He made some photos and filmed some objects on technical territories without approval of the appropriate officers, after he had informed the director of Vladivostok branch of the Japanese TV Company "NHK" and received from him approximately $300 each month. In June or July 1996 Pasko gave the same person the information assigned for limited distribution concerning the place and approximate time of spent nuclear fuel’s shipment, filmed the train with the camera obtained earlier from "NHK" and transferred that video-material to the Japanese company. For these actions he received at least 500$. In the first half of 1997 Pasko transferred the video-material filmed by him in some places including the technical territory of military unit 63916 to the Director of the Japanese company’s Vladivostok branch and got another payment for it.

Approximately in 1996, abusing the gained trust due to his official position, Pasko made a scheme (subject to classifying) of technical territory of military unit 40752 on the unregistered sheet with the explanations of locations and purposes of the most important technical-engineering buildings and secret object in general. The scheme was a subject for classification. Pasko was going to use this scheme as an illustration in his book about the handling of radioactive waste at the Pacific Navy, which was being prepared for publishing. This scheme was not preliminary examined in order to detect the presence of any classified information forbidden for open publishing,

Having used the trust to him, on January 31, 1997, Pasko received the secret document "Manual on navy search-emergency support of space devices" (RPSO KA-93) in the Navy Headquarters from Mr. Amirov and secretly copied ten pages of this document.

On February 28, 1997, Pasko asked the senior engineer of military unit 63916 Mr. Sangishev questions, which were prepared by the Japanese side in order to collect different kinds of information including those forbidden for publishing. In March the same year, Pasko received the report containing classified information from the Commander-in-chief’s assistant on the financial-economic work, copied it and in November the same year, copied materials, which he had obtained in the Agriculture Department of Primorsky region administration.

In August and November 1997, by using his official authorities, Pasko obtained the reference-report on the decommissioning and service of the laid-out nuclear submarines and the list of the submarines suffered nuclear and radiation accidents onboard. The material was received at the navy technical department, and also included information disclosing the actual submarines’ code names, which are the subject of classifying.

In the same period he obtained the materials on the decommissioning of weapons and armaments in the Navy Department of missile-artillery weaponry, which contained secret information about the actual code names of military unit 63916.

Having violated the rules of handling the documents containing information of limited distribution determined by decree No. 170:1983 of the Soviet Union’s Ministry of Defence, and the decree confirmed by the Resolution of the Government of Russian Federation No. 1233 of November 3, 1994, Pasko did not register the mentioned copied materials and kept them at home, where they could be accessed by unauthorised persons.

He included some information from the reference-report forbidden to the open publishing into his article "Measures provided, debts not paid". Besides, he was going to transfer fragments of materials on the weapons’ decommissioning; on the cooperation between the Administration of Primorsky region and the Agriculture Committee of China; on the defensive enterprises; as well as the information, which he obtained from the Chairman of the labour union of shipbuilding workers in October 1997, to the Director of the Japanese TV branch in Vladivostok or to the correspondent of the Japanese newspaper "Asahi Simbun" Tadashi Okano for payment, which had been preparing for publishing in violation to the defined order. Pasko co-operated with Tadashi Okano since 1996 and assisted him because of his mercenary motivation in collecting the information, which Mr. Okano was interested in.

On September 10 and 11, 1997 Pasko violated the regulations on the defence of state secrets, while taking part at a meeting of the Navy Military Board, which was examining the results of navy training. At that meeting he took notes of the participators’ speeches on non-registered sheets. Later those notes containing the secret information were found and confiscated at the search of his flat on November 20-21, 1997. It is indicated in the prosecutor’s protest that the Court had no grounds to change the qualification of Pasko’s actions from article 275 to article 285 part 1 of the Penal Code, and the motivation of this decision does not correspond to the circumstances established during the trial.

The Court established that Pasko transferred the information considered as state secrets about the place and the time of the loading of the shipment with the spent nuclear fuel to the chief of the Japanese TV company "NHK". This fact is directly indicated in the indictment and the arguments are also given to support that. The Court also established, that the Japanese citizens, which Pasko cooperated with, in particular Nasu Hiroyuki and Takao Dzyun, were interested in the information about the location and the army quantity on the Kuril Islands, Kamchatka, and in the Primorsky region. The Court also examined the other evidences, which witnessed about the hostile activities they both carried out, but the Court did not take them into account.

In the prosecutor’s protest it is also mentioned that the Court established without doubt that Pasko collected the different kinds of information about the Pacific Fleet, including also the information containing state secrets, according to the instructions of the Japanese citizens, and he received payment from them for his services. In this connection, the Court’s conclusion that the facts of collecting and transferring the information containing state secrets to the representatives of foreign organisations as well as the facts of assisting them in their hostile activities were not supported, is mistaken and contradicts the evidences examined during the trial.

The facts that Mr. Pasko collected the information on decommissioning of liquid missile fuel, nuclear submarines and shipment of spent nuclear fuel according to the Japanese citizens’ interests and instructions, were also proved.

Therefore, as it is indicated in the protest, the actions of Mr. Pasko contain all attributes of crimes stipulated by Article 275 of Penal Code of the Russian Federation.

In conformity with the above-mentioned, the prosecutor’s protest questions the verdict’s rejection, as the Court’s conclusions contradicts with the facts of the case, and also is based on wrong application of the Penal Code. It suggests that the case is brought to a new trial in the same Court, but with other judges.

The appeal of the charged Mr. Pasko, and the lawyers Gerin, Kotlyarov, Pychkin and Rimkunas also argues that the verdict is illegal and groundless. It demands the verdict to be cancelled and that the case is dismissed on the ground of article 5 part 1 of the Criminal Procedure Code of the Russian Federation because of the lack of the crime’s content in the actions of the accused.

In the additional appeal lawyer Pyshkin emphasised that no inarguable evidences witnessing about Pasko’s guilt of the alleged criminal actions, were collected, and that the evidences from the verdict do not allow to make a conclusion about the substantiation of his guilt.

The lawyer Pyshkin believes that in violation of article 314 of the Criminal Procedure Code of the Russian Federation, the verdict does not contain any data about the place, time, and means of committing the criminal actions, nor of the character of guilt, motivation of Pasko’s actions and the consequences of the actions.

He visited classified objects and made photo and videos materials with the permission of the appropriate persons. There are not any data in the case that the information collected by him was used to damage the state interests. The evidences supporting the facts that Pasko transferred the information about the place and the time of the departure of the train with spent fuel to the Japanese side, is not present in the verdict.

That fact, when and who made the scheme of the technical territory of military unit 40752 and whether it contains the information pertaining to state secrets, was not established during the trial. Pasko did not try to get any secret information from Mr. Sangishev. The questionnaire, which they spoke about, was in the navy headquarters and was not secret. According to the experts’ conclusions and the witness Shevchenko, the author of the annual report on the financial-economical work of the Fleet, the report itself as well as the copies of the "Manual", which Pasko obtained from Mr. Amirov, do not contain secret information. The Court came to the same conclusion after evaluating the experts’ conclusions.

The Court could not establish, where and under which circumstances Pasko obtained the reference-report on the decommissioning of subs and the keeping them afloat; the list of subs where there were nuclear and radiation accidents onboard; as well as the materials concerning the decommissioning of weaponry and armament. Nor could the Court discover the circumstances of the storage of this material. That is why the Court had no grounds to conclude that unauthorised persons could get access these materials.

The article "Measures provided, debts not paid" prepared by Pasko, which contains a part of materials of the reference-report about the decommissioning of subs, was not published by the mass media and was just a draft. It could be corrected again and the information, which must not be published, could be taken away. The Court’s conclusion concerning Pasko’s intention to transfer the materials to the Japanese side, which was confiscated by the customs, is based only on his telephone phone talks control, which are not clear and do not give the answer to the question, which materials he was referring to. Besides, the voices on the audiocassettes brought to the Court by the bodies of the preliminary investigation were not defined by the expertise.

There is no data whether Pasko transferred the information, which he obtained at the meeting, to somebody or not.

The experts’ conclusions on the presence of secret information in Pasko’s materials seem to be incorrect, because they are unreasonable and not concrete. According to the experts’ conclusion dated December 22, 1997, the materials on the decommissioning of weaponry and armament was defined unclassified, and according to the conclusion dated March 14, 1998 of the same expert group the same materials were defined classified. But the Court based its verdict on the conclusion of March 14, 1998, without explaining why this one is correct, and the Court did not evaluate the conclusion dated December 22, 1997. Thus, lawyer Pyshkin believes that no point of the levelled charges against Pasko was confirmed during the trial.

The lawyer also believes that the Court’s conclusion on Pasko’s guilt of abusing his official authorities is groundless. It is stated in the appeal that the subject of this crime must be only the officer carrying out the functions following his official position. As the trial confirmed, Pasko did not act as an officer, but as an ordinary journalist. The Curt did not establish and did not mention in the verdict what kind of actions Pasko committed against his service interests.

Moreover, as it is further stated in the appeal, the obligatory attribute to the content of the crime stipulated by article 285 of the Penal Code of the Russian Federation, is the considerable violation of rights and interests of citizens and organisations or state and public interests protected by the law. But neither the organs of the preliminary investigation nor the court established what the considerable violation was.

In conformity with the above-mentioned the lawyer Pyshkin believes that the actions of Pasko did not contain any content of any crimes, and he requests the verdict to be rejected, and that the case is dismissed because of the lack of the crime’s content in Pasko’s actions.

The lawyers Gerin, Kotlyarov, Rimkunas also ask to reject the Court’s decision of February 16, 1999, about the refusal of accepting their petition concerning the rejection of the judges panel, because this decision was submitted without sufficient reasons and examination of their arguments.

In the additional appeal Pasko explains that the verdict is illegal, because it is not based on the proofs of the case, but on the suppositions. Besides, there is no estimation for all evidences concerning the case in the verdict. The verdict wrongly puts together some factual circumstances of the case, it is written ignorantly, and the Court’s conclusions stated there, were extremely contradictory. Having given the reasons to the verdict, the Court referred to the Decrees of the Ministry of Defence No. 355 "On the publishing in the military forces of Russian Federation" and No. 055, which Mr. Pasko did not violate, even though these decrees are not in accordance with the Constitution of Russian Federation.

The information for his articles Mr. Pasko collected after getting written permissions by the appropriate officers.

No facts were established regarding Pasko’s alleged use of his official authorities contradicting his service’s interests, neither any facts of getting some fee for transferring the materials to the representatives of Japanese mass media. The Court’s conclusion that Pasko got a 300$ fee monthly from the Japanese citizens is not confirmed with anything. The testimonies of the witness Mr. Dzyun are not reliable as he is an interested party in connection with the violations of financial discipline and with the documents’ falsification carried out by the leaders of the Japanese TV company.

The statement in the verdict that in June-July 1996 Mr. Pasko informed the director of the Japanese branch about the place and the time of the departure of the train containing the spent nuclear fuel is not confirmed with anything.

The facts concerning when and where Pasko made video-recordings about the train and to whom he transferred this material are not stated in the verdict. The case files do not contain the video material mentioned in the verdict. Neither is it indicated in the verdict, what exactly and where he filmed on February 27 and 28, 1997. Pasko argues further in his appeal, that no expert group did find any state secrets in the materials filmed by him.

The scheme allegedly made by him does not fulfil the demands for such a scheme, and essentially it does not look like a scheme, but like a picture, where many subjects were drawn by somebody, and the petition of Pasko on the graphical and chemical expertise concerning this picture was rejected by the court.

The FSB officials planted the copies of some sheets from the Manual on the rescue of spacecraft. Besides these copies do not contain any secret information. The Court did not establish when and under which circumstances, which and from whom Pasko obtained the alleged materials thanks to his official authorities.

The experts did not research the original materials, but just the copies of "incomprehensible papers", which had not been confiscated from him.

The article "Measures provided, debts not paid" confiscated from the computer, was under preparation for the publishing, it was not finished and transferred to anybody. Pasko did not intend to transfer to anybody in Japan the materials obtained in the administration of Primorsky region.

The witness Ushakov could not confirm the fact of the presence of Pasko at the meeting of the military council of the Pacific Fleet, because he himself was not present there and his testimonies did contradict the testimonies of the witness Ryazanzev. Besides, Ushakov witnessed that only the members of the military council were present at the training analyses, and Pasko is not such a member. In the search warrant report there are no data that the report prepared by Shevchenko was found and confiscated in his flat.

The testimonies of the witnesses Amirov, Bomko and Ponomarev were misrepresented in the verdict. The data mentioned in the facsimile cover sheets and phone conversations are not classified. In the appeal it is stated that the phonographic expertise, which could establish that he namely had the phone conversations with the Japanese citizens, was not carried out, in spite of many petitions regarding such an expertise.

Pasko believes that the Court did not examine the originals of the operative records, but the copies of them, while the originals were destroyed in the FSB.

The so-called "Questionnaire", which he obtained from Mr.Vorozhbit, is an official document prepared by the representatives of the Ministry of Foreign Affairs of the Russian Federation and Japan. Mr. Pasko did not use it while he spoke with Sangishev like he did with the other officers.

None of the materials confiscated at the airport are classified.

Pasko also believes that regarding this case, the only expert institution on the definition of the secret level of the documents may be the interdepartmental commission on the definition of state secrets, but not the experts of the 8^th Department of the Defense Ministry of the Russian Federation.

The Court could not establish the character of the damage expressed neither by article 275, nor article 285 of the Penal Code of the Russian Federation.

In the conclusion of his appeal Pasko indicates that the Court’s conclusions given in the verdict contradicts with the factual circumstances of the case and they contain essential contradictions. Besides, during the court hearing many of the circumstances were not taken into account, even if these circumstances could influence the Court’s conclusions about Pasko’s guilt. Moreover, not all evidences were evaluated in the verdict by the Court.

Taken into account the arguments mentioned in the additional appeal, the charged Pasko asks the verdict to be rejected and the case to be dismissed because of the lack of the content of crimes in is actions.

In the additional appeal the lawyer Rimkunas pointed out that the Court’s estimation of the actions of Pasko and of the consequences of his actions cannot be accepted as reasonable, because according to article 285 of the Penal Code of the Russian Federation Pasko is not an official. As a journalist he did not violate any "service interests", his actions did not result in any essential violations of the state interests protected by law. The Court could not establish any case of divulging of state secrets by Pasko. Pasko used the materials, which he obtained from the officers, whose actions did not contain any content of crime corpus delicti according to the opinion of the investigation bodies.

Thus, in the opinion of the lawyer Rimkunas, the actions of Pasko do not contain any contents of any crimes.

Having examined the case materials and discussed the arguments given in the protest and the appeals, the Military Collegium finds, that the question on the verdict’s rejection raised in the appeals [of the charged Pasko and his lawyers] as well as in the protest of the prosecutor is correct. The verdict cannot be accepted as legal and reasonable.

Pasko was accused by the bodies of the preliminary investigation that following his mercenary motives he collected and transferred the different information including the state secrets on the Pacific Fleet; on the defensive industry; as well as on the social situation in Primorsky region to the representatives of Japanese organisations, on their instructions and on his own initiative. Pasko received the fee from them for this information, i.e. high treason in the form of espionage.

In the charges levelled to Pasko the investigation bodies indicated the actions of Pasko in details, and in the indictment each fact was supported with the evidence.

Having examined the case, the Court did not find the legally defined crime in Pasko’s actions. Besides it considered the accusation of him of high treason in the form of espionage and in the divulging of the state secrets as unproven, and qualified his actions under to part 1 of article 285 of the Penal Code of the Russian Federation as abusing his official authorities.

However, this decision of the Court cannot be considered as reasonable.

In accordance with the demands of article 20 of the Criminal-Procedure Code and point 1 of the Resolution of the Supreme Court Presidium of the Russian Federation "On ensuring of all-round, fullness and objectiveness of the court consideration of the criminal cases" dated December 21, 1993, the verdict can be acknowledged legal and reasonable only if all the circumstances of the case are examined fully and objectively as well as evidences, which harden or lighten the responsibility of the accused. The Court did not fulfil the given demands. The trial on the case was carried out incompletely and superficially. In this connection the essential circumstances, which could have solved the case correctly, were not found, and the conclusions given in the verdict concerning the levelled accusation to Pasko contradict the factual circumstances of the case.

The verdict is stated in such a way, that the conclusions of the Court contradict to each other, and the researched evidences did not got the proper estimation.

The Court came to the conclusions that the testimonies of Pasko affirming that he did not transfer to the representative of the foreign state the information pertaining to state secrets were not refuted, and that the facts of the collecting this information for transferral, were not proved during the trial.

But these conclusions contradict the evidences given in the verdict. In particular, the Court admitted the materials of the operative measures as reliable, in which it is said that Pasko on the requests of Mr. Okano collected the information on the defensive enterprises; on submarines which had onboard the nuclear and radiation emergencies; on the decommissioning of the subs; on missiles and armaments as well as the information on the navy training, locations of the military bases, on the chemical armament and the other information; and discussed with him the ways of transferring the information, including by fax. According to the experts’ conclusions also considered by the Court as reliable, this information contains state secrets.

The Court also agreed that all copies of video materials filmed by Pasko were sent to the headquarters "NHK" in Tokyo.

Admitting the reliability of the materials of the investigative measures on the control of Pasko’s phone conversations, the Court referred to the fact that they were received according to the legally defined order, and the recorded tapes of the conversations were included in the case files and examined during the preliminary investigation in the presence of witnesses, who argued that the voice of one of the men was similar to the voice of Pasko.

Meanwhile, in accordance with articles 240 and 301 of the Criminal Procedure Code of the Russian Federation, the verdict can be based only on these evidences, which were examined directly during the trial, and in accordance with article 309 of the Criminal Procedure Code the indictment cannot be based on the suppositions, what happened in this case.

The reference in the verdict to the testimonies of the witnesses, who were not interrogated during the trial, is contradictory to articles 301 and 240 of the Criminal Procedure Code.

In order to solve the question, whether Pasko conducted the phone talks, which were recorded during the operative actions, the opinion of the witnesses about the similarity of the voices was not needed, but the conclusion of the competent experts. It was necessary to conduct the appropriate expertise, what was fairly indicated in the appeals of the charged Pasko and of his lawyer Pyshkin.

In the verdict the court also referred to the letter of the deputy of the Nuclear Energy minister. According to that letter, the documents and the materials confiscated under the search of Pasko’s flat concerning transportation and decommissioning of nuclear fuel, buildings, object’s equipment for handling the spent fuel and the other documents are official and must not be published in the mass media. Simultaneously, as the case materials show, in order to define the secret level of these documents, the investigation appointed the expertise, which should be carried out by the specialists from the Ministry of the Nuclear Energy. But this expertise was not conducted, and the deputy of the Nuclear Energy minister expressed in his letter to the investigation bodies just the opinion of the experts on the issues related to the Ministry of Nuclear Energy, and drew attention to the fact that the information given to them for estimation pertains mainly to the area of the Defense Ministry activities. Consequently, this expertise of given materials should be expediently carried out namely with this department.

In spite of that, neither the investigation bodies nor the Court carried out this expertise of the documents and thus, contradicted article 78 of the Criminal Procedure Code of the Russian Federation, and the Court used the above-mentioned letter as a part of the basis of the verdict.

In accordance with point 3 of the resolution of the Supreme Court Presidium No. 1 of April 29, 1996 "About the court verdict", while the verdict is enacted, all evidences, both the supportive ones and the contradictory ones should be examined during the trial. At the same time the Court must explain in the verdict why some of the evidence were admitted as reliable and the other were rejected. However, the Court did not fulfill this demand concerning the form of the verdict.

In the verdict the Court just pointed out that it does not admit the evidences reliable, which contradicts with the evidences given in the verdict for supporting his guilt after the testimonies of the defendant. At the same time there were no concrete evidences in the verdict, which the Court did not admit as reliable, as well as no arguments, why these evidences were not admitted as reliable.

Admitting the guilt of Pasko in the abusing the official authorities, in violation of point 8 of the resolution of the Presidium of the Russian Supreme Court "About the court verdict" the Court just pointed out in the verdict that the actions of Pasko entail the considerable violation of the state legally protected interests. But the Court did not indicate how it expressed and which circumstances were reasons for its conclusion. The indictment has no such data either, so the charged Pasko and his lawyers referred reasonably to that fact.

Basing on the above-mentioned, the verdict cannot be remained in force, and only after the removal of the indicated defects, the Military Supreme Court will be able to take the final decision regarding this case.

During the new consideration of the case the Court should remove the above indicated errors, take measures for full and complete examination of the collected evidences, estimate all the evidences on the whole, taking into account the arguments given in the appeals and in the protest. And only after that, the Court can decide whether Pasko is guilty or not of the actions he is accused of, qualify his actions and declare the punishment.

As to the decision of the Court of February 16, 1999 on the refusal of complying the petitions of the charged Pasko and his lawyers regarding the removal of the judges from the process, it is not valid after the rejection of the verdict. The new trial excludes the repeated participation of the same judges and the argument on this question is thus, unreasonable. Taking the above mentioned into consideration and ruling by articles 332, 343, 344 and 346, 351 of the Criminal Procedure Code of the Russian Federation

the Military Collegium of the Russian Supreme Court has decided:

to cancel the verdict of the Military Court of the Pacific Fleet dated July 20, 1999, regarding Pasko Grigoriy Michaylovich, because of the incomplete and one-sided trial; discordance of the Court’s conclusions stated in the verdict with the factual circumstances of the case; and the incorrect application of the Penal Code;

to send the case to a new trial on the stage of the court examination in the same Court with different judges.

The decision is signed by

Correct:

The judge of the Supreme Court of Russian Federation

Major-general of justice Zaharov

Secretary-Hornyak