Analysis:

The Court of the Russian Pacific Fleet in Vladivostok has set the date for its hearing of the case against Grigory Pasko to March 22, 2001

.

Pasko is an investigative journalist who worked for Pacific Fleet’s newspaper. He was arrested in Vladivostok on November 20th 1997. The Russian Security Police, FSB, accused him of high treason through espionage under Article 275 of the Russian Penal Code, for having collected and handed over to the Japanese TV-channel “NHK” allegedly secret information on nuclear safety issues in the Russian Pacific Fleet. Amnesty International adopted Pasko as a prisoner of conscience in January 1999. In July 1999 the Court of the Pacific Fleet acquitted him of high treason, but found him guilty of ‘abuse of his official authority’ under Article 285 of the Penal Code. Pasko was sentenced to three years, but released under an amnesty since he had served 20 months in pre-trial detention.

The Military Collegium of the Russian Supreme Court cancelled this verdict on November 21, 2000, and sent the case back for a new trial in the Vladivostok Court, with different judges. Observers have considered the decision as a negative signal regarding the future development of the rule of law in Russia. Pasko himself characterised the decision as a “death sentence” to him, and the development of the case does indeed raise concerns.

Un-concrete and vague charges

The various verdicts’ and appeals’ rendering of the charges against Pasko, gives the impression of a messy laid-up case, where many of the points attempted “proved” by the prosecution are either irrelevant or lacks significance for the case.

The charges also seem far too vague to fulfil the demands of Articles 143 and 144 of the Russian Criminal Procedure Code. According to these provisions the charges shall point out the date and place of the alleged crime, as well as other circumstances related to it. Pasko is, however mostly accused of committing various actions in “approximately 1996”, in “the period from 1995 to 1997”, or in “the first part of 1997”. Moreover, it is also hard to figure out exactly what information Pasko is accused of having collected and transferred to the NHK, and which part of this information that allegedly is secret.

When the St. Petersburg City Court returned the Nikitin-case to additional investigation in October 1998, it pointed to the vagueness of the charges. This vagueness, the Court said, did not only make it impossible for the Court to evaluate whether the charges were grounded or not. It also deprived Nikitin from his right to defend himself with legal means.

Judged from the available materials, the charges against Pasko actually seem to be even more vague than the charges against Nikitin. The vagueness of the charges implies an obvious hindrance of Pasko’s right to defence, as they neither clarifies when the actions he is accused of took place, what these actions were composed of, or what is the alleged secrets in the information he allegedly collected and transferred abroad.

Thus, even without evaluating the merits, one can conclude that the charges constitutes a significant violation of Pasko rights under the Russian Criminal Procedure Code, the Russian Constitution and the European Convention on Human Rights. Nevertheless these charges are maintained as a result of the decision of the Military Supreme Court. The concerns this decision has raised are therefore highly understandable.

Moreover, as it will be established below, none of the conditions for a guilty verdict under article 275 of the Penal Code are fulfilled. The allegedly collected and transferred information is not secret; the receiver of the information did not have the purpose to undermine Russian State security; and Pasko did not have the intent of treason. Thus, the charges against him for treason through espionage should have been dropped.

No collection and transferral of secret information

A condition for convicting a person for treason through espionage under Article 275 of the Russian Penal Code is that he has collected and transferred abroad information that pertains to state secret according to the Federal law on State Secrets.

The verdict of the Court of the Pacific Fleet contains a single reference to Article 5 of this law, which in its present edition contains a list over information that pertains to state secrets. However, a reference alone does not establish that secret information has been collected and transferred. It takes a thorough evaluation of the disputed information in accordance with the valid legislation on state secrets, to make a conclusion on the issue. In the present case the Court did not itself carry out such an evaluation. In stead it based itself on an expert-evaluation carried out by of the 8th Department of the Russian General Staff.

The conclusions of this body are however notoriously known for being unreliable, self-contradictory and in violation with the Constitution and the federal law. It was experts from the 8th Department who made the conclusions that formed the basis of the charges against Aleksandr Nikitin for having collected and transferred state secrets to Bellona.

When testifying before the St. Petersburg City Court at the Nikitin-trial in December 1999, the experts said that when they were asked to evaluate whether an item of information pertains to state secrets or not, the sole legal basis for their evaluations were the secret decrees of the Ministry of Defence. They considered both the Federal law on State Secrets and the Constitution as irrelevant in this respect, and had never used any other legal acts than the secret decrees.

Their evaluations of the disputed information in the Pasko-case were made before these testimonies were given. Thus, it is more than probable that Pasko – like Nikitin – is charged with having collected and handed over information that is not secret according to the officially published legislation, but only according to various secret military decrees.

Such charges are, however, as the Courts pointed out in the Nikitin-case “a blatant violation” of the Constitution. Besides, in that case the Courts established that it first on October 6, 1997 existed a list over information pertaining to state secrets that fulfilled the demands of the Constitution. Thus, the information Nikitin was accused of having collected and transferred to Bellona did not pertain to state secrets.

This legal opinion is also relevant in Pasko’s case. Practically all his alleged criminal actions took place before the said date. Moreover, the information Pasko is accused of having collected and transferred is related to the radioactive safety in the Pacific Region, and because of its environmental significance it can not be classified as state secrets according to Article 7 of the law on State Secrets.

The receiver of the information had no hostile intentions

In order to get a conviction for treason the prosecution also has to establish that the receiver of the alleged secret information was a foreign state or organisation whose intention is to undermine Russia’s security. The Pacific Fleet Court did not find these demands to be fulfilled, despite the fact that the prosecution had claimed that the FSB and Russian Foreign intelligence had “confirmed” that the purpose of the Japanese TV-company Pasko had contact with was to “endanger the Russian State sovereignty.”

In its appeal the prosecution claims that the Court made a mistake when it overlooked that the Japanese TV-company had shown interests in military related issues, and that some of its personnel had been apprehended for violating “border regulations”. On this occasion one of the Japanese even had a small camera.

These vague allegations are however not suited to establish that the persons were engaged in hostile activities towards Russia. It is a long way from being interested in military issues to have hostile intentions. Persons who randomly violate Russian “border regulations” do not necessarily have the purpose to endanger the State sovereignty, even if they are in the possession of small cameras.

The prosecution also claims that the Court was mistaken when it did not take into consideration that “the peace treaty between Russia and Japan is not yet negotiated”. The reference to the lack of such treaty – 56 year after World War II – as a “proof” of Japan’s hostile retaliations towards Russia, should need no further comments.

No intent of treason

The crime treason through espionage has also a subjective side. To be convicted, the accused must have been aware of the fact that he dealt with information pertaining to state secrets and of the receiver’s hostile intention. Moreover, he must have had the intents of treason; that is a wish to undermine the Russian State security with his actions.

The information Pasko is accused of having collected and transferred to NHK is, however, only classified in secret legal acts. Consequently, he had no possibility to figure out that it was secret, and especially not when the prohibition of classifying information of environmental significance in Article 7 of the law on State Secrets is taken into consideration. When acquitting Nikitin, the St. Petersburg City Court referred specifically to this provision, as well as Articles 41 and 42 of the Constitution and Article 2 of the law on radiation safety, and stated that these provisions gave the citizens a right to consider such information as open. This legal opinion was later accepted by the Supreme Court.

Besides, Russian authorities allowed NHK to have an office and work in Vladivostok and the surrounding areas. Pasko could therefore not realise that the intention of the TV-company was to undermine Russian security, especially not since the company never has had any such intentions, which also is proven by the fact that it still is allowed to operate in Russia. Since Pasko had no possibility to know that he handled state secrets or that he was engaged with persons whose purpose was to undermine Russian State security, he could neither have had the intents of treason with his actions.

A verdict full of flaws

It follows from the above-mentioned that none of the condition for convicting Pasko under article 275 of the Penal Code is fulfilled, and that there are no contents of crime in his actions. Thus, the Court of the Pacific Fleet came up with the correct conclusion when it acquitted him for treason through espionage. A closer look at its verdict does, however, reveal that it is characterised by a number of flaws and that it is not at all well put together.

Unlike for instance the St. Petersburg City Court’s acquittal of Aleksandr Nikitin, which was an excellent piece of legal craftsmanship, the verdict of the Pacific Fleet Court is self-contradictory and illogical. The Court does for instance both state that it was not proven that Pasko handed over to NHK information pertaining to state secrets, and that this was proven. Besides, the Court has not fulfilled the demands of Articles 20 and 314 of the Russian Criminal Procedure Code for acquitting the accused; that each piece of evidence that is presented in the indictment must be repudiated.

The verdict is also based on suppositions and not on facts, which contradicts Article 309 of the Criminal Procedure Code, and on the testimonies of witnesses that were not interrogated in Court. The latter violates Articles 240 and 301 of the Criminal Procedure Code, and also the accused’s right to cross-examine witnesses under Articles 6 (3) d and 6 (1) of the European Convention on Human Rights.

Moreover, when convicting Pasko for ‘abuse of his official authorities’, a crime that demands that the abuse must have lead to “considerable damage of the legally protected interests of the Russian State”, the Court only claims that this condition is fulfilled. It gives absolutely no reasons for the allegation, and it does not concretise what the alleged damage consists in, or which legally protected state interests the damage has been inserted to.

Most of the above-mentioned errors were recognised by the Military Supreme Court. Thus, it was actually no surprise that it cancelled the verdict of the Pacific Fleet Court. It did however cancel both the convicting and the acquitting part and thus, ruled in accordance with the demands of the prosecution’s appeal.

More decisive than the Nikitin-case

It follows from the above-mentioned, that the prosecution’s claim that it was established through the investigation that all the elements of the crime described in Article 275 of the Russian Penal Code are present in Pasko’s actions, should be rejected as groundless. The fact that the Military Collegium of the Supreme Court did not do this may therefore seem like an alarming development.

However, its decision gives no hint of the final outcome of the case. It also says that several points addressed by the defence is well-grounded, in particular that the Court of the Pacific Fleet gave no reason for its claim that Pasko had inserted “considerable damage of the legally protected interests of the Russian State”.

Besides, as pointed out above, the verdict of the lower Court was full of flaws and errors, and the Russian Criminal Procedure Code from 1960, gives higher Russian Courts only a limited competence to go into the merits of a criminal case. Thus, given the amount of errors in the verdict of the Court of the Pacific Fleet, the returning of the case to a new trial was perhaps the only option the Military Supreme Court had.

Its decision did however, prolong the process against Pasko with months and perhaps years, and as long as this case is pending in the Russian legal system, the future development of the rule of law in Russia is also pending.

The above elaboration shows that there are many similarities between the Nikitin-case and the Pasko-case. It is therefore no overstatement to say that first when also Pasko is acquitted the precedence of the Nikitin-acquittal will be fully established. It takes at least two decisions to establish precedence. Until the second decision comes along, the first one will remain a single incident. Thus, the outcome of the Pasko-case will perhaps be even more decisive for the development of the Rule of law in Russia than the Nikitin-case.