Charges significantly limited

Publish date: December 14, 2001

Written by: Jon Gauslaa

In his closing speech, prosecutor Aleksandr Kondakov dismissed more than half of the charges against Pasko. Kondakov also made other changes, which indicates that even he realises that his case is a weak one.

Kondakov dismissed five of the ten episodes Pasko were charged with. Still he asked the Court to declare Pasko guilty in state treason under article 275 of the Russian Penal Code; to strip him of all his military distinctions; and to sentence him to nine years of hard labour.

No helmet for Putin
A nine year sentence is three years below the minimum sentence for state treason. The reason why Kondakov took this step was that Pasko is the father of two children, and that it had not been established that his actions had inserted any damage to the state.

The latter is quite remarkable. The admirals Dorogin and Zakharenko were in early November flown in from Moscow in order to testify, despite not being entered on the list of witnesses. Both of them insisted that the damage caused by Pasko had been huge. Zakharenko even claimed that the Fleet had to re-work all its battle plans because of Pasko.

However, there were also aggravating circumstances in the case, said Kondakov, and brought special attention to the "fact" that there is still an official state of war between Russia and Japan, since the two countries have never signed a peace-treaty after WW II.

This lead to the following remark from Anatoly Pyshkin, one of Pasko’s attorneys, -How come then, that president Putin did not wear a battle helmet last time he visited Japan?

The prosecutor’s resurrection
At the end of the prosecutor’s speech, an argument erupted between Kondakov and Pasko’s other attorney Ivan Pavlov, who asked the prosecutor if he had agreed his position with his superiors. Kondakov returned the question and asked if Pavlov had agreed his position with his superiors as well. – Do you mean with the CIA, Pavlov asked ironically. Kondakov remained silent, but this seemed to be exactly what he meant.

Pavlov had good reasons to ask his question, as the prosecutor recently fell ill under rather odd circumstances. On December 3, Kondakov asked the Court for permission to give his closing speech on December 11, but the Court rejected his request and scheduled his closing speech to December 7.

Kondakov did not show up in Court that day, apparently because he had become hospitalised the same morning on an unknown diagnosis. Later the same day, journalist Victor Tereshkin went to visit him at the hospital and wished him a speedy recovery.

Tereshkin’s prayers were granted, or perhaps it was his healing powers. Kondakov, who was reported sick until December 24, resurrected and signed out of the hospital on December 8. According to the buzz around the Pacific Fleet courthouse, the reason why Kondakov wanted to give his closing speech on December 11 was that he waited for some "important documents" from Moscow. Since these had not arrived by December 7, he had to postpone the trial by falling "ill", so that he could get the documents before giving his closing speech.

Half the indictment dismissed
The above-mentioned has not been confirmed. It is however, noteworthy that Kondakov’s closing speech was not the recitation of the indictment that seems to be kind of closing speeches that most Russian prosecutors prefer.

In stead the person who drafted Kondakov’s closing speech, turned parts of the indictment upside down, and dismissed the accusations against Pasko for having disclosed and transferred to Japan the following items of "secret" information:

· the time and place of the departure of a train with spent nuclear fuel in October 1997;

· a draft to an article Pasko was writing on the decommissioning of submarines,

· a report on the financial situation of the Pacific Fleet;

· the instruction manual for the rescuing of spacecrafts;

· a report on the decommissioning and handling of laid up submarines.

The dismissal of the first three episodes was no surprise. Although the episode related to the train is a key-part of the indictment, the experts’ from the Ministry of Defence, whom the Court interrogated in September, could not find any secrets in this information. They could neither find any secrets in Pasko’s article or in the financial report.

As to the two latter episodes, the prosecutor would have had to climb steep hills in order to convince the Court of Pasko’s guilt. The only ‘proof’ related to the rescue manual was for instance that there were not any secrets in the ten pages of the manual that allegedly was found at Pasko’s flat in November 1997. The investigators then thought up that since some other pages of the manual apparently contains secrets, Pasko had already transferred these pages to Japan…

No transferral of documents
The author of the closing speech has also acknowledged that almost nothing of the information that Pasko is accused with having transferred to Japan actually has been transferred.

This is not at all surprising. According to the indictment, the documents containing the disputed items of information were confiscated at Pasko’s flat on November 20, 1997. The indictment does not explain how the very same documents that allegedly were found at Pasko’s flat, could have been transferred to Japan several months before. As a result of this, the prosecutor changed the indictment’s plea that Pasko had transferred the following four documents to Japan, to plead that he had collected the documents with the intention to transfer them:

· A questionnaire containing questions regarding the decommissioning of liquid missile fuel;

· A list of submarine accidents;

· Hand-written notes from a meeting in the Military Council of the Pacific Fleet, which Pasko attended in September 1997;

· A report on the decommissioning of weaponry and armament.

Also on these issues the prosecution faces a steep hill. It will for instance be almost impossible to prove that Pasko had collected the said documents with the purpose to hand them over to Japan. According to the indictment he kept them at his flat for months and throughout this period he met several Japanese journalists. Thus, if his intention was to hand over the documents, he had every chance to do so long before his flat was searched in November 1997, when the documents allegedly where confiscated.

Besides, it should also be hard for the prosecution to get away with its claim that the documents contain state secrets. The questionnaire does for instance not contain any secrets itself, but according to the experts secrets could be revealed if its questions were answered in full detail.

Thus, in the same way that Pasko has been charged with an attempt to collect state secrets for asking questions, similar charges could be directed at any journalist who does an interview. And needless to say, the question as to whom will be responsible for the disclosure of state secrets – the one who asks the questions or the one who answers them – is left unanswered both in the indictment and by the prosecutor in his closing speech.

One remaining document
The only document that Pasko actually transferred according to the prosecutor, is the drawing of a base for storage of spent nuclear fuel and radioactive waste.

The disputed drawing, which also was confiscated at Pasko’s flat, is however only a highly inaccurate sketch of the base. According to some of the witnesses it shows the base, which on several occasions throughout the last decade have been visited by US military personnel, as it looked like in the mid-eighties. Besides, the only "proof" for the transferral of the sketch is that one witness said he saw a similar sketch at the office of the Japanese TV-station "NHK". That was however in October 1997, one month before the FSB allegedly confiscated the sketch at Pasko’s flat.

Besides, the trial has shown that the search of Pasko’s flat was carried out under highly dubious circumstances. No proper protocol was kept over what was confiscated, and neither Pasko (who at that time was arrested) nor any other persons representing him were present in the room where the investigators worked. Thus, the investigators had every possibility to insert whatever they wanted to the heap of "confiscated materials". According to Russian law, these irregularities are alone enough to disqualify 95 % of the "evidence" of the case.

In addition, the allegation that the materials of the case contains state secrets, is based on the secret Defence Ministry decree 055:96, which is a normative act that was characterised as "illegal and invalid" by the Russian Supreme Court on November 6, 2001.

Verdict to fall on Christmas Eve?
It follows from the above-mentioned that the so-called evidence against Pasko is very thin. Through his closing speech, even the prosecutor seems to realise this.

Although he dismissed some of the weakest points of the charges, he still seems to be grasping at any straw that he might be able to find in order to get a conviction. The carrying capacity of these straws should however, be far too low to rescue his case. That would at least have been the case in an ordinary court, ruling by the law. Whether the Military Court of the Russian Pacific Fleet is an ordinary court that will be allowed to rule by the law, or only a speaking tube for someone else, remains to be seen.

The defence will give its closing speech on December 17. It will then ask for a full acquittal. On December 18, Pasko will be given the floor to state his last words to the Court. The three judges of the Court will then withdraw for deliberations. They are expected to announce their verdict on December 24 or 25. This will however, not be the end of the case, as any decision that the Pacific Fleet Court will come up with, surely will be appealed to the Military Collegium of the Russian Supreme Court.

Journalist Grigory Pasko was arrested on November 20, 1997 on charges of espionage on behalf of the Japanese TV-channel NHK. He was acquitted in July 1999, but convicted of ‘abuse of official authority’ and freed under an amnesty. Seeking a full acquittal, Pasko appealed, but so did the prosecution, insisting he was a spy. On November 21, 2000 the Military Supreme Court sent the case back for a re-trial at the Pacific Fleet Court, where the re-trial has been going on since July 11, 2001.