Conclusive evidence that the classified Defence Ministry Decree No. 055 had ceased to exist came to light during proceedings in which the Supreme Court’s Appeals Board was examining a private complaint filed by Pasko against Judge Aleksander Koronets who had previously refused to consider an earlier complaint lodged by Pasko against items contained in Decree No. 055.
On Tuesday, the Appeals Board, led by Judge Aleksander Fedin overturned the prior Judge’s refusal to grant Pasko’s complaint and closed the case on the basis that secret decree No. 055 — which gave the government wide latitude in defining state secrecy — had been abolished by Defence Minister Sergey Ivanov and no longer existed. According to Pavlov, these documents cancelling the decree were in evidence in court Wednesday.
Though the cancellation of the secret decree will not lead to Pasko’s freedom, it is an important legal victory in preventing further prosecutorial fiascos like the Pasko and Nikitin cases, said Pavlov in an interview. And even though a new — and equally secret — decree has sprung up to take its place, Pavlov said he had been told in court Tuesday by Defence Ministry representatives that many of the arguments made against the old decree by Pasko’s legal team had been "taken into consideration" in the draft of the new classified decree on state secrets. A Defence Ministry official, who requested anonymity, confirmed this.
"We cannot say that there will be no more Paskos or Nikitins, but there will be significantly fewer of them," Pavlov said. "The Defence Ministry has decided to correct some of its own mistakes."
But Pavlov quickly added that the situation compounds the "absurdity" of Pasko’s case. During hearings, Pavlov reported, Judge Fedin closed the complaint case because, the judge said, he saw no purpose for debate since the decree no longer exists.
"So now they say there is no issue to debate — a person is doing time in jail, but they say there is no issue to debate," Pavlov fumed. "It’s a totally absurd situation, it means you can issue a decree, an illegal decree, convict someone on the basis of it, throw him in jail, then right after the conviction cancel the decree."
Nonetheless, Pavlov said, the fact that the Pasko case influenced the contents of the new classified decree on state secrets, "may not be a victory for Pasko, but it is a victory for society — a hopefully freer society."
Pasko, a 40-year-old former reporter for the military Boyevaya Vakhta, or Battle Watch, newspaper of the Russian Pacific Fleet, was sentenced to four years’ imprisonment on December 25th, for allegedly intending to pass classified information on navy manoeuvres to Japanese media. He also reported extensively on the Pacific Fleet’s negligent handling of its nuclear waste, including exposing evidence of dumping nuclear waste at sea. The conviction was based on two now abolished secret Defence Ministry decrees — Decree No. 055, and Decree No. 10 which barred military personnel from fraternizing with foreigners. Decree No. 10 was abolished by the Supreme Court in May.
The international response to Pasko’s case has been different. Amnesty International proclaimed Pasko Russia’s third Prisoner of Conscience since Andrei Sakharov and Bellona’s Alexander Nikitin, and he has also been nominated for the European Union’s prestigious Sakharov Award for freedom of thought.
All of this would seem to pave the way to Pasko’s immediate freedom, but the mechanics of Russian justice, Pavlov explained, are not that simple.
"This case has long since jumped the judicial rails," he said. "It has turned out that the Supreme Court will only look at this case from a political point of view — whatever complaints have been filed, or will be filed, they only care about saving face."
The "face" to be saved here, said Pavlov, is that of the judges and security services, who instead of insisting on the mandatory 20-year imprisonment Pasko was facing, reduced his sentence to four years, leaving 28 months for him to serve after the 20 months he had spent in detention were deducted.
"The security services viewed this as a compromise," said Pavlov. "But how can you compromise with an innocent man?"
There have also been hints that Pasko’s imprisonment is a trade off for the acquittal of Nikitin in 2000, which was a bitter loss for the security services. After Pasko’s conviction, there were also Kremlin overtures to amnesty. However, Pasko turned them all down on the basis that amnesty is the refuge of the guilty — which he is not.
Any chance for freedom
The best chances for Pasko’s freedom therefore lie in a so-called Supervisory Appeal, or nadzornaya zhaloba in Russian, that his defence team will file before the end of this month.
This appeal would allow Pasko’s defence team to file a complaint with Supreme Court Chairman Vladimir Lebedev, or one of his deputies, asking to look into the legality and foundations for the decision made at the end of June this year by the Supreme Court’s Military Collegium to uphold the original sentence.
If Lebedev accepts the appeal, it would be passed to the Presidium of the Supreme Court where 15 judges would hear the appeal in court. The verdict would be decided by a vote, and a simple majority would set him free.
Pavlov said Tuesday that it is not clear when an answer could be expected from Lebedev on the appeal.
There is also a chance that Pasko, who is currently in quarantine at the prison camp to which he has been sent, may be set free early for good behaviour. But both his wife, Galina Morozova, and his Vladivostok-based attorney, Anatoly Pyshkin, said in interviews there last week that they feared Pasko may become the target of harassment of guards anxious to dash his chances.
"He’s an educated man, not a common criminal, so I doubt he will get into any trouble," said Morozova in an interview in Vladivostok. "But we’ve heard of any number of threats, by guards, to plant contraband on him, or start fights with him — all of which would put early release in danger."
Defence Ministry learns from Pasko case
According to Pavlov, the Defence Ministry representatives he spoke with told him a team of 130 experts was assigned to write the new decree and that it had been done with the Pasko case in mind. "Those representatives [of the Defence Ministry] who were in the courtroom said they were grateful for the fact that we explained to them a lot of things that they didn’t understand before," he said.
Many on the team that drafted the new decree, these ministry representatives — as well as the ministry source — said, had cut their professional teeth during the original Pasko interrogations, dating back to 1997.
"Those experts got first hand experience in the case when we rubbed it in their faces that they couldn’t even make correct use of their own decree, that their whole stance was illegal and contradicts the Constitution," said Pavlov.
What’s in the new decree?
Among those items that are no longer considered state secrets in the new decree is information about military casualties and illnesses among servicemen, Pavlov said he was told by Defence Ministry representatives, although they would give no more examples. The Defence Ministry source confirmed these items are absent from the new decree, but also refused to provide more details.
What likely remains in the new decree, said Pavlov, are items that classify information about the shipment of submarine spent nuclear fuel in Russia, and the scale of Russia’s chemical weapons stockpiles. Nikitin, who two weeks ago also went to the Supreme Court to argue against decree No. 055 — to be told even then that the decree had apparently been cancelled — also suggested that the new secrecy document likely contains other restrictions on information about atomic power and even education.
It is also likely to contain hundreds — Decree No. 055 contained more than 600 — instances in which information can be considered classified. The Defence Ministry official did say that the new secret document listed "more than a few dozen instances" under which certain information is considered a state secret, but would not be more specific.
"Unfortunately we can’t see the new decree yet, but I think sooner or later we’ll get to it, too," Pavlov said. "It would be hoped that it contains mostly technical things, relative to weaponry, the character of weaponry in a military sense."
But Pavlov vowed that "we’ll get to it and we’ll check if the statements made by the Defence Ministry representatives on Tuesday were true."
What the public knows about state secrets?
At the heart of the struggle that has dragged Nikitin through judicial humiliation for five years until his full acquittal in 2000 and that now has its claws in Pasko, is the extreme variance between the Defence Ministry’s classified decree on state secrets, and the Federal Law on State Secrets that the public is allow to see.
Said Pavlov, if the decree No. 055 contains some 650 instances where a state secret could be declared, the Federal Law on State Secrets contains only some three dozen items.
But, said Pavlov, these instances are vague. "It’s not a question of quantity but of quality," he said. "A cursory reading of the published Law on State Secrets leaves one lost. An average person really has no idea what is classified and what is not." This then leaves the security services with wide latitude in prosecuting treason cases.
Threats to the abolition of No. 055
It is precisely this latitude that the government grants itself that leads Pavel Felgenhauer, an analyst who writes on Russia’s security and defence bureaucracies, to take a sceptical view on the cancellation of No. 055.
"This is not a law-based country," Felgenhauer told Bellona Web. "There’s an old saying with the security services: Find me a man and I’ll find an article to prosecute him with.’" Felgenhauer said that just because the Defence Ministry decides to re-write its secret statutes on classified information, it doesn’t mean, for instance, the situation will become easier regarding other security agencies like the Federal Security Service (FSB).
Felgenhauer added that the FSB has its "own version" of Decree. No. 055 to follow and could make arrests on its basis, even while the Defence Ministry has thrown out a number of those things deemed treasonous offences.
But Pavlov said that the importance of the Defence Ministry’s decision is that it will create a chain reaction and all of these security structures will have to follow suit. "We disagree that these laws should be classified and we will see the process through to the end."
Pavlov added, however, that, "state secrets in Russia are there and must be there and they must be protected — but they mustn’t be amorphous, like rubber, so that they suck up a whole layer of information that must be open to the public."