On June 25, 2002 the Military Collegium of the Russian Supreme Court consisting of chairman lieutenant general of justice Parkhomchuk Y.V., judges major-general of justice Koronets A.N., and major-general of justice Petrochenkov A.Y., examined the criminal case, where the state prosecutor senior assistant of the Pacific Fleet prosecutor colonel of justice Kondakov A.F., as well as the convicted Pasko G.M. and his lawyers Pavlov I.Y., Pyshkin A.F. public defender Tkachenko A.P. appealed the verdict of the Pacific fleet Military Court of December 25, 2001.
The said verdict convicted Pasko, Grigory Mikhaylovich, who was born on May 19, 1962 in the village Kreshchenovka of the Novovorontsov region of the Kherson county in Ukraine, Russian citizen, with higher education, married, with under age children on maintenance, not previously convicted, and who served in the military as an officer from July 1983 till September 2001, for committing a crime, stipulated by article 275 of the Russian Penal Code with application of article 64 and sentenced him to 4 years in the work camp with strict regime, without confiscation of property, and deprived him of the military rank retired captain of the 2nd rank.
After hearing the report by lieutenant general of justice Parkhomchuk Y.V., the speech of senior military prosecutor lieutenant colonel of justice Murashkin I.V., and the speeches by representative of civil society Tkachenko A.P.; lawyers Pavlov I.Y. and Pyshkin A.F. who supported their and Paskos complaints; and the speech by Reznik G.M. who supported the lawyers and Paskos complaints and believed that the verdict should be overruled due to unproved guilt of the convicted and that the case should be dismissed; as well as the conclusion of senior military prosecutor lieutenant colonel of justice Murashkin I.V. who demanded the Military collegium to reject the complaints of the defence and convicted and to overrule the verdict due to the soft sentence and send the case for the new trial at the same court, but with different judges,
the Military Collegium has established:
The [Pacific Fleet] Court found Pasko guilty of state treason in the form of espionage, as it stands in the verdict, under the following circumstances.
In 1996 Pasko, while serving in the military under a contract voluntarily signed by him, in the position of the department chief of the Pacific Fleet newspaper "Boevaya Vakhta", got acquainted with the Japanese citizen and correspondent of the Japanese newspaper "Asahi Simbun", Tadashi Okano. In 1996-1997 Pasko repeatedly met Okano, also under off-duty circumstances, both in Vladivostok and in Japan. He called him on off-duty questions over the phone and exchanged facsimile messages. Due to their established off-duty relations Pasko regularly collected the information interesting for Okano on mutually advantageous conditions.
In the end of August and in the first part of September 1997, Okano in telephone conversations with Pasko, repeatedly showed interest in receiving information on the exercises conducted during that time by the forces of the Pacific Fleet, their peculiarities and differences from previous exercises.
On September 10, 1997, Pasko as the representative of newspaper "Boevaya Vakhta" under the official invitation of the command was present at the session of the military council of the Pacific fleet held in the headquarters of the Pacific Fleet. Here he learned that an analysis of the exercises, in which Okano had shown his interest, would be held the next day and that the analysis was open only for a strictly determined category of servicemen.
On September 11, 1997 Pasko came to the headquarters of the fleet with the intent to collect information for the subsequent transfer to Tadashi Okano, including state secrets on the said exercises. Pasko was not on the list of persons that were admitted to participate in the analysis of the tactical exercises. Thus, he was illegally present and collected information revealing the real names of the especially important and restricted divisions and units, including units of military reconnaissance; and also the information revealing the remedies and methods of protection of classified information by units participating in the exercises on electronic scrambling. This information constitute state secrets, according to paragraph 6 of part 1 and paragraph 5 of part 4 of article 5 of the Law of the Russian Federation "On state secrets" issued on July 21, 1993, no. 5485-1 and in the new edition (Federal Law no. 131-F3 from October 6, 1997); and paragraphs 13 and 77 of the List of information pertaining to state secrets, confirmed by the Decree of the President of the Russian Federation from November 30, 1995, No. 1203.
Pasko illegally kept the said information pertaining to state secrets with the same purpose, i.e.: for transfer to Okano. On November 20, 1997, the hand-written notes on the information of the analysis of the Pacific fleet’s exercises were found and confiscated at Pasko’s flat.
The state prosecutor expressed disagreement in the cassational protest because the soft sentence did not fit to the graveness of the crime and personality of the convicted. The prosecutor claimed that the court did not pay attention to the high social danger of Paskos treason and did not take into consideration the records, which characterise Pasko negatively. In particular, the testimonies of Paskos former chief Otekin and his colleague Verkhovod regarding the fact that Pasko was called to account, and that he did not take care about training of his subordinates.
Besides, as it comes from the testimony of witness Polutov, Pasko collected secret information about the Pacific Fleet for mercenary motives, planning to receive a fee for transferral of this information. These circumstances were examined in court, but in the prosecutors opinion they were not evaluated properly in the verdict.
Thus, the prosecutor demanded in his protest to cancel the verdict because the soft sentence did not fit to the graveness of the crime and to the personality of the convicted.
The convicted Pasko demands in his appeal to cancel the verdict as illegal and ungrounded, dismiss the case due to the lack of corpus delicti in his actions.
The similar demand is expressed in the joint cassational appeal by the lawyers Pavlov I.Y., Pyshkin A.F., and representative of the civil society Tkachenko A.P.
The convicted and his defence ground in details their position and believe that the Courts conclusion that Pasko had the intention to transfer secret information to Tadashi Okano, Japanese journalist of Asahi Simbun newspaper, does not correspond to the facts of the case
In their opinion, the circumstances of Paskos acquintance with Okano are distorted. In reality the editor of Boevaya vakhta newspaper, Mr. Otekin presented them to each other, and Okanos visit to the ship in Vladivostok was agreed with the navy command.
Okanos interest to the navy exercises shown in the telephone conversations was abstract.
At the same time it is not enough for a conviction to conclude that Pasko collected and kept information just to hand it over to Okano whose interest in the navy exercises was established only by the records of the telephone conversations.
Besides, the court concealed message no. 1055 of the Vladivostok Telephone Company from October 5, 2001, from the parties of the trial, although this document had been received before the verdict was announced.
The defence believes that the Courts conclusion in the verdict that Paskos actions connected with collecting information on the navy exercises, was part of the ordinary element of therelationship system between Pasko and Okano, is ungrounded.
From the content of the phone conversations in reports no. 2775, 2851 and 2951, it is clear that the conversation about the navy exercises was very limited and was not followed by any instructions or requests to Pasko. Pasko himself did not offer Okano to collect additional information about the exercises. Besides, it is not proven that it was Pasko and Okano who performed the mentioned telephone conversations.
When accepting the records of the telephone conversations as evidence and using them to establish Paskos guilt, the Court did not pay attention to the fact that the magnet tapes with the conversations are not available, or to the fact that the records were presented to the preliminary investigation in violation with Criminal Procedure Code.
After the analysis of the navy exercises Pasko spoke to Okano many times on the phone, exchanged fax messages, but they have no information about Pasko having any intention to pass the received secret information about the navy exercises to Okano. On November 13, 1997, Pasko went on business trip to Japan and had the possibility to take the notes with him to hand them over to Okano, but he did not do that. The defence believes that this shows that Pasko had no intention to transfer the mentioned information to anyone.
As it is mentioned in the complaints, Pasko was the acting deputy editor of Boyevaya vakhta newspaper as well as chief of military training department of the editorial staff, so he had the right to be present at the navy exercises analysis on September 11, 1997, which was one of the Pacific Fleet events, and make notes to describe the results in the newspaper and use it to train his subordinates. It is confirmed by the fact that Pasko wrote an article in Court based on his notes regarding the navy exercises. Besides, several newspaper articles about navy exercises written by Pasko were attached to the case files.
The Court ruled in the verdict without grounds that Pasko had been illegally present at the analysis of the navy exercises, as he was included in the list of the admitted persons.
By doing that the Court went beyond the frames of the article 254 of the RSFSR Criminal Procedure Code, which says that the accused may not be convicted on charges, which are not present in the indictment. Pasko, however, was charged only with writing down the notes, which contain state secrets, on unregistered paper sheets. The preliminary investigation did not question the legality of his presence at the analysis of the navy exercises.
The indictment limits the storage of Paskos notes by the short time, until the middle of September 1997, the court sentenced him for keeping the notes from September 11, 1997 until November 20, 1997, and went beyond the levelled charges.
Moreover, the Law On state secrets was significantly changed and the Courts prolongation of the period Pasko allegedly kept the secret information, led to a significant change of the qualification of Pasko’s act.
The convicted and his defence also believe that the evidences the Court used as basis for its verdict were received with the violations of the law.
In particular, the reports on the taped telephone conversations and the copies of the intercepted fax messages were presented to the investigator without an appropriate decisions of the Pacific Fleet FSB chief. This violates part 3 article 11 of the law "On operative-investigative activity" and the departmental normative acts of the FSB. This deprived the reports of any proving meaning. The fax messages were intercepted illegally by the preliminary investigation bodies as the case files contain the court permissions only for post and telephone conversations interception. Moreover, the contents of the reports were interpreted tendentiously in the verdict.
While examining the case, the Court did not fulfil the directive stated in the decision of the Military Collegium of the Russian Supreme Court from November 21, 2000, regarding the expert evaluation of the audio recordings of the telephone conversations.
The protocol of the search at Paskos flat can not be accepted as evidence because it was conducted in violation of part 3, article 132 of the Criminal-Procedure Code, by officials not entitled for the procedures, senior investigator Izotov and agents Pozdnyakov and Alexeyev. Investigator Egorkin had no right to issue a separate order to them.
The chief of Izotov did not issue to Izotov any written orders regarding the search, as it is required by article 127-1 of the Criminal Procedure Code. Besides, unauthorised people were present during the night search. They were not listed in the protocol. The individual details of the confiscated items and documents were not described. This violates part 2 of article 176 of the Criminal Procedure Code. The search was conducted without Pasko or any of his representatives being present. His wife was only present at the search from time to time and could not observe all actions of the investigators at the 3 room flat.
The convicted and the defence believe that the protocol of items and documents which had been confiscated during the search, was falsified. Criminal experts concluded that some pages from the protocol have the signatures made by different people. The text of the protocol contains unauthorised additions, and the quantity of the observed pages significantly exceeds the number of the confiscated pages.
At the first trial, the court issued a decision addressed to the chief of the Pacific Fleet FSB and excluded the protocol from the list of the evidences. Thus, usage of this document during the re-examiniation of the case is illegal.
The defence also believes that the additional examination protocol of the hand-written notes from November 26, 1997, written by FSB agent Stolbov, is falsified. He also made an illegal decision about attaching Paskos notes to the case files, although he had no right to make procedural decisions.
Some violations of the Criminal-Procedure Code were conducted during the expert evaluation in Court.
In violation of part 1 article 7 of the law "On state judicial-expert activity in the Russian Federation", all the persons involved in the expert evaluation were dependant on the FSB, as they had security clearance to access state secrets, issued by the FSB. These specialists could not be fully objective and independent. The questions for the experts had legal nature and were beyond their competence. The expert committee included the persons who knew the facts on the case to be proved.
The experts examined not only the materials presented by the Court, but also materials they had collected on their own initiative. This violates part 3 article 16 of the law "On state judicial-expert activity in the Russian Federation". The experts conclusion improperly represents the research part, as it does not mention which research each expert made.
The experts conclusions about state secret information in Paskos notes are stochastic.
While conducting the examination, the experts applied illegally the secret normative act, Defence Ministry decree no.055-96, in violation of part 3 article 15 of the Russian Constitution, and p. 10 and 12 of the Presidential Decree no. 763 from May 23, 1996.
At the same time, in the lawyers opinion, Paskos notes do not contain state secret even with application of the above mentioned decree, as the real names of the military units are not revealed as they are only mentioned without any additional data indicating concrete military units. Besides, the information similar to Paskos notes was published in open press, Pavlovs reference books, magazine Typhoon and Tekhnika i Vooruzhenie Technique and Arms.
The experts conclusion and the verdict also contain a wrong reference to paragraph 6, part 2 of, article 5 of the Law On state secret, as the hand-written notes do not reveal the condition of the arms supply of the forces which names are mentioned in the document.
The defence believe, the experts were wrong to conclude that the handwritten notes reveal secret information about radio-electronic warfare activity during exercises, as the notes mention radio-electronic warfare unit, while article 129 of Defence Ministry decree 055-96 states that it may not be secret.
The lawyers also claim that the indictment and the verdict are based on application of illegal normative acts, Defence Minister decree no.055-96 without registration in the Russian Ministry of Justice, and on Defence Minister decree no. 010-90 prohibiting military servicemen to communicate with foreign citizens what contradicts the Russian Constitution and current law. The reference in the verdict to the Law On state secrets and presidential decree no. 1203 from November 30, 1995, which base Paskos guilt in collecting state secret information, are not substantial, as these norms according to the defence, are declarative and thus, should not be directly applied.
Besides, the defence draws attention to the fact that the list of information pertaining to state secrets was determined by the amendments to the Law On state secret only on October 6, 1997, i.e.: after Paskos alleged actions.
The Law "On state secrets" from July 21, 1993, no. 5485-1, which was valid at that time, contained only information which could be referred to the state secret only after appropriate procedure. This circumstance excludes criminal responsibility for illegal handling of state secret information committed from December 25, 1993, untill October 9, 1997. The defence believe, this follows from the decision of the Constitutional Court no. 17-II from December 20, 1995, which said that criminal responsibility for state secret disclosure takes place only if the List of information, pertaining to state secret, is officially published in a Federal Law.
Convicted Pasko draws attention to the fact that the witnesses Otekin and Okano, whose testimonies the Court refers to, were not interrogated in court. Polutovs testimony regarding Okanos accreditation at the Japanese Defence Department is not confirmed by any documents.
The protocol of the search does not contain data stating that some notes containing secret information were kept at Paskos flat. Witness Alexeyev who had taken part in the search did not recognise the allegedly confiscated notes. The Court ignored the fact of stealing of the documents from Paskos desk by the FSB agents, and refused to interrogate the witnesses of the theft.
The convicted believes that the testimonies of the witnesses Ushakov, Ryazantsev and Zakharenko, which the Court refers to in the verdict, are strongly distorted in the part where they say that the analysis of the navy exercises was not on the schedule of the Military Council. Besides, the Court did not establish the exact place and time period of the analysis.
Basing the verdict on the experts evaluation from September 14, 2001, the Court called its conclusions correct and well grounded in the part regarding the handwritten notes taken at the analysis of the navy exercises. The Court came to a contradictive opinion on other issues of the evaluation, calling it wrong and not deep.
The convicted claims that such an inventive approach of the Court may not be called objective and grounded.
The Court acknowledged that a number of the mentioned valid names and tactical numbers was published openly in the press (which excludes prosecution for receiving, storage and distribution of such information) but came to the contradictive conclusion that the names of the ships and units mentioned in the notes pertain to state secret, although these names were also published in the open sources.
The court also ignored that some data in the notes is not real, for example, the mentioned submarine K-100 never existed.
Pasko also draws attention to the fact that the Court referred to evidence, which was not the subject of examination in Court (p.131 vol.18). This violates article 301 of the Russian Criminal Procedure Code.
Pasko believes that the expert evaluation of the available audio recordings are not related to the navy exercises and analysis of the navy exercises, and further comparison by analogy principle, is unacceptable.
Pasko also believes that the verdict contains a lot of inaccuracies and false referrals. For instance, while analysing the telephone conversations between Pasko and Okano, the Court points to facts which are not present in the reports, and interprets some phrases in its own way. For example, the word fee in one of the conversation is interpreted as reward. The testimonies of witnesses Dorogin and Efimov were not cited precisely, and also other inaccuracies and errors were made.
Pasko believes that the Court did not evaluate the actions of Okano as a person who had ordered secret information; that it did not pay attention to the requests of the defence and Pasko to conduct an independent expert evaluation by an independent interdepartmental commission on state secret protection; or to the fact that Pasko repeatedly reported orally and in writing to the FSB about his contacts with Japanese citizens in 1996-1997. It also completely ignored the expertise results regarding the falsification of the signatures of the witnesses Onoprienko and Shabalenko in the protocol of the documents observation.
Lawyer Pyshkin compared in the additional appeal the reports of the telephone conversations between Pasko and Okano with the pressreleases of the Pacific Fleet press-centre. He underlines that pressreleases and other open sources about the Pacific Fleet contain more information than Paskos notes about the exercises.
Moreover, in his opinion, the Court distorted the testimonies of some witnesses and some telephone conversation reports in the verdict. The Court has no right to conduct expert evaluation, examine them, attach them to the case files and refer to them as evidences of the case, that is to fulfil the function which is not natural for the Court. By this the Court violated the constitutional principles of adversarial character of the judicial process and equality of the parties, as it took the prosecutors side.
The Court ruling from July 20, 1999, regarding the falsification and excluding of the protocol of documents and items which were confiscated at Paskos flat, was not cancelled by the Supreme Court, therefore the Court had no right to refer to them as evidence in the case.
No evidence was established and mentioned in the verdict that Japanese journalist Tadashi Okano was engaged in hostile activity against Russia, or that Pasko on Okanos request or on his own initiative collected the state secret information on September 11, 1997, for further transferral to Okano.
The lawyer states the reasons for his disagreement with the previous Supreme Court decision, and refers to articles 340 and 353 of the Criminal Procedure Code, saying that a more severe sentence may be assigned only if the original verdict was cancelled because of too soft punishment or because of the necessity to apply the law on a more severe crime.
He mentions that the prosecutor protested against the wrong qualification by the Court of four out of ten episodes. The prosecutor did not protest regarding the qualification of the episode Pasko was convicted for.
The Military Collegium of the Supreme Court cancelled the original verdict and stated in the decision from November 21, 2000, that the verdict is cancelled due to one-sided and incomplete trial, incompatibility of the Courts conclusions to the cases circumstances and incorrect application of the law. The lawyer believes that the cassational decision does not indicate that the Court satisfied the prosecutors protest regarding applying the law on a more severe crime.
Having examined the files of the criminal case, the protest and the appeals, the Military Collegium of the Russian Supreme Court finds that the conclusion of the Court of first instance regarding Paskos treason in the form of espionage corresponds to the factual circumstances of the case and is based on thoroughly examined evidences in Court which were properly evaluated in the verdict.
It was proved in Court that Pasko was present at the analysis of the Pacific Fleet navy exercises on September 11, 1997, and wrote down notes on unregistered sheets of paper information, disclosing real names of the participating restricted units, revealing means and methods of secret information protection by the radio electronic warfare units. This information constitutes state secret according to the valid law.
It was established in Court that during the navy exercises, in particular, in the end of August and the first days in September 1997, correspondent of the Japanese newspaper. Mr. Tadashi Okano, repeatedly showed interest to the information on these navy exercises, their peculiarities and differences from previous exercises. Pasko assured Okano that he was receiving information on the exercises. In 1996-1997 Pasko repeatedly met Okano, and also on off-duty circumstances and regularly collected information interesting for Okano on mutually advantageous conditions.
Pasko kept the secret information about the exercises written on the paper sheets on September 11, 1997 at his flat. It was found and confiscated during the search at his flat on November 20, 1997.
The Court established through the examined evidences that Pasko did not need to collect secret information for his activity at work in such a way. Taking into consideration the long and mutually advantageous relations between Pasko and Okano, and Okanos interest to the information on the navy exercises, the Court came to a grounded conclusion that Pasko collected secret information on the navy exercises and ilegally kept it to transfer it to Japanese journalist Tadashi Okano.
Paskos guilt is proved by the following evidences examined in Court:
According to the search protocol from November 20, 1997, and the observation protocol of the confiscated documents from November 21, 1997, hand-written notes on 4 pages about the navy exercises were found and confiscated at Pasko flat.
According to the experts conclusion in court, Paskos notes contain state secret.
The reports of telephone conversations between Pasko and Okano No. 2033 from June 19-20, 1997, No. 2775 from August 24-25, 1997, no. 2851 from August 26-30, 1997, No. 2951 from September 4-7, 1997, etc. show that Pasko had permanent relations with Okano. He frequently reported him about various activities of the Pacific Fleet, including the navy exercises in September 1997.
According to the testimonies given by witness Polutov in Court (vol.23 p.178-188), Pasko supplied Japanese mass media with information on the Pacific Fleet for a fee for a long time. Back in 1993 Pasko told him that he cooperated with the Japanese company MNK and complained that the Japanese paid him too little for his materials. Pasko knew that Polutov worked as a journalist for Japanese media. Pasko offered him to buy information three or for times. Once Pasko offered him a list of laid-up nuclear submarines with their tactical numbers in exchange for $300. He added that the information was complete and based on reliable sources.
Paskos guilt is also confirmed by the testimonies given by witnesses Ushakov, Ryazantsev, Zakharenko, Dorogin and others as well as material and other evidences examined in Court.
The Court fully and in details examined the testimonies Pasko gave during the preliminary investigation and the two court hearings, it also took measures to clear out his relations with Tadashi Okano, the circumstances which led to their long off-duty relations, and his motives of collection state secret information, and its storage.
After he was detained on November 20, 1997 on the suspicion on committing state treason in the form of espionage, Pasko said at the interrogation on November 21, 1997, with participation of lawyer Kotlyarov O.S., regarding the documents confiscated by the customs, that he received the documents on trade-unions movement with information on the defence industry in the Russian Far East, the list of companies in Komsomolsk-na-Amur and other documents from Bomko N.I. He intended to use the mentioned materials for writing an article while he was on a visit in Japan. He had no intention to hand over the documents to anyone.
At the interrogation on November 22, 1997, Pasko confirmed his acquaintance with a journalist of the Asahi newspaper, Tadashi Okano. In August-September 1997, Pasko asked him to arrange an invitation for him to visit Japan in connection with collection materials about Russian sailors buried in Japan, but Okano began to drag on arranging the invitation.
At the same time Okano began to say that he was interested in such issues like North Korean manpower in the Far East, and the re-training of retired officers. As the date of the departure was closing in, the more issues were mentioned by Okano and the more he insisted. Pasko understood that Okano dragged out the visa arrangement as the mean to convince Pasko to deliver the needed materials, and Pasko agreed and told Okano that he would bring those materials.
But Pasko decided that he would present to Okano the mentioned information not in the form of documents, but in the form of a completed article on those issues. He did not tell Okano about that. Besides, he did not expect to get a fee for the article, as he understood that Okano would take all the money for translation, so he did not discuss with Okano the issue about payment.
On November 26, 1997, Pasko referred to his physical and psycological state connected with the arrest, and the prohibition to use his confiscated notes and documents during the interrogation, and refused to give further explanations.
On the following interrogations, the accused Pasko stated that he would speak only after changing the measure of restraint.
Pasko did not plead guilty in state treason in Court, and added that he met Tadashi Okano in 1996, when he on the instruction of the chief of Boevaya Vakhta newspaper, Otekin, told the Japanese journalist about the activities of the editorial staff and his articles.
Later he kept relations with Okano as journalist, exchanged open information with him, and provided him some services. In 1996-1997 he met Okano several times, first in Vladivostok, where Pasko by agreement with the command escorted him during the visit to the ships and units of the Pacific Fleet, and then in Japan, where he arrived on the invitation of society Eurasia Russia. Okano as a friend provided him a visa support and helped to buy a fax machine. Besides, in 1997, he and Okano repeatedly talked on the phone and send faxes to each other. The same year, by Okanos request Pasko collected for him open information on environmental and social issues of the fleet, including the re-training of retired servicemen, decommissioning of laid-up submarines, reprocessing of the radioactive waste etc.
As to the Pacific Fleet exercises, Okano did not ask him to collect any closed information, as they talked only about open information.
Regarding the handwritten notes examined in court, Pasko admitted that it was he who had written them down. However he gave contradictive testimonies about his presence at the analysis of the exercises on September 11, 1997.
He said first in Court at the first trial? that he did not remember the consequences of writing down those notes and could not say whether or not he was personally present at the meeting on September 11, 1997, or interviewed the participants of the meeting.
Later Pasko said in Court second trial? that he was present at the meeting from the beginning until the break and added that the meeting took place in the big hall of the Pacific Fleet Headquarters where the Military Council of the Pacific Fleet usually held meetings. He wrote down the notes with the purpose to use them at the training of the editorial staff and for articles about the navy combat readiness. He could however, not prepare any articles as he was arrested. In his opinion, the notes contain no secrets and he had no intention to hand over them to anybody, including Okano.
Paskos statement was, however, disproved in Court. Witnesses Ryazantsev, Zakharenko, Dorogin, Efimov, Ushakov, documents and other evidences examined in Court and analised in the verdict proves the presence of Pasko at the meeting on September 11, 1997, as well as the fact that he took notes during the speeches of the participants which contained secret information.
Witness Ryazantsev said in Court that in 1997 according to his position he was responsible for the exercises of the troops and forces of the Pacific Fleet. The final analysis of these exercises was held on September 11. The press representatives were not invited to the analysis of the exercises. The list of persons invited to take part in the analysis of the exercises, was formed by the combat training Department of the Pacific Fleet, journalists, including Pasko, were not on the list.
After examining Paskos notes, Ryazantsev said in Court that they contain correct listing of the forces on strategical directions, the quantity of combat exercises, targets for shooting, i.e.: all the list of questions he personally had reported at the meeting. He personally did not give Pasko any information on these exercises. In his opinion, only the person who was present at the meeting could make such detailed notes of the speeches. He would never present the information similar to the one in the handwritten notes to any journalist.
Witness Dorogin, former chief of Kamchatka flotilla, said in Court that he participated in the exercises in 1997, and that the reported on these results on the analysis of these exercises on September 11, 1997 in the army headquarters. These events took place in different premices of the headquarters and differed by the participants and the quantity. The press was not invited to the analysis of the exercises. Having familiarised himself with Pasko’s notes, witness Dorogin said they corresponded to the sequence and the results of the analysis meeting. Such information could be received only being present at the meeting.
Precisely Dorogin reported at the meeting about the successful usage of the new unique submarine detection system with indication of working range, what was mentioned in the notes. This information is to great interest for foreign intelligence and is top secret.
Witness Yefimov, former chief of radio-electronic warfare department of the Pacific Fleet, said similar things in Court. He participated in the analysis of the exercises conducted on September 11, 1997. Yefimov also said that he did not give Pasko any information about the activity of radio-electronic warfare units, although the notes present a detailed report of his speech. Witness Yefimov said in court that Pasko’s hand-written notes contain secret information about radio-electronic warfare methods.
Witness Zakharenko, the cormer commander of the Pacific Fleet testified that the Fleets Military Council gathered on September 10, 1997, where press was present. The analysis of the military exercises was held at different premises on September 11, 1997, and the press was not invited. Pasko did not apply for permission to attend the analysis, which could be issued only by the Fleet commander or his deputies, so had no right to be present at the analysis.
Zakharenko, having familiarised himself with the text of these notes written by Pasko, explained in Court that they reproduced the application of the forces on strategic directions, a composition of actually involved forces and units, a sequence of executing the operational tasks and the obtained results. They reproduced precisely enough the structure and the main content of the reports of the officials of the fleet during the military exercises analysis. Nobody would ever present this information to the press.
The informaton on the underwater detection systems of the strategic submarines, and the missile test site, is top secret.
As for the information on radio-electronic warfare, it is closed in any country of the world.
Zakharenko said in Court that after Paskos arrest all restricted units at the Fleet were significantly reorganised in order to eliminate the negative consequences of his crime.
After hearing the testimonies of these witnesses, Pasko admitted that he was present at the meeting from the beginning until the break. It happened because the analysis was included in the schedule of the Military Council and he considered them to be the parts of one event. However, these testimonies of Pasko do not correspond to the case files.
It follows from the testimonies of witness Ushakov given in Court, which corresponds to the protocol of the session of the military council from September 10, 1997 examined in the session of the Court, that the said session of the military council was finished the same day, i.e.: on September 10, 1997. The analysis of the exercises of the fleet was an independent event conducted by the combat training Department of the Fleet, and was not a part of the agenda of the military council.
Ushakovs testimony is objectively confirmed by the protocol of the Military Council from September 10 1997, which was examined in the Court session and which shows that the results of the exercises were not planned for discussion at the military council.
It is no doubt that Pasko wrote down the notes from the meeting on September 11, 1997.
According to the conclusion of the experts dated April 27, 1998, Pasko made the hand-written notes.
This hand-written text corresponds with the above-mentioned testimonies of witnesses Ryazantsev, Zakharenko, Dorogin, Yefimov about the analysis of the exercises. The third sheet of notes written by Pasko is marked by him as "Conclusion on Pacific Fleet Exercises" dated 11.09.97, and structurally consists of records with subtitles in the following sequence: "Report by Ryazantsev"; "k/a Yefimov"; "v/a Dorogin"; "general-lieutenant Bumagin".
Having compared in Court the minutes of the Pacific Fleet Military Council meeting; the report of the Pacific Fleet commander at the exercises analysis; and the hand-written notes confiscated at Paskos flat, the Court came to the grounded conclusion about the correspondence of these two documents, and that Pasko was present at the meeting on September 11, 1997, and collected secret information there.
Contrary to the statements given in the cassational appeals of the lawyers and the convicted, the Court thoroughly and objectively examined the issue regarding the presence of secret information in Paskos notes.
Three expert evaluations were conducted to clear out this question, two during the preliminary investigation, and one during the Court session.
The court based the verdict on the conclusions of the experts committee from September 14, 2001. The experts concluded that the notes concisely provide the information on the composition of the forces of the fleet that were taking part in the exercises; and that they reveal the real names of top secret and restricted units, including units of military reconnaissance, and information on the activity of the units of radio electronic warfare during exercises, namely, about the means and methods of protecting the classified information. This information constitutes state secrets according to paragraph 6 of part 1 of article 5, and paragraph 5 of part 4 of article 5 of the Law of the Russian Federation "On state secret" from July, 21, 1993 no. 5485-1 (amended by the Federal Law on October, 6, 1997 no. 131-F3); articles 13 and 77 of the List of information pertaining to state secrets confirmed by Decree No. 1203 of the President of the Russian Federation from November 30, 1995; and articles 129 and 240 of Defence Ministry decree 055:96 secret. Despite the selective and incomplete notes and abbreviations in the text (the experts claimed they were understandable for a navy specialists) Paskos notes are accurate and correspond to the real facts. Unauthorised transferral of the information to a foreign state; foreign organisation; or their representatives, might damage the external safety of Russia. This damage might occur as a reduction of the battle capability of the naval forces while performing operational tasks.
The defences statement about the experts wrong conclusion that the hand-written notes reveal the secret information about the activity of radio-electronic warfare units as the information about these units according to article 129 of the Defence Ministry decree no.055-96 is not secret, and that the notes have no information about the methods of secret information protection, what was allegedly stated by witness Yefimov, is inconsistent.
The member of the experts committee Karikh said in court that the information about the means of secret information protection is understood as radio-electronic warfare unit, which possessed appropriate equipment to counteract enemy technical means. As the unit took part in wide-scale navy exercises the degree of its secret activity should be evaluated in application to flotilla, group of the forces, but not regiment. So the expert grounded his conclusions in details in Court, referring to the appropriate normative documents, what is directly stated in the record of judicial proceedings.
Contrary to the defences appeal, witness Yefimovs testimony in Court was not distorted in the verdict, but is worded according the record of the judicial proceedings.
In particular, he said in court that the hand-written document has information about the activities on frequency suppression, what actually shows the existence of the complex technical control unit. Yefimov illustrated his testimony with concrete data, which confirms application of the methods of secret information protection, what is described in details in the record of judicial proceedings.
The experts conclusion in Court corresponds on the whole with the experts conclusions from December 22, 1997, and March 14, 1998.
However, the first two experts conclusions stated that other information in Paskos notes was secret, but without grounds, as they did not contain the complete list of the participated forces, their tasks, quantitative and qualitative values of the combat and operative readiness.
The Court correctly considered the experts arguments as based on the current law, and admitted them grounded and convincing, had grounds to reject the two above-mentioned experts conclusions in the part contradicting the conclusion from September 14, 2001. The Court came to the right conclusion about the accuracy of the experts conclusion regarding the presence of state secret information in Paskos notes: information revealing the real names of top secret and restricted units of the Pacific Fleet during exercises, including units of military reconnaissance; and also revealing the means and methods of secret information protection by the units of electronic warfare during exercises.
There is, contrary to the statements in the appeal, no significant contradictions in the experts conclusion in Court and those made during the preliminary investigation, including the one by the experts from 8th department of the Defence Ministry Headquarters, regarding the issue of considering the above-mentioned information to be secret,.
The lawyers statement regarding the experts interest in the cases outcome, and the legal nature of the expert evaluation – the conclusions of which were allegedly based only on interpretation of the known normative acts what does not require special knowledge and that is why the experts went beyond their competence is not grounded.
As it comes from the case files, the experts were not dependant in any way from the FSB, which prosecuted Pasko, as they all served in a different organisation (Ministry of Defence). The fact that they had to undergo a FSB security clearance in order to get access to state secrets, may as such not indicate any dependance.
The Court assigned the expert evaluation with the purpose to solve the case correctly and engaged the specialists with the knowledge not only the state secret law, as the defence claims, but also in the field of military science and technique, including knowledge about the composition of the units of military management and forces of the fleet, on the peculiarities of the exercises, activity of radio-electronic warfare units during exercises, arms decommissioning, termination of the radioactive waste etc. Exactly this special knowledge of the experts allowed them to give answers in Court on the numerous questions of the parties on the mentioned topics.
At the same time the Court did not agree with the part of the experts conclusions where they found state secrets in Paskos documents when these conclusions were not sufficiently grounded; for example regarding the "List of nuclear submarines that have suffered nuclear and radiation accidents" etc.
The mentioned fact shows that the Court was critical when examining the experts conclusions, and that it agreed only with the part of the conclusions that were confirmed in court.
So, on the basis of the thorough analysis of the experts conclusions and other case materials the Court came to the grounded conclusion about the presence in Paskos notes of information revealing the real names of the in exercises especially important restricted divisions and units, including units of military reconnaissance; and also the specific activity of radio electronic warfare on supply of the forces during the exercises. This information constitutes state secrets.
Paskos intention to hand over the collected secret information to the representative of the foreign state, Tadashi Okano, is also proved in Court.
The Court examined telephone conversation reports attached to the case as copies, as well as some authentic records. They show that Pasko systematically had relations with Okano and informed him about various Pacific Fleet activity.
So, from the report of the operational control no. 1986, from June 19, 1997 Pasko phoned and gave him detailed information on decommissioning of nuclear-powered and conventional missiles.
He mentioned the exact quantity, state and location of the laid-up nuclear-powered submarines. After this message the following words by Okano are registered: Could you do me a favour, bring me the materials about laid-up submarines, some figures and something about their condition? Pasko answered: Yes.
Okano asked Pasko to bring video footage of missiles Volna in the next telephone conversation (report no. 2033 on June 19-20, 1997).
In report no. 2775 from August 24-25, 1997 Okano expressed the interest to the exercises of the Pacific Fleet. In this connection Pasko reported to Okano that at that time the exercises went on Kamchatka, and that exercises in the Primorye region would begin on September 1, and would last for about one week. Then Okano asked to clarify the number of laid-up submarines, how many that were decommissioned, and the number of officers and generals that would retire. Then the parties had the following conversation: Okano: I want to know the situation for today, about the plan. Pasko: What date suites you? I need 2-3 days. Okano: Good. I will ask our management to pay a fee. I will take it, OK?
As it follows from Report No. 2851 from August 26-30, 1997, Okano again in telephone conversations with Pasko showed interest to the information about military exercises. In this connection Pasko told Okano that he at work receives information on these exercises from the sea. Then they spoke about nuclear submarines and missiles decommissioning. Pasko expressed initiative to get information saying One may not trust everything to correspondence.
As it follows from the conversation fixed in report no. 2951 from September 4-7, 1997, Okano again asks about the ongoing exercises: Do you collect materials on ongoing exercises? He is also interested in the course of the eexercises, difficulties, supply with fuel and food, in particular. Pasko answers in details to all the questions. The conversation is completed by Okanos words that he planned to visit Vladivostok and his request: Thats why describe all the secrets, such, I will call you in a few days.
In Court Pasko refused to comment on the authentic reports of his conversations with Okano. Besides, he stated that he could not remember if he discussed the exercises with Okano. However, earlier in Court he spoke with Okano about the exercises, but the Japanese journalist was interested in general information.
The comparative analysis of the specified reports of telephone ñonversations between Pasko and Okano with their recital in the verdict shows, that the court reproduced the content of the reports in the verdict objectively and precisely enough. In this connection it is impossible to agree with the defence’s argument about the prejudiced recital by the court.
The Court’s conclusion about the certainty of the facts in the reports is substantiated as well.
The authenticity of reports no. 2775, 2851, 2951 of Pasko’s telephone conversations, which soundtracks had been destroyed by demagetization of physical data carriers according to the Instruction about the order of organizational ensuring of measures on listening telephone conversations declared by the order of the FSB Director from November 30, 1994, no. 0019, was carefully examined during trial.
The objectivity of report no. 2951 is confirmed by Pasko’s facsimile message examined in court, which contains the concrete advisories for Okano in connection with the visit planned by him to the Pacific fleet installations, what Okano asked during the telephone conversation, registered by this report.
Besides the authenticity of the soundtracks of the telephone conversations between Pasko and Okano, which magnetic carriers were intact, is carefully verified in the session of the Court. With this purpose the Court assigned and conducted two phonoscopic examinations, during which the reports of negotiation between Pasko and Okano were examined, including report no. 1986 from June 19, 1997, which the verdict refers to.
According to the expertise from October 26, 2001, the voice and the speech of one of the two persons participants of the conversation fixed by the said report, belongs to Pasko. Thus, the second person is a Japanese language speaker.
During the second examination the comparative linguistic researches of conversations between Pasko and Okano, fixed by reports no. 1986, 3678, 3699 and 3722 were conducted.
It is also visible from the expertise that the contents of the soundtracks in the reports are reproduced correctly as a whole, and the few inaccuracies did not influence the meaning of the speech.
Contrary to the claims of the defence attorneys in the petitions, all instructions of the Military Collegium which cancelled the first verdict, were carried out by the Court. Usage of different soundtracks by the experts during comparative researches of the telephone conversations between Pasko and Okano, does not violate the law.
Pasko himself did not dispute the authenticity of the reports which was confirmed by his autographic testimonies during the first session of the Court, when he commented in details on the negotiation with Okano on preparing materials about the elimination of chemical weapons, and decommisioning of missiles (report 2775 and 2851) for the Japanese journalist.
The argument of the defence regarding the unacceptable application of the reports of the telephone conversations and facsimile messages as evidences, because they were received in violation of the law is ungrounded.
The conducting of the operational search measures in relation to Pasko, including control of his telephones, was conducted by the employees of the Pacific Fleet department of the FSB according to p. 2 article 23 of the Constitution of Russian Federation, and also articles 6, 7, 8, and 9 of the Law «On operational – search activity», on the basis of adjudgements from April 9, June 17 and September 18, 1997.
According to article 11 of the Federal law "On operational – search activity" the results conducted of the operational measures carried out in relation to Pasko could give basis for lodging a criminal case against him.
As it is correctly specified in the petition of the defence attorneys, the presentation of results of operational – search activity to the agency in charge of preliminary investigation, inspector or court is carried out on the basis of the appropriate decree of the chief of the body conducting operational search activity. The case files do not contain such a decree.
However, it was established in Court, that the results of the operational – technical measures were registered in the files of the operational account, which subsequently was transmitted by the deputy of the chief of the Pacific Fleet FSB Nadin to the inspector of the investigatory department of the Pacific Fleet FSB Yegorkin with an attached letter. Thus, the transfer of the results of the operational – search activity actually took place from one structural subdivision to another inside the same body. In this connection the Court came to the correct conclusion that the absence of the decesion of the chief of this body only formally does not correspond with the normative regulations and is not a significant breach of the law and therefore does not lead to the results being invalid. Besides, the transfer of the originals of the reports Pasko’s telephone conversations to the court is effected on the basis of the order of the head of the FSB department of Russia on the Pacific fleet from October 31, 2001, i.e.: in complete correspondence with the established regulations.
The Court demanded and obtained the originals of the reports for elimination of the doubts which had arisen in connection with the research of their copies, what is indicated in the petitions of the defence attorneys. No violations of the criminal procedure law were found.
The opinion of the defence regarding the groundlessness of the Court’s use of the facsimile messages as the evidence is erroneous. The bodies carring out the operational activity on this case, had the judicial admittance to control the telephone conversations bewteen Pasko and Okano, during which they transferred the facsimile messages to each other, which clarified their oral conversation. The faxes were transferred on voice circuits and were legally controlled by the agents.
The reference of the defence in the petition that the Court had hidden from the participants of the process the message of the Vladivostok telephone company is groundless too, as this document has no data with any evidential meaning.
The court examined these and other evidences, which as a whole allowed, contrary to the opinion expressed in the petitions of the convicted and his defence, it to make a substantiated conclusion in the verdict about the steady system of off-duty mutual relations between Okano and Pasko, where Pasko fullfilled fully and precisely all Okano’s requests about collecting and transferring to the latter various information on concrete questions, including those concerning the activity of the Pacific fleet.
The Court examined the materials confiscated from Pasko by the customs in the airport before his departure to Japan on November 13, 1997. They testify about Pasko’s activity while performing Okano’s missions. Among the materials are the following documents: «Agreement on mutual cooperation in the field of an agriculture between Agriculture Committee of North Korea and Primorye Administration», «Resolution of the counsel of the defenñå industries trade-union board in Bolshoy Kamen», «Questions of re-structuring of the defenñå industry enterprises», «Materials on Komsomolsk-na-Amure city».
Pasko promised to bring Okano these materials before the trip because of Okano’s request during telephone converations registered by the reports no. 3297 from October 3-6, 1997; no. 3348 from October 8, 1997, and also facsimile message from November 2, 1997, in which Okano also asked Pasko to collect the information on the citizens of North Korea, working in Primorye.
Therefore, the character of the off-duty relations between Pasko and Okano established in the criminal case, shows that Pasko carried out frequent missions on Okano’s request, who showed constant interest to the exercises of the Pacific fleet in August-September 1997. This allowed the Court to reach a substantiated conclusion in the verdict about the presence of a causal-consequential relationship between Okano’s interest to the said topic and Pasko’s visit to the exercises analysis on September 11, 1997, with detailed recital of its results on the non-registered pages, and about Pasko’s intent to subsequently transfer the classified information he collected to Okano.
In the session of the Court, the motives which have compelled Pasko to cooperate with the foreign citizens, were also established.
The convicted and his defence attorneys correctly mentioned in the cassational appeals that Pasko in 1996 escorted Okano to the military units of the Pacific Fleet not on his own initiative, but on the order of the fleet command.
At the same time, the testimonies of witnesses Ryzhkov (the chief of the press centre of the Pacific Fleet headquarters), Otekin and Verkhovod show that no other missions except for assistance Okano in visiting military units and acquaintance with newspaper "Battle watch" was given to Pasko. Later Pasko maintained the constant relations with Okano on his own initiative.
As the mentioned earlier, witness Polutov testified in Court that he had been occupied with journalism for a long time, worked in the Japanese mass media, and that he since 1997 had been familiar with the journalist of the Japanese newspaper "Asahi simbun" Tadashi Okano and knew well about his mutual relations with Pasko. He knew from Okano himself that he was accredited at the National Defence Department of Japan. Polutov knew that Pasko used to sell to various MASS-MEDIA the information on the problems of the Pacific fleet. Sometimes Pasko offered to sell him some information basically on the decommisioning of nuclear-powered submarines, but Polutov refused. The representative of the Japanese TV company MNK in Vladivostok, Hiroyoki Nasu, told Polutov that Pasko supplied Japanese MASS-MEDIA with the information for a fee.
The fact that Okano paid Pasko for the given information is proved by the report, examined in court, no. 3297 from October 3-6, 1997, in which the telephone conversation between Pasko and Okano is recorded. Okano directly promised Pasko to pay for the information in the conversation. Literally this conversation was such: "I have a request I want you to send me a fax about the situation in Komsomolsk, when I come, I pay, so".
Pasko himself did not deny in Court receiving "royalties" for the information, given to the Japanese journalists, and specified that he had transferred to the representatives of the Japanese MASS-MEDIA well-known materials about the decommisioning of submarines, arms, radioactive waste, and sometimes he commented videos about that. The 100$ royalties were paid to him. Besides, before the trip to Japan in November, 1997, he received about 300$ to pay for interpreters. He had "visa support" by Okano during his trip to Japan, who helped him to do shopping, organized for him interviews and translations from the Japanese language.
It was carefully verified and not confirmed in the Court session the affirmation of the convicted that he did not write down the results of exercises analysis with the purpose to use it for preparing the newspaper publications or for the military education with his subordinates.
As it is established in Court, this event was sufficiently described in the newspapers "Battle watch", "Vladivostok" and in the magazine "Maritime digest", including Pasko’s article in newspaper "Battle watch" from September 13, 1997. It did not need additional illumination in mass media.
The argument about the necessity to use the notes of the exercises analysis during the military education with his subordinates is confuted in court by the testimonies of witnesses Otekin and Verkhovod. They said Pasko actually was not occupied with education and training of the subordinates. Their testimonies are confirmed by the in Court examined materials describing Pasko, and also the documents of tbe "Battle watch" staff, which show that the organizational plans about conducting military education and field training in the staff were not prepared. the studies were not conducted.
The affirmations in the petitions that Pasko had the right to publish information from the notes on the results of the navy exercises analysis, as similar data weas already used in the opened press, in particular, in the Reference book by Pavlov, is inconsistent.
Expert Karih V.E. said in Court that the Reference book by Pavlov contains some data on maritime scout ships and ships composition. But this book does not provide complete and reliable information, as in Pasko’s records.
The testimonies of the expert are confirmed by the comparative analysis conducted in Court, of Pasko’s notes with materials published in magazines "Typhoon", "Technique and arms" and Pavlov’s Reference Book "Military ships of Russia 1997 – 1998", and also data from the report mentioned in Pasko’s appeal by the Pacific Fleet chief at the Military Coouncil (vol.24 p. 225-234; vol.25 p. 157; vol.26 p.284-300).
As it is established by the Court, the open press has no information on the valid names of secret military units, ships and squadrons, in particular, of military reconnaissance, means and methods of radio-electronic warfare, which are available in Pasko’s notes.
The fact that Pasko did not bring to Japan together with other documents his secret notes about the results of the Pacific fleet exercises in the middle of November 1997, what is underlined in the petitions of the convicted and his defence attorneys, can not testify about the absence of his intention to transfer these notes to Okano at another time or under other circumstances.
Pasko knew Okano’s intention to visit Russia in September or November 1997, about what the Japanese journalist repeatedly informed Pasko during their telephone conversations (report of telephone conversations no. 2775 from August 24-25, 1997, no. 2951 from September 4-7, 1997).
His confidence in the forthcoming arrival of Okano in Vladivostok is confirmed by Pasko’s saying f in the report no. 3348 from October 8, 1997: "… I thought, you would come, I would acquaint you with many people".
It is also obvious from report no. 3618 from November 2 1997, which was examined in Court, and Okano’s fax sent to Pasko that Okano again confirmed his intention to arrive in Russia and asked Pasko "to find some military base, where there is an interesting episode".
It testifies that Pasko did not urgently need to transfer information constituting state secret to Okano during his trip to Japan.
Contrary to the statemenst in the petitions, the examination during the trial on the case was conducted comprehensively, fully and objectively. The Court established correctly the actual facts of Pasko’s actions.
No significant violations of the criminal procedure law leading to unconditional repeal of the sentence, were found.
As noted in the petitions, including in the petition of Pasko, the violations of the criminal-procedure law that occurred during the preliminary investigation while conducting the search at Pasko’s flat on November 20, 1997 and during the writing of the protocol of the survey of subjects that were confiscated at the search, and the documents from November 21, 1997, were the subject of a judicial inquiry. The Court, having given these violations the appropriate estimation in its verdict, did not find bases for considering as invalid the said materials in the part they confirms the confiscation at Pasko’s flat of the specified handwritten notes. The said violations have according to the Court’s conclusions not influenced objectivity on the facts regarding Pasko’s ownership and keeping of these notes.
It is correctly pointed out in the petition of the defence attorneys that during the first hearing on the case the Pacific Fleet Court has in the verdict from July 20, 1999 recognized the protocol of search of subjects and documents from November 21, 1997 as unacceptable evidence.
However, by the ruling of the Military collegium of the Supreme Court of the Russian Federation from November 21, 2000, the specified verdict was cancelled due to incompleteness and one-side of the examination during trial, non-conformity of the court conclusions with the actual facts of the case and incorrect application of the criminal law.
According to p.1 article 353 of the RSFSR Criminal Prodedure Code after cancellation of initial verdict, the case is examined in the general order, what stipulates conducting new research of the collected evidences and giving them a legal estimation.
At the new trial the Court, carefully verified lawfulness of of this investigatory action and protocol survey, with indicating motives, and came to the substantiated conclusion about their admissibility in the part referring to the fact in evidence.
The interlocutory judgement endured by the first Court in connection with the admitted violations during the investigation of the case, to which the defence attorneys and convicted refer in the petitions, has only information character and has no legal effect for evaluation of the evidence.
Pasko’s statement in the petition that the witness Alexeyev in Court has not identified Pasko’s handwritten notes as confiscated during the search, does not influence on the objectivity of conducting this investigatory action.
Regarding the theft of a folder with documents from Pasko’s table in his office, this case had as the applicant explained in court, taken place before his visit to the navy exercises analysis. In this connection, the said circumstance has no relation to the charges against Pasko.
From Pasko’s testimonies the Court knew the facts when he informed the FSB about his contacts with foreign citizens. However, as is established during the examination of the evidence, he did not do that in all cases.
Pasko’s statement that the Court has referred in the verdict to evidence, which was not subject to examination in Court, as the evidence mentioned in page 131 of volume 18, is substantiated.
However, a misprint took place in the verdict regarding its reference to the pages of the case files. In stead of page 136 in volume 18, which was examined by the Court, the verdict refers to page 131 which the Court did not examin.
However, page 136 announced by the Court contains the autographic testimonies by Pasko from April 22, 1999, concerning his telephone conversation with Okano about the on-going exercises of the Pacific fleet. They were announced in the court session. Pasko himself confirmed in Court these testimonies, in which he actually recognized having telephone conversations between him and Okano about the navy exercises mentioned in the report no. 2951 (volume 24 p. 315).
The misprint has not influenced on the objectivity of the recital in the verdict of the autographic testimonies by Pasko and can not form the basis for recognizing the given evidence unacceptable.
The reference in the petition of the defence attorneys to the illegality of the protocol of the additional survey of the document from November 26, 1997 is pointless, as this protocol is not mentioned in the verdict as proof of Pasko’s guilt.
As inspector Stolbovoy, according to the ruling of the senior assistant of the military prosecutor of the Pacific Fleet colonel of justice Osipenko K. P. from November 24, 1997, was a member of operative-investigatory group and was authorized without any limitations to effect investigatory actions on Pasko case, what is specified in p. 2 of the ruling, he had the right, contrary to the opinion of the defence attorneys, to make the decision on recognizing the handwritten notes confiscated at Pasko’s place as demostrative evidence on the case.
The statement in the cassational appeals of the defence attorneys about the Court increasing the storage period of the information constituting state secrets incriminated to Pasko by the investigating agencies, from the middle of September till November 20, 1997, that ostensibly entailed change of legal qualification of his actions, does not correspond to the materials of the case.
It is obvious from the decree about presenting to Pasko new charges from April 28, 1998 (vol.9, p.15, 20) and the indictment written on August 28, 1998 (vol.9, p.271), that the bodies of inquest incriminated Pasko storage of the various information, collected by him and constituting the state secret, including the notes about the results of Pacific fleet exercises, from 1996 till November 20, 1997, i.e. the day of his detainment.
The indication available in the descriptive part of the indictment on the transfer by Pasko of the information constituting state secrets, to the foreign citizens in the middle of September 1997, refers to the part of the charges, which the Court recognized ungrounded during the new trial.
There is no reason to believe that the Court went beyond the levelled charges with the above-mentioned argument.
It is wrongly stated in the petitions that in the period from December 25  until December 9, 1997, the criminal responsibility for the wrongful handling of state secrets, was not stipulated by the law at that time.
It is underlined in the ruling of the Constitutional Court of the Russian Federation from December 20, 1995, on the case about checking the constitutionality of a number of the provisions of part "a" article 64 of the Russian Criminal Code in connection with the petition of citizen V.A. Smirnov, that «realization of the demand of article 29 (part 4) of the Constitution of the Russian Federation is secured by the Law of the Russian Federation from July 21, 1993 «On state secrets», in which the concept of the state secret is defined and the information pertaining to state secrets is specified. Later, on November 30, 1995, the Decree of the President of the Russian Federation no. 1203 confirmed the «List of the information pertaining to the state secret».
As the collecting and storage of classified information for transfer to the foreign citizen accomplished by Pasko, refer to a continuing crime, which was repressed on November 20, 1997, the Court legally was guided by the mentioned above legal act, and also by the Law «On state secrets» no. 131-FÇ in edition from October 6, 1997, while considering his criminal case.
The arguments of defence attorney Pyshkin A.F. in the additional petition about disputing the lawfulness of the cassational decision of the Military Collegium of the Supreme Court of the Russian Federation from November 21, 2000, which cancelled the first verdict on Pasko case, may not be a subject of considering at the present trial according to the procedural law. Therefore they are left without answer.
His opinion that in the protest of the public prosecutors on the verdict of the Military Court of the Pacific fleet from July 20, 1999, were disputed only four episodes of the charges, and after requalification of Pasko’s actions on remaining six episodes they have agreed, is wrong.
As it is evident from the prosecutors’ cassational appeal, they did not declare the consent with re-qualification of the separate episodes of Pasko’s charges to article 285 of the Russian Criminal code. On the contrary, it was said in the protest, that the incriminated actions require uniform legal estimation according to article 275 of the Russian Criminal Code, as high treason. In this connection it was demanded in the protest to repeal the verdict and send the case to a new trial.
The Military Collegium of the Russian Supreme Court accepted the protest, and agreed to the arguments of the appeals and the defence attorneys challenging the legal estimation of Pasko’s actions Pasko, and cancelled the verdict from July 20, 1999, due to incompleteness and one-side examination during the trial, non-conformity of the court’s conclusions with the actual facts of the case and wrong application of the criminal law to the convicted.
If the Court accepted the protest of the public prosecutors, in which the question on necessity of application to Pasko of the law on more grave crime was staked, which was levelled to him by the bodies of inquest according to article 275 of the Russian Criminal code and was worded in the indictment, then according to article 353 of the Russian Criminal-Procedure Code it was possible, contrary to the defence’s opinion, to apply the law on more grave crime and, hence, more strict sentence.
At the second trial theCourt, according to Article 353 of the Russian Criminal-Procedure Code, examined the case in the general order and was not tied with the conclusions of the previous verdict and its qualification and the sentence.
At the same time, the verdict should be changed on the following grounds:
Although the court established the fact of Pasko’s presence on September 11, 1997 at the navy analysis meeting in the Pacific Fleet headquarters without the appropriate admittance, he was , however, not charged for that by the investigating agencies. Thus, the Court, having specified in its verdict the illegality of these actions, went beyond the limits of the levelled charges, and worsened the situation of the indictee.
In this connection the statement in the verdict that Pasko was «illegaly» present at the analysis of the Pacific Fleet exercises is subject to exception from the verdict.
Besides, due to the decision of the Supreme Court of the Russian Federation from February 13, 2002 which has entered into force, subarticle "à" of article 70 of the Manual on the protection of state secrets in the Army, which was enforced by the decree of the Minister of the defence on August 7, 1990, no. 010 is considered to be wrongful and being invalid from the date of entry into force of the Law of Russian Federation "On state secrets" from July 21, 1993, that the persons admitted to confidential activities, documents and products, are forbidden to visit embassies, consulates and other agencies of the foreign states, private companies and firms, to establish and maintain directly or through other persons connections with foreign citizens, if it does not enter into a circle of their official duties. The statement of the Court in the verdict regarding Pasko’s wrongful actions linked with establishing and maintaining connections with the foreign citizens on questions which are not among his official duties, is a subject to exception.
Regarding the order of the Minister of the defence of Russian Federation from August 10, 1996, No. 055, which enforced the List of information subject to security classification in the Armed Forces of the Russian Federation, the arguments of the defence attorneys and convicted Pasko about its illegality, is wrong. The said decree was valid at the time Pasko committed his crime and it has not been cancelled until present time.
As the evidences examined in Court, confirms Pasko’s guilt in collecting classified information constituting the state secret on September 11, 1997, and illegally storing the information at home with the purpose of transferring it to the representative of the foreign state Tadashi Okano to the detriment of external safety of the Russian Federation, the court correctly qualified Pasko’s actions according to article 275 of the Criminal Code of the Russian Federation, as high treason in the form of espionage.
The statement in the petitions of the defence attorneys that the case files have no evidences of Okano belonging to the Japanese intelligence is pointless, as the specified article of the Law describes high treason as distribution of state secrets, or in any other way of assisting a foreign state, foreign organization or their representatives in conducting hostile activity to the detriment of the external safety of the Russian state. In Court Okano’s connection with the military department of Japan is established, his big interest to various questions linked to defensive capability of the Russian state is confirmed, as well as his intent to get hold of classified information within this important area.
Regarding Pasko’s sentence for the committed crime, the Court was guided by Article 60 of the Criminal Code of the Russian Federation stipulating general principles of asigning sentence. Thus, alongside with the increased degree of the social danger of the committed crime, the Court took into account also other circumstances which allowed it to issue a sentence. This sentence can not be considered as unfair due to the softness as the public prosecutor states in his appeal. Neither is it subject to lowering, as the changes made by the Military Collegium of the Supreme Court do not give good grounds for a softer sentence.
Taking into account the above-mentioned, the Military Collegium of the Supreme Court of the Russian Federation, ruling by articles 332, 339, p.1, p 4; 351 of the Russian Criminal Procedure Code,
To change the verdict of the Pacific Fleet Military Court from December 25, 2001, in the relation to Pasko Grigory Mikhaylovich.
To exclude from the verdict the statement that Pasko was present on the analysis of the exercises of the Pacific fleet on September 11, 1997 "illegally", and also exclude from the verdict the statements about Pasko’s illegal actions, linked with establishing and sustaining communication with the foreign citizens on questions which are not related with the official duties.
To leave without changes the remaining parts of the verdict, and to leave without satisfaction both the appeal of the public prosecutor and the cassational appeals of convicted Pasko G.Ì., defence attorneys: Pavlov I.Y., Pyshkin À.F., and public defence attorney Tkachenko À.P.
With genuine correctly:
The chairman of a judicial composition
The general lieutenant of justice, Yu.V. Parhomtsyuk
The secretary G.À. Vlasova