Pasko case to raise complex issues of law and fact in European Human Rights Court

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The European Human Rights Court has found the core issues of the complaint filed by Pasko against Russia to be admissible for a hearing on their merits. The hearing is expected to take place in the third quarter of 2009.

The Court held in its unanimous decision to accept Pasko’s application that his trial in Russia “raises complex issues of law and fact” under Articles 7 and 10 of the European Convention on Human Rights.

The Court will therefore examine whether or not the conviction of Pasko for treason through espionage for having intended to transfer state secrets to Japan was a violation of the basic legal principles, and the result of an ill-founded persecution occasioned by his lawful activities as a journalist.

Pasko is certainly not the first – nor will he be the last – environmental whistle blower to fall into the flawed gears of post-Soviet justice, especially on the sensitive state issue of military nuclear waste. His case bears striking similarities to the trumped up charges against Alexander Nikitin, now director of Bellona’s St. Petersburg offices.

Both Pasko and Nikitin were naval officers, both spoke up to tell the truth about the reckless handling of naval nuclear waste, and both were tried in flawed systems relying on secret decrees and closed door proceedings. But where Nikitin eventually found a full acquittal in the Russian Supreme Court, Pasko is still officially branded a traitor on parole.

The acceptance of his application for hearing before the European Human Rights Court stands to erase that verdict – which could embolden other potential whistle blowers to come forth and bear witness to the truth that could make inroads into cleaning up Russia’s languishing nuclear legacy.

History of Pasko’s harassment
Russian government harassment of Pasko, formerly an investigative journalist for the naval newspaper Boyevaya Vakhta (Battle Watch), began in November 1997, when he was arrested and charged with treason through espionage. The Russian Pacific Fleet Court in Vladivostok acquitted him of these charges in July 1999, but sentenced him to three years in a labour camp for abuse of his position – a crime he was never charged with.

The Russian Military Supreme Court quashed this verdict on appeal in November 2000 and sent the case for a new trial at the Pacific Fleet Court. The re-trial started in July 2001, and ended on December 25th the same year. Pasko was acquitted on most of the charges, but sentenced to four years of hard labour for having collected state secrets with the alleged intention of transferring them to Japan – particularly Japanese television media – although he was acquitted on the actual transfer of the secrets.

Both the prosecution and Pasko’s Bellona supported defence appealed the decision. On June 25th 2002, the Military Supreme Court upheld Pasko’s four-year sentence. Pasko’s lawyers filed an appeal to the European Court on Human Rights on December 24th 2002. Pasko has been free on parole since January 25th 2003.  

Principe of legality
Over the past 11 years that have passed since Pasko was first charged with espionage, he has maintained his innocence, and argued that his conviction was based on secret legislation as well as on the retroactive use of the Russian law on state secrets.

The judges of the European Human Rights Court in Strasbourg have found his arguments convincing enough that they have decided to examine whether his conviction was a violation of the principle of legality– that principle which requires all law to be clear, ascertainable, non-retroactive, and which constitutes a general prohibition on the imposition of criminal sanctions for acts that were not criminal at the time of their commission.

Today, this principle is expressed in Article 7 of the European Convention on Human Rights, and is present in the constitutional law of countries ruled by law. The principle can be traced from the work of scholars and thinkers like Feuerbach and Montesquieu. It is also reflected in Latin phrases such as nulla poena sine lege (no penalty without law) and nullum crimen sine lege (no crime without law).  

Freedom of expression

The European Court judges will also examine whether or not the conviction of Pasko was a violation of his freedom of expression under Article 10 of the European Convention on Human Rights.

Pointing to the fact that he never transferred any secret information to Japan, but was convicted for having had the alleged intention to do so, Pasko has argued that he was subject to an overly broad and politically motivated criminal prosecution for his critical publications on the Russian Pacific Fleet’s careless handling of nuclear waste.

The Court has found no grounds for declaring this part of Pasko’s application inadmissible, and so will probe deeper into the issue.

‘Very good news’
As it appears from Pasko’s original application form, the case against him has also been characterised by several procedural irregularities. The Court has, however, decided not to examine these issues.

“The decision is still very good news,” says Jon Gauslaa, a former legal advisor with Bellona who is representing Pasko before the Strasbourg Court. “Drafting such an application is a kind of legal carpet-bombing, where also the parts of the application that will not be subject to further examination paint a part of the whole picture,” Gauslaa said, adding that he is particularly pleased with the fact that the Court will handle the core issues of the case.
 
“Knowing this, it is of minor importance that the procedural irregularities will not be examined,” he said. Yet, Gauslaa will not predict the outcome of the case.

“I was not a prophet when I worked in Bellona, and even though some things have changed since then, this has not,” he said.  

After his release in 2003, Pasko moved to Moscow, where he edited the Bellona St. Petersburg published magazine Ecopravo, and completed a law degree. His writings on various Russian issues can often be found here.