TO THE MILITARY COLLEGIUM OF THE SUPREME COURT
OF THE RUSSIAN FEDERATION
Moscow, Povarskaya street, 15
Appeal OF LAWYER A.F.PYSHKIN
in defence of PASKO, Moscow
By the verdict of the Court of the Pacific Fleet of July 20, 1999 captain of the 2nd rank, Pasko, Grigory Michailovich, was convicted according to para. 1 of article 285 of the Criminal Code of the Russian Federation to three years of imprisonment in corrective labour camp of general regime.
In accordance with para. 5 of the Resolution of the State Duma of the Federal Assembly of the Russian Federation of June 19, 1999 “Granting an amnesty”, he was dismissed.
The Court has established that PASKO, being the chief of the military training department of the newspaper of the Pacific fleet, the “Boevaya vahkta”, systematically used his official duties in his own mercenary interest, between 1993-1997 to collect and deliver different materials, mainly prepared in military regiments, to representatives of Japanese mass media or informed the latter about facts interesting to them, in order to receive money, fees and rewards, i.e.: was engaged in other paid activity, which led to his discharge of military service duties.
I suppose that the verdict of the Court of the Pacific Fleet is subject to abolition, and that the criminal case is subject to being closed because of the absence of corpus delicti in the actions of PASKO.
In accordance with article 309 Criminal Procedure Code of the RSFSR, a guilty verdict can not be based on suppositions and is to be established only on condition that the guilt of the accused in committing a crime has been proved in the course of hearing.
For passing a guilty verdict, the said provision demands that indisputable proofs must obviously
indicate that the accused has committed a crime.
In this case such proofs are absent and the accusation of PASKO is based on suppositions which can not be considered sufficient to make the conclusion that the accused is guilty.
As it is pointed in article 314 of the Criminal Procedure Code of the RSFSR, the verdict can not be confined to general characteristic of the crime, but must include the exposition of certain circumstances of a criminal action considered proved; the place, the time, the mode of the crime committing, the character of guilt, and that the motives and consequences of the crime are notified. I.e.: all circumstances of the committed crime, including those, characterizing its social danger must be exactly established by the Court and quoted in the verdict.
In the verdict on the case of PASKO this demand of the law was not fulfilled. In order to substantiate the conclusion about guilt of PASKO, the Court referred to the testimonies of the witnesses OTEKIN, VERHKOVOD, USHAKOV, SHEVCHENKO, AMIROV, BOMKO, PONOMAREV, TISCHENKO, PANKOV, KRIVENKO, MOISEENKO, VOROZHBIT, SANGISHEV, KENKESHVILI, GOLUB, DOGADKO, FOMIN, TOKAO DZIUN, KOLESNIK, DEKA, UNAGAEV, SEMENOVA, POLUTOV, ALEKSEEV, EGORKIN, a copy of the office card belonging to PASKO, copies of reports to the commanding of fleet, facsimile messages, copies of running surveys, record of the search, and expert witness.
Though the analysis of all these proofs does not allow making any conclusion that the guilt of PASKO in the crimes imputed to him, is proved.
The Court declared PASKO guilty of for several years having collected and then transferred different materials, mainly prepared in military troops to representatives of Japanese mass media, and also that he had been telling information that interested them.
Such uncertain formulations in the verdict are inadmissible, as there was not shown in the verdict where, when, whom and what materials and details PASKO has collected and transferred and what details he had just informed about. Thus, the Court has violated the rules of para. 1 of article 314 of the Criminal Procedure Code of the RSFSR, according to which the descriptive part of the verdict must include the description of the criminal action considered by the Court as proved, and where the place, the time, the mode of the committing of the crime are notified.
PASKO, interrogated during the court hearing, confirmed the fact that he had never received any information containing confidential state information, had never kept it, had neither spread it to anybody nor transmitted it. He collected only open information including the information about the fleet, which was necessary for his professional activity. Several times he had transferred to the representatives of Japanese mass media the generally known information about the utilization of radioactive products, and sometimes commented video subjects about it.
The Court established that on November 2, 1993, the editor-in-chief of the newspaper “Boyevaya vahkta” OTEKIN inflicted on PASKO a disciplinary penalty by way of notification about incomplete official duties because of the fact that PASKO had collected and transferred to Japanese journalists different materials and details prepared mainly in military troops, in order to receive a reward, all this activity prevented to the proper execution by PASKO of his official duties.
However, this conclusion of the Court does not correspond to the materials of the case and to the proofs given in the verdict.
For instance, witness OTEKIN, the former editor of the newspaper, admitted only the fact that PASKO, being the chief of the military training department of the newspaper, simultaneously published articles in other mass media. As witness OTEKIN declared in the Court, he did not confirm the fact that PASKO had transferred any information to foreign journalists including Japanese. The Court has not produced any other proofs to confirm the conclusion about the disciplinary penalty infliction on November 2, 1993, for PASKO’s contacts with Japanese journalists, collection and transmission of information for reward, report of details collected mainly in military troops, but this was related to the execution of his military service duties.
As the Court declared in the verdict, in 1993 PASKO was twice inflicted on a disciplinary penalty: by the commander chief of the Pacific fleet and by the editor-in-chief for the non-sanctioned transmission of different information about works carried in interest of the Pacific Fleet to foreign representatives, as well as for offences against rules concerning publication of materials containing information of the military character. In substantiation of the guilt, the Court referred to the evidence of witness OTEKIN and also to the office card of PASKO, which showed that between 1993-1997 he was inflicted on a disciplinary penalty for not fulfilling his duties.
In Court PASKO declared that he disagreed with the records in the office card concerning the inflicted penalties, since there had not been any materials transferred by him to anybody including foreign journalists that could make any detriment to the Pacific Fleet. While preparing materials for publication he always followed the Law “On Mass Media” and had never violated it.
However, the Court, having failed to check the competence of calling PASKO to the disciplinary account, confirmed the presence of the orders concerning penalties infliction sufficient for his accusation. But it was not indicated in the verdict what kind of materials, where, when, and under what circumstances and to whom of the foreign representatives PASKO transferred the information; and what kind of harm was done to the fleet and to the State by those actions.
Meanwhile, witness OTEKIN showed in the Court that the department supervised by PASKO, M. had always entered the number of the best ones. PASKO more often than other journalists went on official journeys including those which he paid for himself. He had been on long business voyages. He became a delegate of the first Army Conference of Officers, of the Congress of Submariners of the State Navy, and was a member of the Union of journalists of Russia. PASKO successfully managed to fulfil the duties of a deputy-editor and that is why PASKO had been frequently appointed to carry out duties concerning this position. The appointment of PASKO to the position of the newspaper editor after retirement of OTEKIN had not been excluded either.
Under these circumstances the conclusion of the Court about the presence of corpus delicti in the actions of PASKO, because he had been inflicted on a disciplinary penalty including the fact that he presented documents to the secretariat untimely that led to the delay of the publications; his offences against law rules concerning preparation of the publication of materials on military subjects; his failure to appear at the service and failure to discharge his duties, as well as non-qualitative preparation of materials, is unfounded.
Moreover, PASKO could not bear the disciplinary obligation for the publication in the newspaper “Boyevaya vahkta” of some information about armed forces of the Russian Federation, since in accordance with article 2 of the Law of the Russian Federation “About means of mass media”, the decision to publish materials is to be taken not by the journalist or by the person who occupied the post of a chief of the department, but by the editor of the newspaper.
Besides, even if one presupposes that the conclusions of the Court that PASKO published his articles in other mass media (that, by the way, is not prohibited by the Law “About means of mass media”) and that this had negative influence on his carrying out of his official duties is correct, this actions do not make corpus delicti. Under such circumstances, he can not bear criminal liability.
The guilt of PASKO is not proved by the theoretical arguments in the verdict about his responsibility to follow demands of the Constitution of the Russian Federation, Laws of the Russian Federation, orders of Minister of Defence, army regulations and instructions, because the Court has not shown what certain facts were violated by PASKO and to what damage consequences it led to.
The conclusion of the Court that PASKO systematically used his office duties contrary to service interest and in the every case for mercenary interest, does not correspond to the materials of the case, and the Court has not adduced in the verdict any proofs to confirm that conclusion.
PASKO was considered guilty of between 1995-1997 having got access to the operating military units No. 40752 and 63916 in order to prepare articles for publication in the “Boyevaya vahkta” or to create the video subjects in the interest of Russia, its citizens and Armed Forces. There, he made photos and video recordings of some objects located on technical territories (in particular, of covers and transport containers in October 1997) without agreement with the proper officials.
When substantiating the conclusion concerning the guilt of PASKO, the Court referred to his report to the headquarters of the commander of the Pacific Fleet and to the commander chief of the Pacific Fleet with request to permit him to take video recording and collect materials about utilization of nuclear submarines and radioactive products in the Pacific Fleet and the removal of spent nuclear fuel by a special train.
However, the Court has not indicated in what military unit the photos were taken, of what kinds of covers and containers as well as other objects between 1995–1996 it was made, for what reason they were prohibited to be pictured and who of the officials it might be agreed with. Also in the verdict there are not indicated certain laws, demands to which had been violated by PASKO. At the same time during the court hearing it was established that PASKO went to all regime military troops with the permission of the headquarters of the chief of the Pacific Fleet and also with the permissions of the chiefs of the Pacific Fleet headquarters management or together with these authorities. In any cases he had a travelling order and permission signed by the commanding [officer of] the Pacific Fleet. All the above-mentioned documents have been attached to the materials of the criminal case. In any case the photos and video recordings were made in the presence and with permission of the representatives of the commanding and with agreement of the officials of the FSB. They then examined the received materials. And only after that, PASKO used them for the preparation of video subjects intended for the publication in newspapers. This fact is confirmed by the proofs presented in the case. The materials of the criminal case do not contain any facts that PASKO used the information concerning the utilization of nuclear submarines and radioactive products and removal of spent nuclear fuel to the detriment of the interest of the State and its defence capability.
The Court having referred to the testimony of the former deputy of the newspaper “Boyevaya vahkta” editor, Mr. VERHOVOD, and made the conclusion that PASKO tried to prepare materials for other mass media.
However, these actions of PASKO do not contain any corpus delicti, as this activity is permitted by the Law “On means of mass media”.
The violation of the system of seniority between subordinated and chiefs, that in the opinion of witness VERHOVOD, PASKO, had tolerated appealing to the commanding [officer of] the Pacific Fleet in order to receive permission on receiving of the necessary information concerning the fleet, can not be considered as a deal having the criminal character.
PASKO is accused that he informed the director of the Japanese TV-radio company “NHK” branch, who had been trying to receive the facts interesting to him by any ways including non-official ones, about the impending trips and the results of his visits to the military units 40752 and 63916. For receiving such information the director paid PASKO about 300 USD every month.
Considering the mentioned actions of PASKO felonious, the Court in violation of para 1 of article 314 of the Criminal Procedure Code of the RSFSR failed to indicate the information concerning the facts when PASKO informed the director of the Japanese TRC “NHK” branch about his impending trips and to which one of those armies the trips had been made, how many times, what results had been achieved, what details the director was interested in, for what period of time PASKO had been paid 300 USD and what sum had been completely paid to him. What is meant by the expression in the verdict “had been trying to receive the information interesting to him by any means including non-official ones”? Also the Court should have pointed out the reason why those actions had been considered by the Court as criminal and the consequences of those actions. As a certain proof of PASKO’s guilt, the Court referred to the testimony of the former director of the branch TRC “NHK”, T.DZIUN, that was given during the preliminary investigation. According to his testimony PASKO came to the branch practically every month in order to receive the reward in the sum of 300 USD. Besides, he, as a rule, brought some materials including video materials, which he had brought twice.
Confirming the guilt of PASKO, the Court referred to the copies of the reports and extracts from the report of [the recording of Pasko’s telephone-conversations of] 28 February, 22 May, 19 June, 19-20 July, 24-30 August, 4-7 September 1997, facsimile message of 5 November 1997, and also to the testimonies of the witnesses KOLESNIK, DEKA, UNAGAEV, SEMENOVA.
However, these proofs do not confirm the guilt of PASKO in committing any crime.
Thus, witness TAKAO DZIUN only confirmed the fact that PASKO came to the branch, brought some materials and monthly received reward for it. T.DZIUN did not confirm the fact that PASKO informed him about his impending trips to regime military troops or that he told him about the results of those trips.
Concerning this point of the guilt, PASKO declared that he had never informed the director of the branch “NHK” about the impending trips including those made to regime military troops or other troops, and also that he had given no information concerning the results of those trips. According to his testimony, the Japanese journalists had never tried to receive any “information interesting to them by any means including non-official ones” from him. Except from the testimony of the witness TAKAO DZIUN, there are no any other proofs in the materials of the case that could confirm the fact that PASKO every month received 300 USD. Meanwhile, TAKAO DZIUN is an interested person as there is information in the case containing the facts that chiefs of the Japanese branch falsified financial documents by drawing up receipts for other persons and writing in this way the accountable advance they were to report for.
As far as testimonies of the witnesses KOLESNIK, DEKA, UNAGAEV, SEMENOVA are concerned, they are uncertain, have the hypothetical character and do not prove with any authority if PASKO had received the money in the branch or not. As it follows from the criminal case, the documents transmitted by PASKO to the chief of the branch “NHK” in their presence, were open and did not contain any secret information prohibited to publication.
Details contained in the operative reports of the FSB do not confirm the guilt of PASKO either.
As it is declared in the verdict, according to the records of June 19 and August 26-30,1997, it follows that during the conversation with TADASHI OKANO, PASKO informed him about the number of discharged Nuclear Submarines and about the place they were being kept in. It can be seen from the telephone conversation that took place on February 28 1997, that PASKO informed TAKAO DZIUN about the fact that he had twice visited some places and there were serious problems there. After that they arranged to meet. According to the record of May 22, 1997 TAKAO DZIUN asked PASKO to give him answers on some questions, which would be transmitted to PASKO. From the copy of the record of July 19-20, 1997 it follows that TADASHI OKANO asked PASKO to bring him “photos of rockets “Volna”. In accordance to the copies of the records of August 24-25, September 4-7, and facsimile message of November 5, 1997, the Court considers that PASKO assisted TADASHI OKANO in collecting the information concerning the test-tactical training, places of dislocation of military camps, presence of submarines there and chemical weaponry. Meanwhile, according to conclusion of the experts, PASKO gave secret information spreading the state confidentiality in none of above mentioned cases. There are no materials in the case confirming the fact that PASKO had transmitted and told Japanese journalists such information after those conversations. Besides, it is not pointed in the verdict to what kind of assistance PASKO gave to TADASHI OKANO in collecting the information and what kind of information. Moreover, in accordance with article 69, para. [43?] of the Criminal Procedure Code of the RSFSR the Court had no right to treat the record of the conversation of February 28, 1997 as a proof, since it had been obtained in violation of the law.
According to the materials of the case it is evident that permission to listening to telephone conversations was given by the Court to the FSB only on April 9, 1997. The Court did not pay any attention to the fact that the expertise had not established whose exactly voices were heard on the audio-cassettes which were presented by FSB. Thus, the conclusion made by the authorities that these were conversations of PASKO with TAKAO DZIUN and TADASHI OKANO has a hypothetical character. The Court did not take into consideration the fact that neither TAKAO DZIUN nor TADASHI OKANO had been questioned concerning the circumstances given in the records.
The confirmation given in the verdict with reference to the testimony of the witnesses KOLESNIK, DEKA, UNAGAEV, SEMENOVA, that between 1995–1997 the chiefs of the branch entrusted to get information and facts by non-official means, and also that the director of the branch allowed PASKO to take video camera and make Xerox copies in order to collect information for “NHK”, is not demonstrated by any proofs have been examined in the court hearing. Besides, the Court has not concretized in the verdict the collection of what information is considered and what is meant under the expression “by non-official means”. The conclusion of the Court that the destruction of some documents in the branch made on the order of TAKAO DZIUN in November 1997 in some way was connected with the name of PASKO is no more than supposition and is not confirmed by any proofs. Moreover, in Court it was established that these actions of the representatives of “NHK” most likely were connected with tge arrests of the representatives that took place while they were making photos and video recordings in the Hasansky region of Primorsky krai.
PASKO was also declared guilty that in June-July 1996 he told the director of the branch “NHK” the approximate date of the departure of the special train with spent nuclear fuel, i.e.: official information of the limited distribution.
However, in violations of the demands of para. 1 of article 314 of the Criminal Procedure Code of the RSFSR, the verdict did not show any proofs, confirming the perpetration of these actions.
As proof of the guilt of PASKO, the Court referred to the extract from the record according to which DOGADKO told PASKO the approximate date of the departure of the special train with spent nuclear fuel. Besides, the verdict gives the testimony of TAKAO DZIUN taken during the preliminary investigation, that PASKO came to the office of “NHK” before the business trip to the place where the trains with nuclear products were sent from”. Meanwhile, extracts from the records of the FSB adduced in the verdict, shows that the conversation took place not in June-July 1996, but on October 10, 1997. Also the witness T. DZIUN mentioned that his meeting with PASKO took place in October 1997,and not in summer of 1996.
Besides, according to the testimony of T. DZIUN, he can not remember if PASKO has told him the information about the place and time of the departure of the train. According to his depositions (l.c. 204 v.2) he met PASKO first in August 1996. So, PASKO had no possibility to tell him the date of the departure of the train in June or July 1996. According to the testimony of TAKAO DZIUN he arrived to Vladivostok and took over the affairs from NASU HIROJUKI in August 1996. As it follows from the reference contained in the case, in 1996 the train with spent nuclear fuel left from Primorsky krai in July (l.c. 199 v.4).
Under such circumstances it is worth to admit that even if PASKO had told T. DZIUN the time of the departure of the train, at least he could not harm the interest of the State, as by that moment all this information had not been secret any more.
The testimony of the witness DEKA concerning the fact that he had heard that in 1996 PASKO informed T. DZIUN about his intention to visit some locality from where the train with spent nuclear fuel was to be sent on the exact date, does not confirm the guilt of PASKO in the perpetration of the actions imputed to him as a crime.
So, the Court has not established and adduced the proofs, which could confirm the guilt of PASKO in the transmission to TAKAO DZIUN or any others the information about the place and time of the departure of the train with spent nuclear fuel neither in June-July 1996 nor at any other time.
Besides, passing the verdict, the Court did not take into consideration other circumstances having great importance for the case.
As it is evident from the Federal Law “On State Secrets” and from the Decree of the President of the Russian Federation of November 30, 1995 “About the establishment of the list of information that pertain to state secrets” they do not confirm the fact that information concerning the place of loading of the train with spent nuclear fuel, the time of its departure and also the route of its way-traffic pertain to state secrets. As far as the decree of the Ministry of Defence of the Russian Federation No. 055 is concerned, according to which the information about sending spent nuclear fuel to reworking is secret, that decree was issued in August 1996. As for PASKO he was imputed in the actions taking place in June–July 1996, that is before the decree was issued, and therefore it can not be admitted as admissible.
Even if one presupposes that the conclusions of the experts of the 8th department of the General Staff of the Russian armed forces are correct, the secret information is the information that concerns the exact date of the departure of the train. The Court considered PASKO to be guilty in revealing the information about the approximate date of the departure. Besides, the Court has not established that PASKO knew the exact date of the departure of the train with spent nuclear fuel and the route of its way-traffic. The information about the place of the loading of the train can not be considered as secret, because it is generally known. In particular, this information was published in the report of the international ecological organization “Greenpeace”.
At the same time, throughout the hearing it was established that information concerning the departure of [the train with] spent nuclear fuel had been frequently spread in the mass media and video-subjects had been sent on TV including the central channel. Also the press-center of the Pacific Fleet spread the information about the departure of spent nuclear fuel from the territory of Primorie with a special train in the night between July 31 and August 1, 1996 in the newspaper “Vladivostok” on August 7, 1996. Nobody has been the subject to criminal proceedings, even after the facts became known to the military prosecutor’s office of the Pacific Fleet, while it was examining the case concerning PASKO.
Under such circumstances it is worth to admit that in this case the event and content of the crime can not be found, and the conclusion of the Court with reference to the conclusion of the experts of the 8th department of the General Staff concerning the transmission of the information made by PASKO to the representatives of foreign organisations about the date and place of the departure of the train with spent nuclear fuel, that pertained to state secrets, is unsupported.
PASKO was considered guilty in the fact that he in July 1996, with a help of video camera belonging to the branch “NHK”, took pictures of the train containing spent nuclear fuel and the transferred the video tape to the director of the branch for a reward of no less than 500 USD.
According to the evidence of witness TAKAO DZIUN, PASKO participated in making the report that demonstrated the departure of the train with nuclear products (l.c.208 v.2).
PASKO, questioned in Court concerning this very fact, declared that he really filmed the train in July 1996. But all the photos and video recordings were taken with permission of the chief of the headquarters of the Pacific Fleet and in the presence of the chief of the train SHAROV, the chief of the technical administration of the headquarters of the Pacific Fleet, GOLUB and with the knowledge of the representative of the FSB Coast Technical Base ZAHARCHENKO. Nothing secret had been filmed or photographed, as outwardly the train did distinguish from the usual goods train. Later, after the departure of the train with spent nuclear fuel PASKO participated as a consultant in making video recordings about the spent nuclear fuel from the Pacific Fleet on the request of Japanese journalists.
According to the testimonies of the witnesses KENKESHVILI, GOLUB, DOGADKO, PHOMIN, the inspection of the register of enter-departure of cars; and the records and books of registration of the visitors, PASKO visited military unit 40752 several times, and also in July 1996 and on October 14 and 22, 1997. In July 1996 he filmed the train intended for transportation of spent nuclear fuel with the video camera, and on October 14, 1997 he wanted to take a picture of the moving train but his request was refused. At work on the technical territory he made non-sanctioned pictures of the covers and transport containers.
However, the Court did not estimate what kind of damage had been caused to interest of the State by those actions.
In connection with the fact that there is no information in the materials of the case concerning the causing any harm to interest of the State by those actions, and also the fact that the video tape that contained information about the train has not been attached to the case-files, it is worth to come to the conclusion that there is no corpus delicti in the above-mentioned actions of PASKO.
As the Court has established, in the first half of 1997 PASKO transferred to TAKAO DZIUN some video material, taken in several places including on the technical territory of the military unit 63916 on February 27-28 the same year for money reward.
However, the Court did not establish and reflect in the verdict what kind of video material that had been taken and transmitted to the director of the branch and for what reason the Court declared this material illegal. The Court only limited itself to general discussions concerning the fact that PASKO was ignoring the demands of the necessity to implement the thorough preliminary examination of the materials concerning their content of the information that represented any state secret or other information of a confidential nature. In the verdict the Court also referred to the testimony of the witness MOISEENKO concerning the fact that PASKO made video recording on the technical territory of the military unit 63916 with his permission, and also that PASKO made video recording at the factory “Krasny Vimpel” in his presence. What illegal actions PASKO had made, the Court did not point out. Essentially the Court just confirmed the lawfulness of his actions.
The proofs confirming the transferal of the video materials taken by PASKO on the technical territory of the military unit 63916 and also in other places, were not established by the Court and were not adduced in the verdict.
The Court declared PASKO guilty in the fact that he in 1996 imposing upon the rendered confidence, he wrote down on a non-discounted paper, the map of the technical territory of the military unit 40752 with explanations revealing the location and appellation of the most important engineering-technical constructions, which were subject to be classified as secret. He intended to place the scheme into his book concerning the utilisation of radioactive products. At that time the book was being prepared for publication. The possibility of publicising the information, which had been included in that book, was not preliminary agreed.
As proofs of confirming PASKO’s guilt in this fact, the Court used the testimony of the witness KENKENSHVILI who had confirmed that the specification of the constructions on the map attached to the materials of the case, can be considered precise and as a whole, the explanatory inscriptions is in accordance with the reality and reveals the purpose of the main engineering-technical constructions.
Meanwhile, declaring PASKO guilty in the carrying out of the said actions the Court did not point out how and whose confidence he had imposed upon in order to receive the necessary information for compiling the map. Also in the verdict there are no proofs confirming the conclusion of the Court that this map had been made by PASKO, and that he had intended to publish it in the book in the same way as it was attached to the case; and why the Court came to the conclusion that it was made in 1996 and not in any other time. During the Court hearing it was established that on the territory of the Coast Technical Base there are five storehouses of trench type, built in 1985, but they are absent in the scheme attached to the materials of the case. In this connection there are serious arguments to question the date of the making of this may, if it was really made in 1996 or not. However, anyway it can be concluded that the map does not reflect the real location of the objects in the military unit. The other circumstances that represented great importance for the case were not taken into consideration in the verdict either.
Four different maps of the military unit 40752 appear in the materials of the case. They were supposedly confiscated in the flat of PASKO. According to conclusions of the bodies of investigation and of the Court, PASKO compiled only one of them. Which of the schemes that was confiscated and if it had been confiscated can not be determined, as according to the record of the search, it is not mentioned as confiscated.
It was neither established if it had been compiled by PASKO or by any other person, and if by PASKO not in what capacity, if it had been compiled in the same or different times, with a dyestuff of one or different colors.
Contrary to the conclusions made by the experts of the 8th department of the General Staff, in the message by the Staff chief of the Pacific Fleet made to representatives of the FSB on December 5, 1997 there was declared that this map could not be considered secret (l.d.152-154 v.7). However, in the verdict this proof was not taken into consideration. As it was established in the course of the court hearing, studies of different officials of the military unit 40752 contain the maps with indication of the present objects. These maps are not considered secret. It has also been established that American military specialists visit this military unit, including the offices where the maps are kept, and that these maps have never been concealed by anybody.
Moreover, numerous witnesses questioned in Court, testified that the map attached to the case, supposedly confiscated in the flat of PASKO, does not correspond to the real location and appellation of the objects, that it does not reflect the full contain of the objects, and that it is compiled before 1993, and not in 1996 as it was declared in the verdict.
Besides, during the expert examination the experts were not given the map of the military unit with indication of the present objects. Thus, the experts were deprived from the possibility to establish the authenticity of the information contained in the map presented to them, and its correspondence to the real location of the objects. In this connection their conclusions can not be considered as scientifically well founded, or be the basis of the charge. Besides, the intention of PASKO to publish in the book any map of the military unit can not be considered a crime as the information, even if one presupposes that it is secret, has neither been published nor spread in any other way.
The Court did not take into consideration the circumstance that the report of the international ecological organization “Greenpeace” contained the similar information about the said coast base as the map of the military unit and objects which were pictured in the drawing attached to the materials of the case.
According to the verdict on February 28,1997, PASKO interrogated the chief engineer of the military unit 63916 SANGISHEV following the list of questions compiled by the Japanese side and directed to receive the confidential information, without any sanction given to him by authorities.
In the Court’s opinion the criminal character of the questionnaire held by PASKO is confirmed by the testimony of the witness SANGISHEV and by the conclusion of the experts of the 8th department of the General Staff. Though the proofs expounded in the verdict do not confirm the guilt of PASKO. According to the testimony of SANGISHEV given at the stage of the preliminary investigation and then in the Court, PASKO did not make any attempt to learn from him secret information about the technical state of the base, and SANGISHEV did not give any information. SANGISHEV also testified that he did not feel that PASKO was trying to exceed the limits of the journalistic work while talking to him. Nevertheless the Court evaluated the testimony of SANGISHEV one-sidedly, and in the verdict it rendered only the part where the witness confirmed the fact of the conversation taking place and that PASKO had the mentioned questionnaire at that moment. However, conversations of such kind in themselves can not be considered as a crime.
The Court also estimated the conclusions of the experts in a one-sided manner. According to the expert-conclusion “the questions to suggestion of the Russian side concerning the utilization of the liquid rocket fuel” can be considered secret only in the case they are answered completely. But the materials of the case do not include the information that suggests that PASKO received or was trying to receive a complete answer concerning any of the questions or that he reported to anyone the information he had received.
Besides, the verdict did not take into consideration the testimony of witness VOROZHBIT. According to this testimony the stated questions were officially sent to the headquarters of the fleet in 1994. The list of questions PASKO had did not represent any confidential information. As there was declared in the verdict, the fact that PASKO had the mentioned list of questions and intended to collect the information concerning the details of the list, was well-known to TAKAO DZIUN who because of to it considered it necessary and urgent to meet PASKO after the latter had returned from his business trip.
As confirmation of the conclusion, the Court referred to audiocassette with records of the telephone conversation of February 28, 1997 supposedly between PASKO and TAKAO DZIUN. However, I suppose that the said actions of PASKO do not contain any corpus delicti. The materials of the case do not contain any proofs, and the proofs are not declared in the verdict, which could confirm the statement of the Court concerning the fact that TAKAO DZIUN knew that PASKO had the mentioned list of questions, and neither that PASKO was trying to receive the answers on those questions. The materials of the case do not give any conclusion concerning the fact that PASKO and TAKAO DZIUN met after PASKO had returned from his business trip on February 28, 1997. The audiocassette of the telephone conversation reflects only the intention of PASKO and TAKAO DZIUN to meet. But even to suggest that the meeting took place, there is no information concerning the fact that the purpose of the meeting was connected with PASKO’s return from the business trip and that PASKO made any action of criminal character including transferring secret information to TAKAO DZIUN. Thus, the conclusion of the Court concerning the guilt of PASKO in this aspect is no more than a supposition.
PASKO is charged with having received from officer AMIROV on January 31, 1997, in the headquarters of the Pacific Fleet, the copy No. 2 of the secret “Directions to search for and rescue securing of space vehicles flights by means of Navy” (DSRS SV-93), and that he secretly took copies of these documents on 10 sheets.
Considering PASKO guilty of these actions, the Court referred to the evidence of witness AMIROV, and to the records of the search of PASKO’s flat.
However, these proofs do not confirm any criminal character in the actions made by PASKO.
Witness AMIROV confirmed only the fact that he gave to PASKO the copy of the DSRS SV-93.
PASKO did not dent that he received this document. Incidentally he explained that he needed the Directions in order to prepare an article about the discharging of the searching-rescue arrangement for publication. His testimony is confirmed not only by the testimony of witness AMIROV, but also by other materials of the case, including the article published in the “Boyevaya vahkta”. Besides, PASKO testified that he had never copied any secret information from these Directions. The materials of the case have not disproved Pasko’s statement.
The copies of 10 sheets of the DSRS SV-93, supposedly confiscated at the search of the PASKO’s flat on November 20, 1997, were attached to the materials of the case. The numeration of the sheets from the Directions that allegedly was confiscated from PASKO was reflected only in the records of the search. However, according to the conclusion of the experts that carried out the chemical expertise, the number of the sheets reflected in the record of the search were completed with a dyestuff of a colour different from the one the rest of the text on the same paper had been written with. Thus, the investigation bodies allowed the falsification of the proofs. In this connection in accordance with article 69 of the Criminal Procedure Code of the RSFSR these proofs can not confirm the guilt.
That fact the Court considered the conclusion made by the experts-officers of the 8th department of the General Staff as a certain proof of PASKO’s guilt, shows the Court’s one-sidedness and lack of objectiveness in its estimation of the proofs. According to the conclusion of the mentioned experts the 10 sheets of the DSRS SV-93 do not contain any state secrets.
While the court was giving evaluation, it did not indicate that the report dealt with the submarines taken out of service i.e. taken out of navy force, and therefore any information about them cannot be secret. Exactly this was said to the investigation bodies by the chief of Pasific navy headquarters on December 5th, 1997, (page 152-154 vol.7). Officer from the navy headquarters Dogadko said the same in the court. He was a specialist working with information on retired submarines.
In the court hearing on June 2nd, 1999, the case files received a report from the Pacific navy head quarters which is similar to the one, which had been already attached to the case files “Reference-Report. 1. Decommission and keeping afloat of Pacific navy nuclear submarines”. But this report is not secret.
Besides, the case files contain the other report “Retired submarines”. This report was not secret according to the statement of the experts of the 8th Department of the Military General Headquarters, is not classified (page 115-116 vol.5, page 265 vol.7). However, if one compares it with report “Reference-Report. 1. Decommission and keeping afloat of Pacific navy nuclear submarines” it becomes obvious, that the same submarines are listed with indication of the same technical data. So, it is not clear why one document was announced classified and another not classified (page 260-273 vol.7).
Proving Pasko’s guilt while receiving document “List of submarines with nuclear and radiation accidents onboard”, the court referred to the testimonies of Tishenko and Pankov. However, it comes from the testimonies that Pasko received only unclassified information about navy servicemen participating in rescue operations during nuclear and radiation accidents.
The court did not mention why Pasko’s actions were illegal. According to the experts of the 8th Department of the Military General Headquarters the mentioned “List..” contained classified information about real names of the nuclear submarines (pages 260-273 vol.7). However, both documents contain the information about the same submarines. However one document “Retired submarines” was announced unclassified, while the same experts concluded that similar document “List of submarines with nuclear and radiation accidents onboard”, is classified.
Basing its conclusion about Pasko’s guilt, the court mentions the testimonies of witnesses Moyiseenko and Vorozhbit saying that materials titled “3. Decommission of weaponry” is the part of secret reference-report of the chief of Rocket-Artillery Department.
However, the court did not prove that this document was confiscated from Pasko. Besides, the experts of the 8th Department of the Military General Headquarters concluded that it is not classified. The only secret thing is mentioning of the real title of military unit no.63916 (page 260-273, vol.7)
I believe, the experts concluded that this information is secret on formal grounds. This military unit is mentioned in disarmament Start agreement, although in the agreement it is called as “base Pavlovskoe” and Americans were permitted to visit the site. Besides, the court did not mention in the verdict why it considered the experts’ conclusion from March 14, 1998, correct, while the conclusion of the same experts from December 22, 1997, incorrect, which says that the document is not classified. (pages 182-188, vol.7).
Besides, Pasko was charged that in October 1997, he received the materials about defence industry from the chairman of the local Shipbuilding Trade Union committee, and that in November 1997, he received materials about cooperation with the North Korea agricultural committee from the Agricultural Department of Primorsk region. The received documents contained information for limited distribution. Pasko intended to hand over these documents and also some information about decommission to Takao Dzyun or correspondent of Japanese newspaper “Asahi Simbun” Tadashi Okano, with whom he had been co-operating since 1996 and due to his mercenary motives helped him to collect the necessary information, including one of limited distribution.
Proving the guilt of Pasko, the court referred to the testimonies of witnesses Bomko and Ponomarev regarding the fact they had passed the materials to Pasko, to fax message, to the copies of “Control of telephone conversations”, to the document about opening package with documents, the Customs chief’s reference, protocols of searches and confiscation.
However, these documents just prove that Pasko received these documents in Trade Union committee and Agricultural Department, and their confiscation in the airport during departure to Japan. No proof of Pasko’s intent to hand over these documents to anyone, are present in the case files. The verdict has no such proofs either. The court did not pay attention to the testimonies of Bomko and Ponomareva who had said that they handed over materials to journalist Pasko, whom they never met before, because the materials did not contain any information forbidden for distribution or publishing in the press. The documents had no stamps “secret”, “limited distribution”, or “for internal use”.
Ponomarev said he had prepared information for Pasko himself, and it was published in the press before. But he believed, the problem of North Korea workers in Primorsk region was not raised enough in the press. Therefore, he passed the materials to Pasko.
Witness Ponomorev testified that after handing over the materials to Pasko, relations between North Korea and Administration of Primorsk region did not get worse. After referring to fax message from October 12, 1997, telephone control documents, hand-written notes, the court concluded that Pasko had been collecting materials about defence industry plants and North Korea workers after Tadashi Okano’s request, in order to pass it over to him in Vladivostok or Tokyo.
However, the information in the verdict does not allow to make clear conclusion about which materials the court spoke. The verdict does not say whether this information could cause any damage to the state. The case files has no information that Tadashi Okano was engaged in hostile activity against Russia.
According to Pasko’s testimonies in the trial, before the trip to Japan while talking to Japanese journalist of newspaper “Asahi Simbun” Tadashi Okano, he was interested in the possibility to publish the article in the mentioned newspaper. He did not take not classified documents with him to the business trip, in order to use them for preparation of articles. But they were confiscated by customs during departure to Japan. These testimonies are not denied by anyone.
I consider this episode of charges with such circumstances groundless. Besides, the court did not prove Pasko’s intention to pass these documents to anyone.
Pasko was found guilty as on October 10-11, 1997, at the meeting of Military Council and evaluation of navy exercises he made notes on unregistered pages, which he had kept home until they were confiscated during the search on November 20-21, 1997. The court mentioned the testimonies of witnesses Verkhovod, Ushakov, Ryazantsev, Shevchenko, as well as experts conclusions and operative information in the verdict in order to give grounds for his guilt. But these proofs do not confirm presence of crime in Pasko’s actions.
According to witness Verkhovod, in September 1997 Pasko worked as editor assistant of the newspaper and was allowed to be present at the mentioned events. Secretary of the Military Council, witness Ushakov, testified that Pasko was allowed to be at the meetings of the Military Council during the finalising of navy exercises. He also mentioned, that only people from the list of invited, were allowed at such meetings. Witnesses Ushakov, Shevchenko, Ryazantsev only confirmed the fact of Pasko’s presence at the meeting of Military Council and evaluation of navy exercises.
However, neither Ushakov, nor Ryazantsev, nor Verhovod, nor Shevchenko, who confirmed the presence of Pasko at the meetings on secret issues, did not testify that information, which Pasko learned at such meetings, was passed over to the representatives of foreign states or other people.
Pasko’s guilt is not confirmed by witness Verhovod who said he did not remember if Pasko told him or not about finalising navy exercises, and that he did not know if Pasko intended to tell the subordinates about changes in the fleet structure. Verhovod’s testimonies simply say that he has no such information.
Proving Pasko’s guilt the court referred to the protocols of tape observation marked “no.492 from February 28th, 1997”, extract from the reference of May 22nd, 1997, copies of references from 19-20th July, 24-25th August, 4-7th September, fax message from November 5, 1997. However, all they do not evidence that Pasko passed over or informed Tadashi Okano any information about navy exercises, locations of military bases and submarine presence there, chemical weapon, what the court made a conclusion about.
According to the case files the officers of the 8th Department of the Military General Staff carried out two evaluations, but neither the first nor the second evaluation does not indicate which concrete information is due to be classified. The evaluations have just general words and discussions.
While estimating these conclusions it should be taken into consideration that pages 152-154 vol.7 contain a note of the chief of Pasific navy headquarters from December 5, 1997, which says that the notes made at the meeting of the Military Council on Septemver 10, 1997, are not secret. Besides, in his message on page 156 vol.7 is indicated that the speeches of the meeting’s participants were not put in protocol.
So, the experts did not possess real information about discussion at the meeting and could not compare it to the Pasko’s notes. The Pasko’s notes attached to the case files could have inaccurate information and numbers, mistakes as the author could understand wrong the speakers. So, the conclusion can be considered scientifically grounded as it has assumption character.
Therefore, the present evidences only prove that Pasko was present at the Military council meeting during the finalising of navy exercises, where he made hand-written notes. The court’s conclusion that Pasko assisted Tadashi Okano in collecting information about navy exercises, does not come out from the case files. Moreover, the court admitted that the fact that and mentioned it in the verdict that case files do not contain information that Pasko disclosed state secret or tried to do that as well as assisted foreign state, foreign organisation or their representatives in conducting hostile activity to damage external security of the Russian Federation.
Besides, the court does not mention how these notes got into the case files. The preliminary investigation bodies claim that they were confiscated in Pasko’s flat during the search. But according to the protocol of the search from November 20, 1997, they were not confiscated in the flat.
With such circumstances I consider that no single episode of the charges was confirmed during the trial. The court’s conclusion that along with his work in “Military Watch” newspaper Pasko was constantly involved in the other paid activity.
The statement in the verdict about Pasko’s referral to the lack of mark “for internal use” on the documents he collected, is not valid, as he knew that many did not do it due to article 182 of Official Correspondence Instructions, is not more than the court’s assumption.
The court’s conclusion that the evidences from the verdict have legal power and are correct, as they were obtained legally and correspond with each other, and are enough to give grounds to plead Pasko guilty, contradicts not only the case files, but verdict itself.
So, the court admitted wrong the conclusions of the experts of 8th Department of the Military General Headquarters about secrecy of the report by vice-chief of Pasific navy on financial-economical activity.
Besides, during the trial it was defined falsification while making protocols of observation of the case files about criminal case launched against Pasko (page 5-9 vol.1) and observation of the documents confiscated at Pasko’s flat (page 24-26, vol.5). Both protocols were extracted from the list of evidences of the case. However, in violation of article 69 of Criminal-Procedure Code the court referred to the protocol of document observation as evidence in the verdict. The court’s conclusion that all investigation actions of the FSB were strictly legal and their results can be in the ground of the indictment.
So, the verdict uses the protocol of the tape observation as evidence. The tape contains the recording of telephone conversation from February 28, 1997. However, FSB had no right to listen and record the telephone conversations on February 28, as the court allowed to do that only on April 9th, 1997. Therefore, this evidence should be extracted from the verdict.
Admitting that Pasko’s actions contain indications of crime content, stipulated by part 1, article 285 of the Russian Penalty Code, the court says that he was an official person and having mercenary interests he used his official proxies in contradiction with service, what resulted in violation of the state interests guarded by the law i.e. he abused his official rights.
However, the person who abuses official rights, can be only the official conducting his special functions coming from his position at service. As it is indicated in point 10 of decision no.4 of the USSR Supreme Court Plenum “On judicial practice in cases dealing with power or official position abuse…” from March 30, 1990, the usage of official authorities in contradiction of his official rights means the actions of the official which come out of his official proxies and were connected with carrying out his rights and duties, which belong to this person due to his official position.
However, pleading Pasko guilty in abusing his official rights, the court did not mention which actions were committed by him in contradiction with his service interests, while using the rights obtained by him being the chief of military training department of “Military Watch” newspaper of the Pasific navy.
However, even the court admitted that in all cases Pasko acted as an ordinary journalist in order to obtain information for his professional activity. Due to this fact and clarification from point 10 of decision no.4 of the USSR Supreme Court Plenum “On judicial practice in cases dealing with power or official position abuse…” from March 30, 1990, he was not an official person i.e. he was not a subject of crime stipulated by article 285 of the Russian Penalty Code. Besides, article 285 necessarily demands significant violation of rights and legal interests of the citizens and organisations as well as of the society and state interests protected by law, in order to admit the content of crime.
Due to the fact that “sufficient violation” is an evaluative term then the appropriate evaluation of the preliminary investigation should accompany the case files. But neither preliminary investigation bodies while levelling indictment, nor the court mentioned in the verdict what significant violation of rights and legal state interests protected by law was violated by Pasko’s actions, because they were not violated.
With such circumstances it should be admitted that Pasko’s actions lack any content of crime, therefore, the verdict should be dropped, and criminal case dismissed.
Basing on the above mentioned and in accordance with articles 51 and 325 of the Russian Criminal-Procedure Code
To dismiss the verdict of the Pasific Fleet Military Court from July 20,1999, regarding Pasko Grigory Mikhaylovich, and dismiss the criminal case in accordance with p.5 article 5 of the Russian Criminal-Procedure Code, i.e. due to the lack of content crime in his actions.
In this connection I would like to take part in the case hearing in the higher instance, please inform me about the date of the hearing.
September 3, 2000