Resolution
1354 (2003)1
Conviction of Grigory Pasko
1. The Parliamentary Assembly recalls that democracy is
based on freedom of the press and freedom of expression. These freedoms must
not be curtailed by the intimidation and prosecution of critical journalists
such as Mr Pasko.
2. The Assembly welcomes the liberation of Mr Pasko from
prison in February 2003, whilst regretting that he was not freed earlier. The
Assembly notes with interest that a third supervisory appeal to the President
of the Supreme Court Presidium was filed by Mr Pasko on 16 April 2003 and that
Mr Pasko has also filed a complaint with the European Court of Human Rights
aimed at establishing his innocence, clearing his good name and establishing
that the Russian authorities violated several of his rights under the European
Convention on Human Rights throughout the proceedings taken against him.
3. The Assembly is deeply concerned at the unusual features
of the prosecution, trial and conviction of Mr Pasko by the different
tribunals of the Russian military court system, including the apparently
flawed search of Mr Pasko’s flat; the reliance of the conviction on a secret
decree, the subsequent abolition of which remains unclear; unusual
discrepancies between indictments and convictions; and other “fair trial”
issues (for example, doubts as to the independence of experts and witnesses
and alleged breaches of the rights of the defence).
4. The Assembly finds that the most important conclusion to
be drawn from Mr Pasko’s case is that the definition of what constitutes a
state secret must be clarified and, first and foremost, made public. It is
unacceptable that whilst the (public) Federal Law on State Secrets contains
some three dozen broadly drafted items, their detailed wording is contained in
a secret decree by the Minister of Defence (Decree No. 55:96) which mentions
some 700 instances of such secrets. This gives the security services wide
latitude in prosecuting treason cases, thus providing a formidable instrument
of intimidation against courageous journalists such as Mr Pasko and
researchers such as Mr Nikitin, who was finally acquitted in September 2000
after having been prosecuted for more than four years on the basis of Decree
No. 55:96.
5. The Assembly therefore calls on its colleagues in the
Russian State Duma to initiate a law ensuring that secret decrees containing
elements of penal law can never again become the basis for criminal
convictions.
6. Mr Pasko’s case also exposes a number of serious
shortcomings, and the need for greater transparency, in proceedings brought
before military courts, particularly in treason cases where the secret nature
of information, as determined by military experts, is of crucial importance.
While cooperation between the members of the court, the special services
pressing for prosecution and the experts required for the necessary
determinations is essential, it is even more important than in ordinary
criminal cases to guard jealously the adversarial nature of criminal trials.
The right of the defence to contest and comment on all information on which
the judgement may be based is a necessary requirement for a fair trial in all
criminal cases, but even more so in the special case of a military court. The
legitimacy of the very existence of separate military courts in a state
governed by the rule of law depends on whether these courts respect all the
procedural guarantees that exist in ordinary criminal courts.
7. The Assembly therefore calls on the competent
authorities of all countries in which journalists have recently been subjected
to prosecution on espionage charges to clearly and narrowly define the scope
of official secrecy in public laws and regulations, in order to eliminate
legal uncertainty. In so doing, they shall give due consideration to the
legitimate need of the public to be informed of any illicit behaviour by state
organs, including the armed forces, in particular when this constitutes a
threat to human rights, the environment, or other vital interests of the
people.
8. The Assembly also
calls on the Governments of those countries which have maintained separate
military courts to ensure that the same procedural safeguards that exist in
ordinary criminal courts – in particular, those guaranteed under Articles 6
and 7 of the European Convention on Human Rights – are fully applied in the
military court system.
1.
Text adopted by the Standing Committee, acting on behalf of the
Assembly, on 25 November 2003 (see
Doc. 9926,
report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr
Bindig).
