For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9926
25 September 2003

Conviction of Grigory Pasko

Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Rudolf Bindig, Germany, Socialist Group

Summary

Mr Grigory Pasko, a military journalist who had blown the whistle on a number of grave environmental violations by the Russian Navy, had been condemned on treason charges to four years hard labour. His case, even after his liberation early in 2003 after serving two-thirds of his sentence, remains of general interest for all those who are intent on protecting the freedom of the press and freedom of expression in general, in the face of a “spy-mania” worsened by the general climate of fear and insecurity after “September Eleven”, not only in Russia.

A closer look at Mr Pasko’s ordeal, both the procedural meanderings and the underlying facts and allegations, may well be useful in helping to prevent similar cases in future, in the interest of the rule of law and freedom of speech in the Russian Federation and elsewhere. Cases like that of Mr Pasko, but also the similar one of Mr Nikitin, who was acquitted of spying charges after a long ordeal, show that the freedom of speech of journalists and researchers who have important stories to tell is threatened by obsessive spy-mania, which carries the risk of putting Russia’s courts in the disagreeable position of becoming instruments of intimidation against critical journalists, scientists and others.

Mr Pasko’s case demonstrates the need for more transparency and a better respect for the rights of the defence in the military courts system, and for a clear and public definition of all secrecy-related criminal offences. The draft resolution invites the Russian Duma, inter alia, to pass a law that would exclude criminal convictions based on the violation of secret decrees.

I.       Draft resolution

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 and clearing his good name and at establishing that the Russian authorities have violated several of his rights under the European Convention on Human Rights throughout the proceedings of this case.

3.        The Assembly is profoundly concerned with the unusual features characterising the prosecution, trial and conviction of Mr Pasko through the different instances of the Russian military courts system, including the apparently flawed search of Mr Pasko’s flat, the reliance of the conviction on a secret decree, whose subsequent abolition remains unclear, unusual divergences between indictments and convictions and other “fair trial” issues (e.g. doubts as to the independence of experts and witnesses, 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 made clear and first and foremost made public. It is unacceptable that whilst the (public) Federal Law on State Secrets contains some three dozen widely drafted items, the detail is given in a secret decree by the Minister of Defence (decree no. 55:96) which mentions over 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 some grave weaknesses and the need for greater transparency in the procedure before military tribunals, particularly in treason cases where the secret nature of information, as determined by military experts, is of crucial importance. Where there is necessarily a close working relationship between the members of the tribunal, the special services pressing the case of the prosecution and the experts required to make the necessary determinations, 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 question and comment on all the 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 setting of a military tribunal. The legitimacy of the very existence of separate military tribunals in a state governed by the rule of law depends on the respect by these tribunals of 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 insecurity. 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 it 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 prosecutors and courts to ensure that the same procedural safeguards that exist in ordinary criminal courts – in particular, those guaranteed in Articles 6 and 7 of the European Convention on Human Rights - are fully applied also in the military courts system.

II.       Explanatory memorandum

      by Mr Bindig, Rapporteur

A.        Introduction

1.        Following a motion for a resolution presented by Mr Alexandre Shislov and others dated 31 January 2002 (doc. 9334), Mr Bindig was appointed as Rapporteur by the Committee on Legal Affairs and Human Rights at its meeting on 22 April 2002.

2.        The motion invited the Parliamentary Assembly:

3.        The Sub-Committee on Human Rights, at its meeting on 25 April 2002, had an exchange of views with the lawyers of Mr Pasko, Mr Jon Gauslaa and Mr Ivan Pavlov. The Committee on Legal Affairs and Human Rights, at its meeting on 28 October 2002, considered an introductory memorandum and approved proposals for further action, including a visit of the Rapporteur to Moscow, on 27 November 2002, during which he obtained additional information on the case in meetings with representatives of the prosecution, the defence and, in particular, with the Chairman of the Military Collegium of the Supreme Court, Mr Nikolai Petukhov.

4.        Since the appointment of the Rapporteur, two new developments have overtaken the original purpose of the motion: the conditional release of Mr Pasko from prison on 23 January 2003, and the judgement of 25 June 2002 of the Military Collegium of the Russian Supreme Court upholding the conviction with some modifications.

5.        In the opinion of the Rapporteur, Mr Pasko’s case continues to deserve the attention of the Parliamentary Assembly, which should be made aware of the unusual circumstances of Mr Pasko’s conviction and imprisonment over several years. The case of Mr Pasko, even after his liberation after serving two-thirds of his sentence, remains of general interest for all those who are intent on protecting the freedom of the press and freedom of expression in general, in the face of a “spy-mania” worsened by the general climate of fear and insecurity after “September Eleven”, and not only so in Russia.

6.        Mr Pasko’s arrest and trial on espionage charges prompted strong reactions from NGO’s such as Amnesty International, the International Helsinki Federation, and Human Rights Watch, as well as from the European Parliament (in particular, Resolution no. 2002/0377 of 4 July 2002), and, earlier, from this Assembly.

7.       Naturally, it is not for the Parliamentary Assembly to evaluate findings of fact and law by the competent courts in Russia, or to pre-empt the findings of the European Court of Human Rights, to which Mr Pasko has appealed. But a closer look at Mr Pasko’s ordeal, both the procedural meanderings and the underlying facts and allegations, may well be useful in helping to prevent similar cases in future, in the interest of the rule of law and freedom of speech in the Russian Federation. Cases like that of Mr Pasko, but also the similar one of Mr Nikitin, who was acquitted of spying charges after a long ordeal, show that the freedom of speech of journalists and researchers who have important stories to tell is threatened by obsessive spy-mania, which carries the risk of putting Russia’s courts in the disagreeable position of becoming instruments of intimidation against critical journalists, scientists and others.

B.       Reminder of the facts of Mr Pasko’s case

8.        Background - Mr Pasko’s work as a military journalist for “Battle Watch” (the Russian pacific fleet’s newspaper):

9.       Mr Pasko had published a number of highly critical articles about environmental pollution (inter alia, a documentary about dumping of nuclear waste in the Sea of Japan in 1993), as well as corruption in Russia’s pacific fleet. In a documentary shown on Japanese TV in 1993, Mr Pasko exposed threats to the environment caused by decaying nuclear submarines and massive dumping of nuclear waste and other dangerous items (ammunitions, whole warships) in the Sea of Japan. In this documentary, as well as in about 100 articles published in “Battle Watch” and other Russian and international newspapers, he pointed to the shortage of funding as well as wide-spread corruption as probable causes for these problems. In 1997, shortly before his arrest, he was investigating a story on the alleged disappearance of a Japanese grant of USD 100 million intended for the clean-up of nuclear waste.

i.       The course of the criminal proceedings against Mr Pasko: more than five years of meanderings in the Russian military courts system

10.        Mr Pasko, a military journalist working for the newspaper of the Russian Pacific Fleet, was arrested on espionage charges on 20 November 1997. By a (first) judgment of the Pacific Fleet Court of 20 July 1999, he was acquitted of the charges of treason in the form of espionage, but convicted and given a sentence of three years for “abuse of official authority”. As Mr Pasko was a first-time offender and had spent 20 months in custody, he was released on 20 July 1999, on the basis of a general amnesty issued by the Russian State Duma on 18 June 1999. Upon appeal by both sides, the judgment of 20 July 1999 was quashed by the Military Collegium of the Supreme Court on 21 November 2001, and the case sent back for retrial by the Pacific Fleet Court. On 25 December 2001, the Court of the Pacific Fleet, in its second judgment, found Mr Pasko guilty of treason through espionage, sentencing him to four years; on the same date, Mr Pasko was imprisoned again. Following a new appeal by both sides, the Military Collegium of the Supreme Court upheld the second conviction with some modifications in its judgment of 25 June 2002. On 21 October 2002, Mr Pasko’s defence filed a request to the Presidium of the Supreme Court to carry out a supervisory review of the conviction. On 25 December 2002, this request was rejected. By 25 December 2002, Mr Pasko had served 2/3 of his 4-year sentence, thereby becoming eligible for parole. On 23 January 2003, he was in fact released on parole. A second supervisory appeal filed on 23 January 2003 was rejected by the Deputy Chairman of the Military Collegium of the Supreme Court on 3 March 2003. A third request for a supervisory review was filed on 16 April 2003.

11.        An application filed by Mr Pasko to the European Court of Human Rights is pending since December 2002.

ii.       Unusual features of the case against Mr Pasko through the different instances

12.        Flawed search of Mr Pasko’s flat: on the night of Mr Pasko’s arrest on 20 November 1997, the FSB searched his flat and seized a large number of papers, committing what the Pacific Fleet Court in an additional decision issued on 20 July 1999 qualified as “significant violations” of the Criminal Procedure Code. These violations (inter alia, falsified signatures of witnesses on some of the protocol pages; witnesses not present at all times in the rooms searched; quantity of documents examined not corresponding to that of the documents seized at the search) had even given rise to disciplinary sanctions against the chief investigator of Mr Pasko’s case. The results of the flawed search (the confiscated handwritten notes taken at the meeting on 11 September 1997) were nevertheless used as evidence against Mr Pasko. Whilst the Pacific Fleet Court in its first judgement refused to admit this evidence, it based its second judgment on the same handwritten notes, with the explicit approval of the Military Collegium of the Supreme Court in its second judgment dated 25 December 2001.

13.       Reliance of the conviction on a secret decree, whose subsequent abolition remains unclear: The information in Mr Pasko’s handwritten notes of the meeting he had attended on 11 September 1997 was considered a “state secret” by application of a secret decree of the Defence Minister (decree no. 55:96) which gave the administration wide latitude in defining state secrecy. According to Mr Pasko’s lawyers, decree no. 55:96 was abolished by Defence Minister Sergey Ivanov on 25 March 2002 and replaced by a new decree numbered 15/2002. Mr Pasko’s conviction, based on the application of decree no. 55:96 by the experts determining the secret nature of the incriminating information, was upheld by the Military Collegium of the Supreme Court in its final judgment of 25 June 2002. The Military Collegium flatly stated that “said decree was valid at the time Pasko committed his crime and it has not been cancelled until present time.” The situation appears to be somewhat unclear, as a special appeal filed by him regarding the validity of decree no. 55:96 was rejected by the Appeals Collegium of the Supreme Court on 24 September 2002 on the ground that the decree had been abolished so that the discussion of its validity would serve no purpose any more. Whatever the situation regarding the validity of decree no. 55:96 at the time of the final judgment of the Military Collegium on 25 June 2002, the treatment of this issue by the military courts seems to show that its fundamental importance has not been fully realised. The rule “nulla poena sine lege”, which is a fundamental principle of criminal justice laid down in Article 7 of the ECHR, requires that any citizen subjected to criminal sanctions must be in a position to know which acts are punishable or not. The very concept of “secret decrees” serving as a basis, even indirectly, of criminal convictions, is most unusual in a state subjected to the rule of law. It must therefore be warmly welcomed that the Military Collegium in its final ruling struck down the conviction of Mr Pasko for the violation of another secret decree - no. 10 of 7 August 1990 of the Minister of Defence forbidding contacts between persons admitted to confidential activities and foreign nationals on questions not pertaining to official duties. Item 70 of this decree, for whose violation Mr Pasko had been convicted, had in fact been declared invalid by the Supreme Court of the Russian Federation on 13 February 2002, with retroactive effect. Regrettably, the Military Collegium did not see fit to reduce the sentence in light of this correction of the second judgment of the Pacific Fleet Court.

14.        Unusual divergences between indictments and convictions: at his first trial before the Pacific Fleet Court, Mr Pasko was acquitted of the espionage charges for which he had been indicted, whilst being convicted of “abuse of official position”, a lesser offence not mentioned in the indictment. At his re-trial, he was convicted of espionage, based inter alia on his allegedly illegal participation in a meeting on 11 September 1997 (during which he had taken the handwritten notes which remained as the sole basis for his conviction). As this “illegal participation” had not been part of the indictment, the Military Collegium of the Supreme Court, in its judgment of 25 June 2002, took exception to this part of the judgment in appeal, without however reducing the sentence accordingly. It should be noted that in the second judgment of the Pacific Fleet Court, Mr Pasko was acquitted of nine of the ten espionage charges brought against him by the FSB. The tenth was based on the intention, denied by Mr Pasko, to transmit to the Japanese authorities the above-mentioned handwritten notes (confiscated during the tainted search) and whose content was characterised as “state secrets” by application of secret decree no. 55:96. Mr Pasko had substantiated his denial regarding his intention to transmit the notes to the Japanese by recalling that he had gone to Japan to meet his journalistic contacts there shortly after taking these notes, without taken them with him. The Military Collegium’s statement, in its final judgment of 25 June 2002, according to which this “cannot testify about the absence of his intention to transfer these notes to Okano [a Japanese journalist with whom Mr Pasko had been working] at another time or under other circumstances” gives rise to some doubts as to this court’s interpretation of the rules regarding the burden of proof in criminal cases (in dubio pro reo).

15.        Other “fair trial” issues: Mr Pasko’s defence team, in his application addressed to the European Court of Human Rights, alleges a number of other violations of the principle of fair trial laid down in Article 6 of the ECHR. They question the neutrality and independence of the court-appointed experts who testified on the secret nature of the information collected by Mr Pasko. In fact, seven of the eight experts were chosen by the Ministry of Defence, and belonged to the “8th directorates” of their units in charge of intelligence and counterespionage activities who work closely with the respective branches of the FSB, i.e. the prosecution in Mr Pasko’s case. According to the brief, the experts’ jobs depended on the security clearance issued by the FSB, and high-ranking officers had publicly condemned Mr Pasko as a spy well before his conviction.

16.        Furthermore, Mr Pasko’s defenders point to breaches of the adversarial principle in that the defence were not allowed to participate in information-gathering activities conducted by the experts and were not informed of all the documents taken into account. The defence was also taken by surprise by the nomination, on the court’s initiative, of two high-ranking admirals as witnesses, at a late stage of the trial. These witnesses, who were superiors of the presiding judge, focussed on the handwritten notes for which Mr Pasko was ultimately convicted, their findings going beyond those of the above-mentioned experts. The defence claims that they had no possibility to challenge and refute the statements made by these witnesses, contrary to the principle of fair trial.

C.        Conclusions

17.        In the Rapporteur’s view, the most important conclusion to be drawn from Mr Pasko’s case is that the definition of what constitutes a state secret must be made clear, and first and foremost public. It is unacceptable that whilst the (public) Federal Law on State Secrets contains some three dozen widely drafted items, the detail is given in a secret decree by the Minister of Defence (decree no. 55:96) which mentions some 700 instances of such secrets. Mr Ivan Pavlov, Mr Pasko’s lawyer, said that the reading of the published Law on State Secrets would leave an average person with no idea of what is classified and what is not. This gives the security services wide latitude in prosecuting treason cases, thus providing a formidable instrument of intimidation against courageous journalists and researchers such as Mr Pasko and Mr Nikitin.

18.        Mr Pasko’s case also exposes some grave weaknesses of the procedure before military tribunals, in particular in treason cases where the secret nature of information, as determined by military experts, is of capital importance. Where there is necessarily a close working relationship between the members of the tribunal, the special services pressing the case of the prosecution, and the experts required to make the necessary determinations, it is even more important than in ordinary criminal cases to jealously guard the contradictory nature of criminal trials. The right of the defence to question and comment on all the 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 setting of a military tribunal.

Postscript:

Mr Pasko’s journalistic courage has proved unflinching. Within days of his liberation from prison in February 2003, he took on a job as an aide to Sergey Yushenkov, Co-Chair of the Liberal Russia Party and Member of the Russian State Duma, a well-known militant for human rights. When Mr Yushenkov was murdered by unknown killers on 17 April 2003, Mr Pasko had just gone on a delicate mission to visit a facility for unloading spent fuel from nuclear submarines in Zvezda. Lastly, in May, Mr Pasko was refused a passport, thus preventing him from travelling abroad.

* * *

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9334, Reference No 2690 of 26 March 2002

Draft resolution adopted by the Committee on 1 September 2003 with 1 vote against

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller (alternate: Mrs Auken), Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber (alternate: Mrs Hoffmann), Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Malins, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner