Conviction of Grigory Pasko
- Author(s):
- Parliamentary Assembly
- Origin
- 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).
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.
