Summary of the moiseyev's case

In the evening July 3, 1998 the South Korean diplomat Cho Son Uh was arrested in Moscow. All the information agencies & the Mass Media spread the information of the security service of our country that Cho Son Uh had an espionage activities in Russia and was captured red-handed while accepting secret files from his agent.

A Russian diplomat who received his South Korean colleague at his place was called by FSB as this very agent.

After the long-lasting night search the high-ranked Russian diplomat, the Deputy Director of the First Asian Department of the Ministry of Foreign Affairs of the Russian Federation Valentin Moiseyev was arrested with the charge of high-treason in the form of espionage.

On July 4, 1998 the FSB of the Russian Federation informed the Ministry of Foreign Affairs that the South Korean diplomat was arrested red-handed during his secret meeting with V.Moiseyev. And as a sequence the Korean diplomat was estimated as a persona non grata and sent out of Moscow.

At the beginning stage of the case all the information went to the Mass Media only through the accusation part. That is why the Valentin Moiseyev's case was not publicly known till the very beginning of court.

On December 16, 1999 the Moscow City Court found Moiseyev quilty in the high-treason and sentenced him to the 12 year's imprisonment with confiscation of property.

From this time the Moiseyev's defence considered it to be possible to make its arguments public. It became obvious from the very beginning that the defence part had irrefutable arguments for acquittal and had a firm position from the law and legality point of view that defence counsels didn't expect the court proceedings to end any other way but as an acquittal judgement. This confidence made the defence counsels think that there was no necessity to appeal to the public opinion. But the judges who considered the Moiseyev's case showed off their obvious contempt for law norms and law demands. And as a sequence of this the only way to get this case back to law was public demonstration of groundlessness of the accusations (more over - the rude falsification of evidences during the preliminary investigation that itself is a very serious crime).

- It appeared that the handed over secret files meant by the FSB officials in their report that a South Korean diplomat had been arrested "red-handed" appeared to be the text of the Moiseyev's lecture "The Russian Policy On The Korean Peninsular" that was read by Moiseyev at Russian-Korean seminar. (The text of this public and absolutely not secret lecture is available at the "Index/Dos'e Na Tsenzuru" magazine's web-site: www.index.org.ru in the section "The Valentin Moiseyev's Case").

- More over, the money (4600 USA dollars) saved by the family and taken away and sealed up during the search according to the procedure order in ONE envelope, during the next investigation actions were put with the rude violation of the procedure orders in seven envelopes with the Embassy of the Republic of Korea sign on them in order to present them as payment got by Moiseyev for his spy activities. In this forged way the envelopes with the money put in them were presented in front of court by the accusation part as a pseudo-material evidence and court did not exclude these forged materials but accept them as the evidence of payment by the South Korean Intelligence Service to Moiseyev for his spy activities.

- The main forgery the accusation in based on appears to be even more ridiculous and absurd. The FSB presented a copy of mounted with the help of xerox machine written materials in the Korean language where it is said that some person was recruited to co-operate with the South Korean Intelligence Service. At the same time there is no information where these copies go from, what they have to do with Moiseyev or the South Korean Intelligence Service, who and with what purpose mounted them, whom they were made for and finally how they appeared in the FSB. Some copies of some text with no origins, author or any other signs that should be in the original document were accepted by court as an evidence of the accusation. The way of these materials were made let make a conclusion that this text was combined from several documents, the origin and purpose of which is still unknown and authenticity of which is seriously doubtful. No information was given to court that any operative and investigative measures as the result of which such a text could appear had been taken. The accusation part just presented a paper of unknown origin, presented this copy as the accusing evidence and court did not reject such a pseudo-evidence despite its being absolutely not authentic.

- As the result of the operative measures and investigative actions taken by the FSB not a fact of handing over anything to the Korean Intelligence Service from the imaginary spy was established: no documents, no parcels, no packages and no means of communication. Not a fact of Moiseyev's getting money or some other values was established either. The very fact of being acquainted and staying in touch with a foreign diplomat - the fact that has never been hidden from anyone - is interpreted as a proof of quilt. But Cho Son Uh has the same relations with many other Russian diplomats from the Asian Department.

At the beginning stage of investigation Moiseyev was deprived his right for defence. Moiseyev's wife was told that her husband refused a defence counsel. This lie and this violation of the basic right for defence also was not taken into account by court. Later, the investigation on its own has chosen an advocate. It was a school mate of the FSB investigator who ran the Moiseyev's case. This advocate saw his task in pursuing Moiseyev to give testimony against himself and admit his quilt. There never was any contract with this advocate and how in this case he managed to get warrant still remains unknown.

Moiseyev is a civil person, there is no military man in the case. According to the law a Prosecutor from the Department Supervising Over Lawfulness in the FSB Bodies of the General Prosecutor's Office of the Russian Federation should participate in the case. Article 5 of the Law "On the Prosecutor's Office Of The Russian Federation" says that there should be no interference into Prosecutor's Supervising. In violation of this Article and under the FSB's request the supervision over the civil man's case was charged to the Chief Military Prosecutor's Office and this contradicts Article 46 of the mentioned Law that precisely indicates that: "On the territory where under exceptional circumstances other bodies of Prosecutor's Office of Russian Federation do not work and also beyond the territory of the RF where according to the International Treaties Russian armed forces are placed, the realization of the Prosecutor's Office functions can be assigned by Prosecutor General to the Military Prosecutor's Office".

The Military Prosecutor who supervises over the consideration of the case in court left unanswered ALL (!) the defence party and Moiseyev's complaints the about the groundlessness of the Military Prosecutor's participation in the case consideration. That means that some influence and definite pressure is being made on the court bodies considering the Moiseyev's case.

V.Moiseyev is being kept in the FSB pre-trial center. This is a violation of the principles of the State of Law and a rough violation of the Russian Federation obligations taken during entering into the Council of Europe. At the entering Russia accepted the obligation that penitentiary institutions will be completely taken out of the control of the accusation power - the FSB, the Ministry of Internal Affairs - and transfer to the Ministry of Justice. And really all the penitentiary system was transfer under the control of GUIN of the Ministry of Justice but FSB pre-trial center. And as the result Moiseyev appeared to be completely in the hands of the accusation power: operative measures, accusation, investigation, translation, testimony in court - these are the spheres of activities of the one Department that is interested in the case ending with the accusation judgement. In this situation the accusation body and the detention body have the same departmental subordination. This subordination promotes that the investigation methods and the circumstances of custody can't be really and objectively controlled.

An electronic equipment of unknown purpose is installed in the court room. The motion of the defence part to present a sanitary certificate of this equipment was left with no answer at all. More over, there is a veil of silence over this equipment: the Head of the Moscow City Court, the Supreme Court, the Prosecutor's Office, the Ministry of Health - all of them gave no answer to the petition to present a sanitary certificate without which according to the law no equipment can be used. This silence more than anything else causes worries about the Moiseyev's state of health including psychological that is sapped by the time of imprisonment.

The Moscow City Court (judge N.Kuznetsova) accepted all not authentic, inadmissible and forged "evidences and proofs" and admitted as well-grounded unsubstantiated accusations to Moiseyev.

Court admitted as a material evidence the scientific lecture "The Russian Policy On The Korean Peninsular", unclassified document taken away during the search of a foreign diplomat. Court admitted as secret the information published in the official periodical issues and scientific works.

Court did not find out how the envelopes in which the money was "packed up" appeared in the case as though the taken away money from Moiseyev during the search was in a single envelope and it was reflected in the search record. In spite of this court admitted this money and its procedural registration as an authentic accusation evidence.

Court left with no attention the fact that Moiseyev could not deal with the South Korean diplomat since January 1994 in Moscow because the latter arrived to Moscow only eight months later and according to the accusation they started meeting since that time.

Court ignored all the defence part' and Moiseyev's complaints to illegal methods of interrogation and illegal attachment of forged evidences to the case.

The accusation part did not try to find evidences of Moiseyev's handing over any information to the foreign diplomat as well as evidences of his being recruiting and court did not criticised the absence of convincing and reliable evidences of the defendant's quilt. By these actions court violated the principle of presumption of innocence when the burden to prove the accusation in practice is turned into obligation to prove the innocence that was illegally laid on the accused.

Court did not excluded from the list of evidences the tendentious conclusions of so called expert examinations conducted with violation of acting legislation and rejected the petition about conducting an independent expert examination with participation of the members of the Interdepartmental Commission on the Protection of the State Secret.

On July 25, 2000 the Court Board on Criminal Cases of the Supreme Court of the Russian Federation considering the case in cassation order cancelled the sentence with regard to Moiseyev and sent the case back to the Court of first instance for a new consideration with another composition of judges.

The most important foundations for the cancel of the sentence, in the Supreme Court opinion, were the following failures of the judgement:

"Given by court in the judgement circumstances of Moiseyev's committing the crime have not concrete character and the conclusion on his quilt in committing this action was made without taking into account all the circumstances of the case". In other words, the Supreme Court established the fact that the quilt was not proved that is equal to the proof of innocence. In spite of this, obviously acting inconsequentially, the Supreme Court did not solve the question even about changing the measure of suppression to the person whose quilt, according to its own opinion, was not established according to the judgement. In was one more violation of the presumption of innocence principle when the Highest Court Institution of the country considers it to be possible and admissible for a person whose quilt was not proven in accordance with the judgement to be kept in trial.

On September 5, 2000 in a month and a half passed after the cancel of the sentence a new consideration of the Moiseyev's case started in the Moscow City Court. The consideration went on for unreasonably long time. After every 2-3 days of the hearings they announced breaks. The way the consideration went on showed an inclination of this new court to follow the recommendation of the accusation part. All the defence petitions were rejected. The demands of the ruling given by the Court of Cassation, in this very proceedings were ignored and court was not eager to seek the failures of the first court that were pointed out in the cassation ruling.

On November 29, 2000 the proceeding came to the final stage: pleadings took place and there should have been only the last words of the defendant after which court should have left for passing a judgement. That day referring to the judge's illness the proceedings were stopped and a new judge composition was established. The same day the new court restarted the consideration of the case. Thus the proceedings lasted for almost three months did not ended by any judgement or other court decision. Such behaviour of court should be established as avoiding of exercising the law.

At the same time the reference to the judge's illness is obviously groundless and far-fetched as after that the hearings were signed to be start from the very beginning though the "sick" judge had been doing all right for several months already and running some other cases. Approximately in a week after the start of the hearings by the new judge composition judge Gubanova who presided in the previous hearings appeared in the Moscow City Court and started to work. The fact of simultaneous changing of lay assessors who were healthy and were to continue participating in the hearings was not motivated at all. All these was done under the personal order of the acting chairman of the Moscow City Court A.Korzhykov.

Along with this article 240 of the Code of Criminal Procedure of the RSFSR says about ingenuousness, verbality, and continuity of the proceedings: "proceedings on every case should go continuously with the exception for the time to rest. The consideration of the other case by the same judges is not permitted before the consideration of the started case is not over". Article 241 says that "Every case should be considered by the same composition of judges. If someone among judges is not able to take part in the hearings any longer, he is replaced by another one and the trial on the case starts from the beginning...". It's a long invalidity that makes a judge unable to carry out his duties can be the only reason for his replacement and the necessity to start the hearings from the very beginning with another composition of judges.

The new court consideration, presided by the judge G. Koval, moved as slow as the previous one with a lot of breaks and the same ignorance of the defence legal demands.

With application during the trial the norms of the Russian laws which, according to the defence, contradict to the Constitution of the Russian Federation (art. 2,18, 19(part 1), 29(part 4), 45(part 1), 46(part 1), 47(part 1), 49,55 (parts 2 and 3), 120, 121, art. 123 (part 3), 124 the Moiseyev's constitutional rights and liberties are roughly infringed. In this connection it became necessary to make a complaint to the Constitutional Court of the Russian Federation.

On January 24, 2001 Moiseyev and his advocates made a written motion about getting the Moiseyev's authorising letters, which came to the court from the FSB pre-trial prison, for the appealing to the Constitutional Court of the Russian Federation and the European Court in Strasbourg, the copies of definitions and the copies of other documents, passed by the Moscow City Court in order to appeal against them to the Russian Federation Constitutional Court. At the same time a copy of Complaint to the Constitutional Court with the documents attached to it was sent to the Moscow City Court (presided by the judge G. Koval) with the petition to address all those documents through the special City Court department to the Constitutional Court of Russia.

On February 5, 2001 Moiseyev and his advocates made a written petition about sending urgently the Complaint, copies of definitions and other documents related to that to the Constitutional Court and about suspension of case hearings till the case consideration in the Constitutional Court. This question was raised, because, according to Moiseyev and his defence, the case was considered in the Moscow City Court by established in violation of the Constitution of the Russian Federation court.

Having held their consultation without leaving the court-room the judges passed a definition about declination the above-mentioned motion, refused to give the copies of the definitions and other required documents and gave the defence back their Complaint to the Constitutional Court of the Russian Federation.

On April 10, 2001 the judge announced that the hearings are put off till June 13 when they will be renewed from the initial stage, because translation of the documents from the Korean language takes some time. At the present time this judge makes a court examination of another case.

It's obvious that the Moscow City Court judges persistently evade from the exercising justice and this phenomenon has steady and systematic character. The lack of real evidence in the case, conducting of the new actions and filling up the investigation's gaps - all these are against the defendant, who is still imprisoned when the prosecution with the close interaction with the court keep on gathering the proofs and correcting their own miscalculations as well as the disadvantages of the investigation.

Moiseyev and his defence repeatedly sent private complaints to the Supreme Court of the Russian Federation, according to the criminal procedure norms.

On September 11, 2000 Moiseyev and his advocates sent to the Superior Court of the Russian Federation a private complaint to the court definition dated September 5, 2000, which refused to satisfy the petition about changing measure of suppression, the military prosecutor challenge and access to the trial for representatives of public human rights organisations and for Moiseyev's wife as counsels for defence. As a reply for that personal complaint the Superior Court of the Russian Federation sent a card ╧ 5y001815 dated October 24, 2000 which said that the Moiseyev's personal complaint was returned to the chairman of the Moscow City Court "for the purpose of checking whether it's not an appeal."

On December 1, 2000 Moiseyev with the approval of his defence made his second private complaint for the same reasons of the new composition of judges definitions dated November 29 and December 1, 2000. The answer hasn't been got yet. According to the part 3 of the art. 331 and the part 2 of the art.333 of the RSFSR Code of Criminal Procedure a private complaint must be considered in the Supreme Court of the Russian Federation within one month since the moment of its coming. Moiseyev made a petition, asking to announce a break till the complaints are considered by the Supreme Court. The consideration of the appealed City Court definitions could play a crucial role for the objective examination of his case and help to stop the violation of his constitutional rights. The Moscow City Court left the defence motions for a break announcement in the hearings till the Supreme Court's decision on the private complaint unsatisfied.

On February 6, 2001 Moiseyev sent to the Supreme Court of Russia his third private complaint of the groundless replacement of the composition of judges, refusal to give his authorising letters to the Russian Constitutional Court and the European Court on the human rights in Strasbourg and the court definitions which approved the violations made by the Moscow City Court. He also demanded a challenge, showing his distrust towards the Moscow City Court in a whole.

On February 14, 2001 the Moiseyev's defence failed in an attempt to turn to the Deputy Chairman of the Supreme Court of Russia at the personal reception with a written motion to accelerate consideration of the private complaint dated February 6, 2001 and to provide assistance in receipt in the City Court the documents required for appealing to the Constitutional Court of Russia. As the defence was refused in a personal reception the motion was sent through the mailbox of the Supreme Court of Russia.

According to the resolution of the Constitutional Court of Russia dated July 2, 1998. ╧ 20-П private complaints of court definitions about the refusal to satisfy petitions to change the measure of suppression must be considered before the pass of a sentence, as they touch upon the constitutional rights and liberties and attend to the prolongation of the imprisonment term.

On December 1, 2000 V. Moiseyev sent to the Supreme Court of Russia a petition about consideration of his case by the Supreme Court in the first instance because of the Moscow City Court obviously evades from exercising justice.

After numerous long breaks during the court examination, caused, as was announced, by the judge Koval's illness, at the hearings on April 10, 2001 the court considered a question about an interpreter candidate for translating the new texts, presented by the FSB, from the Korean language. The court rejected the defence's motion about appointment of a civil interpreter who knew diplomatic vocabulary. Due to the court's decision as an interpreter acted the head of the military - diplomatic journalists department of the Russian Information Agency "Novosty". As the court appointed the above-mentioned interpreter and taking into account the fact that the judge couldn't himself possess information about personnel who worked as interpreters from Korean, a reasonable consumption arises that the candidate was nominated by the FSB and approved by the court at the non-juridical stage. Moreover this person after graduating from the Institute of military interpreters used to work in the military specialists group, sent to the DPRK. Before his appointment there was no inquires whether his activity in RIA "Novosty" for the last decade dealt with practical use of the Korean language and whether he knew hieroglyphs, which are wide spread in the South Korean variant of the language.

Taking into account all the above-mentioned facts, on April, 16 the Moiseyev's defence sent to the Supreme Court of Russia a private complaint of the way the interpreter was chosen as in this particular case it had a crucial importance because the quality and professionalism of the texts translation depended on it.

By April 28 the defence does not have any official information, confirming that the above-mentioned V.Moiseyev's petitions have been considered by the Supreme Court of the Russian Federation.

All the Moiseyev's and his defence's appeals to the qualification board of judges with the complaints of the Moscow City Court judges activities were left without consideration either. All those complaints the qualification board sent to the Moscow City Court.

Human rights organisations sent to the General Prosecutor's Office of Russia as the organ, which exercises supervision over observance of laws and the human rights on the territory of the Russian Federation, petitions to remove rough infringements made by the FSB and the Moscow City Court. These infringements are: exceeding the authority by the interpreter-the FSB employee, the forgery made by the investigation, unprofessional examination conducted by the Ministry of Foreign Affairs experts, refusal to satisfy the defence's petition about military prosecutor challenge and provocative methods of the FSB work. The latter roughly violates the law "On the Federal Security Service" that defines counter-intelligence activity as "the activity of the federal security service in the range of its authorities for exposing, warning and stopping espionage activities of the foreign secret services or organisations as well as persons, aimed at inflicting harm to the security of the Russian Federation". The General Prosecutor's Office sent all those petitions to the Moscow City Court.

It's absolutely obvious that not only judicial bodies evadess from taking decisions on the case but the Prosecutor's Office of Russia and other federal bodies do nothing as well, violating therefore the Moiseyev's rights which are guaranteed by the Constitution of Russian Federation and international laws, ratified by the Russian Federation. Such a behaviour of the authorities can lead to the consequences when it's impossible to exhaust the means of legal defence within the country.

In spite of the fact that not all the means of lawful defence were exhausted within the country the Moiseyev's complaint to the European Court on human rights was registered.

Almost 8 (!) months passed since September 5, 2000 - when the Moscow City Court started the repeated hearings of the Moiseyev's case. During this period the composition of judges was changed three times and the case consideration was stopped at the final stage twice. Still, there is no judgement. Since July 3, 1998 V.Moiseyev has been imprisoned in the FSB pre-trial centre "Lefortovo" and in fact serves his sentence not having the one. The case consideration is put off for a long time again and there are no guarantees that any decision on this case will be ever taken.

Defence Counsels: U. Gervis

K. Moskalenko

A.Yablokov

Jurists - Experts

V.Mironov

M.Polyakova

May 7, 2001

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