Appeal of the lawyer K.Moskalenko

According to the decision of the Court of Appeal on December16, 1999, V. Moiseyev was found guilty of crime stipulated by the Article 275 UK RF and sentenced to 12 years of imprisonment in colony of strict regime.

I find the sentence unfair and not well-grounded, it was passed with the violation of both internal and international law and the case should be moved for a new trial.

The subject of this appeal is not the wrong estimation of evidences given by the trial court, on what the Moiseyev's attorneys of defense, including the appeal's author insist.

Violations of criminal procedure are also not the subject of this appeal, in spite there were many of them and there is their analysis in the lawyers' complaints.

The subject of this appeal is the violations which form the corpus of violations of human rights guaranteed by international legal acts: European Convention on Human Rights(hereinafter - Convention) and International Covenant on Civil and Political Rights (hereinafter - Convention).

This violations began from the moment of initiation of criminal procedure and last up today.

Taking into consideration that Russia is under jurisdiction of European Court from May 5, 1998, and from October1, 1991 according to the Facultative Protocol to the Convention, recognized the right of the UN Committee on Human Rights to conduct collective complaints against the RF, any violation of human rights, guaranteed by these documents, can be appealed to the European Court and UN Committee on Human Rights that give the lawyers of Moiseyev right to consider this case in the light of violations of norms of above documents and practice of the European Court.

Thus, Russian Court, like any court of ay country-member of the European Council, must follow above ratified documents along with the internal criminal law, because, according to the part 4 Article 15 of the RF Constitution "norms of international law and international Accords of the RF is the part of its legal system." More over, if the norms of internal law conflict with the norms of international laws, "rules of international laws are used."

Violation of the Article 3 of the Convention (Article 7,14(g) of the Covenant) - the right on defense from torture and other cruel, inhumane or degrading methods of treatment, freedom from self-incrimination.

Living conditions in the FSB isolation investigation ward of the RF, in which V. Moiseyev has been keeping from July 4,1998, should be considered as violations of the Article 3 of the Convention, which guarantees the right of protection against torture and other cruel, inhumane or degrading methods of treatment and punishment.

Right after his detention, being in the FSB isolation investigation ward of the RF, V. Moiseyev was imposed to the psychical and psychological influence with the aim to obtain evidences and behavior, preferable for the investigation.

He was forced to give evidence against himself by means of treats, directed on his children, members of his family, and treats of application of "special" methods of investigation. The treats directed against his son and daughter, whose activity is connected with Korea, were especially inhuman excruciating for him. The treats were formulated thus that the investigation body has the possibility to fix "criminal tie" between Moiseyev and his children and his children "will find themselves in near cell." There is even "a document" in the case's materials proved that the Moiseyev's son was in probation work in Seoul on the line of Korean Agency of International Cooperation (KOICA). The document notices that KOICA "is actively used by the South-Korean special services for studying and working with foreigners."(p.c.77-78, volume1)

Above conditions encouraged to facilitation of exertion of illegal pressure on V. Moiseyev with the aim to obtain evidences and behavior, preferable for the investigation.

Statement on these treats made by Moiseyev in the presence of prosecutor and during the trial hearing didn't entailed any checking to verify illegal methods of investigation.

Article 5(2) of the Convention and Article 9(2) of the Covenant

Another binding condition of legal detention is requirement of the Article 5(2) of the Convention which stipulates that everyone who is arrested shall be informed promptly of the reasons for his arrest and of any charge against him. These requirements were not keeping. Au contrary, he was deluded for long time why he was detained.

Even un the cases when he was given the "protocol of suspected" for signing, he wasn't informed in what particularly crime he is suspected, what evidences exist against him. As a result, in absence of particular evidences under the pressure of the prosecutor he gave information which wasn't true. This information was used by investigation against him. The fact, that this practice is usual for Russian investigators, doesn't diminish the significance of the violation, committed by the investigators. He wasn't allowed even to have a qualified independent lawyer.

The investigators insisted that Moiseyev didn't need the lawyer, that all interrogations are just "official talks" like "with the college" to find the truth. All this as done instead of explain Moiseyev his procedural rights as a suspected, the rights provided by the Article 51 of the RF Constitution - not to testify against himself and other rights provided by the UPK RSFSR.

Formally, there are references to above laws in the protocols of Moiseyev's interrogations, but, as Moiseyev claims, he was just asked to sign "some papers," being explained that it was just a formality.

More over, he was given the accusation on July 13, 1998, that is 10 days after his detention. Before that day, on July 6,1998, the resolution on his detention without any accusation was passed (p.13-14, volume1) in order of the Article 10 of the UPK RSFSR, that conflicts with the Article 5(2) of the Convention.

Russia made a range of reserves concerning Articles 5(2) and 5(3) of the Convention, which allow application of internal legislature (including the Article 90 of the UPK RSFSR in extraordinaire cases), but it didn't made any reserves concerning the Covenant. It means that reserves of Russia concerning the Articles 5(2) and 5(3) of the Convention are illegal from the moment of their application, but norms of the Articles 9(2) and 9(3) of the Covenant are active and compulsory for the RF.

The matter at hand is that detention in custody up to 10 days without bringing an accusation violates the Article 9(2) of the Covenant and 5(2) of the Convection on obligatoriness of informing a person about causes of detention and all accusations.

These violations are fixed and irreplaceable.

Authorities for the defense allege that the accusation an whole volume according with the Article 5(2) of the Convention wasn't charged to V. Moiseyev even on July13, 1998. Only on May 27, 1999 in the so-called resolution of a new accusation of Moiseyev, all brought accusations were given concrete expression. Although, these expressions were taken from the Moiseyev's testimonies, that violated his rights.

Such practice of investigation should be recognized as absolutely intolerant in legal state.

Article 5(4) of the Convention

In Russian legislature this norm is correspondent with the Article 220-1 of the UPK RSFSR, which insures the right of the accused on judicial control of legality and ground of detention.

Provisions of this Article with respect to V. Moiseyev were violated many times. Moiseyev appealed his detention in order of the Article 220-1 of the UPK RSFSR three times.

The first arrest was appealed at the end of December,1998, although the appeal was heard only on February 1,1999 (with the considerable exceeding of 3-day term), the appeal was rejected.

On March 12,1999 V. Moiseyev appealed his detention again, and was refused in hearing it. Instead of consideration of the appeal, on April 28,1999 Moiseyev was given an answer that he missed the date of appeal of the trial resolution on February 1,1999, as it was his appeal on the previous refuse. In fact, it was absolutely new appeal, the right on which Moiseyev received after the prolongation of the term of his arrest according to the Article 220-1 of the UPK RSFSR, the trial rejected to consider it.

On May,1999, Moiseyev appealed again in order the Article 220-1 of the UPK RSFSR, the application wasn't heard timely again, and the resolution on the refusal in its satisfaction on June 4,1999 wasn't motivated but repeated ground-less argument of investigation body about the Moiseyev's possibility to escape the trial and investigation.

Violation of the Article 6 of the Convention (the Article 14 of the Covenant) - right to a fair trial

The Article 6, guaranteeing the right to a fair trial, was violated during the investigation and trial procedure, and was expressed in following:

The right to a fair hearing

This right was violated, because the trial admitted illegal, fabricated evidences, which became the basis of the sentence of guilty. Arguments of the Moiseyev's lawyers were not taken into consideration. The trial had no right to admit illegal evidences such as:

1. copies of documents, including composed from several papers, impolite translated from Korean language, which do not have any initial data, and sings of those who drafted them;

2. illegally received evidences, such as: audiotapes, printed documents, different interceptions. Thus, audiotapes are not of high-quality, source of them wasn't determined, there wasn't the legal trial sanction in the papers;

3. the trial also had no right to admit concocted evidences such as "material evidences" - envelopes with money, which were not reflected in the protocol of search, that discredit conclusive importance of both protocol of search and objects themselves;

4. the trial had no right to use data, received by means of operating-searching activities, which were not attached to the case's materials legally.

Presumption of innocence

The right on presumption of innocence in respect with V. Moiseyev was severe violated several times. From the first days of his detention, numerous public declarations of the authorities which blamed Moiseyev took place. Such declarations were made up to the moment when Moiseyev was charged with the official accusation.

Before the hearing procedure in the trial court, the book titled "Counter-espionage: FSB opposite leading intelligent services of the world," written by A. Elizarov, was published by "Gelios", Moscow, 1999.

Undermentioned quotations from the book show that there are statements which violate the principle of presumption of innocence in respect with V. Moiseyev in the book.

"The agent of APNB- deputy director of the first department of Asia of Internal Affairs, Valentin Moiseyev,- was also detained. He has provided the Korean intelligent services with confidential and secret information for three years, but he didn't know that he was followed by agents of FSB and Department of Security of Internal Affairs.

During the searching in the apartment and office members of counter-espionage found several thousand dollars, which the Russian diplomat received from Korean for secret cooperation." ("Counter-espionage: FSB opposite leading intelligent services of the world");

"As "Nezavisimaya Gazeta" knew from informed sources, on July 9, the resident of the South Korean intelligent service in Moscow Li San Gu visited the RF FSB and on behalf of the APNB of the Republic of Korea made excuses to the officials of the FSB and personally to Nikolai Kovalev for espionage, when the agent of APNB Cho Son U was detained during the secret meeting with Moiseyev." ("NG", 11.07.1998)

"Grigory Karasin remembered the ambassador, that Cho Son U was caught red -handed during holding an espionage operation" ("Izvestiya")

"After the catching red -handed of the V. Moiseyev, established the guilt of espionage in favor of South Korea" ("Izvestiya", 22.09.1998)

These statements, like many others, influenced the public opinion in the Russian society, part of which judges are.

Article 6(3) of the Convention

The violation of the point "a"(the right to be informed promptly of the nature and cause of the accusation against him).

As it was pointed out, Moiseyev wasn't informed promptly of the nature and cause of the accusation against him. Official accusation was charged only on July 13, 1998, that is 10 days after his detention, and it is impossible to recognized it "prompt" in the context of the Article 6(3) of the Convention. However, we should take into consideration, that Russia didn't made any reserves concerning the Article 6 of the Convention.

As it was grounded above, even July 13, 1998 we can not consider as the date of the charging the accusation in the whole volume. In the opinion of the author of this appeal, the accusation in whole volume was charged to Moiseyev only on May 27, 1999.

The violation of the point "b"(the right to have adequate time and facilities for the preparation of his defense)

Valentin Moiseyev didn't have adequate facilities for the preparation of his defense. He wasn't provided with the accusation act, which, according to the Russian penal-procedural legislature (the Article 220 of the UPK RSFSR), sums up all investigations activities and in which there are arguments of the attorney for accusation.

This important document according to the Article 237(4) of the UPK RSFSR has to be given to the defendant not later than three days before the hearing. According the law, the defendant has have unlimited access to this very important document and plan his defense in dependence on the information and data of the act.

As concerning this case, the accusation act was received by a special department of the FSB investigation isolation ward and was given to Moiseyev from time to time.

Accordingly, the Moiseyev's lawyers have never had this document, they examined it in case's papers.

Violation of the point "c" (the right to defend himself in person or through legal assistance of his own choosing).

Moiseyev was provided with legal assistance only on July 8, 1998. The wife of V. Moiseyev was told that her husband flatly refused the lawyer and wanted to defend himself in person (the Article 48 of the UPK RSFSR stipulates the participation of the lawyer only with the convent of the defendant).

Besides, the investigator invited a familiar lawyer, instead of an independent one. This lawyer decided that he had to convict Moiseyev to plead himself guilty and to testify against himself. This means that he damaged the Moiseyev's interests.

During the hearing procedure, the same violations took place: the trial allowed rendezvous valid for one occasion only.

The third lawyer entered the process in the stage of appellation - the author of this appeal- also faced with obstacles in normal work with defendant.

The Supreme court gave the permissions for rendezvous, but the administration of the FSB investigation isolation ward accepted them as valid for one occasion only. This restriction violates both the Article 18 of the law "On order of custody accused and suspected people" and Articles 47, 51 of the UPK RSFSR.

The right on rendezvous for the lawyer is provided by law and shouldn't be confirmed by trial or investigators. Misunderstanding of the nature and obligatory of this right entailed quotidian violation of rights of the defendant and his lawyer as it was in the Moiseyev's case.

Violation of the point "d" (the right to examine or have examined witnesses against him and to obtain the attendance and examination them).

The main witness in the case is the person, for who Moiseyev have spied. The trial, violating the Article 286 of the UPK RSFSR, announced his not-signed "explanations", obtained during investigation activities.

This important witness himself wasn't attended in trial and defendant and his lawyers didn't have the possibility to ask him some necessary questions.

So then, this appeal provides the analysis of those violations, which were made with regard to V.Moiseyev from the point of view of the European Convention and the Covenant. Taking into consideration, that Russia ratified these documents, I rely that the above violations are the sufficient basis for the cancel the sentence, which was passed by the unfair law.

On grounds of above and in accordance with the Article 339 points1,2,3, Article 342, Article 343, Article 344, Article345, Article348

CLAIM:

To cancel the sentence of the criminal judicial college of Moscow city court, to move the case for a new trial to the same court in another college.

The lawyer of the city Lawyer College

K. Moskalenko.

June 14, 2000

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