The judicial process has convinced us in innocence of Moiseyev

Press conference of the lawyers Yuri Gervis, Anatoly Yablokov and Karinna Moskalenko

Central journalists' house, November 9, 2000

The press-conference is presided by Alexey Simonov, the President of Glasnost Defense Foundation

A.Simonov: I represent the Glasnost Defense Foundation. Firstly the case of the diplomat stood as though outside of sphere of our interests. But when we have seen, that this case has all patrimonial attributes of cases, composed by Federal security service around problems of state secret, we have joined our colleagues, who already has been engaged in this business.

It appeared, that high-ranked official of the Ministry of foreign affairs was not insured at all against false accusations, against bias judicial consideration. It was the most difficult for him just to resist it.

It was found out, that professional schooling of the FSB employees is so low, that it doesn't bear even small openness of our courts. Proofs, extremely convincing for courts (as they are closed for all others), obtained with huge amount of remedial infringements, which courts recognize from time to time unsufficient, doubtful, legally groundless or received with infringements of the law, go to peices. Sometimes it is even partially possible to withdraw them from materials of accusation.

So, I present to you Yuri Gervis, Anatoly Yablokov and Karinna Moskalenko. With Karinna Moskalenko we work together for many years, we know each other for a long time, she has connected to this case at a later stage.

Yu.Gervis briefly spokes about Moiseyev's case which he is engaged already for more than two years: The criminal case against Moiseyev Valentin Ivanovich under art.275 of Russian Federation Criminal Code has been initiated (I ask you to pay attention) on July 3, 1998.

Moiseyev was detained on July 4, 1998 at 5 hours in Lefortovo isolator. The accusation against him was brought on July 13, 1998, the investigation was completed on 28th (or 29th - precisely now I do not remember) of May, 1999. In the first judicial session, which lasted for more than two months, December 16, 1999 verdict was passed, in which Moiseyev was found guilty of a crime stipulated art. 275 of Russian Federation Criminal Code, and he was sentenced to 12 years of deprivation of freedom with confiscation of property. After defence counsels' appeals to the Court of Cassation, where the consideration has taken place on July 25, 2000, the judgment was cancelled. The materials of criminal case were sent to a new judicial consideration in the Moscow City Court by other staff of judges and September 5 the second consideration was renewed.

Now the judicial consideration is over, tomorrow we'll have pleadings. Then court will pass verdict - verdict of "guilty" or "not guilty", which will be known, and then it will be already possible to speak, what there has taken place.

Answering A.Simonov's question, Yu.Gervis speaks, that the defense never has unwillingness to work with the press. During first judicial consideration and later the defense tried to attract attention to the case, as, from the point of view of defense, it is similar with a situation of Pasko, concerning the case of Nikitin - there are many questions, which are similar, too. But mass media were suppressed by the FSB Centre of public connections, false information, which was distributed constantly by general Zdanovich, it was very hard to make a hole in a wall of mistrust to this case, existed in journalistic circles.

After a cancellation of a judgment by the Russian Federation Supreme Court the public opinion has become to understand, that defense statements about Moiseyev's case are not unsupported by evidence, that they have reasons.

That very criminal case and cases in general, which are connected with state secret and are secret, are very difficult to make public. Any movement of defense to this or that direction (disclosing infringements of legal procedure, materials of criminal case, objective data, which is received during investigation, in court) is interpreted one-sidedly: they say that we try to press upon investigation and court, but the state will never recognize, that it lies much heavy on court and public opinion.

Our desire is, that the court should be honour, diligent, and that those persons, who consider the case, should constantly feel public attention, that infringements, which they will make, indulging illegal FSB methods, came to the light.

A.Simonov: There is a written undertaking of the lawyer not to divulge some data. Did you give such obligation?

A.Yablokov: written undertakings are different. A written undertaking not to divulge the data of a preliminary investigation is one thing. As I've joined this case already at a stage of passing the first verdict, December 16, 1999, I hadn't been taken such obligation. I had been taken a written undertaking not to divulge state secret, contained in the materials of criminal case.

Such usual judicial practice, when the lawyer has not the right to disclose all materials of the case, having "secret" seal- such practice is vicious and illegal. It cut down the lawyer's right to conduct defense. If investigation or court consider, that there are any materials which can't be divulged, it is necessary to specify these documents and materials precisely, and the lawyer has the right to disclose all the rest, to discuss and to give a talk anywhere. Otherwise any sense of defense is distorted.

A.Simonov: How the presence or absence of state secret in materials of criminal case is defined?

Yu.Gervis: Under the existing instruction of judicial and investigative office-work any criminal case, if it has even one document - accompanying or informative - with a "secret" seal, all the case will be specified. Even if an answer to a simply request concerning the person, comes from FSB with a "secret" seal, the whole case will be specified.

K.Moskalenko: They have forgotten to take such undertaking from me.

Magazine "Index": It is clear, that this mechanism is fulfilled well. But you see if there is any petition or action, which is not confidential, and you divulge it, there is no reason to institute criminal proceedings against you.

Yu.Gervis: Formally yes. But it is done differently and very simple. The lawyer is called to account for breaking lawyer ethics, on one hand, on the other hand - that he influences the witnesses, influences relatives.

A.Simonov: There are also other ways, for example, lawyer Nersesyan, participated in process on Pasko's case, was removed from a hall of judicial session allegedly for offending the court, and then he was excluded from Russian Federation Lawyers Board. So the pressure can be executed by some other way.

Magazine "Index": As one of the reasons of judgment cancellation Definition of the Supreme Court specifies, that the first court has only nominated the list of the items of information and documents, handed over by Moiseyev to the foreign state, but hasn't not specified, what items of information and the documents and when had been handed over by Moiseyev. This is an instruction to court. Has the court, which you participate in, established when, whom, what Moiseyev had handed over?

Yu.Gervis: I can with confidence say, that no any new data allowing to speak, that Moiseyev executed criminal action or something transferred, is not established. On the contrary, I can tell, that all those data, which was recognized confidential, could not be handed over by Moiseyev, as in one case he was on business trip abroad, and in another - he did not meet at all this person during the very large time. It is ridiculous, but it is proved in FSB materials.

Magazine "Index": And about the Definition of the Supreme Court. The Supreme Court specifies, that the objective side of a crime includes actions only with the items of information being a state secret, only just in that term, in which it is considered. But such data in the first court was absent, therefore judgment was cancelled. The instruction, given to the second court, is to find out, which of these items of information constitue state secret, which do not, just for the term of fulfilment of such actions. Was it possible to carry out necessary expert examinations during this judicial session?

A.Yablokov: During this judicial session the repeated examinations were not carried out, for what the defense repeatedly made motions as at an initial stage of proceedings, and repeatedly, in the end, when all proofs of criminal case were already investigated. Without a due substantiation by court these motions were rejected.

According to the Constitution of Russian Federation the secrecy of the items of information is defined by the Law. Such law " On state secret " was accepted only in 1997. Following the Law, as there was no list of the items of information constituting state secret till 1997, all items of information, whether Moiseyev handed them over or not, confidential or nonconfidential, do not have corpus delicti.

Yu.Gervis: In the case it is not proved at all, that Moiseyev has ever handed over something to somebody. By FSB materials, which within two years carried out the operative measures towards Moiseyev, allowed by the law,it is proved, that during meetings with Cho Son U facts of receiving from him or transfering to him anything, were not established.

A.Yablokov: The objective fixing of Moiseyev and Cho Son U meetings which has been carried out by FSB employees, does not confirm accusation, brought against him.

A.Simonov: It is necessary to explain, because not everyone knows, who is Cho Son U.

Yu.Gervis: He is the Korean diplomat, who is pers.facing my client in this criminal case.

It was also established, that other Russian diplomats had similar meetings with this employee of embassy of Republic Korea.

Here I hold in hands a copy of the treaty on friendship and cooperation between Russian Federation and DPRK. In criminal case this document is recognized containing the top secret information. The Ministry of foreign affairs has sent it by open mail. In MFA it is open till now.During judicial consideration was found out, that in MFA there are no problems with fulfilment of actions with the confidential documents and disclosure of that very document. In MFA nobody has been punished for disclosure of this confidential document till now.

In separate criminal case any paper can be top secret. In separate criminal case Moiseyev can be recognized a foreign spy on the basis of the usual document.

A.Simonov: What is the court's attitude to the motions of defense and the motions of prosecution?

A.Yablokov: The defense moved motions from the moment of opening a judicial consideration. I can repeat to make it clear what motions were moved by defense. First, about consideration the case by court of the jurymen. Was rejected. It was moved repeatedly, both in the first judicial session, and in this judicial session.

Second. About challenge the military public prosecutor.He participated, since a preliminary investigation, under the single assignment of the General Prosecutor. The participation of the military public prosecutor in cases concerning the civil person, who is V.I.Moiseyev, is illegal and is inadmissible, it contradicts the law about Russian Federation Prosecutor Office. According to this law the participation of the military public prosecutor is possible when the case concerns the military man, or in the areas outside Russian Federation where bodies of territorial civil prosecutor office are absent.

But in spite of the fact that it was direct violation of the law, the court repeatedly rejected our motions of challenge the military public prosecutor.

The motion of defense to allow participation of public organizations. Many organizations represented such petitions. And all these petitions were rejected by court without the due lawful bases, only on the ground that the case was closed under art.18 of the Code of Criminal Procesure.

We repeatedly moved motion to change measure of suppression to Moiseyev and proved this that the Supreme Court considering the case, has not found the sufficient proofs and the judgment of Moscow City Court has been cancelled. We asked to change a measure of suppression to a written undertaking not to leave Moscow. It has been rejected too.

Besides, we declared the petitions about demand for a plenty of the documents and items of information, which we considered necessary to study in the originals.

The Federal security service has presented the confidential documents, which the accusatory judgment is based on, in x-copies. We moved motions to demand for the originals of these documents, so that it was possible to examine and to investigate them during the judicial session, that it was possible to carry out expert examination of authenticity of these documents.

There were four translations of these documents from the Korean language. Last translation was made by a military interpreter, who did not know diplomatic terms, could not make adequate translation. We asked that final translation should be done by Ministry of foreign affairs expert or expert of Institute of international relations. And only after that translation the examinations in an Interdepartmental commission on protection of state secret of Russian Federation should be carried out to define secrecy of the items of information, available in the documents. However court without the due bases has rejected these motions.

According to the law each proof is admitted as the proof, when its source is known, and this source should not cause doubts.

Besides, we also moved many other motions: about a call of the additional witnesses, with whom Moiseyev worked in Seoul (two witnesses were called and interrogated in judicial session), declared other petitions directed to complete and all-round research of case materials. But all motions of defense were rejected. At the same time practically all motions of the public prosecutor were satisfied.

The only positive moment is that our writing motion about exception of the proofs received with infringement of the law, which we asked to consider during passing the judgment, might be satisfied. The court has attached this motion to materials of case and we hope, that it objectively will be considered.

A.Simonov: Do you consider, that amount of only remedial infringements already on two phases of this case is enough for the addressing to the European Court?

K.Moskalenko: I should tell, that the fact, that the court has postponed consideration of the petitions, is shocking. It should consider. The lawyers understand, that this is roughest infringement. The petitions are considered then, when they are declared.

What is the sense here? The lawyers declare the completely reasonable petition at the completely reasonable stage. Now during a judicial investigation with participation of the parties, by discussing the important questions, they petition to exclude any proofs from among those, because they are received with infringement of the law. It is an axiom.

In court of the jurymen it is done at a preliminary stage in order, that such proofs at all were not a subject of trial, that the train of psychological pressure on the jury had no any more place.

I should act together with my colleagues in the Supreme Court of Russian Federation, but for the reasons not depended on me it has not taken place. Basically we already have prepared with Moiseyev and his wife the appeal to the European Court, we waited only this judgment be legalized in the court of cassation. Then we had right to appeal to the European Court.

Pay attention to a phrase in Definition of the Supreme Court: " Stated by court in a judgment circumstances of committing a crime by Moiseyev carry unconcrete character, and the conclusion about his guilt in committing specified action is made disregarding all circumstances of the case ". If all this carries unconcrete character, nobody has tried to prove all this, and the conclusion about guilt is made disregarding circumstances of the case, the conclusion arises: his condemnation is illegal, and he is not guilty. Anyway, his guilt is not proved.

In that moment we did not become to submit the case to the European Court for the completely natural reason: the judgment is cancelled, the case has no final judicial decision and we can not go to Strasbourg. Now Moiseyev's wife has taken the liberty, not only without court of cassation definition, but also without a judgment of addressing to the European Court on human rights.

In exclusive cases it really is allowed. Anyway, in this case vast amount of infringements is committed, which can not be neither filled in, nor changed, corrected, and in general it is possible to speak about irreplaceable infringements. Who, for example, will fill in the lost health? (art.3 of the European Convention - tortures and cruel methods of treatment), who can fill in or to compensate defects of arrest, which were already admitted? Or defects in realization of the right to the appeal against illegal arrest? If you have not been given opportunities to appeal against illegal arrest, your custody is illegal.

Who can somehow compensate or correct infringement of a principle of presumption of innocence? (art.6-2 of the European Convention on human rights). The president of Russian Federation, then he headed FSB, in categorical tone says about person's guilt, in this case it is Moiseyev. What, it can be changed, corrected? No, never.

When president speaks, that the man is guilty, all is predetermined. Moiseyev's wife is convinced, that his life and health today are in danger. And these are the rights, which are non-recoverable.

NTV: Is it possible to explain, why Moiseyev has recognized his guilt during the first interrogations, and later was found out, that he didn't not recognize the guilt?

Yu.Gervis: Excuse, but who has told you, that Moiseyev ever recognized the guilt? Understand, if Zdanovich lies, if he does not have conscience, then what attitude Moiseyev has to it?

Even prior to the beginning judicial session (during the investigation, in 1999) FSB published the book, where it was spoken, that Moiseyev was a spy, about what here is possible to speak?

Moiseyev has never recognized himself guilty of committing this crime. He always, from the first interrogation, spoke, that he had never agreed to espionage activity, never executed actions directed against the Motherland and his state.

Opposing is not proved either in court, or investigation.

The principle is: FSB investigates a case, it means that everything is well. Any employee of law-enforcement bodies knows, that the search is made with the sanction of the public prosecutor. In exclusive cases is made without the sanction of the public prosecutor, but with the notice within day about the made action. It is elementary. FSB, department, which is engaged in espionage and should be a sample of investigation of criminal cases, elementary carries out some searches without the sanction of the public prosecutor, and notifies three days later.

The newspaper " Russkaya mysl ": You have told, that this South Korean diplomat met other MFA employees. Explain me, please, why the criminal case was initiated only against Moiseyev?

Yu.Gervis: There are some versions and assumptions.

The first version is, that Moiseyev has become objectionable to the certain circles of FSB and MFA. And their interests gathered in one point. Other version. I want to remind, that during this period armchair under the then FSB director Kovalev very widely shook. I consider, that FSB has made well-meant action having opposite effect to the chief, trying to show its activity and significance.

And third. It, probably, is work of the Korean special services, its desire to substitute Moiseyev or to cipher a real source, which till now exists in this department.

A.Yablokov: FSB cosidered that Moiseyev was an expert, who alone determined policy of our country on the Korean peninsula.

Probably, that's why Moiseyev has been chosen.

"Voice of intelligence service": a question to Yu.Gervis, as to the former FSB employee. So am I. Tell, what for it was necessary to continue such illiterate case, when all illiteracy was already found out?

Yu.Gervis: The situation is simple and is banal for our state. FSB has executed an action, which should not be carried out. They have got to situation, from which they do not know how to escape. When they have detained Moiseyev and it has appeared, that he made nothing as well as nothing was revealed at the counsselor of Republic of Korea Embasssy Cho Son U, when he in infringement of the Viennese convention has been searched in FSB, there was no way back.

FSB as any state machine started to whirl and continues to do it till now, and will pulverize anyone, who got in these millstones, and prove its solvency and that, that they already once have declared. There is nothing else.

Magazine "Index": Was it possible to prove forgery of envelopes with marks of South Korean embassy, which, allegedly money paid to Moiseyev was packed in?

Yu.Gervis: It was possible to establish, that these envelopes were not withdrawn. How they by a magic way have appeared, is not known.

Magazine "Index": Till now the defendant Moiseyev does not have text of indictment? He does not know senario of the court?

Yu.Gervis: Yes, we repeatedly petitioned for giving Moiseyev the text of the indictment.Moiseyev has no the document, which the accusation is based on.

Moiseyev's right to defence is broken and it is irreplaceable.

K.Moskalenko: It is a very important question: where Moiseyev is kept, whose hands he is in?

As a matter of fact he is in hands of accusation, because if you recollect, the isolator "Lefortovo" has departmental subordination to FSB. It is complete lawlessness.

Entering the Council of Europe we have given the obligation, that all penitentiary system will be transfered to the Ministry of justice.

Can you imagine "confidential" character of relations of the lawyer and his client through administration of investigatory isolator. Moreover it is not a simple isolator, but belonging to the party of accusation?

NTV: Are there parallels in cases of Moiseyev and citizen of USA Pope?

Yu.Gervis: I do not know materials of Pope's criminal case, I know from press. The similar situation with the statement of FSB, Zdanovich is, that Pope was detained with red-handed evidence, at the moment of transfering - this stamp, nonsense, which roams from one case to another.

The same picture in Moiseyev's case. Even in MFA, when FSB met there with the employees, it was told, that Moiseyev was detained red-handed, at the moment of transfering, that he has been taken with money, with the documents, he confessed, everything is disclosed.

The people, who initiated the case, investigated it, interpreters - everybody is from one board. Such get-together.

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