An Excerpt from the Definition of the Supreme Court

The judicial board on criminal cases of the Supreme Court of the Russian Federation presiding V.M.Ermilov, judges A.A.Burov and N.C.Lavrov in judicial session on July 25, 2000, has considered the appeals of condemned V.I.Moiseyev, defense counsels J.P.Gervis, A.J.Yablokov, K.A.Moskalenko who supported the arguments of the appeals; conclusion of the prosecutor I.V.Dubkov about keeping the judgment without change,

the judicial board after verifying the materials of the case, discussing arguments of the appeals finds that the judgment should be cancelled on the following bases: According to art.314 of RSFSR Code of Criminal Procedure (CCP), the descriptive part of the accusatory judgment should contain the description of the criminal action, recognized proved, with the indication on a place, time and way of its fulfillment.

With the regard to this case this requirement of the law was no executed by the court of the first instance. Recognizing Moiseyev s guilt in fulfillment of a crime provided for by art.275 of RF Penal Code the court has specified that Moiseyev in the period since 1992 till January 1994 was involved in covert cooperation by the Republic of Korea's intelligence service - Agency for National Security Planning (ANSP) and since the beginning of 1994 till July 3, 1998, occupying the position of the chief of the department of Korea and later the deputy director of the 1st Asian Department of the Ministry of Foreign Affairs of the Russian Federation in order to follow the received instructions Moiseyev has been systematically collecting, retaining and providing to the Korean intelligence service information and documents of classified character, constituting state secret. The court has only confined itself to general enumeration of information and documents, handed over by Moiseyev to the foreign state, and did not specified, what items of information and documents and when exactly they were handed over by Moiseyev.

For the actions Moiseyev is being charged with are of prolonged character and covered by the period of time since 1992-1993 till July 1998, during which the changing of the RF legislation had happened, the fact of establishing of such information by court has essential importance for the case. According to part 4 art.29 of RF Constitution, accepted on December 12, 1993 and acted during fulfillment by Moiseyev the actions incriminated to him, the list of information, constituting state secret, should be determined by the Federal law.

This list was determined by the Federal law On Modification and Additions to the Law of Russian Federation On State Secret , dated by October 6, 1997. Thus, before the specified time there was no list of items of information constituting state secret, which would correspond to requirement of the Constitutions of the Russian Federation. As the data about the time of transference by Moiseyev information and documents is absent in the judgment, it doesn t allow to make a correct conclusion what exact actions from that he is charged with are fulfilled by him during this period - the period, when the Federal law, corresponding to the requirements of the RF Constitution, containing the list of the items of information constituting state secret was in act. As follows from the case materials the experts conclusions on the level of secrecy of the information handed over by Moiseyev, which the judgment is based on, were made by the Ministry of Foreign Affairs experts on the base of RF 1993 Law on the State Secret, the 1995 RF President s Decree On the Statement of the List of Information Referred to the State Secret and 1992 Enactment of RF Government On the Temporary List of the Information Constituting State Secret . As for the expert of the Chief Intelligence Directorate of the General Staff of the RF Armed Forces he made his conclusion on the base of 1992 RF Law on Security, 1993 RF Law on the State Secret and the List of information referred to the state secret, determined by 1993 RF President s Decree. At the same time it is necessary to take into account that in the 1993 RF Law On the State Secret which the above mentioned experts conclusion referred to there was no List of information constituting state secret. In art.5 of this Law (edition of 21.07.1993) just information which could be referred to the state secret is pointed out. Taking into account there above mentioned facts the correctness of the conclusions of the expert examination on the level of secrecy of information handed over by Moiseyev should by reconsidered.

Paying attention to the fact that objective side of a crime under art.275 of RF Penal Code consists of actions specified in it only with the information constituting state secret, the court should have established what information handed over by Moiseyev and specified in the obligatory accusation may be referred to the state secret in accordance with the Law, acted at that moment.

Thus, the circumstances of fulfillment by Moiseyev the crime, determined in the judgment, are of unconcrete character, and conclusion of Moiseyev s guilt is made with no regard to all the circumstances of the case. Under such circumstances it s impossible to recognize the judgment lawful and reasonable, therefore it should be cancelled.

During new judicial proceedings the court should carefully investigate all the circumstances of the case, verify the arguments stated in the appeals of condemned and the defense counsels and accept the decision in accordance with the art.301 and 303 of RF CCP.

In accordance with art.339 of RF CCP the judicial board had defined:

The judgment of the Moscow City Court dated January 16, 1999 with respect to Moiseyev should be cancelled, the case should be sent to a new consideration to the same court but in another staff of judges from a stage of judicial proceedings.

Measure of suppression with regard to Moiseyev keeping under guard leave without change.

Presiding signature

Judges two signatures

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