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Appeal of the Defense Counsel Yablokov A.U.
On the 16th of December, 1999, Moscow City Court found guilty of committing a crime under art.275 of the RF Penal Code and sentenced to deprivation of liberty for the period of 12 years and confiscation of property, with serving the term in a high-security correction facility and commence on July 4, 1998
Moiseyev Valentin Ivanovich, born on the 10th of March 1946, in Leningrad, ethic Russian, Russian national, having higher education, married with two children, with no previous criminal record, prior to arrest working as the Deputy Director of the 1st Asian department of the Ministry of Foreign affairs of the Russian Federation (RF MFA), having the rank of the 2nd class Envoy Extraordinary and Plenipotentiary. From the 4th of July, 1998, up to this moment he has being kept under arrest in the investigatory isolator "Lefortovo".
The above mentioned judgment I consider as not fair, no lawful, groundless one which must be cancelled.
The conclusions of the court worded in the judgment are not fully corresponded to the actual facts of the case. The one-sided and incomplete investigation of the criminal case was not filled up during judicial proceedings. The judgment is based on the evidence received with law offence.
Investigation and later the court extended the formula of accusation (having specified that Moiseyev was the citizen of the USSR and then - the citizen of RF) and didn't take into account that art.275 of Penal Code says that only the citizen of RF can be a special subject of the felony.
The formalistic approach to the case leads to the following conclusions:
Hired by the USSR MFA, USSR citizen V.I.Moiseyev swore an oath not to disclose any state or official secrets on September 12, 1990. After the dissolution of the Soviet Union, in September 1991, he automatically became a citizen of the RF and. like other Ministry staff, was fired from the USSR MFA. From that moment all his obligations before the Soviet Union and the USSR MFA lost their validity. In 1991 he was hired by the RF MFA, where he has not sworn any oaths that would entail any responsibility for divulging state secrets; the RF Ministry maintained simplified regulations regarding relationships with foreigners and state secret protection regime. Soviet Union's and, since 1960, Russian Federation's criminal law provided for criminal responsibility for high treason in the form of espionage until December 31, 1996, for citizens of the Soviet Union (art.64 of RSFSR Penal Code). Moiseyev was never charged under this section. Art.275 of the RF Penal Code provided for criminal responsibility for a similar crime, but only for citizens of the RF and only after January 1, 1997. According to art.54 of the RF Constitution and art.10 of the RF Penal Code, no criminal law that criminalizes an offense may be retroactive. Therefore, Moiseyev cannot be prosecuted for what he had done prior to January1, 1997.
During judicial proceedings was established that at the end of 1996, Moiseyev voluntarily and in good time answered the questions of FSS employee M., told him about his meetings with CSU, of the themes they discussed and questions CSU was interested in (including a draft friendship treaty with DPRK, divulging information of which later was laid to the charge of him). M. didn't required to stop these meetings, didn't inform of CSU's involvement with the Korean Intelligence Service (ANSP), didn't warn against the meetings with an intelligence officer. M. asked to continue these meetings for clearing up some questions interested for him.
Thus, the following meeting were caused by the request of FSS officer and consequently do not form the corpus delicti or at least fall under the note of the art.275 of RF Penal Code and Moiseyev should be released from the criminal responsibility.
In violation of art.68 (part 1) of the CCP the court stating in the judgment (without any proof) that Moiseyev in 1992-1994 was involved in covert cooperation by ANSP, agreed to such cooperation and was included in the ANSP's active intelligence personnel, and collected documents and information of interest to ANSP, didn't specified what particular illegal acts he had committed during this period of time and why the documents presented by RF Foreign Intelligence Service reflected these acts only beginning from early 1994. The court, having established that Moiseyev had returned from his mission only in March 1994 and CSU had arrived in Moscow in August 1994, failed to explain in what way, under these circumstances, Moiseyev managed to hand over documents and information from the beginning of 1994 to July 1998. Two other periods of time, when Moiseyev was abroad and couldn't be engaged to espionage activity (May 1996 and April 1998) were also documented in court.
In violation of art.68 (part 2) of the CCP the court did not specify the motivation, that had conduced Moiseyev to high treason in the period of 1992-1994. 14 thousand US dollars, allegedly received by Moiseyev in 1994-1998, are described by the judgment not as mercenary motivation, but rather as a reward that Moiseyev was not expecting and that was paid by ANSP on its own initiative. The origin of this money from ANSP was not proved, its confiscation is not grounded, as there is information in the case that the money is a family accumulation for a long period of time. Its amount is comparable to the legal income earned by Moiseyev.
The court didn't plausibly establish the fact of Moiseyev's recruitment, his agreement to cooperate with ANSP, existence of an agency network, collection of secret documents and information, constituting state secret, disclosure of a state secret or providing other assistance to a foreign state for the purpose of hurting Russia's external security and actually hurting Russia's interests.
The experts at trial couldn't perfectly motivate what damage to the country's external security and defense capability was, since practically all information, Moiseyev had been accused of divulging, were published in the press or pronounced at briefings. On February 9, 2000 all media covered the signing of a friendship treaty between Russia and DPRK, which would be also published.
Testimonies of witnesses KGB, IAT, MAI and TGD, that everybody knew about CSU involvement to ANSP and that the documents prepared by the MFA, are not to be divulged or handed over, are distorted in the judgment. In reality these and other MFA's employees stated at trial that the list of information allegedly divulged by Moiseyev, didn't include state secret and he couldn't hurt Russia's external security.
The court didn't verify in full measure Moiseyev's statement about TME's involvement with handing over CSU the list of documents on 8 pages in the Korean language and found that Moiseyev's espionage assignment. The court distorted TME's testimony in a part of importance of the items of information contained in the mentioned list as well as in Moiseyev's scientific report.
In spite of the expert conclusions the court recognized the academic report, four photographs handed over to CSU and the list of Russian-North Korean protocols and agreements - the documents which didn't contain any secret information as material evidence of espionage activities.
Contrary to the search record the court specified in the judgment 7 envelopes in which 4647 US dollars allegedly were in and recognized these envelopes as a material evidence.
In the judgment is wrongly specified that the draft order on reorganization of the operations of ANSP's residency in Moscow for 1997 proves that Moiseyev rather than any other person has handed over all the documents and information. In reality it is said in another mounted by FSS document - a translation of a copy of Moiseyev's intelligence personal file.
The court mentioned in its judgment that Moiseyev revoked his initial confession even during the investigation, stating that he had falsely accused himself as a result of psychological pressure and threats on the part of the investigators and absence of a defense counsel of his choice. However the court later referred to Moiseyev's coerced confession as proving his guilt.
In reality from materials of the case and protocol of judicial proceedings is seen*:
(In this place of the appeal 4 sheets of the text are withdrawn as they disclose provocative forms and methods of FSS way of work and according to the law they are3 secret and should be considered in close judicial proceedings. The further exceptions made for the same reason should be marked as *)
FSS officer M. who had provoked Moiseyev and was obviously interested in the outcome of the case, was involved in the fabrication of the two documents, authenticity of which Moiseyev flatly denied during investigation and at trial, which the accusation of high treason in the form of espionage was based on.
At trial M. admitted* and that obtained by undercover means Xerox copies of the draft order on organization of ANSP's residency in Moscow for 1997 and excerpts from Moiseyev's ANSP file had been magnified by him by means of a copier, and then he had covered the spots that he thought were not related to Moiseyev, dealing with other agents, and used a copier again to produce a final copy. Thus he finally assembled the documents that were presented to the investigators and for translation. Because these copies were blurred and difficult to read new copies were presented to court, but those were not too clear either, each page has traces of covering parts of the text during copying. There are only a few references to Moiseyev as a source of the information. In the vast majority of cases the documents do not show who was the source of information since they are dealing with numerous agents ((agent 2001, agent the Chief of Korean Department, agent the senior councilor, etc.). There are many gaps in the text, and paragraph numbering is inconsistent, which made Moiseyev to believe that there were four documents rather than two. These documents, extremely important for the case but not reliable due to the above reasons, were not examined to access their authenticity and accuracy. Under these circumstances, said documents cannot be viewed as admissible evidence. Moiseyev, when questioned by the court, flatly denied both the authenticity of the documents and accuracy of the information they refer to, he believed that the documents were fabricated by M. rather than Korean intelligence service.
According to the majority of RF MFA staff the list of information containing in these two questionable documents didn't include any documents or information constituting state secret. They were published in this or that form, were sounded in briefings and receptions. This was confirmed by Deputy Minister KGB, the 1st Asian Department Director MLP, the Security Department Chief K. and others.
Thus, questioned in the court witness KGB said that there was an order in the MFA when documents and information with secret seal couldn't be made public. If the secret seal was absent, each employee was allowed to decide himself whether to make it public to the foreign diplomats or not. While working at a new treaty of friendship and cooperation between Russia and DPRK the South Korean side was informed about the fact and stages of such work. This treaty will be published after signing. Therefore publicity didn't hurt Russia's security. Divulging Russia-DPRK draft treaty on cooperation was not dangerous either though it could break the tactics of diplomacy. Only after happened with Moiseyev, MFA began to work out an instruction on organization of work and classifying documents.
The witness MLP at trial testified that MFA staff disagreed with the prosecution case that built of the fact that Moiseyev had been recruited by the Korean intelligence and had had meetings with CSU in his apartment, in restaurants and other locations, where he had handed over documents and information constituting state secret, since it could not be al all. A major part of MFA staff responsibilities consists of such meetings and discussions. And it is common that these meetings were paid for by Koreans when in Russia and by Russian when in Korea. RF MFA had no official information of CSU's involvement with the South Korean intelligence.
After dissolution of the USSR all the USSR MFA staff was fired and then hired by the RF MFA, but new juridicial obligations about keeping of secrecy were not taken, there were no precise instructions ruling the order of meetings with the foreigners. Our agreements with Koreans had no secret seal and before signing they are discussed and changed. If Moiseyev left his office for a long period of time he always told him about it.
Witness MAI testified at trial that he had meetings with CSU just like Moiseyev, although suspecting him of involvement with the intelligence service.
Witness TGD testified at trial that he got acquainted with CSU in 1991 and later met with him in 1993. He didn't told Moiseyev about CSU's involvement with the intelligence service. In the RF MFA there was a report about spadework for a new Russia-DPRK treaty. Its text is standard and not secret. Publicity didn't hurt Russia's defensive capability.
Witness TME testified that she had known CSU, Moiseyev and TGD for a long time. The document in the Korean language with a list of documents and pieces of information did not contain any secret information and was published more than once. In June 1998 Moiseyev had presented at a seminar in the Institute his report about the problems on the Korean Peninsula. When at trial she was shown the report ceased from CSU, TME confirmed that this was the report Moiseyev had presented.
There was not an opportunity at trial to check witness IAT'S testimony, which was pronounced as an affidavit, regarding which the defense had a lot of questions. Witnesses ELE and DVI were not questioned in court, while they had stated during the investigation that almost all Russian diplomats had had contacts with CSU, both officially and in private.
In response to the investigatior's requests MLP and K. prepared the complete list of all documents and pieces of information Moiseyev was accused of divulging and noted in their cover letters that all these documents were not classified, having been officially pronounced at the Ministry's briefings or released to the media for distribution both domestically and abroad. All these documents and pieces of information were forwarded to the investigator by non-secret mail.
According to the clearly biased and self-contradicting expert examination reports only 3 documents and 5 pieces of information out of 125, allegedly handed over by Moiseyev, were found classified, the rest were found not constituting state secret. 28 documents allegedly handed over by Moiseyev, were referred to non-existent and not containing any accurate information which proved that there was no real damage to the country's external security.
Response of the Director of the 1st Asian Department of RF MFA MLP to K said. that Moiseyev had ex officio access to classified and non-classified documents and information, cipher documents, to other top secret documents and information. It was his responsibility to maintain contacts with South and North Korean diplomats, to participate in negotiations and delegations of different level. In the MFA regulations there are no any rules that contacts with foreign diplomats should by maintained with the permission or notifying the governing body.
The list of MFA documents Moiseyev has had access from March 1994 to June 1998 indicates that he has been familiarized with 132 documents containing secret information sand 27 documents classified as top secret. But only two documents out of them all contain some information which Moiseyev allegedly handed over. Even this information in spite of formal classified character was repeatedly published, discussed at briefings and diplomats didn't consider it secret.
Besides, Moiseyev had no malice intent to hand over state secrets to foreign intelligence service in order to damage Russia's external security. It's confirmed by the copy of the draft order on the organization of ANSP's work in Moscow for 1997, which constitutes the basis of the charges. It says that " since early 1996 the flow of classified documents from him stopped. He avoids in-depth discussions regarding Russia's national interests, but continue to provide information on the subject of North Korea "*
The court didn't pay into account that Moiseyev voluntarily told a FSS agent M. about his contacts with CSU, that Moiseyev had been provoked by FSS officer. The court didn't analyze an opportunity to use regarding to Moiseyev the note to art.275 of RF Penal Code.
During investigation and at trial the same experts provided ungrounded and contradictory assessments on the level of secrecy, basing their assumptions on an inaccurate translation of questionable documents. Assessing the level of secrecy, they proceeded not from the RF 1993 Law on the State Secret and the Lists of information constituting state secret, existing at the time of the alleged divulging of information, but only from the 1996 List, in many respects more rigid than its predecessors, which unnecessarily aggravated Moiseyev's responsibility as being accused of espionage for the period of 1992-1998. The named expert assessments are also inadmissible as an evidence because they rigidly violate the RF Constitution. The Russian Constitution (art.29 part 4) states that "a list of information constituting a state secret shall be determined by a federal law", while the experts used only department's internal lists and documents. There were other violations of the law during expert examination, which led the defense to a decision that expert conclusions are inadmissible from the point of view of the law. Defense moved to have a new expert examination appointed with the Interdepartmental Commission on the Protection of the State Secret. The court overruled these motions and based the judgment of an admissible evidence in violation of the RF Constitution (art.50) and RF Penal Code (art.69 part 3).
From the expert assessments on the level of secrecy it follows that while examining information: 1994 - about North Korean intentions in the military cooperation, 1995 - on the position of RF Ministry of Defense to the existing agreement between Russia and DPRK, 1996 - related to CMG escape and documents, 1995 - about draft treaty between RF and DPRK, 1996 - about draft treaty between DPRK and RF (allegedly handed over by Moiseyev on the 18.03.1996, when he was abroad and couldn't do it) they used the RF MFA List of classified information according to the RF MFA order dated the 5th of August 1996. They didn't use the List of information which should be classified in the USSR Ministry of External Economic Cooperation dated the 6th of June 1989 or analogous List dated the 4th of May 1994 and the RF Law on the State Secret.
Uncertainty and inconsistenty of the experts in their conclusions on the level of secrecy may also be seen in obvious discrepancies between the examination part and the assessments themselves.
Therefore, experts have in fact confirmed the testimonies of MFA employees and the information provided by MFA security department that the documents and information Moiseyev is accused of divulging had not been considered secret until the criminal prosecution was initiated and the expert examination appointed.
The fact that named information has not classified character of moderate price is confirmed by the press publications: about the named drafts treaty, about the agreement in the military area and others*.
Similar flows may be found in the conclusions of the experts of the Chief Intelligence Directorate of the General Staff of the RF Armed Forces dated January 21, 1999.
The principal fault of the two examinations is the fallaciousness of the materials they were based on: the questionable documents provided by the Counterintelligence Operations Directorate of the Counterintelligence Department of the RF FSS as tampered-with Xerox copies with numerous gaps - the so called excerpts from the draft order on organization of the ANSP's work in Moscow for 1997 and from Moiseyev's ANSP file and their annotated and non-professional translation.
The court granted a defense motion and ordered a new translation, which was different from the three earlier ones, but still disapproved by Moiseyev as a military translator used military terms better than special diplomatic ones and this changed the meaning of the documents.
The court also granted a motion to conduct a new examination based on the new professional translation. In violation of art.81 of CCP the court appointed the same experts and examinations, named a judicial one, was the recurring by character. This caused poor quality and superficiality of the recurring expert assessments. The reports virtually lack an examination part and simply confirm the initial conclusions. In the examination part there are named only documents which the experts were guided by. The new translation was not analyzed in the term of its difference from the previous one. In spite of very different wordlings, the experts repeated their initial conclusions without any explanation.
The examination part should have explained what details of information, regarding the same events, in the press and in the four translations made them secret or non-secret; whether there was a translation among the four ones which would have the same meaning as the publications in the press and be non-secret.
The experts' answers to the questions of the court didn't cleared the situation.
The expert conclusions whether Moiseyev harmed the country's external security and defensive capability, are not convincing and proved. They substitute notions as it is obvious from the conclusions on the most important point of the case: "the damage for the defensive capability as a result of handing over information about completion of functioning in DPRK a Russian device in the arms field consists of RF Armed Forces losing possibility to control for Japan, USA aviation*. This information could lead to important diplomatic problems". The decision of withdrawing the device in the arms field has been made without Moiseyev, the information of this fact was published in the press, the absence of such a device can be established at once by radio-electronic means of interested countries.
In expert conclusions there also are legal violations: no date, it has unspecified corrections and deletions. Expert L. didn't sign the conclusions, he wasn't informed about his rights and duties and he wasn't warned about criminal responsibility for knowingly wrong conclusion.
The defense moved to have a new expert examination appointed with the Interdepartmental Commission on the Protection of the State Secret, the court ungroundly overruled this motion and used questionable expert conclusions in the judgment.
Besides, the judgment is based on other proves, received with violation of the law, and inadmissible from the point of view of the law.
The court has placed at the core on Moiseyev's conviction a letter from V. to G. and attached excerpt from the draft order on organization of the ANSP residency in Moscow for 1997, an excerpt from Moiseyev personal file and information of RF FSS on ANSP's methods, dated August 21, 1998. A conclusion drawn in V's letter to G. that the draft order allegedly identified Moiseyev as agent 2002, is inaccurate, since the draft order doesn't say that in reality. The translation of the documents attached to the letter was made by an FSS agent P., the same person prepared the said information dated August 21, 1998, and conducted the undercover operations against Moiseyev and CSU. In violation of art.57, 66 and 134 of the CCP Moiseyev was not informed of his right to challenge the translator, the translator was not informed of criminal responsibility for knowingly wrong translation, there is no information in the case regarding his qualifications. This translation was consequently corrected (four times) by other translators.
The court as a basis of charge in high treason in the form of espionage used mostly questionable documents which came from Russian special services, interested in the outcome of the case. These questionable documents - mounted in FSS photocopies of the draft order on reorganization of the operations of ANSP's residency in Moscow for 1997, an excerpt from Moiseyev's personal intelligence file (came in February 1997), a report of the RF Foreign Intelligence Service about Moiseyev's contacts in 1992-1994, a report of the Chief Intelligence Directorate of the General Staff of the RF Armed Forces about Moiseyev's "free way of life", the FSS letter dated July 9, 1998, excerpts from FSS suveillance reports and reports on an operative measures - haven't passed an expert examination on authenticity and trustworthiness.
In the court materials there is no judicial sanction to conduct named operative measures and that's why it was impossible to verify observance of 6 months period for such permission. It was not also possible to find out why the operative materials were not realized for a long time or were not eliminated after a year of storage (under a Federal Law on Operative and Investigative Activities) as well as to verify observance of other demands of the same Law.
The doubts in authenticity of these operative documents are caused by the next law violations:
In accordance with the Federal Law in Operative and Investigative Activities (art.11 part 2) dated August 132, 1995 (with changes dated July 18, 1997, July 21,1998, January 5, 1999) the results of operative and investigative activities may be used as a reason and a basis for initiating of criminal proceedings, be produced to inquiry body, to investigator or in court, which has execution of the case, as well as be used in proving of criminal cases, according to the provision of RF CCP which regulate collecting, verifying and evaluation of evidence.
Anyway, all listed operative materials were get long before initiating the criminal proceedings and consequently can't be considered as admissible and authentical evidence.
The court having referred in the judgment to these questionable operative materials as the evidence and documents has violated art.69 (parts 2, 3), art. 70, 129 of CCP and art.59 (part 2) of the RF Constitution.
Searches in Moiseyev's apartment, office and summer house were conducted without a procurator's warrant in violation of art.168 and 170 of CCP. Violations were admitted by the Deputy Military Attorney V.Smirnov in his letter where he informed the court that the investigators were reprimanded for violation of art.141, 141-1, 176 (part 2) of the CCP. The court in its judgment referred to inaccurate information that the Moiseyev's apartment search record indicated the seizure of seven envelopes containing US dollars and recognized these envelopes as the material evidence.
In protocol of identification CSU by witnesses L. and N. the search witnesses were not informed about their rights and duties according art.135 of CCP, but demands of art.141 0f CCP were explained to them.
Moiseyev's identification by L. was conducted with a violation of art. 165 (parts 6 and 7) of CCP as Moiseyev was evidently older than the others and wore a white sweater, while the rest were dressed in dark cloths. The identified was not offered to name himself. In the protocol there is no information who was extreme on the right, that doesn't permit to be sure who was identified. The same violation happened when Moiseyev was identified by witness N.
The confrontation of TME with Moiseyev rigidly violated art.163 (part 3) of CCP. The investigator from the beginning has selected the tactics of leading questions and actually has offered to each participant of the investigatory action only to confirm the former testimonies not trying to remove the obvious conflicting evidence. Investigation and the court in violating art.20 of CCP didn't try to find the truth as to whether TME was involved in the handing over to CSU list of documents received from Moiseyev. Having had a fingerprint report which stated that out of 16 fingerprints only 4 matched Moiseyev's, neither investigators nor court bothered to check Moiseyev's statement on TME's involvement and to match her fingerprints.
In the decree about appointing the case to consideration in violation of art.222 and 223 of CCP is ignored Moiseyev's motion for jury trial, the place where decree was put, was not specified.
Thus it's necessary to recognize that the admissible and accurate material gathered by the investigators and the court support Moiseyev's statement that he was not involved in espionage. Both during investigation and at trial Moiseyev repeatedly testified that at an early stage of the investigation he has falsely confessed due to a psychological shock caused by an unexpected arrest and illegal investigation methods and threats to arrest his children and ruin their careers. His official responsibilities included informal meeting and contacts with CSU and other South Korean diplomats. The other Russian diplomats had the same contacts with the foreign diplomats. He never hade a secret of his meeting not only from his superior and colleagues, but also from RF FSS. He told about the meetings to FSS's employee M., who never told him to avoid contacts with CSU or warned as to how to deal with him. On the contrary, M. asked to continue meetings and find out what were his views and positions regarding issues of interest to FSS. CSU or other ANSP agents never offered him cooperation with this agency. Moiseyev never agreed to it and never received any money for such services. The money seized in his apartment and office was earned by him and belonged to him and his family. The prosecution rests on two documents fabricated using a copier, their annotated translation and erroneous expert assessments who had made secret information and documents that have been viewed as open-access by the MFA staff and had been openly discussed and published before Moiseyevs prosecution. Moiseyev did not intend to damage the country's external security and he doesn't believe to have inflicted any damage to the country.
Because neither investigators nor the court have proved the objective elements (who, when and how recruited Moiseyev, his agreement to cooperate with ANSP, collecting, handing over the documents and information constituting the state secret to CSU; receiving money for these services; damaging the country's external security); the subjective elements (no direct intent to be involved in espionage; Moiseyev never concealed his contacts with CSU from the FSS; no motivation) and broadly and erroneously interpreted the special subject of the crime charged, no required elements of the crime have been established and Moiseyev must be acquitted.
According to art.325,326 of CCP ask to call convicted Moiseyev for participation in the court of Cassation;
To cancel a judgment of the Moscow City Court and to cease a criminal case according to art.5 (part 1, item 2) of CCP.