Information Note on the Court’s case-law 246
December 2020
Danilov v. Russia - 88/05
Judgment 1.12.2020 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Impartial tribunal
Insufficient procedural safeguards for participation in trial of jurors with security clearance from same body investigating the applicant: violation
Article 6-3-d
Examination of witnesses
Failure of domestic court to carefully examine request to cross-examine expert witnesses despite crucial relevance of their evidence: violation
Facts – The applicant, a renowned physicist, was convicted by jury for high treason, in the form of disclosing to foreign nationals State secret information related to space studies. The applicant appealed unsuccessfully, inter alia in relation to the impartiality of a number of jurors with security clearance, as well as his inability to examine experts who had prepared reports used by the prosecution as evidence.
Law –
(a) Article 6 § 1: Impartiality of jurors with security clearance
The applicant’s complaints in respect of jurors with security clearance did not contain allegations of actual subjective bias on their part, and thus fell to be examined under the objective test of impartiality.
The applicant and the Government had disagreed in their assessment of the probability that four out of twelve (one third) of the selected jurors – those with security clearance – could have been selected randomly. The Court considered it doubtful that such a considerable part of the Russian population, in so far as a jury panel might be deemed to be representative of it, had security clearance, and thus access to State secrets.
The applicant’s concerns about being judged by jurors with security clearance had not related to the lack of a general legislative prohibition on such people acting as jurors, but rather the participation of such jurors in his particular case. As the applicant had been accused of treason for having disclosed a State secret, the case against him had been investigated by the Federal Security Service (FSB). People with security clearance, which was necessary for holding certain jobs, had to pass a special verification procedure carried out by the FSB. Furthermore, the FSB continued to monitor people with security clearance and their compliance with the obligation not to disclose State secrets. Having security clearance did not automatically imply the lack of impartiality. However, taking into account that the applicant had been indicted by the FSB for treason for having disclosed a State secret, his fear that jurors with security clearance might, at least to some extent, be influenced by partial considerations, appeared sufficiently serious to have warranted a concrete examination by the presiding judge.
However, the applicant’s objections to jurors with security clearance participating in his particular case had been dismissed in general terms, without considering the nature and the subject matter of the trial, and on purely formal grounds (namely, that the applicable legislation had not provided for security clearance being a reason to generally disqualify somebody from jury service). Thus, the national courts had failed to take sufficient steps to check that the trial court had been established as an impartial tribunal within the meaning of Article 6 and had not offered sufficient guarantees to dispel any doubts in this regard.
In sum, the applicant’s doubts as to the impartiality of the trial court in his criminal case had been objectively justified, in view of the participation of jurors with security clearance, and those doubts had not been dispelled by any procedural safeguards.
Conclusion: violation (unanimously).
(b) Article 6 §§ 1 and 3 (d): Cross-examination of experts
The term “witnesses” under Article 6 § 3 (d) has an autonomous meaning which also includes expert witnesses. However, the role of an expert witness can be distinguished from that of an eyewitness, who must give to the court his personal recollection of a particular event. In analysing whether the appearance in person of an expert at the trial was necessary, the Court would therefore be primarily guided by the principles enshrined in the concept of a “fair trial” under Article 6 § 1, and in particular by the guarantees of “adversarial proceedings” and “equality of arms”. That being said, some of the Court’s approaches to the examination in person of “witnesses” under Article 6 § 3 (d) were no doubt relevant in the context of the examination of expert evidence, and might be applied, mutatis mutandis, with due regard to the difference in their status and role (see Avagyan v. Armenia, 1837/10, 22 November 2018; Khodorkovskiy and Lebedev v. Russia (no. 2), 42757/07 and 51111/07, 14 January 2020)
In the present case, eight reports had been prepared by ten experts at the request of the prosecution during the pre-trial investigation, and those reports had been relied upon by the prosecution in its bill of indictment and then by the court in its judgment.
The expert reports concerned not only technical matters, but also the issue of whether the relevant information constituted a State secret. The appeal court had noted that the nature of the information (its constituting a State secret) formed one of the two essential elements of the offence of treason by disclosure of a State secret, the offence of which the applicant had been accused. Furthermore, it had held that that matter was a legal one, and thus not one for the jury to determine. Lastly, under Russian law, the justification for categorising information as a State secret could be determined only by experts. Therefore, the expert opinions in question had been of crucial relevance for the case in which the applicant had been found guilty of high treason by disclosure of a State secret.
While the applicant had been notified that the expert reports had been requested and had had an opportunity to study them, he had not had an opportunity to put additional questions to the experts, suggest alternative experts or participate in the expert examinations and provide them with his comments, as guaranteed by the applicable law. The applicant had also lacked other opportunities to confront those expert witnesses and challenge their credibility and conclusions during the investigation stage.
In such circumstances, the trial court had had to carefully consider the defence’s application to question those experts at the hearing. Instead, the presiding judge had decided that it was unnecessary to hear the experts in person because their written opinions had been clear and he did not require any clarification or additional information from them. Even if there had been no major inconsistencies in the reports, questioning the experts might have revealed possible conflicts of interests, the insufficiency of the material at their disposal, or flaws in the methods of examination (see Khodorkovskiy and Lebedev v. Russia, 11082/06 and 13772/05, 25 July 2013, Information Note 165).
The applicant’s concerns about the credibility of the experts and their conclusions were not unjustified. On three occasions the Regional Court had remitted the applicant’s case for further investigation or rectification, owing to persisting issues with expert opinions and the use of those opinions in the bill of indictment. Furthermore, the experts had no relevant or sufficient expertise in the relevant area of physics. Lastly, on several occasions the applicant had attempted to bring to the national courts’ attention the alternative opinions of leading scientists who supported his position that the information divulged did not contain any State secrets.
There was also no valid reason why the experts had been prevented from testifying before the judge at least in camera while giving the applicant an opportunity to cross-examine them.
In conclusion, the refusal to allow the applicant to cross-examine the expert witnesses whose reports had later been used against him had been capable of substantially affecting his fair-trial rights, in particular the guarantees for “adversarial proceedings” and “equality of arms”.
Conclusion: violation (unanimously).
The Court also found a violation of Article 38 on account of the State’s failure to submit requested documents.
Article 41: EUR 21,000 in respect of non-pecuniary damage.
(See also Al‑Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147; Hanif and Khan v. the United Kingdom, 52999/08 and 61779/08, 20 December 2011, Information Note 147; Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Information Note 191; Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (criminal limb))
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This summary by the Registry does not bind the Court.
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