Moiseyev v. Russia

Information Note on the Court’s case-law No. 112

October 2008

Moiseyev v. Russia - 62936/00

Judgment 9.10.2008 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Procedural unfairness and lack of adequate facilities to prepare defence in criminal trial: violation

Article 3

Degrading treatment

Inhuman treatment

Conditions of detention and transport of a remand prisoner: violations

Article 5

Article 5-3

Length of pre-trial detention

Extension of remand prisoner’s detention on insufficient grounds: violation

Article 8

Article 8-1

Respect for family life

Restrictions on family visits to a remand prisoner: violations

Facts: The applicant, who at the time was the deputy head of a Foreign Ministry department, was arrested in 1998 and charged with high treason in the form of espionage for disclosing classified information to a foreign intelligence agent. He was convicted as charged in 2001 and his conviction was upheld by the Supreme Court.

He complained, inter alia, about the conditions of his detention on remand and in which he was transported to and from court (Article 3), of the length of his detention (Article 5 § 3) and of unjustified restrictions on family visits and his correspondence (Article 8). He further complained that he had been denied a fair trial through constant changes in the composition of the court without explanation and that he had not had adequate facilities to conduct his defence (Article 6) and also that his conviction had been based on an unforeseeable and retrospective application of the law (Article 7).

Law: Article 3 – The cumulative effect of conditions in the remand prison were such that the applicant must have been caused distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. He had been held in ill-lit and poorly ventilated cells for almost four years, without any possibility for adequate outdoor exercise and had had to endure cramped and insanitary conditions and a total lack of privacy when using the toilet facilities. He had been transported to court hearings more than 150 times in prison vans that were sometimes filled beyond capacity. Remaining in such a confined space for hours on end must have caused intense physical suffering which would have been further aggravated by the lack of adequate ventilation and lighting, and unreliable heating. Lastly, the applicant had been detained on more than 150 occasions in the court cells. These were particularly cramped and intended for very limited periods of detention, but the applicant was often held there for hours on end without ventilation, food, drink or free access to a toilet. Although such detention was not continuous, it alternated with his detention in the remand prison and transport in conditions which the Court had already found above to have been inhuman and degrading.

Conclusion: violations (unanimously).

Article 5 § 3 – The Court noted that, as permitted by Russian law as it stood at the material time, the domestic courts had extended the applicant’s detention to a total period of just over two years and six months on the sole basis of the gravity of the charges, although they had occasionally also mentioned other grounds, such as the risk of his absconding or interfering with justice. In that respect, it reiterated that while the severity of the sentence faced was relevant to the assessment of the risk of absconding, the need for continued detention could not be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. In the applicant’s case, the domestic courts had failed to mention any specific facts to support their finding of a risk of absconding or interference with justice or  to pay heed to the applicant’s arguments that the risk of his absconding was mitigated by other factors, such as his stable domestic circumstances and lack of travel documents and savings. By failing to address concrete relevant facts and relying mainly on the gravity of the charges, the authorities had thus extended the applicant’s detention on grounds which could not be regarded as “sufficient”.

Conclusion: violation (unanimously).

Article 6 § 1: There had been frequent judicial replacements during the trial (eleven in all) and the proceedings had had to be started anew each time a new member joined the formation. Moreover, the reasons for the replacements had only been made known on two occasions. In the Court’s view, replacing a sitting judge without giving reasons could only be described as arbitrary. Further, power to reassign a pending criminal case to another presiding judge was habitually exercised by the court president. Since domestic law did not determine with any degree of precision the circumstances in which this could occur the court presidents in the applicant’s case had effectively been given an unfettered discretion on the matter without any procedural safeguards, such as a requirement to inform the parties of the reasons or to give them an opportunity to comment or to seek review by a higher court. The applicant’s doubts as to the independence and impartiality of the trial court were thus objectively justified.

Conclusion: violation (unanimously).

Article 6 § 1, in conjunction with Article 6 § 3 – In finding that the rights of the defence had been so restricted in the applicant’s case as to contravene the principle of a fair trial, the Court had regard to the following combination of factors:

(a) Restrictions on legal assistance: Counsel for the applicant had been required to seek special permits to visit and to confer with him. That requirement had been devoid of a legal basis and was therefore arbitrary. Moreover, not only had it created considerable practical difficulties, it had put the defence in a position of dependence on, and subordination to, the discretion of the prosecution thereby destroying the appearance of the equality of arms.

(b) Perusal of defence documents by prosecution: Domestic law provided for the censorship of all prisoners’ correspondence without any exception for privileged correspondence. Since the remand centre was managed by the same authority that was prosecuting the case, the routine reading of all documents exchanged between the applicant and his defence team had had the effect of giving the prosecution advance knowledge of the defence strategy and had placed the applicant at a disadvantage. It had not been claimed that the application of such a sweeping measure throughout the entire duration of the criminal proceedings was justified by any exceptional circumstances or previous abuses of the privilege. It therefore constituted a flagrant breach of the confidentiality of the client-attorney relationship and encroached on the rights of the defence in an excessive and arbitrary fashion.

(c) Restrictions on defence access to documents: The bill of indictment, other case documents, and the notes compiled by the applicant and his defence team had only been accessible in special departments at the remand centre and trial court. While national security considerations could, in certain circumstances, call for procedural restrictions in cases involving State secrets, the concepts of lawfulness and the rule of law required that measures affecting fundamental human rights, such as the right to a fair trial, should have a lawful basis and should be appropriate to achieve their protective function. The Government had not invoked any provision of domestic law governing the functioning of special departments in remand prisons or the courts, or put forward any justification for the sweeping nature of the restrictions on the applicant’s access to the case materials when, for example, classified information could have been held separately. The defence team’s inability to remove their own notes had effectively prevented them from using the information they contained and left them to rely solely on their own recollection. Unrestricted access to the case file, the unrestricted use of notes and, if necessary, the possibility of obtaining copies of relevant documents were important guarantees of a fair trial.

(d) Effect of conditions of transport and confinement: The suffering and frustration the applicant must have felt on account of the inhuman conditions of transport and confinement had impaired his faculty for concentration and intense mental application in the vital hours immediately preceding the court hearings. The cumulative effect of the conditions and the inadequacy of the facilities had made it impossible for him to prepare his defence, especially as he was unable to consult the case file or his notes in his cell.

Conclusion: violation (unanimously).

Article 7 – The applicant had complained, firstly, that Article 275 of the Russian Federation Criminal Code had been applied in his case with retrospective effect, and that the potential terms of imprisonment under that provision were longer than under the corresponding provision of the previous legislation. On this point, the Court noted that the Russian Federation Criminal Code provided explicitly for its retrospective application to acts committed prior to its entry into force if the relevant offence carried a milder penalty than under the old criminal law. Since the offence of high treason under the Russian Federation Criminal Code was more lenient than a similar offence under the old law, it was that Code which was applicable and the applicant’s complaint was without merit. The applicant also complained that in the absence of a clear regulation governing the information which constituted State secrets in the relevant period, he could not reasonably have foreseen that the communication of certain information would expose him to criminal liability or that he would incur criminal liability for communicating sensitive information that was only subsequently found  to constitute a State secret. Noting that both the former law and the Russian Federation Criminal Code defined the concept of “espionage” in similar terms and explicitly referred to the collection of  “other information” (that is, information not constituting a State secret) at the request of a foreign intelligence service, the Court found that the consequences of failure to comply with these laws were adequately foreseeable, not only with the assistance of legal advice, but also as a matter of common sense, and that the interpretation of the scope of the offence was consistent with the essence of that offence. It was unnecessary to consider the final point raised by the applicant as the Court had already found that his conviction for the disclosure of non-classified information had not violated Article 7 § 1.

Conclusion: no violation (unanimously).

Article 8 – The applicant had not been allowed any family visits during certain periods of his detention. In the remaining periods family visits had been limited to two one-hour meetings a month during which the applicant was separated from his family by bars and a glass partition. The Court found that the refusals of visits could not be regarded as having been “prescribed by law” as the relevant legislation, which conferred unfettered discretion on the investigator in the matter of family visits but did not define the circumstances in which they could be refused, failed to satisfy the foreseeability requirement. As to the periods when he was permitted family visits, it was a matter of concern that the legislation restricted them to two per month without affording any degree of flexibility for determining whether such limitations were appropriate or indeed necessary in each individual case. There did not appear to be any need for such stringent limitations in the applicant’s case as his wife was not a witness against him and his daughter was still a minor. The security considerations relating to criminal family links which had been found to be justified in the Italian mafia-organisation cases were conspicuously absent in the applicant’s case. Accordingly, the measure went beyond what was necessary in a democratic society “to prevent disorder and crime”. Lastly, the installation of the glass partition was not “prescribed by law” and in any event the imposition of such a measure for more than three and a half years without any established security risk was disproportionate.

Conclusion: violations (unanimously).

The Court also found violations of Article 5 § 4 on account of the Supreme Court’s failure to examine, or its belated examination of, appeals by the applicant against decisions rejecting requests for release,  Article 6 § 1 on account of the length of the criminal proceedings and Article 8 on account of unjustified restrictions on the applicant’s correspondence.

Article 41 – EUR 25,000 for non-pecuniary damage on account of a combination of serious violations of the applicant’s fundamental rights.

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This summary by the Registry does not bind the Court.

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