FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69519/01
by Grigoriy Mikhaylovich PASKO
against Russia
The European Court of Human Rights (First Section), sitting on 28 August 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 20 January 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Grigoriy Mikhaylovich Pasko, is a Russian national who was born in 1962 and lives in Vladivistok. He was represented before the Court by Mr F. Elgesem, a lawyer practising in Oslo. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
At the material time the applicant was a Navy officer and worked as a military journalist on the Russian Pacific Fleet’s newspaper Boyevaya Vakhta (“Battle Watch”). The applicant’s articles mainly focused on problems of environmental pollution and other issues related to the activity of the Russian Pacific Fleet.
According to the applicant, he also worked, on a freelance basis, for a Japanese TV station NHK and a Japanese newspaper Asahi Simbun, and supplied their representatives, in particular accredited correspondents Mr T. Dz. and Mr T. O. with openly available information and video footage. The Government submitted in this connection, with reference to witness statements of the editor and deputy editor of Boyevaya Vakhta, that the applicant had not been entrusted with any task of cooperating with Mr T. O., apart from assisting the latter in visiting Russian military units and apprising him of the professional activities of Boyevaya Vakhta. According to the Government, any further contacts with Mr T. O. were maintained by the applicant of his own volition, and he did not report to his superiors on such contacts. The applicant insisted that his superiors had been aware of and accepted his contacts with Japanese journalists.
1. The applicant’s arrest and pre-trial detention
On 13 November 1997 customs officers at Vladivostok Airport searched the applicant, who was on an official trip to Japan, and seized a number of his papers, as they allegedly contained classified information. Thereafter the applicant was allowed to continue his trip.
On 20 November 1997 the Federal Security Service (Федеральная служба безопасности – “the FSB”) brought criminal proceedings against the applicant in connection with the above episode, and apprehended him upon his return from Japan. The applicant was then escorted to pre-trial detention centre IZ 20/1 in Vladivostok where he was detained until his first conviction on 20 July 1999.
During the night of 20 to 21 November 1997 the FSB searched the applicant’s flat and seized his personal computer and a number of documents. The applicant stated that his personal computer was returned to him some time later, but a number of files had been deleted.
On 28 November 1997 the applicant was formally charged with treason through espionage. These charges were based on a preliminary expert opinion given by the Headquarters’ 8th Department of the Pacific Fleet (Восьмое управление штаба Тихоокеанского флота), which concluded that some of the documents seized on 13 and 20 November 1997 contained State secrets.
While in custody, the applicant repeatedly applied for review of the lawfulness of his pre-trial detention and for his release pending trial, but to no avail.
2. The applicant’s indictment
On 29 September 1998 a bill of indictment was served on the applicant. It stated that the applicant had committed treason, through espionage, by having collected, kept and transmitted ten items of information classified as secret to two Japanese nationals in the period between 1996 and 20 November 1997. The information in question included a draft article by the applicant on decommissioning of Russian nuclear submarines, a copy of a report on the financial situation in the Pacific Fleet, a copy of several pages of a manual for searching for, and rescuing, space craft by the Navy, a report on decommissioning and keeping afloat of Russian nuclear submarines, a questionnaire on re-processing of liquid rocket fuel, a list of accidents on Russian nuclear submarines, a copy of several pages of a report on decommissioning of weapons and armaments, a map of a territory of military unit no. 40752, and handwritten notes made by the applicant at a meeting that had been held at the headquarters of the Pacific Fleet on 11 September 1997. The indictment further stated that the applicant had orally divulged information regarding the time and place for the departure of a trainload of spent nuclear fuel.
The indictment was based on reports of 22 December 1997 and 14 March 1998 made by four expert groups appointed by the General Headquarters’ 8th Department of the Ministry of Defence (Восьмое управление Генштаба Министерства обороны).
3. First set of court proceedings
On 29 September 1998 the Military Court of the Pacific Fleet (военный суд Тихоокеанского флота – “the Pacific Fleet Military Court”) set the case down for a first hearing on 14 October 1998.
Between October 1998 and July 1999 hearings were adjourned on several occasions in connection with the examination of the applicant’s appeal against his pre-trial detention and the exclusion of one of his defence lawyers from the proceedings.
On 20 July 1999 the Pacific Fleet Military Court reclassified the offence and convicted the applicant of abuse of power, having found it unproven that the applicant had actually transmitted State secrets to foreign nationals. The applicant was sentenced to three years’ imprisonment. By virtue of an Amnesty Act of 18 June 1999 the applicant was absolved of serving this sentence and released in the courtroom.
On the same date the Pacific Fleet Military Court gave a separate ruling (частное определение), which drew the attention of the military prosecutor of the Pacific Fleet (военный прокурор Тихоокеанского флота) and the head of the Pacific Fleet Department of the FSB (начальник Управления ФСБ по Тихоокеанскому флоту) to serious flaws in the pre-trial investigation. In particular, the court referred to a falsification by the FSB investigating officer Ye. of a report of 21 November 1997 on the examination of objects and documents seized at the applicant’s flat on 20 November 1997, stating that it had been established that the signatures of two attesting witnesses on that report had been made by the same person. This piece of evidence had been ruled inadmissible at the trial.
On 27 July 1999 and on other dates the applicant, his lawyers and the prosecuting party appealed against the first-instance judgment.
On 21 November 2000 the Military Section of the Supreme Court of Russia (Военная коллегия Верховного Суда РФ – “the Supreme Court”) quashed the judgment of 20 July 1999 on the grounds of the trial court’s failure to establish the essential circumstances of the case and its inconsistent conclusions and wrongful application of the law. The case was remitted to the Pacific Fleet Military Court for a fresh examination.
4. Second set of court proceedings
(a) Proceedings before the trial court
On 22 March 2001 presiding judge K. of the Pacific Fleet Military Court notified the applicant that the trial would recommence on 4 June 2001.
On 4 June 2001, upon a request by the prosecution, the Pacific Fleet Military Court adjourned the proceedings until 20 June 2001. On the latter date the Pacific Military Court adjourned a hearing until 11 July 2001 without any explanation.
The proceedings were resumed on 11 July 2001.
On an unspecified date, following the Pacific Military Court’s request, the General Headquarters’ 8th Department of the Ministry of Defence appointed seven experts and the Ministry of Nuclear Energy appointed an expert. The experts were asked whether the items of information listed in the indictment contained State secrets.
On 29 August 2001 the defence filed a written challenge against the experts, stating that the latter lacked independence since they had security clearance and were therefore influenced by the FSB, a body that had instituted criminal proceedings against the applicant and conducted the investigation. The applicant’s lawyers further maintained that they were unable to choose alternative experts since it was unclear what scientific or professional knowledge they should have and that experts who had no legal qualifications lacked competence to carry out the study, which involved an assessment of national legislation on State secrets. The defence also stated that “the documents used in the present criminal case as evidence had been obtained illegally” and that therefore “any report on an expert examination of these documents would be inadmissible evidence”. With reference to all the above, the applicant’s lawyers challenged all the experts and informed the court that the defence would not participate in the expert study.
According to the applicant, the Pacific Fleet Military Court rejected this challenge without explaining the reasons. The Government insisted that the court had given reasons for disallowing the defence’s challenge.
On 14 September 2001 the experts submitted their report, stating that three out of ten items of the information in question were of “limited distribution”, whilst the other seven contained State secrets. According to the applicant, to define whether the disclosed information contained State secrets, the experts had applied the Ministry of Defence’s unpublished decree no. 055 of 10 August 1996, Presidential Decree no. 1203:95 of 30 November 1995 and section 5 of the Law on State Secrets enacted on 21 July 1993 as amended on 6 October 1997. The applicant stated that he had had access to decree no. 055, had read it and had signed a document to the effect that he had read it in the autumn of 1996.
Between 19 and 21 September 2001 the experts were examined in court. During the cross-examination the defence put a number of questions to the experts.
In late September 2001 the trial was adjourned until 10 October and then until 29 October 2001 pending the results of an unrelated expert examination.
On 29 October 2001 the defence challenged the expert report of 14 September 2001 complaining that the experts had obtained new documents and questioned new witnesses during their study, and that they had based their conclusions on unpublished decree no. 055. On the same date the defence also challenged decree no. 055 stating that it classified as “secret” categories of information which were not defined as secret in section 5 of the Law on State Secrets, and that it should not have been relied on by the experts in their report. These applications were examined, and included in the case file, by the court on the same date.
On 2 September 2001, as alleged by the Government, or 29 October 2001 as alleged by the applicant, and on 29 October 2001 respectively the Pacific Fleet Military Court, acting of its own motion, called new witnesses: high-ranking Navy officers D. and Z. They were cross-examined in court on 29 and 30 October 2001 respectively. Both witnesses gave oral evidence that the notes made by the applicant during the meeting of 11 September 1997 contained classified information on new and advanced submarine tracking devices. Witness Z. also stated that the major part of the information distributed during the said meeting had been of a secret nature and that he had therefore warned all those who had attended the meeting of the necessity of complying with the requirements of secrecy. Thereafter the trial was adjourned until 29 November 2001 pending the results of the witness examination.
(b) Judgment of 25 December 2001
On 25 December 2001 the Pacific Fleet Military Court convicted the applicant of treason through espionage under Article 275 of the Russian Criminal Code.
As regards the actus reus of the offence, the court found that in 1996 –1997 the applicant had established friendly relations with a Japanese journalist, Mr T. O., and provided him with information, upon the latter’s requests, for regular pay. In August – September 1997, in his telephone conversations with the applicant, Mr T. O. had repeatedly expressed his interest in the military exercises of the Pacific Fleet that were being conducted at that time, in their particularities and the differences from the previous exercises. The judgment further stated:
“On 10 September 1997, on an official invitation, [the applicant], as a representative of the Boyevaya Vakhta newspaper, attended a meeting of the Military Council of the Pacific Fleet, where he found out that an appraisal of the results of the military exercises of the Pacific Fleet was scheduled for 11 September 1997.
On 11 September 1997 [the applicant], with the intention of obtaining classified information on the said exercises and subsequently transferring it to [Mr T. O.], arrived at the headquarters of the Pacific Fleet. Although he was not included in the list of persons authorised to participate in the appraisal of the tactical training exercises, the applicant attended the meeting and collected information disclosing actual names of highly critical and secured military formations and units, including military intelligence units, that had taken part in the exercises and information disclosing means and methods of protection of classified data by radio electronic warfare units that had participated in the exercises. Under section 5, paras.1 (6) and 4, (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paras. 13 and 77 of the List of Information classified as State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995, [the impugned information] was classified as State secrets.
For the same purpose, namely for communicating it to [Mr T. O.], the applicant then unlawfully kept this information ... On 20 November 1997 the handwritten notes made by [the applicant] during [the meeting of 11 September 1997] were found and seized at his place of residence.
...
According to a report of a forensic expert, the handwritten text in those notes was made by [the applicant], which the latter has not denied in court.”
The court based its findings on statements of a number of witnesses, including witnesses D. and Z., five recordings of the applicant’s telephone conversations with Mr T. O. made by the FSB in June – September 1997, and the expert report of 14 September 2001 insofar as it stated that the applicant’s hand-written notes contained information classified as secret. In particular, the court noted with regard to the expert report of 14 September 2001:
“...The experts concluded that [the applicant’s] notes contained, in summary fashion, information on a composition of the groups of the naval forces which had taken part in the exercises, [such information] disclosing actual names of highly critical and secured military formations and units, including military intelligence units, which constituted a State secret under section 5, para.1 (6) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997 and para. 13 of the List of Information constituting State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995.
Also, the experts concluded that [the applicant’s handwritten notes] in summary fashion ... disclosed information on the activities of radio electronic warfare units, and notably on means and methods of protection of classified data, which constituted a State secret under section 5, para.4 (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997 and para. 77 of the List of Information classified as State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995.
...
...The court finds that [the experts’] conclusions that [the applicant’s] notes on the exercises contain information disclosing actual names of highly critical and secured military formations and units of the Pacific Fleet, including military intelligence units and [information on] specific activities of radio electronic warfare units ... which constitutes State secrets, are consistent, well-reasoned and based on a correct application of the legislation ...”
The court also referred to the report on the search of the applicant’s flat of 20 November 1997 and the report on the examination of objects and documents of 21 November 1997, having noted that:
“Although it has been established that the investigating bodies breached procedural guarantees during the search and the examination [of objects and documents], the court sees no reason to declare the reports [on these investigating actions], in so far as they confirm the seizure of the said handwritten notes from [the applicant], inadmissible, as the established breaches do not affect the objectivity of the conclusion that these notes belonged to, and were kept by, [the applicant].”
The applicant confirmed that he had attended the meeting of 11 September 1997 and made summary notes of speeches and reports of its participants, but pleaded not guilty and argued that he had lawfully attended the said meeting, since he had the right to receive and impart information as a journalist. The applicant insisted that he had had no intention to transfer this information to Mr T. O. and had kept it in order to enrich his own knowledge on the latest developments in the Navy and to inform his subordinates thereof, and to report on the results of the military exercises in the Boyevaya Vakhta newspaper. The applicant stated that all his activities had fully complied with the Russian legislation.
As regards the applicant’s argument that he had the right to freedom of expression, and therefore was entitled to attend the meeting of 11 September 1997, the court noted that the right to information was not absolute and could be limited by law for the protection of national security. Under national law military personnel’s right to information was limited in the interests of military service and, in particular, such personnel had an obligation not to disclose state or military secrets. Being a serving officer, the applicant was bound by the legal provisions regulating the way servicemen access, collect, keep, impart and publish information classified as secret, and the way they communicate with foreign nationals.
The court also rejected the applicant’s argument that he had made the impugned notes with a view to their publication in Boyevaya Vakhta. In this respect the court noted that the applicant had been fully aware of the relevant regulations which prohibited publication of information disclosing actual names of military formations and units, and therefore there had been no practical use for such information in the applicant’s publications.
The court further examined the conclusions of the expert report of 14 September 2001 in respect of the other items of information imputed to the applicant, compared them with other materials of the case and rejected them as unreliable. In particular, the court stated that some of the pieces of information imputed to the applicant, including the list of accidents on Russian nuclear submarines and the map of a territory of military unit no. 40752, could be found in public sources, such as a military reference book on submarines, or a Greenpeace report. In this respect the court noted that receiving, keeping and disseminating publicly accessible information was not punishable under the Russian legislation in force and that there was no practical need to classify information which could be found in public sources.
The court thus acquitted the applicant of all the other charges listed in the indictment, some of them having been waived by the prosecuting party.
In view of the fact that the applicant had a minor child, no criminal record, positive professional references and decorations, and given that his offence had caused no damage, since he had not transferred the impugned information, the court invoked the “special-circumstances” clause of Article 64 of the Russian Code of Criminal Procedure and sentenced the applicant to a term below the statutory minimum, namely, four years’ imprisonment in a strict-security correctional colony, and deprivation of a military rank. As regards the documentary evidence, including the applicant’s draft article, the court ordered that it be kept in the case file after the applicant’s conviction became final.
(c) Appeal proceedings
In their appeal submissions the defence complained that the judgment of 25 December 2001 had mainly been based on the report of 20 November 1997 on the search in the applicant’s flat, the report of 21 November 1997 on the examination of objects and documents seized at the applicant’s flat on 20 November 1997 and the applicant’s handwritten notes of 11 September 1997. The defence argued in this respect that the search and examination had been carried out with serious breaches of procedural law, but, in breach of the relevant legal provisions, the trial court had nevertheless admitted in evidence the reports concerning those investigative actions. The applicant’s lawyers further submitted that the experts who had drafted the report of 14 September 2001 had security clearance from the FSB, and therefore were not independent, and that they had relied on unpublished decree no. 055 of the Ministry of Defence to confirm the classified nature of the impugned information. The defence argued that the use of decree no. 055 by the experts in their report had resulted in the incorrect application of the Law on State Secrets by the first-instance court. The defence also complained that the experts had relied on some new documents and questioned a number of persons during their study. They further argued that the Law on State Secrets had been applied retrospectively, since there had been no list of information constituting State secrets at the time of the commission of the offence in question. Lastly, the defence contended that, in any event, the information contained in the applicant’s notes had been accessible from public sources.
Neither the applicant nor his lawyers appealed against the examination of witnesses D. and Z. or against the public statements about the applicant’s case.
On 25 June 2002 the Supreme Court of Russia upheld the applicant’s conviction on appeal, having excluded a reference to the unlawfulness of his presence at the meeting of 11 September 1997 and to the general unlawfulness of his off-duty contacts with foreign nationals.
The court dismissed the applicant’s argument about the FSB’s alleged influence on the experts, having noted that they served in another state body, namely, the Ministry of Defence, and were therefore independent of the FSB. It stated that the experts’ security clearance, as such, did not indicate their dependence on the FSB. As regards the experts’ alleged incompetence, the court noted that they had specific knowledge in the field of military science, including the fleet’s composition and its commanding bodies, specific features of military exercises, activities of radio and electronic warfare units. Such knowledge had allowed the experts to conduct their study.
The Supreme Court also noted that the question whether the applicant’s handwritten notes had contained State secrets had been thoroughly and objectively examined in the first-instance judgment. It confirmed that the trial court had based its judgment on the expert report of 14 September 2001, which had stated that “information disclosing actual names of highly critical and secured military formations and units and information on the presence among the participants of the military exercises of the military intelligence units and information on the means and methods of protection of classified data [constituted] State secrets under section 5, paras.1 (6) and 4 (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paras. 13 and 77 of the List of Information classified as State Secrets approved by Decree of the President of the Russian Federation no. 1203 of 30 November 1995 and paras. 129 and 240-1 of ... Decree of the Ministry of Defence no. 055”. The appellate court further noted that, while assessing the expert report of 14 September 2001, the trial court had rejected a number of its conclusions in which the experts had groundlessly stated that some of the impugned items of information had contained State secrets. The Supreme Court thus concluded in this respect that the first-instance court had critically assessed the expert report of 14 September 2001 and had only relied on those of its conclusions which had been objectively confirmed during the trial.
The Supreme Court also upheld the first-instance finding that the applicant’s intent to transfer the impugned information to Mr T. O. had been proved by the recordings of his telephone conversations with the latter. The court further rejected the applicant’s argument that the information in his handwritten notes could have been found in public sources. In that connection it stated – with reference to the trial court’s finding – that “no data concerning the actual names of highly critical and secured military units, ships and formations, in particular, military intelligence units, means and methods of radio electronic warfare, contained in [the applicant’s] handwritten notes, [was] openly published”.
As regards the unlawfully obtained evidence, the Supreme Court deferred to the reasoning of the Pacific Military Court. The court also rejected the applicant’s argument that decree no. 055 had been unlawfully applied in his case, holding that this decree had been operative at the time when the applicant had committed his offence and was still in force.
Finally, as regards the applicant’s argument that the law had been applied retrospectively in his case, the Supreme Court noted the following:
“According to the decision of the Constitutional Court of Russia of 20 December 1995, ... the requirements of Article 29 § 4 of the Constitution of the Russian Federation are implemented in the Law of the Russian Federation on State Secrets of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets. Later, on 30 November 1995, the List of Information classified as State secrets was enacted by Decree no. 1203 of the President of the Russian Federation.
Since collecting and keeping secret information for its transfer to a foreign citizen, committed by [the applicant], is a continuing criminal offence which was brought to an end on 20 November 1997, the [first-instance] court rightly applied the aforementioned legal instrument as well as the Law on State Secrets, as amended on 6 October 1997, during the examination of his case.”
The applicant unsuccessfully applied for supervisory review of his conviction.
On 23 January 2003 the applicant was released on parole.
5. Statements regarding the applicant’s case
On 11 December 1997 and 16 October 1998 a regional daily newspaper Vladivostok quoted Mr V. Kondratov, the Representative of the Russian President in the Primorskiy Region, who stated that the papers seized from the applicant were “top secret” and that his activities “threatened national security”.
On 20 February 1998 Vladivostok quoted Rear Admiral G. Ugryumov, the then head of the Pacific Fleet Department of the FSB, as saying:
“...Documents found [on the applicant] prove that he was passing secrets to Japan rather than working as a journalist when he was arrested...”
On 11 August 1999 the Moscow Times, a daily newspaper, published a statement by Rear Admiral N. Sotskov, the new head of the Pacific Fleet Department of the FSB, who claimed that the applicant’s first sentence was “very lenient” due to “unprecedented pressure from the media and human-rights organisations”.
In his observations of 5 December 2005 the applicant also submitted an article published in December 2001 on a Russian Internet site, in which the Head of the Press Office of the FSB, Mr A. Zdanovich, had stated that the applicant had been convicted “not as a journalist, but as a serviceman who had disclosed information constituting State secrets”, and that “by order of foreign organisations, he had collected and transferred secret information unrelated to the ecological state of objects. In particular, using his position as a correspondent on a fleet newspaper, [the applicant] had visited the closed secret meeting of the fleet command”. Mr Zdanovich had also stated that the FSB “did not invent any secrets” and that it “protected from disclosure the information put by other State bodies on the list of information classified as secret”.
6. Proceedings against Mr Sotskov
At some point the applicant brought defamation proceedings, seeking damages for a number of public statements made by Mr Sotskov concerning his criminal case.
In a judgment of 7 February 2000 the Frunzenskiy District Court of Vladivostok granted the applicant’s claims in part, holding that a number of Mr Sotskov’s statement had been defamatory. The court ordered Mr Sotskov to refute his statements and awarded compensation of non-pecuniary damage in the applicant’s favour.
On 6 March 2000 the Primorskiy Regional Court quashed the above judgment and remitted the case for a fresh consideration.
On 30 August 2002 the Frunzenskiy District Court of Vladivostok discontinued the proceedings on the ground that the applicant had abandoned his claim.
B. Relevant domestic law and practice
1. Criminal liability for disclosure of State secrets
Article 275 (High Treason) of the Russian Criminal Code, in force as of 1 January 1997, provides that high treason, that is, espionage, disclosure of State secrets, or assistance otherwise provided to a foreign state, a foreign organisation, or their representatives, by way of hostile activities undermining the external security of the Russian Federation, committed by a Russian citizen, shall be punishable by twelve to twenty years’ imprisonment and confiscation of property.
2. Laws and regulations concerning State secrets
(a) The Russian Constitution of 12 December 1993
Article 29 § 4 of the Russian Constitution provides that everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means and that a list of information constituting State secrets shall be defined by a federal statute.
(b) The Federal Law on State Secrets
i. Period prior to 6 October 1997
Federal Law on State Secrets no. 5485-1 was enacted on 21 July 1993 and entered into force on 21 September 1993. Section 5 provided:
“The following information may be classified as State secrets:
1) information in the military field:
...
[information] about the location, actual names, organisational structure, armament, numerical strength of troops...
...
4) information in the field of intelligence, counter-intelligence and operational and search activities:
...
[information] about the means and methods of protection of classified data...”
Section 9 set out the procedure for classifying information as State secrets. The authority to classify information was delegated to heads of State agencies. The law itself did not contain the list of such officials, which was to be approved by the Russian President. The latter was also to approve the List of Information classified as State secrets that had to be officially published. The State agencies whose heads were competent to take decisions to classify information were to draw up extended lists of information that had to be classified as State secrets. The Law did not specify whether such “extended lists” could be made public.
On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of the list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President’s approval a draft decree containing the list of classified information.
On 30 November 1995 the President approved Decree no. 1203 on the List of Information classified as State Secrets. Paragraphs 13 and 77 of the list provided for the classification of “information disclosing the location, actual names, organisational structure, armament, numerical strength of troops, which is not subject to open declaration in accordance with the international obligations of the Russian Federation” and “information disclosing measures which are planned and/or being carried out to protect information from unauthorised access, foreign technical intelligences services and leaks through technical channels”. They also designated the Ministry of the Interior, the Ministry of Defence and several other State agencies as bodies authorised to classify such information.
ii. Period after 6 October 1997
On 6 October 1997 Federal Law no. 131-FZ amending the 1993 Law on State Secrets was enacted. The amendment was published and became operative on 9 October 1997. Section 5 of the Law on State Secrets was amended to read:
“State secrets shall include: ...
1) information in the military field:
...
[information] about the location, actual names, organisational structure, armament, numerical strength of troops...
...
4) information in the field of intelligence, counter-intelligence and operational and search activities:
...
[information] about means and methods of protection of classified data...”
(c) Case-law of the Russian courts
On 20 December 1995 the Russian Constitutional Court examined the compatibility with the Russian Constitution of the then in force Criminal Code of the RSFSR, in so far as it established criminal liability for State treason, and stated as follows:
“...It follows that the State may classify as State secrets information in the field of defence and economic and other activities, disclosure of which is capable of undermining the national defence and security of the State. In this connection Article 29 § 4 of the Russian Constitution provides that the list of information constituting State secrets is to be enacted in the form of a federal statute. The State may also determine means and methods for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State.
However, by virtue of the above Constitutional provision, criminal liability for disclosure of State secrets to a foreign State is justified only on condition that the list of information constituting State secrets is established in an officially published and publicly accessible federal statute. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including conviction by a court, may be grounded on an unpublished legal instrument.
The requirement of Article 29 § 4 of the Russian Constitution is implemented in the Law on State Secrets of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets.
Accordingly, establishing criminal liability for disclosure of State or military secrets to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Russian Constitution.”
On 29 December 1999 the St Petersburg City Court acquitted Mr Nikitin, a former naval officer, of charges under Articles 275 (High treason) and 283 § 1 (Divulging of information constituting State secrets) of the Russian Criminal Code (case no. 78-000-29). Mr Nikitin was accused, in particular, of having collected in August 1995, and having transferred in September 1995, information constituting State secrets. The court held as follows:
“...By virtue of the constitutional provisions, a list of information constituting State secrets shall be defined by a federal statute...
There was no such statute at the time when Mr Nikitin committed the alleged offences; Decree no. 1203 of the President of the Russian Federation of 30 November 1995 became the only legal instrument which started regulating legal relations in the field of the protection of State secrets.
...
The Law of the Russian Federation on State Secrets of 21 July 1993, which was subsequently subjected to considerable changes, constitutes the federal statute mentioned in Article 29 § 4 of the Russian Constitution.
...
However, the Russian Constitution prescribes the definition of the list of information constituting State secrets by a federal statute. This requirement of the Constitution was only complied with in full when the Law on State Secrets was amended in November 1997 to include in section 5 the list of information constituting State secrets instead of the list of information which could be classified as State secrets, which was mentioned in the [original version] of the Law.
By virtue of section 9, para. 4, of the Law, the list of information constituting State secrets must be approved by the President. ... By virtue of section 9, para. 4, of the Law in its version of 21 July 1993 and as amended on 6 October 1997 [the list] will be published and may be revised as and when needed.
...
An analysis of section 5 of the Law (irrespective of its different versions) indicates that [the Law] itself does not establish any degree of secrecy; in other words it does not classify any information, since it is in accordance with a special procedure provided for in section 9 of the Law that information can be classified as secret...
This also means that, in its original version, section 5 of the Law cannot serve as the sole basis for charging with espionage or disclosure of State secrets. It has to be supplemented with other legal instruments.
It is [in particular] Decree no. 1203 of the Russian President of 1995 which [was] used in the present case as [a legal instrument] in addition to section 5 [of the Law on State Secrets]...
The materials of the case reveal that Mr Nikitin finished his activity ... in September 1995.
The President’s Decree of 30 November 1995 had not yet entered into force...
Accordingly, section 5 of the Law (in the version that existed at the time when the defendant committed the acts imputed to him) cannot be used as a basis for bringing formal charges without supplementary legal instruments which would have formed a proper legal basis for an accusation... such legal instruments can be applied on condition that they were officially published and entered into force prior to the commission of the acts imputed to Mr Nikitin.
...In view of the above, the court finds that any citizen of the Russian Federation... does not (did not) have any real possibility of determining whether information constitutes a State secret unless such information is included in the list of information constituting a State secret defined by a federal statute or approved by a decree of the Russian President...
...
The new version of the Law on State Secrets ... of 6 October 1997 brought the Law into compliance with the requirements of the Constitution, and consequently, only then did it become possible to apply section 5 of the Law on State Secrets independently, that is, without referring to the List of Information classified as State Secrets enacted by decree of the Russian President on 30 November 1995.
Accordingly, in the period from 12 December 1993 until 30 November 1995 there was no statutory definition of information constituting State secrets, and therefore classifying any information as secret during the period under consideration ... was arbitrary and not based on law.”
On 17 April 2000 the Supreme Court of Russia upheld Mr Nikitin’s acquittal in the following terms:
“Having acquitted Mr Nikitin for the lack of constitutive elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no statutory definition of information constituting State secrets, with the result that the qualification of Mr Nikitin’s acts by the investigating bodies had not been based on law.
...
By virtue of Article 29 § 4 of the Russian Constitution, which was enacted on 12 December 1993 and was in force during the period when Mr Nikitin committed the alleged offences, the list of information constituting State secrets was to be defined in a federal statute. Such list was first defined in the federal law introducing changes and amendments to the Law of the Russian Federation on State Secrets of 6 October 1997.
Taking into account that during the period when Mr Nikitin committed the alleged acts, there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of the offences under Articles 275 and 283 of the Criminal Code refers only to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets...
...
...The Law [on State Secrets in its 1993 version] could not have been applied to Mr Nikitin as it did not contain the list of information constituting State secrets, since section 5 of that Law referred only to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal statute. As section 5 of the Law on State Secrets of 21 July 1993 and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of [the prosecuting party] to the effect that the difference between these provisions is merely semantic...”
On 25 July 2000 the Supreme Court of Russia quashed on appeal, and remitted for a fresh examination to a trial court, the sentence of Mr Moiseyev, a former employee of the Russian Ministry of Foreign Affairs, charged with offences under Article 275 of the Russian Criminal Code. It found as follows:
“In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that... between early 1994 and 3 July 1998 [the applicant] had... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court only gave a general list of information and documents..., without specifying which information and documents [the applicant] had communicated and when. As the offences imputed to [the applicant] were continuous and spanned the period from 1992-1993 to July 1998, during which the Russian laws evolved, the determination of these issues is of crucial importance for the case.
Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal statute. Such list was first established in the federal law introducing changes and amendments to the Law of the Russian Federation on State Secrets of 6 October 1997. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about the time when [the applicant] transmitted the information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing the list of State secrets and compatible with the requirements of the Constitution was in force.”
3. Appeal against a first-instance judgment in criminal proceedings
The Code of Criminal Procedure of 1960, in force at the material time, in its Article 342 provided for the following grounds for quashing or varying judgments on appeal:
“(i) prejudicial or incomplete inquiry, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) serious breach of criminal procedural law;
(iv) misapplication of [substantive] law;
(v) inappropriateness of the sentence to the gravity of offence and the offender’s personality.”
Article 345 (Serious breach of criminal procedural law) of the Code provided:
“Breaches of the requirements of Articles of this Code which by depriving or limiting the rights guaranteed by law to participants of the criminal proceeding during the examination of a case, or in any other way, have precluded the court from comprehensively considering the case and influenced or could have influenced the imposition of a lawful and well-founded sentence shall be considered as serious breaches of criminal procedural law.
The sentence shall in any event be liable to be quashed if:
(i) a court did not discontinue criminal proceedings despite the existence of grounds provided for in Article 259 of this Code;
(ii) the sentence was given by a court sitting in an unlawful composition;
(iii) a case was examined in the defendant’s absence in a situation where his presence was obligatory;
(iv) a case was examined in the absence of defence counsel in a situation where his presence was obligatory;
(v) confidentiality of judges’ deliberations was breached;
(vi) the sentence was not signed by any one of the judges;
(vii) there is no transcript of the court hearings in the case materials.”
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that the conditions of his pre-trial detention had been appalling and that the level of medical assistance had been inadequate.
2. The applicant further complained that the domestic courts had failed to review promptly the lawfulness of his pre-trial detention, in breach of Article 5 §§ 3 and 4.
3. Referring to Article 6 § 1 of the Convention, the applicant alleged that there had been various irregularities in the course of the criminal proceedings against him. In particular, he complained that
(a) the length of the criminal proceedings against him had been excessive;
(b) the experts appointed during the second set of the proceedings had been influenced by the FSB, an investigating body in the applicant’s case, since they had had security clearance and were employees of the federal ministries (the Ministry of Defence and the Ministry of Nuclear Energy) which had had close connections with the FSB. Furthermore, the court’s decision to appoint the experts had been motivated by the need for specialists with knowledge of protection of State secrets. No such specialists had been listed in the relevant lists of scientific professions, and therefore the defence had been barred from suggesting alternative experts;
(c) that the expert report of 14 September 2001 had been based on new pieces of evidence obtained by the experts during their study. This evidence had not been disclosed in court and the defence had been unable to challenge it, which, in the applicant’s view, had breached the requirement of adversarial proceedings; and
(d) finally, under Article 6 §§ 1 and 3 (b), that during the second set of the proceedings the trial court, of its own motion, had called and examined witnesses D. and Z. In that connection, the applicant claimed that the defence had not had adequate time to prepare their questions for those witnesses.
4. The applicant complained under Article 6 § 1, taken in conjunction with Article 14, that, in breach of national law, the domestic courts had admitted evidence obtained through an illegal search of his flat, and that his conviction had mainly been based on this evidence. The applicant also alleged that he had been discriminated against, since in another similar criminal case the domestic courts had declared unlawfully obtained evidence inadmissible.
5. The applicant referred to Article 6 § 2 of the Convention, claiming that the presumption of his innocence had been breached by public statements of various high-ranking officials who had declared him guilty before the conviction had become final.
6. The applicant relied on Article 7 of the Convention, stating that the Law on State Secrets had been applied retrospectively in his case, since at the time of commission of the offence imputed to him there had been no list of classified information established by a federal statute. The applicant further alleged that the domestic courts had extensively construed the Law on State Secrets, as the classified nature of his handwritten notes had been established on the basis of unpublished decree no. 055 of the Ministry of Defence, which contained a broader list of information classified as secret than that incorporated into the Law on State Secrets.
7. Lastly, the applicant complained under Article 10 of the Convention of a disproportionate interference with his freedom of expression, stating that he had been subjected to an overly broad and politically motivated criminal persecution as a reprisal for his critical publications. In that connection the applicant firstly noted that a number of documents relating to his journalistic activity, including his draft article, had been seized at the pre-trial stage and never returned to him. His personal computer seized during the search on 20 November 1997 had been returned, but a considerable number of files had been deleted. In the applicant’s view, such interference amounted to grave pre-publication censorship. The applicant further complained that he had not in fact transferred his handwritten notes, which had been found to contain State secrets, to Mr T. O., and the domestic courts had convicted him only for his alleged intention to transmit the impugned information, the only basis for such finding being the fact that the applicant had previously communicated information to Mr T. O. on several occasions. In the applicant’s view, he had been held liable for his previous legitimate contacts with the Japanese journalist. The applicant also claimed that in so far as his handwritten notes had been found to have contained the actual names of military formations and units and the activities of radio electronic warfare units, this information had been publicly accessible from a number of public sources, including internet sites, and that he had been unable to foresee that this information constituted State secrets, as this finding had been based on unpublished – and therefore inaccessible – decree no. 055.
THE LAW
1. The applicant complained that the conditions of his pre-trial detention and lack of medical assistance had been in breach of Article 3 of the Convention, and that he had been denied a speedy judicial review of the lawfulness of his pre-trial detention, contrary to Article 5 §§ 3 and 4 of the Convention. The respective Convention provisions, in so far as relevant, read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention in not lawful.”
The Court observes that the applicant’s pre-trial detention ended on 20 July 1999, when he was first convicted and released by virtue of an Amnesty Act, whereas his application was lodged more than six months later, on 20 January 2001.
It follows that these complaints were lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant raised a number of the complaints listed above relying on Article 6 §§ 1 and 3 (b) of the Convention, which in so far as relevant, read as follows:
“1. In the determination of ... [a] criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...
...
3.Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence..”
(a) In so far as the applicant complained that the criminal proceedings against him lasted too long, the Government argued that the length of the criminal proceedings against the applicant had met the requirements established in the Court’s case-law on the issue. They submitted that the applicant’s case was rather complex, the case-file materials running to thirty-two volumes, and required a number of in-depth expert examinations, that the applicant had lodged a great variety of requests at the pre-trial stage and during the court proceedings, and that between 14 February and 9 July 2001 he had been given additional time to read the case file. The Government also argued that the applicant had not indicated which actions or omissions of the investigating or judicial authorities had contributed to the length of the proceedings.
The applicant disagreed with the Government and maintained his complaint. He contended that his case had not been complex, insisting that most of thirty-two volumes had contained materials of little or no relevance, that the expert examinations ordered in his case had been unnecessary, and therefore could not justify the delays in the proceedings, that he had never abused his right to file requests in the context of the criminal proceedings against him, and that in any event his requests had never protracted the proceedings. The applicant further insisted that several periods of inactivity totalling over two years had been imputable to the authorities.
The Court reiterates that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning of that term and ends with the day on which a charge is finally determined or the proceedings are discontinued (see, among many other authorities, Kalashnikov v. Russia, no. 47095/99, § 124, ECHR 2002-VI). In the present case the criminal proceedings against the applicant were brought on 20 November 1997 and ended on 25 June 2002, when the applicant’s second conviction was upheld on appeal. Thus the overall length of the proceedings at issue was over four years and seven months. The Court notes that part of this period lies outside the Court’s competence ratione temporis, as the Convention entered into force in respect of Russia on 5 May 1998. However, when deciding whether the total length of the proceedings was “reasonable” regard must be had to the state of the proceedings on the aforementioned date (see, among others, Vasyagin v. Russia, no. 75475/01, § 28, 22 September 2005). After the ratification of the Convention by Russia the proceedings in question lasted for over four years and one month.
The Court further reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant (see, among many other authorities, Panchenko v. Russia, no. 45100/98, § 129, 8 February 2005). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 44, 19 June 2003).
Having regard to the materials in its possession, the Court accepts the Government’s argument that the applicant’s criminal case was rather complex and voluminous, and involved extensive research and complex expert examinations. It further notes that neither of the parties contributed to the delay in the proceedings. The Court rejects the Government’s assertion that the applicant in any way protracted the proceedings by lodging numerous requests, as, according to its established case-law, the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interest (see Sokolov v. Russia, no. 3734/02, § 38, 22 September 2005). On the other hand, and contrary to the applicant’s allegations, the Court cannot see any significant delays in the proceedings attributable to the authorities. It observes that the bill of indictment was served on the applicant on 29 September 1998, which is less than a year after the criminal proceedings against him had been instituted, and on the same date the case file was transmitted to the trial court. Thereafter, during the period between 29 September 1998 and 25 June 2002, which is less than four years, the case was examined twice at each of two levels of jurisdiction. Taking into account the complex nature of the case, the Court considers this period to be reasonable, within the meaning of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) As regards the applicant’s complaint that the experts appointed by the trial court in his case had been influenced by the FSB and that the defence had been unable to suggest alternative experts because their sphere of expertise had not been well defined, which had violated the principle of equality of arms, the Government submitted that the procedure of security clearance was routinely applied to any person prior to his or her admission to information containing State secrets, that the security clearance was routinely carried out in an organisation of which such a person was an employee, and that the FSB only suggested the grounds for refusing access of such a person to State secrets. The Government stressed that the security clearance procedure was obligatory and could not be regarded as evidence of any influence on the part of the FSB. They insisted that it would also have been applied to any experts who might have been suggested by the defence in the applicant’s case, and that the experts appointed by the trial court in the applicant’s case had obtained security clearance long before – and not during – the trial. The Government also argued that it had been open to the applicant to challenge experts and suggest alternative experts and to cross-examine them during the trial. The trial court had addressed the applicant’s arguments challenging the experts and rejected them in a reasoned procedural decision. Moreover, the applicant and the defence had not been limited in any way in their right to call alternative experts; however, they had never attempted to avail themselves of this right.
The applicant disagreed with the Government and maintained his complaint. He referred to the ruling of the Russian Constitutional Court of 27 March 1998 which stated that the requirement that defence lawyers should undergo the security clearance in order to obtain authorisation to participate in criminal proceedings involving State secrets put the defence and the prosecution on an unequal footing. The applicant argued that this reasoning should equally be applied to experts testifying in court. The applicant conceded that he had not attempted to suggest any alternative experts during his trial but argued that this would have been pointless, given that the trial court had rejected his challenge to the appointed experts and that “there [had been] no reason to believe that the court would have agreed to appoint other experts”. According to the applicant, in any event, the appointment of any new experts would have depended on approval by the FSB, and therefore it was clear that the defence had been placed on an unequal footing with the prosecution, and that the principle of equality of arms had been violated.
The Court reiterates that, according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, as a recent authority, Klimentyev v. Russia, no. 46503/99, § 95, 16 November 2006).
Turning to the present case, the Court notes that the defence was free to challenge and cross-examine the court-appointed experts, and fully made use of this opportunity. It was also open to the defence to suggest alternative experts, which they clearly failed to do. It therefore cannot be said that the position of experts was not attended by a fair balance between the parties.
As to the applicant’s allegation that the court-appointed experts were influenced by the FSB, as they had had to obtain security clearance, the Court notes that the requirement of security clearance in respect of court-appointed experts may be regarded as a restriction necessary to ensure that no leakage detrimental to national security would occur in sensitive cases, and that the mere fact that the experts were to obtain security clearance in the applicant’s case is not a ground in itself for justifying fears that they did not act with neutrality. It observes in this respect that the Supreme Court in its decision of 25 June 2002 addressed in detail the applicant’s arguments to that end, stating that the experts had been employees of the Ministry of Defence, and therefore independent of the FSB, and that their security clearance, as such, did not indicate their dependence on the FSB. The applicant has not submitted any evidence to the contrary, and the Court has no reasons to depart from the finding of the appellate court.
As to the applicant’s dissatisfaction with the alleged lack of clear definition of the experts’ sphere of expertise, the Court does not find this argument convincing, as it is clear from the materials in the Court’s possession that the defence was fully aware of the charges against the applicant and had full access to the case file. In such circumstances, the defence lawyers could have made a reasonable assumption that the experts should have knowledge of military science, and notably the fleet’s composition, specific features of military exercises and activities of radio and electronic warfare units, as later was noted by the Supreme Court in its decision of 25 June 2002.
Lastly, as to the applicant’s argument that he had allegedly had “no reason to believe that the court would have agreed to appoint other experts”, the Court finds it purely speculative as nothing in the conduct of the trial court, or any evidence in the case file materials, could be interpreted as confirming this allegation.
Overall, the Court is satisfied that the principle of equality of arms in this respect was respected and finds the applicant’s complaint unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(c) To the extent the applicant complained that whilst preparing their report of 14 September 2001 the experts had relied on new pieces of evidence that had not then been disclosed in court, which had breached the requirement of adversarial proceedings, the Government argued that all the materials on which the experts had based their report had been disclosed and examined during the trial, and that the applicant’s argument that any new evidence had been relied on by the experts in the report of 14 September 2001 had been unsubstantiated. They contended that, in any event, the trial court had subjected each of the conclusions of the report of 14 September 2001 to close scrutiny and accepted only those conclusions which had been in compliance with Russian law and based on the materials of the case file.
The applicant disagreed with the Government and maintained his complaint. He submitted that during the cross-examination in court the experts had acknowledged that they had relied on some new documents and talked to some officers of the Pacific Fleet while preparing their report, which, in the applicant’s submission, had been in breach of national procedural law and had been complained of in his lawyers’ challenge of 29 October 2001 and in his appeal against the judgment of 25 December 2001. In the applicant’s view, this had amounted to a serious breach of the principle of adversarial proceedings.
The Court reiterates that the concept of a fair trial implies, among other things, the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997‑I, p. 108, § 24, and Mantovanelli v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997‑II, p. 436, § 33). The Court further underlines that, just like observance of the other procedural safeguards enshrined in Article 6 § 1 of the Convention, compliance with the adversarial principle relates to proceedings before a “tribunal” and that no general, abstract principle may therefore be inferred from this provision that, where an expert has been appointed by a court, the parties must in all instances be able to attend the interviews held by him or to be shown the documents he has taken into account. What is essential is that the parties should be able to participate properly in the proceedings before the “tribunal”. Moreover, the Convention does not lay down rules on evidence as such and the Court therefore cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted. It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced (see Mantovanelli, cited above, §§ 33-34). The Court has nevertheless to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair as required by Article 6 § 1 of the Convention.
On the facts, it is clear from the case file that the trial court critically assessed the expert report of 14 September 2001 relying on other materials of the case, and closely scrutinised every one of its conclusions, having only accepted one of them and rejecting the others as unreliable and unsupported by the materials of the case. Furthermore, the applicant and his lawyers were given an opportunity to challenge the report once it was finished and to cross-examine the experts who had prepared it. There is no indication that the applicant could not effectively put forward his arguments. In such circumstances, it cannot be said that the expert report of 14 September 2001 had a preponderant influence on the assessment of facts by the trial court, or that the applicant was denied an ample opportunity to comment effectively on it (see, by contrast, Mantovanelli, cited above, § 36). Moreover, the Court finds no indication in the case file – and it has never been alleged by the applicant – that the domestic courts based their decisions in the applicant’s case on any document which was not disclosed during the trial. Lastly, in so far as the applicant might be dissatisfied with his alleged inability to participate in carrying out the expert examination, the Court finds this allegation unsubstantiated, as in their challenge of 29 August 2001 the applicant’s lawyers explicitly waived their right to participate in the expert study.
In such circumstances, the Court finds that there is no appearance of a violation of the applicant’s right to adversarial proceedings. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(d) As regards the applicant’s complaint that he had not been given enough time to prepare his questions to witnesses D. and Z., the Government argued that the applicant had not exhausted domestic remedies, as he had not raised this complaint on appeal. They contended that, in any event, the applicant and his defence counsel had had adequate time to prepare for cross-examination of witnesses D. and Z., and that, indeed, the defence had put numerous questions to both witnesses. The Government submitted that the court order summoning witness D. had been issued on 2 September 2001, whilst this witness had not been questioned until 29 October 2001. Witness Z. had been summoned on 29 October 2001 and questioned on 30 October 2001, and on that latter date, upon a request of the applicant’s lawyers, the trial court had suspended the hearing for some time to allow the defence lawyers to prepare their questions for witness Z.
The applicant acknowledged that he had not raised the present complaint on appeal, but argued that the fact that the trial court had called the witnesses at short notice had not been a procedural shortcoming under national law, and therefore it had been unnecessary to raise this issue in his grounds of appeal. He further insisted that both witnesses had been summoned to the trial court on 29 October 2001, and therefore, despite the fact that the hearing had been adjourned to allow the defence to prepare their questions, and that the applicant’s lawyers had put many questions to the witnesses, the time given to the defence to prepare for the cross-examination had been very limited.
The Court must first examine whether the applicants have complied with the rule of exhaustion of domestic remedies, as required by Article 35 § 1 of the Convention.
Having observed the relevant provisions of the domestic law then in force, namely Articles 342 and 345 of the Code of Criminal Procedure of 1960, the Court considers the applicant’s attempts to justify his failure to raise the complaint regarding witnesses D. and Z. before the appellate court unconvincing. Nothing precluded the applicant from raising the argument in substance and arguing that the alleged defect constituted a serious breach of the domestic law within the meaning of Article 345 of the Code of Criminal Procedure. It is true that the fact that witnesses were called at short notice was not envisaged in the Article in question as a ground for quashing a sentence; however, the Court reiterates in this connection that attaining absolute precision in the framing of laws is impossible (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49). The applicant has not submitted any evidence that raising such a complaint in his appeal submissions would be doomed to failure, or that he had been otherwise unable to raise this issue before the appellate court. Nor has he advanced any other convincing arguments justifying his failure to comply with the requirement of exhaustion enshrined in Article 35 § 1.
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
3. The applicant also relied on Article 6 § 1 of the Convention, stating that his conviction was primarily based on his handwritten notes which had been seized during an illegal search of his flat and therefore should have been declared inadmissible by the domestic courts. He also complained that he had been subjected to discriminatory treatment as in another criminal case unlawfully obtained evidence had been rejected as inadmissible. Article 14 of the Convention reads as follows:
“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
(a) Submissions by the parties
As regards the applicant’s complaint under Article 6 § 1, the Government referred to the opinion of the Prosecutor General’s Office, stating that “there had been no significant breaches” during the search of the applicant’s flat on 20 November 1997. They argued that, in any event, it had been established by the domestic courts that the procedural breaches in question had not affected the objectivity of the conclusion that the notes seized during the search had belonged to, and kept by, the applicant. The Government further argued that the applicant had never denied the fact that the seized notes had been made by him, and that their authenticity had been confirmed by an expert and by several witnesses.
The applicant contended that the procedural breaches during the search had been acknowledged by the domestic courts, and insisted that therefore all evidence obtained during that search, including his handwritten notes of 11 September 1997, should have been excluded by the domestic courts in accordance with the relevant provisions of the domestic law. The applicant contended that the notes had been the principal evidence in his case and that in the absence of that evidence he would have been acquitted. In the applicant’s view, the domestic courts had not adequately addressed the issue of the admissibility of his handwritten notes.
(b) The Court’s assessment
The Court reiterates that Article 6 lays down no specific rules as to the admissibility of evidence which is primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Khan v. the United Kingdom, judgment of 12 May 2000, Reports of Judgments and Decisions 2000-V, § 34).
On the facts of the present case, the Court observes that the applicant was fully able to contest the authenticity and admissibility of the evidence at each stage of the proceedings. He never disputed the authenticity of the evidence in question, but challenged its use. The domestic courts at two levels of jurisdiction addressed these arguments, having acknowledged certain procedural breaches during the search on 20 November 1997. They, however, clearly stated that those procedural shortcomings had not been such as to render the disputed evidence inadmissible, and in particular did not affect the conclusion that the hand-written notes had belonged to the applicant and had been seized from him. This being so and, even assuming that the disputed evidence had constituted the main basis for the applicant’s conviction, the Court cannot conclude that the defects alleged by the applicant adversely affected the fairness of the proceedings as a whole (see Khan, cited above, §§ 37-40).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In the absence of any arguable claim under Article 6 § 1 of the Convention, the applicant’s complaint under Article 14 is incompatible ratione materiae with the Convention provisions. It should therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant complained of a breach of the presumption of his innocence on account of public statements of high-ranking officials declaring him guilty before his conviction had become final. He relied on Article 6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
(a) Submissions by the parties
The Government argued that it had been open to the applicant to seek compensation in defamation proceedings against the officials whose statements had allegedly breached the presumption of innocence in his regard, but he had not availed himself of that remedy, having thus failed to exhaust the available domestic remedies. They further contended that, in any event, the publications invoked by the applicant had not breached his right under Article 6 § 2 of the Convention, as they had not indicated that the State had presumed the applicant guilty. In the Government’s submission, neither the prosecution nor the judicial authorities had made any comments incriminating the applicant before his conviction had become final. The Government also argued that the applicant had submitted no evidence that the publications in question had influenced the courts. Lastly, they submitted that the public officials had made their statements in reply to numerous publications stating that the applicant had been innocent and that he had been persecuted by the special services.
The applicant insisted that there had been no domestic remedies to exhaust in respect of his complaint under Article 6 § 2 of the Convention, and in particular there had been no remedy available in the context of the criminal proceedings. He also argued that the Government had not demonstrated that the defamation proceedings would have been an effective remedy against the alleged violation of his right to be presumed innocent, given that such proceedings would have been doomed to failure if the final judgment in his criminal case had confirmed his guilt. The applicant further contested the Government’s argument that the prosecution had not made any statements infringing the presumption of innocence in respect of the applicant. The applicant pointed out in this connection that both Mr Ugryumov and Mr Sotskov were at various times the heads of the Pacific Fleet Department of the FSB, the authority which had brought criminal proceedings against the applicant and carried out the investigation. In his observations of 5 December 2005, the applicant also referred to the statements of Mr Zdanovich made in December 2001.
(b) The Court’s assessment
The Court must first examine whether the applicants have complied with the admissibility criteria, as required by Article 35 § 1 of the Convention.
The Court observes that the applicant did not raise his complaint as lodged with the Court before any domestic authorities. In particular, he did not complain about the alleged breach of the presumption of his innocence in his appeal against his conviction. Nor did he pursue defamation proceedings against any of the public officials whose statements he considered to have infringed his presumption of innocence. Accordingly, it does not appear that the applicant complied with the requirement of exhaustion enshrined in Article 35 § 1.
Assuming that no effective remedies existed under Russian law, as alleged by the applicant, the Court reiterates that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002). It observes that the impugned statements were made in the period between December 1997 and August 1999, whereas the present application was lodged more than six months later, on 20 January 2001. Similarly, the applicant first complained about the statement made by Mr Zdanovich in December 2001 on 5 December 2005, which is more than six months later.
It follows that this part of the application is inadmissible and must be rejected in accordance with Article 35 §§ 3 and 4.
5. The applicant complained, referring to Article 7 of the Convention, that the domestic courts had retroactively applied and extensively construed the Law on State Secrets in his case. He further relied on Article 10 of the Convention, complaining of a violation of his freedom of expression. The applicant claimed that he had been subjected to an overly broad and politically motivated criminal persecution as a reprisal for his critical publications. In particular, he had never transferred any information containing State secrets to Mr T. O., a Japanese journalist. Nevertheless, he had been convicted for his alleged intention to transfer his handwritten notes, which had been found to contain State secrets, to Mr T. O., the only basis for such a finding being the fact that he had previously legitimately communicated information to the Japanese journalist on several occasions. The applicant further complained that in so far as his handwritten notes had been found to have contained the actual names of military formations and units and the activities of radio electronic warfare units, this information had been publicly accessible from a number of public sources, including internet sites, and that he had been unable to foresee that this information had constituted State secrets, as this finding had been based on unpublished – and therefore inaccessible – decree no. 055 of the Ministry of Defence.
The respective Convention provisions, in their relevant parts, read as follows:
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed...
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
(a) Submissions by the parties
i. The Government
The Government argued that in the applicant’s case the domestic courts had not applied the domestic law retroactively, nor had they construed it extensively.
They submitted that the courts’ assessment of the applicant’s actions and consequently his conviction had been based on Article 275 of the Russian Criminal Code, the Law on State Secrets as amended on 6 October 1997, and Decree no. 1203 of the Russian President of 30 November 1995 which approved the List of Information classified as State Secrets. They referred to the decision of 25 June 2002 in which the appellate court confirmed that the trial court had lawfully applied the said legal instruments in the applicant’s case, given that the offence imputed to the applicant had been of a continuous nature and had been halted on 20 November 1997. The Government contended that the applicant could not but foresee the application of those legal instruments, as all of them had been duly published and had therefore been accessible to him.
They disputed the applicant’s argument that at the time when he had committed the offences imputed to him information classified as secret had not been defined by law. In the Government’s submission, the decision of the Constitutional Court of Russia dated 20 December 1995 had established that the requirements of Article 29 § 4 of the Constitution of Russia had been fulfilled by enactment of the Law on State Secret of 21 July 1993, which had defined the notion of State secrets and listed the information classifiable as State secrets. They also submitted that, subsequently, Presidential Decree no. 1203 of 30 November 1995 had enacted the list of information classified as State secrets. The Government pointed out that, in any event, the amendment of 6 October 1997 had not changed the provisions of section 5 of the Law on State Secrets which had formed the basis for the applicant’s conviction.
They also pointed out that the applicant could not but realise that the information which he had recorded in his written notes had been classified, since it had been disclosed among a limited group of persons at the meeting of 11 September 1997 on condition that it would be kept secret. The Government concluded that the provisions of Article 7 of the Convention had not been infringed in the applicant’s case.
The Government further argued that the interference with the applicant’s freedom of expression had been justified under Article 10 § 2 of the Convention. They submitted that, in accordance with the domestic legislation on the media, divulging information containing State secrets was prohibited and that information must be received and imparted lawfully. They further pointed out that at the material time the applicant had been a serving military officer and by virtue of the relevant legal provisions he had been entitled to have access to any classified information only in so far as this had been rendered necessary by his professional duties and only to write down classified information on the source material that had been registered by a competent authority. Moreover, he had been under an obligation to keep secret any classified information he had received and prevent any leaks of such information. It had also been prohibited to take secret materials outside the premises of the headquarters or to keep them in an inappropriate place. They insisted that, by virtue of his status of serviceman, the applicant had been fully aware of all those limitations and could have clearly foreseen the negative consequences of a breach of the relevant regulations.
The Government further contested the applicant’s allegation that the information contained in his handwritten notes had been available from public sources. They submitted that these arguments had been thoroughly examined by the domestic courts and rejected as unfounded. The Government pointed out that among the materials of the criminal case against the applicant had been several publications, including that of the applicant, which had reported on the results of the tactical training exercises but did not disclose any classified information, in particular that concerning the actual names of military units, or means and methods of radio electronic warfare. Having compared those publications and the applicant’s handwritten notes, the courts rightly concluded that the information in the applicant’s hand-written notes had not been accessible from public sources.
Lastly, the Government disputed the applicant’s assertion that by collecting the impugned information, he had carried out his usual journalistic activity. They pointed in this connection to the recordings of the applicant’s telephone conversations with Mr T.O. which clearly showed that the latter had expressed an interest only in information of a classified nature.
ii. The applicant
In so far as his complaints under Article 7 of the Convention were concerned, the applicant insisted that he had been convicted on the basis of retroactive application of the Law on State Secrets. He argued, in particular, that between 11 September 1997, the date on which he had collected the information in question, and 9 October 1997, the date on which the amendment to the Law on State Secrets incorporating the list of information classified as secret in its text had become operative, there had been no such list defined in a federal statute, and therefore there had been no legal basis for his conviction for the alleged offence for that period. The applicant seemed to argue that Presidential Decree no. 1203 of 30 November 1995 approving the list of information classified as State secrets could not be regarded as a proper legal basis for his conviction. He also insisted that in the absence of such a list he could not foresee that his actions had been criminally liable.
In the above connection the applicant relied on the case-law of the Russian courts in the cases of Nikitin v. Russia (no. 50178/99, judgment of 20 July 2004) and Moiseyev v. Russia (dec., no. 62936/00, 9 December 2004). In particular, he pointed out that the Supreme Court of Russia in its decision of 17 April 2000 given in the case of Nikitin and in its decision of 25 July 2000 given in the case of Moiseyev had consistently stated that the list of information constituting State secrets should be defined in a federal statute, and that such list had first been established in the federal law introducing changes and amendments to the Law of the Russian Federation on State Secrets of 6 October 1997.
The applicant further contended that the domestic courts had relied on unpublished decree no. 055 of the Ministry of Defence, which had allegedly lead to an extensive interpretation and overly broad application of the Law on State Secrets. Whilst he accepted that the trial court had not referred to decree no. 055 directly, he considered that the court had relied on it indirectly by using the expert report of 14 September 2001. According to the applicant, the report in question had established the classified nature of his handwritten notes on the basis of the said unpublished decree. In his view, this was confirmed by the formula “the activities of radio electronic warfare units during the exercises” used by the trial court for his conviction and taken word for word from decree no. 055 rather than from section 5 of the Law on State Secrets. Allegedly, the formula employed in the Law was narrower and covered only one type of the activities of radio electronic warfare units, namely, information concerning “means and methods of protection of classified data”. The applicant also pointed out that the use of decree no. 055 in his case had been acknowledged by the appellate court which in its decision of 25 June 2002 had stated that the expert report of 14 September 2001 had been based on the Law on State Secrets, Presidential Decree no. 1203 and Ministerial Decree no. 055.
The applicant argued that, in any event, he could not foresee that the information which he had collected at the meeting of 11 September 1997 could have been of a classified nature, as none of the participants at the said meeting had informed the others about the secret nature of information which had been distributed during that meeting. He also insisted that the information which he had collected and kept at home was of minor importance.
In support of his arguments the applicant referred to the case of Moiseyev, in which the applicant’s complaint under Article 7 had been declared admissible.
The applicant further maintained his complaint under Article 10 of the Convention. He insisted that the authorities had persecuted him for his journalistic activity and his publication on serious environmental issues. He also contended that the impugned information could have been found in public sources, and in particular in reports of various environmental organisations, that it was of minor importance and that it could not therefore be regarded as State secrets.
(b) The Court’s assessment
The Court observes at the outset that the events in the present case took place partly before 5 May 1998, which is the date of the entry into force of the Convention in respect of Russia. In particular, it was in 1997 that the applicant committed the alleged offences, and the criminal prosecution against him commenced. The Court must therefore satisfy itself that it had jurisdiction ratione temporis to deal with this part of the application. The Court specifically notes in this respect that it is obliged to examine this question even in the absence of any arguments to that end from the Government (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑...).
The Court reiterates that its temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. In the present case, it finds that it was the applicant’s conviction which became final on 25 June 2002, when the Supreme Court of Russia upheld the first-instance judgment of 25 December 2001, that constituted the alleged interference with the applicant’s rights under Article 7 and 10 (see, mutatis mutandis, Zana v. Turkey, judgment of 25 November 1997, Reports of Judgments and Decisions 1997‑VII, § 42), and therefore it has jurisdiction ratione temporis to examine the applicant’s respective complaints.
It further considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
6. The applicant also complained under Article 10 of the Convention that a number of documents relating to his journalistic activity, including his draft article, had been seized at the pre-trial stage and never returned to him and that a number of files had been deleted from his personal computer.
The Court observes that the applicant has submitted no evidence that he has ever complained before the domestic authorities about the seizure of his documents, or the fact that some files were deleted from his computer, or has ever sought to have his draft article returned to him.
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 7 and 10 of the Convention concerning his criminal conviction for disclosure of State secrets;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy