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Cite as: [2008] ECHR 782
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
30024/02
by Igor Vyacheslavovich SUTYAGIN
against Russia
The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren Nielsen, Section
Registrar,
Having regard to the above application lodged on 11 July 2002,
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 Igor Vyacheslavovich Sutyagin, is a Russian national who was born in 1965. The applicant was represented before the Court by Ms K. Moskalenko and Ms A. Stavitskaya, lawyers with the International Protection Centre in Moscow. The respondent Government were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative Mrs V. Milinchuk.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked at the Institute of the USA and Canada at the Russian Academy of Science as the head of the Military-Technical and Military-Economic Policy Department. He resided in Obninsk, Kaluga Region.
1. Preliminary investigation
On 26 October 1999 the Kaluga Region Department of the Federal Security Service of the Russian Federation (Управление Федеральной службы безопасности Российской Федерации по Калужской области, “the FSB”) opened criminal proceedings under Article 283 § 1 of the Criminal Code in connection with the publication in 1998 of the book “Strategic nuclear weaponry of Russia”, which allegedly contained state secrets.
On 27 October 1999 at about 7 a.m. the FSB searched the applicant’s flat and seized books, national and international press clippings and computers. They took the applicant to their office in Obninsk, explaining that there was a need to talk. For the next three days, during which the applicant remained in the FSB office, an investigator questioned him as a witness, having warned him about potential criminal responsibility if he refused to testify and if he made false statements. The applicant had no access to a lawyer. Nor did he request that one be appointed.
On 29 October 1999 the FSB brought criminal proceedings against him on a suspicion of high treason by way of espionage, punishable under Article 275 of the Criminal Code.
On the same day an investigator joined the two cases and ordered the applicant’s detention on remand under Article 90 of the Code of Criminal Procedure. The detention order, upheld by the prosecutor of Obninsk on the same day and served on the applicant at 12.30 a.m. on 30 October 1999, stated that the applicant had gathered, systematized and summarized information of a military-technical nature and then passed it on to representatives of a foreign organisation, Alternative Futures, for remuneration, during his meetings with them outside Russia. Thus, in September 1998 in Budapest the applicant had allegedly handed over analytical materials, allegedly containing state secrets, on the state of the Russian rocket attack warning system. In July 1999 in Brussels he had allegedly passed on materials concerning the latest Russian aircraft complexes and had been requested to collect information on the Akula submarine and the MIG-29 aircraft. He had prepared that information and obtained an entry visa for Italy, in order to hand it over in Rome in October 1999. He had failed to do so for reasons beyond his control. The investigator concluded that the applicant’s actions contained elements of treason, punishable under Article 275 of the Criminal Code. The order further stated that the preparation of charges against the applicant had not been completed, that he might obstruct the investigation and continue his criminal activities and that he might abscond.
On 1 November 1999 the applicant was questioned as a suspect in the presence of his lawyer.
On 5 November 1999 the applicant was charged with high treason by way of espionage under Article 275 of the Criminal Code. The charges were formulated in a one-page document. The applicant was accused of collecting and handing over to the UK-based consultancy firm Alternative Futures information containing state secrets and other information damaging to Russia’s national security, in the manner described in the detention order of 29 October 1999.
On 24 December 1999 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 March 2000.
On 25 February 2000 the applicant’s counsel asked the investigator to alter the applicant’s detention for another preventive measure that would not involve deprivation of liberty. He specifically asked that factors other than the gravity of the charge against him be taken into consideration. He pointed out that Obninsk was the place of the applicant’s permanent residence, that the applicant was married and had two small children, that his family did not have a source of income other than his salary, that he had a number of diseases which required medical care and that he wished to continue his work in the institute. The request was supported by applications from the Vice-President of the Russian Academy of Science, Mr Velikhov, and the scientist Mr Zakharov, who wished to be the applicant’s personal guarantors. On 1 March 2000 the investigator from the Kaluga Region Department of the FSB rejected the request. The applicant appealed against this decision.
On 23 March and 13 April 2000 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 April and 26 July 2000 respectively.
On 26 April 2000 the Regional Prosecutor’s office dismissed the applicant’s appeal against the investigator’s decision of 1 March 2000, stating that the investigator had rightly rejected the request because the applicant had been charged with a particularly serious offence. A further appeal to the Deputy General Prosecutor of the Russian Federation was rejected on 28 April 2000 on the same ground.
On an unspecified date the applicant filed a court appeal complaining that his detention was unlawful and unjustified and requesting his release. In particular, he argued that he had been unlawfully detained from 27 to 29 October 1999. He pointed out that there was no evidence that he might flee, and that some other factors, including his family situation, made him eligible for release. On 29 June 2000 the Kaluga District Court of the Kaluga Region rejected the application as unfounded. The court pointed out that the applicant was accused of a crime falling into the category of particularly serious offences. It then observed that the domestic law permitted to remand in custody those accused of such offences by a mere reference to the gravity of the offence. The court added that the investigation into the applicant’s charge had not been completed. It confirmed the detention. It did not comment on the applicant’s allegations concerning the period from 27 to 29 October 1999. The decision of 29 June 2000 was subject to appeal to the Kaluga Regional Court. There is no indication that the applicant appealed against it.
The investigating authority ordered that an expert examination be carried out with a view to determining whether the materials which the applicant had allegedly collected, stored and passed on to Alternative Futures contained state secrets and whether they could have been obtained from the publications to which the applicant referred as the sources of his information. The applicant asked the investigating authority to give him an opportunity to provide explanations to the experts. His motion was rejected.
On 30 June 2000 a commission of experts from the Land Forces Headquarters, which included the expert Mr Koshelev, reached the conclusion that materials on the topic “The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” could have been obtained from open publications and did not contain state secrets.
On 12 July 2000 the Deputy General Prosecutor extended the term of the applicant’s detention in custody until 26 September 2000. An appeal by the applicant against this decision and request for release were rejected by the Kaluga District Court on 10 August 2000. In its decision the court again referred to the gravity of the charge against the applicant as the only reason for his continued detention. There is no indication that the applicant appealed to the Kaluga Regional Court against this decision.
On 17 August 2000 another group of experts from the General Headquarters of the Russian armed forces, which included the expert Mr Nazarenko, gave its opinion that the information on the topic “Options for the structure of the RF’s strategic nuclear forces for the period up to 2007” could have been obtained from open sources, represented the result of analytical research, was untrue and did not contain state secrets.
Information relating to thirty-eight other topics was found by the experts to have contained state military secrets.
On 19 September 2000 the finalised charges were brought against the applicant. They consisted of thirty-eight items, set out on eleven pages. The applicant was accused of gathering, by way of analysing and systematising information published in Russia and other countries, as well as information from other non-established sources, and passing the materials concerning Russia’s military and defence potential which contained state secrets and other materials of a military and military technical nature to two representatives of the US intelligence service, who worked under the cover of the consultancy firm Alternative Futures, to be used to damage Russia’s national security. According to the charges, the applicant had handed over the materials on thirty-eight topics of the above nature for remuneration during seven meetings in 1998-1999 in Birmingham, London, Budapest and Brussels.
According to the applicant, all the information used in charging him was obtained by the investigating authority from the statements which he had given when questioned on 27-29 October 1999, 1-5 and 24 November 1999, 25 January and 4 September 2000.
On 26 September 2000 the preliminary investigation was finalised.
On 23 October 2000 the defence finished examining the case file.
On 26 October 2000 the Deputy Kaluga Regional Prosecutor transmitted the case to the Kaluga Regional Court for trial.
2. Proceedings before the Kaluga Regional Court
On 9 December 2000 the Kaluga Regional Court ordered that the case be heard by a bench composed of a judge and two people’s assessors, in a closed trial. On the same day the court rejected the applicant’s request for release, supported by two non governmental organisations, on the ground of the gravity of the charges against him.
A hearing was originally scheduled for 26 December 2000. It was adjourned until 9 January and then until 26 February 2001, on a request by the applicant’s two new counsel, in order to allow time for the examination of the case file.
On 7 February 2001 the Supreme Court of the Russian Federation (“the Supreme Court”) presided by judge Mr Galiullin dismissed the applicant’s appeal against the decision of 9 December 2000. It stated that, under Article 96 of the Code of Criminal Procedure, detention on remand could be applied on the mere ground of the gravity of the crime. It held: “As follows from the materials of the case, Sutyagin is accused of committing a particularly grave crime. In these circumstances one cannot accept the arguments in the appeal on the unlawfulness and groundlessness of the judge’s decision to maintain detention on remand as a measure of restraint.”
The hearing took place on 27 and 28 February 2001. On 1 March it was adjourned to 5 March 2001, 3 and 4 March being non-working days, because one of the defence counsel would be busy in another trial on the following day.
The hearing was held on 5-7 March 2001. Between 14 March and 21 May 2001 no hearing took place because one of the defence counsel was ill.
The examination of the case continued on 25, 28-30 May, 4-9, 14-15, and 18-20 June 2001. On the latter date the court granted the prosecutor’s request to call witnesses and experts and adjourned the hearing to 17 July 2001.
The trial continued on 18-20, 23-27 and 30-31 July, 2-3, 6-10, 13-14 and 16-17 August 2001. On 20 August 2001 the hearing was adjourned to 4 September 2001 on account of the defence counsel’s illness. It continued on 5-7, 10-14, 17 18, 20-21 September 2001. On the latter date the court granted the prosecution’s request to adjourn the hearing until 29 October 2001 to allow time for preparation of their pleadings.
The hearing continued on 29-31 October 2001. The defence asked that the hearing be adjourned to 12 November 2001 to allow the defence time to prepare on the basis of the prosecutor’s submissions. The request was granted.
On 1 November 2001 the court heard the prosecutor’s pleadings. According to the applicant, Mr Belyak, the First Deputy Prosecutor of the Kaluga Region, who represented the prosecution, acknowledged that the applicant had been unlawfully detained by the FSB department of the Kaluga Region from 27 to 29 October 1999 and asked the court to issue a “special finding” (частное определение) with such an acknowledgment.
On 12 November 2001 the court heard pleadings by the defence.
On 13 November 2001 the court adjourned the hearing until 25 December 2001, giving no reasons, and then to 27 December 2001 on account of the illness of the judges.
On 27 December 2001 the court held a hearing in chambers. It heard the applicant’s final statement. The applicant denied the charges against him. He confirmed that he had gathered information for Alternative Futures but submitted that he had done so by using open sources.
On the same day, after deliberations, the Kaluga Regional Court remitted the case for additional investigation.
(a) The Kaluga Regional Court’s decision of 27 December 2001
In its decision the court stated that the investigating authority had essentially breached the rules of criminal procedure in the course of the preliminary investigation, thus prejudicing the applicant’s right to defend himself. The charges against the applicant in the statement of charges of 19 September 2000 and in the bill of indictment, notably the content of the materials which the applicant had allegedly gathered, stored and transmitted to a foreign intelligence service, were excessively vague. Those documents contained the titles and general description of the topics about which the applicant had allegedly transmitted information, but did not indicate the content of that information. With regard to some accusations there was a significant discrepancy between their formulation in the statement of charges and the bill of indictment, which fact, in line with the practice directions of the Supreme Court, was a ground for remitting the case for additional investigation. With regard to certain other charges, the court noted that the investigation authority had contradicted itself in the statement of charges and the bill of indictment by referring to the same information as classified information and non classified information.
The general criticism about the charges on the 29 topics was that it remained unclear exactly what information the applicant had allegedly gathered, stored and transmitted. This made it impossible for the court to assess the arguments put forward by the prosecution and the defence; to establish factual questions concerning the sources and circumstances in which the information was collected; to assess whether the information was truthful and comprised state secrets and to assess the possibility that it was damaging to Russia’s external security. The vague formulation of the charges, which made it impossible for the applicant to know exactly what he was accused of, also violated his right to defend himself.
The investigating authority had established the applicant’s guilt based, inter alia, on the applicant’s own statements. At the same time they had failed to set out and analyse in the bill of indictment the applicant’s statements concerning the circumstances in which the information was collected and stored and the content of that information.
According to the investigating authority, the applicant’s guilt was corroborated by the applicant’s four notebooks. There was nothing in the bill of indictment about the content of those notebooks or its analysis.
The bill of indictment referred to mutually exclusive evidence which had not been analysed and was not assessed by the investigating authority. Thus, the applicant was accused of gathering, storing and transmitting secret information concerning “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”. The bill of indictment referred to three expert reports as evidence: (i) report of 29 February 2000 by the commission of experts from the Armed Forces General Headquarters, according to which this information was State “top secret”; (ii) statements by the expert Mr Kilesso, to the effect that this information was partially untrue but did however contain state secrets; and (iii) report of 17 August 2000 by the commission of experts from the Armed Forces General Headquarters , according to which the information was untrue and did not contain state secrets.
The bill of indictment did not set out the applicant’s arguments and any results of examination of them by the investigating authority. Thus, after the charges had been served on him Mr Sutyagin contended that he had taken certain information, which was allegedly secret, from various published interviews with Russian military commanders. He asked whether such information had been declassified. Neither the applicant’s arguments nor the results of examination of them were set out in the bill of indictment. The applicant had argued that he obtained some information from the foreign press in English. However, the experts submitted to the trial court that they had never examined these publications. The applicant had contended that he had received all information, including the information which according to the experts, had comprised state secrets from open sources. These arguments by the applicant had not been properly examined in the course of the preliminary investigation. The results of the examination had not been set out in the bill of indictment.
During the course of the preliminary investigation, expert examinations had been carried out into the secrecy of information allegedly gathered, stored and transmitted by the applicant. Four expert commissions had concluded that part of the information contained state secrets of different levels. The experts’ conclusions had been included in the formulation of charges. In their examinations the experts had been governed by order no. 055 of the Ministry of Defence of 10 August 1996 containing the list of information subject to classification in the RF Armed Forces, to which the applicant had never had access. By failing to provide the applicant with access to that document, the investigating authority had violated his right to defend himself. Furthermore, that list of information was a secret document and had never received State registration; it should not therefore have been relied on by the experts (the Supreme Court in its decision of 12 September 2001 held that this order was a document touching upon human rights and should be registered; normative acts void of registration were invalid).
The trial court agreed with the defence that the expert examinations (reports of 29 February, 25 July, 2 and 17 August 2000) had been ordered and carried out in violation of the law on criminal procedure.
In view of the above violations the trial court remitted the case to the Kaluga regional prosecutor for additional investigation, as required by Articles 232 § 1 (2) and 308 of the Code of Criminal Procedure, and ordered, without giving any reasons, that the applicant remain in detention.
The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant, those charges must be formulated in detail in a statement of charges, in accordance with the requirements of Article 144 of the Code. A bill of indictment must comply with Article 205 of the Code and contain, in particular, the detailed formulation of a charge which must not differ significantly from the formulation in the statement of charges to the detriment of the accused. The bill of indictment must further describe and examine evidence produced by the investigating authority and the accused’s arguments in his defence. Expert examination of the information included in the charges should, if necessary, be carried out so that the accused’s rights would be duly respected.
(b) Appeal against the decision of 27 December 2001
The applicant and his counsel appealed against this decision. They did not dispute the procedural violations by the investigating authority as established by the trial court. They argued, however, that the vague formulation of the charges, as well as the violations in preparing the bill of indictment and in ordering and carrying out expert examinations, showed the irreparable incompleteness of the investigation, which warranted the applicant’s acquittal. The trial court should not have remitted the case for additional investigation on its own initiative without relevant requests to that effect by the parties. The flawed preliminary investigation should have resulted in the applicant’s acquittal.
The defence also appealed against the decision that the applicant should be remanded in custody. They submitted that there was no evidence that he would flee. The applicant and his family – wife, two minor children, parents and brother resided permanently in Obninsk. Nor was there any evidence that the applicant could obstruct the investigation or would engage in criminal activities. The counsel complained about violations of Article 5 of the Convention, in particular, given that the gravity of the offence was the sole ground for the applicant’s continued detention.
On 20 March 2002 the Supreme Court, presided by judge Mr Galiullin, rejected the appeal and upheld the decision. It maintained that the charges against the applicant had been too vague, and stated that the Kaluga Regional Court had rightly decided to remit the case for additional investigation and remand the applicant in custody, and that it found no ground to quash or amend that decision.
3. Additional investigation
On 8 April 2002 the investigation department of the FSB of the Kaluga Region commenced the additional investigation.
On 6 June 2002 they ordered a new complex expert report on whether the information which the applicant had transmitted to Alternative Futures contained state secrets. The defence objected to that decision, arguing that the experts were supposed to compare the statutory list of classified information and the transmitted information, which was in fact a legal assessment. The applicant requested that he be allowed to be present at the expert examination and give explanations to the experts. He also noted that for unknown reasons the investigating authority had not forwarded to the experts a number of open sources of information used by him. He requested that those publications be sent to the experts for their examination.
In his decision of 17 June 2002 the head of the investigation department rejected the applicant’s requests. He stated, in particular, that all open sources had allegedly been forwarded for the expert examination except for those to which the applicant had referred without any ground, as they were allegedly mismatched chronologically (published after the events incriminated to the applicant) or textually with the information transmitted by the applicant. He stated that the applicant’s presence at the expert examination was not necessary since the materials produced for the experts, including the applicant’s statements, were sufficient to answer the questions put to the experts.
On 18 June 2002 the case was transferred to the FSB central investigation department in Moscow on an instruction by the Deputy Prosecutor General.
On 18 July 2002 a commission of experts from the Headquarters of the Ministry of Defence of the Russian Federation carried out an assessment of the materials given to them by the investigating authority (records of the applicant’s interrogation and the publications to which the applicant referred as the sources of his information) and reached the conclusion that the materials on the following five topics constituted state secrets, were true and could not have been obtained from the publications examined by them:
– the structure and state of the missile [early-]warning system;
– the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998;
– options for the structure of the RF’s strategic nuclear forces for the period up to 2007;
– specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29;
– possible directions in the development of Russian air-to-air missiles.
In their assessment the experts were governed by the Official Secrets Act, as amended on 6 October 1997, Presidential decree no. 1203 of 30 November 1995, the Code of Criminal Procedure and secret decrees of the Ministry of Defence nos. 055 and 015 issued on 10 August 1996 and 25 March 2002 respectively.
According to the applicant, the experts did not examine all publications to which he had referred as the sources of his information. Thus, the applicant had argued before the investigating authority that he had received information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” from articles by Falichev in the newspaper Krasnaya Zvezda of 13 August 1998 and 12 January 1999, comprising interviews with the Minister of Defence and the first deputy head of the Headquarters of the Armed Forces. According to the expert report of 18 July 2002, Krasnaya Zvezda of 13 August 1998 had been given to an expert who had carried out an examination on another topic, namely “the structure and stationing of permanent readiness units”, and Krasnaya Zvezda of 12 January 1999 had been given to an expert who had carried out an examination on “engineering of new equipment for land forces”. The applicant had referred to the following three sources in respect of the topic “possible directions in the development of Russian air-to-air missiles”: (i) A. Karpenko, Russian rocket weapons 1943-1993; (ii) Fridman, Normal Naval Weapons Systems 1997-1998, and (iii) V. Lipetskiy, MiGs’ continued upgrading. According to the expert report of 18 July 2002, all three sources had been given to an expert covering the topic “plans and directions in the creation of aviation complexes of the 5th and 4th+ generation”. The applicant had referred to an article by Rodikov in the magazine Vestnik vozdushnogo flota of March April 1998, comprising an interview with the chief designer of the MiG enterprise as the source of his knowledge on the topic “specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29”. According to the expert report of 18 July 2002, this article had been given to an expert on a different topic, namely the anti aircraft missile C-400. 18 of 44 sources relating to the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007” had been given to experts covering different topics. The book “Modern nuclear armaments of Russia”, from which the applicant had allegedly received information on the topic “the structure and state of the missile [early-]warning system”, had not been given to the experts who carried out the assessment on that topic.
On 29 July 2002 the applicant was re-charged with five counts of treason by way of espionage under Article 275 of the Criminal Code. He was accused of gathering, by using the opportunities provided by his job at the Institute of USA and Canada, information on the above-mentioned five topics containing state secrets from various sources, including closed sources, and passing it on, on five occasions in 1998-1999, to representatives of a foreign state with a view to damaging the national security of Russia.
The investigating authority did not identify any closed source from which the applicant had allegedly obtained the information. The charges in respect of the remaining items were withdrawn.
On 7 August 2002 the additional investigation was finalised.
On the same day the applicant and his counsel began examination of the case file. The case file composed of more than 8120 pages, computer files, audio and video records.
On 9 August 2002 the Moscow City Court extended the applicant’s detention on remand to 8 October 2002 at the investigator’s request. The applicant appealed. On 2 October 2002 the Supreme Court composed, inter alia, of judge Ms Rodionova, quashed the decision as unlawful and ordered a fresh examination. It stated in its decision that pre trial detention could only be extended if legitimate grounds were supported by the relevant factual circumstances.
Following this decision, an investigator from the prosecutor’s office submitted to the Moscow City Court a copy of a document from which it followed that the applicant had received an entry visa for Italy which had expired in November 1999.
On 3 October 2002 the City Court gave a new decision extending the applicant’s detention until 8 October 2002 on the grounds that he could abscond or otherwise obstruct the investigation and that he was accused of committing a particularly serious offence.
On 4 October 2002 the Moscow City Court extended the applicant’s detention, on the same grounds, until such time as the applicant had completed examination of the case file.
The defence appealed against the two decisions, pointing out, inter alia, that, according to the applicant’s passport, his Italian visa had been issued for the period from 28 October 1999 to 18 November 1999.
On 25 December 2002 the Supreme Court presided by judge Mr Galiullin rejected the appeals, holding that there were no grounds for the applicant’s release and referring to the gravity of the charges.
On 15 August 2003 the defence finished its examination of the case file. The applicant requested that Mr Nazarenko and Mr Koshelev, who had carried out the expert assessment in the case in 2000, be examined by a trial court. The investigating authority included these individuals in the list of witnesses to be examined by a trial court, which was enclosed to the bill of indictment. Three prosecution witnesses, Mr Turta, Mr Velichko and Mr Garbuz, officers from the Navy Obninsk training unit, were also added to that list.
4. The applicant’s trial
In August 2003 the applicant lodged a request for his case to be heard by a jury. The case was transferred to the Moscow City Court for a trial.
On 8 September 2003 judge Ms Kolyshnitsyna of the Moscow City Court listed a preliminary hearing for 15 September 2003. It started on the latter date but was adjourned to 25 September 2003 at the prosecutor’s request to allow time for preparation.
On 23 September 2003 the President of the Moscow City Court Ms Yegorova assigned the case, for unknown reasons, to another judge, Mr Shtunder, who held a preliminary hearing on 25 September and scheduled a hearing on the merits by a jury for 3 November 2003.
On 29 September 2003 judge Mr Shtunder of the Moscow City Court examined the defence’s request for the applicant’s release. He observed that the applicant had been taken into detention in connection with the accusation against him of a particularly grave offence, on well-founded grounds which were still valid. The applicant’s detention as a preventive measure should therefore remain the same. The defence appealed, arguing that the decision contained no reasons for the applicant’s continued detention.
The trial commenced on 3 November 2003.
On 5 November the prosecution asked that the hearing be adjourned to 11 November 2003 in order to allow it to produce evidence. The request was granted.
On 11 November the hearing was postponed to 18 November 2003, as the prosecution witnesses had failed to appear.
On 12 November 2003 the Supreme Court, composed of the President Mr Galiullin and judges Ms Rodionova and Ms Lamintseva, rejected the applicant’s appeal against the decision of 29 September 2003 and upheld that decision. It noted the seriousness of the charges against the applicant and stated that the reasons for the initial decision to apply the detention in custody as a preventive measure were still valid and that there had been no violations of the rules of criminal procedure which would warrant a change in the preventive measures.
On 18 November the examination of the case was adjourned to 25 November 2003 as the applicant had not been transported to court on account of a medical examination.
On 25 November 2003 the court adjourned the hearing for an indefinite period on the ground of quarantine in the applicant’s detention facility, until the applicant’s recovery and the end of quarantine.
On 26 November 2003, as the defence later learned from the materials of the case file, the President of the Moscow City Court Ms Yegorova assigned the case to another judge, Ms Komarova. The materials of the case file contain the following resolution by Ms Yegorova: “To M.A. Komarova. [I] [a]sk [you] to take the case over for examination”.
The list of jurors of the Moscow City Court for 2004 was approved by the Mayor of Moscow on 4 December 2003 and later sent to the court.
According to the applicant, the quarantine ended on 5 December 2003. The defence filed numerous requests with the presiding judge, the President of the court and various authorities, seeking to have hearings in the case resumed.
On 16 February 2004 the defence was notified that the hearing would take place on 15 March 2004 and that the case had been assigned to judge Ms Komarova. The defence lodged a number of requests, seeking information on the grounds and reasons for the replacement of the presiding judge, including a request of 15 March 2004 addressed to the President of the Moscow City Court, Ms Yegorova. They were all left unanswered.
On 24 February 2004 judge Ms Komarova of the Moscow City Court examined a request by the prosecution for extension of the term of the applicant’s detention in custody. She also examined a request by the defence for the applicant’s release, supported by an application from representatives of various non-governmental organisations, the State Duma and the Academy of Science. The judge noted that the six-month period of the applicant’s detention in custody, from the moment of the receipt of the case by the court, would expire on 25 February 2004. Under Article 255 § 3 of the Code of Criminal Procedure, in cases concerning grave and particularly grave offences a court could prolong the terms of detention in custody for not more than three months each time. In the circumstances, the judge concluded that the period of the applicant’s detention should be prolonged until 25 May 2004. The defence appealed against this decision, arguing that it contained no reasons to justify the extension of the applicant’s detention.
The new presiding judge Ms Komarova held a hearing on 15 March 2004 at which she carried out the selection of a new jury composition from 31 candidate jurors.
The request by the defence to have the case examined the initial composition of the jury, which it alleged had been unlawfully dismissed, was rejected. So was a motion challenging the presiding judge who, according to the defence, was conducting the trial in a way favourable to the prosecution.
One of the questions put to the candidate jurors by the presiding judge was whether their number included heads or deputy heads of bodies of the representative or executive authorities, deputies, servicemen, clergymen, judges, prosecutors, investigators, advocates, notaries and persons serving in the Ministry of Interior or the FSB. Four persons responded that they had once served in the FSB. They were dismissed at the request of the defence. The defence asked the candidate jurors fourteen questions, some of which were addressed to all of them, for example, questions on their place of work, knowledge of foreign languages and Internet use. The defence challenged some of the candidate jurors, twice without giving reasons. A candidate juror, Mr Yakimishen, answered that he worked as a deputy head of a foreign company representative office and spoke Polish.
On the same day the individuals who were selected to serve on the jury took an oath.
The hearing was adjourned until 17 March 2004 in order for the applicant to have additional time to examine the case file, as requested by him. On the latter date the defence unsuccessfully challenged the presiding judge.
On 29 March 2004 the defence requested the court to examine before the jury the report of 17 August 2000 by the commission of experts from the General Headquarters of the RF Armed Forces, according to which the materials transmitted by the applicant on one of the five topics (Options for the structure of the RF’s strategic nuclear forces for the period up to 2007) did not contain state secrets and could have been obtained from open sources. The defence also asked the court to examine expert Mr Nazarenko, who was a member of that commission, and who had come to the court at the request by the defence. The presiding judge examined Mr Nazarenko in the jury’s absence and declared the expert report of 17 August 2000 inadmissible as evidence, on the grounds that it did not meet procedural requirements, since it lacked the “research” section which should have explained what expert had examined which materials, and as a result of what research he or she had reached the conclusions. According to the applicant, she then invited the prosecution to state their view as to Mr Nazarenko’s examination before the jury and, following their objections, dismissed the relevant motion by the defence.
On 30 March 2004 the defence asked to examine before the jury the report of 30 June 2000 by the commission of experts from the Land Forces Headquarters, according to which the information on the topic “The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” was not classified and could have been obtained from open sources. The presiding judge declared the report inadmissible as evidence, for the same reasons as the report of August 2000.
The defence asked to examine Mr Koshelev, who had prepared the report of 30 June 2000, as a witness. Mr Koshelev came to the court at the request of the defence. According to the applicant, the presiding judge, having heard the prosecution’s objections, dismissed the request on the ground that the expert report of 30 June 2000 had been declared inadmissible as evidence.
Prosecution witnesses, in particular Mr Turta, Mr Velichko and Mr Garbuz, were examined at the trial before the jury. The applicant was not asked whether he objected to their examination.
The applicant asked that the expert assessment report of 18 July 2002 be declared inadmissible as evidence since, he claimed, it had the same procedural defects as the above two expert reports, given that it also lacked a “research” section. The judge rejected the motion, giving no reasons.
The judge also rejected, without giving reasons, a request by the defence to examine before the jury an opinion obtained by the defence from the Russian aircraft construction corporation MiG, which allegedly could help the defence to prove that the materials concerning airplane MiG-29 (specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29) did not contain state secrets.
The applicant consistently claimed that in preparing the materials for Alternative Futures he had only used information from publicly available sources – Russian and foreign publications which were listed in his statements to the investigating authority and the court. According to Mr S.M. Rogov, Director of the Institute of the USA and Canada, who was examined at the trial, the applicant did not have admission or access to information containing state secrets during his work for the Institute. As a researcher at the institute, the applicant had to be aware of all publicly available information concerning the armament policy of the US and Russia. The institute did not have at its disposal information containing state secrets. According to the applicant, the prosecution did not establish any closed source from which he had allegedly obtained classified information.
On 30 and 31 March 2004 the defence again challenged presiding judge Ms Komarova, since they considered that she violated the principle of equality of arms. She dismissed the requests.
On 1 April 2004 the Supreme Court dismissed the applicant’s appeal against the decision of 24 February 2004 extending his pre-trial detention, stating that he could not be released because the trial was underway.
The following four questions were put to the jury by the presiding judge:
Question 1. Has it been shown that, from 19 February to June 1998, meetings occurred in Birmingham and London (Great Britain) at which a cooperation agreement was concluded with S. Kidd, a representative of US military intelligence, on gathering information about the Russian Federation, for subsequent transfer to the above-mentioned individual; in accordance with instructions from S. Kidd, the following information was collected in the Institute for the USA and Canada in Moscow and Obninsk (Kaluga oblast), stored and handed over on various dates:
(a) from 24 June to 15 September 1998, information on the topic “the structure and state of the Russian missile early warning system”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at the Forum-Intercontinental Hotel in Budapest (Hungary) from 15 to 17 September 1998;
(b) from 22 October 1998 to 15 January 1999, information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to Locke and Kidd, representatives of US military intelligence, at the Marriot Hotel, Budapest (Hungary) from 15 to 18 January 1999;
(c) from 18 January to 27 March 1999, information on the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at the Tower Hilton Hotel, London (Britain) from 27 to 31 March 1999;
(d) from 31 March to 20 May 1999, information on the topic “specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to N. Locke, representative of US military intelligence, at a hotel in Birmingham (Britain) from 20 to 23 May 1999;
(e) from 23 May to 14 July 1999, information on the topic “possible directions in the development of Russian air-to-air directed missiles”, specifically ... (there follows information described as secret) was collected and stored, and was handed over to N. Locke, representative of US military intelligence, at the “Globus” Hotel, Brussels (Belgium) from 14 to 18 July 1999;
Question 2. If an affirmative answer has been given to the first question, then has it been shown that the actions set out in it were committed by Sutyagin and that he received financial compensation for them?
Question 3. If affirmative answers have been given to Questions 1 and 2, then is Sutyagin guilty of having committed the above-mentioned actions?
Question 4. If an affirmative answer has been given to Question 3, then does Sutyagin deserve leniency?
The applicant’s lawyers sought to have other questions put to the jury, in particular a question as to whether the transmitted information contained state secrets, but the judge refused their motion.
On 5 April 2004 the jury unanimously found the applicant guilty, having answered the questions put to them in the affirmative.
On 7 April 2004 the judgment was delivered. The applicant was convicted of high treason by way of espionage under Article 275 of the Criminal Code, specifically of “the transmission, collection and storage of information, constituting state secrets, to be used to damage the national security of the RF”. The applicant was sentenced to fifteen years’ imprisonment in a strict regime colony. His sentence was to be calculated from 29 October 1999.
The applicant appealed against the judgment. In particular, he complained that the replacement of the presiding judge and the jury had been unlawful; that juror Mr Yakimishen should not have sat in his trial as he had been included in the list of jurors of the Moscow Circuit Military Court; and that the list of jurors of the Moscow City Court had not been published. The applicant further complained that the presiding judge had dismissed his request to put to the jury questions as to whether the information transmitted by him had been secret. He asserted that the questions to the jury had been formulated in breach of the domestic law. He argued that the trial court had had no grounds to declare the exculpatory expert reports of 30 June and August 2000 inadmissible as evidence, to reject his request for examination of Mr Nazarenko and Mr Koshelev as witnesses, and simultaneously to refuse to declare the inculpatory expert report of 18 July 2002, which had the same procedural flaw as the former two reports, inadmissible as evidence. The applicant also complained that no question had been put to the jury as to whether he had had intent to damage national security or whether the transmitted information had contained state secrets. It had not been refuted in the course of the trial that he had transmitted information which had previously been published in open sources. This issue had not been examined in the judgment. In his appeal the applicant relied on Articles 6, 7 and 10 of the Convention.
In May 2004 the general list of jurors for the Moscow Circuit Military Court was published with Mr Ykimishen’s name on it.
On 17 August 2004 the Supreme Court, composed of President Mr Galiullin and judges Ms Rodionova and Ms Borisova, delivered a final decision in the case. It rejected the appeal and upheld the judgment, having succinctly stated that there had been no violations of the rules of criminal procedure on the part of the trial court, including its taking of evidence, and that Mr Yakimishen had been included in the approved list of jurors of Moscow. It also stated that the principle of immutability of a court composition had not been violated in the case, which had been examined in compliance with the requirements of Article 242 of the Code of Criminal Procedure.
During the appeal hearing the applicant and his counsel challenged judge Mr Galiullin on the ground that he had previously taken part in examination of the applicant’s appeals against decisions extending his pre-trial detention and had consistently rejected them. The challenge was dismissed.
The general list of jurors of the Moscow City Court (for the North administrative circuit of Moscow) was published on 18 August 2004. It included Mr Yakimishen. After the case had been heard by the appeal court the defence learned that juror Mr Yakimishen had allegedly worked for the FSB.
The applicant is currently serving his sentence.
5. Mass media reports
On 30 October 1999 it was stated on the Vesti programme on the RTR television channel: “Igor Vyacheslavovich Sutyagin is an employee of the Russian Academy of Science (RAS). He is suspected of collecting and handing over information which is classified as a state secret on the creation of a new generation of nuclear submarines. According to FSB information, he has admitted to everything.”
On 2 November 1999 the Kaluga newspaper Znamya, no. 160 (26211), contained the following text:
“Last Saturday 30 October, the programmes Vremya and Vesti were broadcast simultaneously at 9 p.m. on different channels. Some people chose to watch Pavel Sheremet, because they were unaware of the information being given on the programme presented by A. and S. Dadyko. The discussion was on the following topic. Photographic stills were broadcast (showing the FSB’s filming logo) which had been taken in an American agent’s flat. A search of the flat was carried out, and produced documents containing information about secret developments in the area of nuclear reactors for submarines. It was stated that this information had been given to the American by a certain Mr Sutyagin, a resident of Obninsk.”
On 20 December 2000 the newspaper Komsomolskaya Pravda, no. 234 (22458), pp. 8-9, published an interview with the Director of the Russian FSB, Mr N.P. Patrushev, who stated:
“In October 1999 Sutyagin, an employee of the (RAS) Institute for the USA and Canada, was arrested. In the course of the investigation, acts of spying by his contact – the American citizen Joshua Hendler, a specialist in nuclear safety who is now in the USA – were uncovered. It has been preliminarily established that Hendler received secret information about the Russian armed forces from Sutyagin and handed them over to intelligence bodies. Unfortunately, some journalists, not knowing this, have described Sutyagin in their publications as an ‘honest and courageous citizen who is sticking up for democratic freedoms’.”
On 20 December 2000 the Kaluga regional newspaper Vest, no. 293 (2641), and the municipal newspaper Obninsk, no. 200 (1736), dated 21 December 2000, printed articles by Mr Valeriy Loginov, the chief of the Kaluga Region Department of the FSB – “Service on behalf of the individual, society and the state” (“Service on behalf of the security of the individual, society and the state”), in which he stated:
“We are observing growing interest in the current reforms in the Russian Armed Forces, and especially in our nuclear submarine fleet, strategic missiles, and everything connected with new approaches to nuclear energy and science-intense technologies. This year the directorate investigated and sent for trial a criminal case concerning Igor Sutyagin, an employee of the RAS Institute for the USA and Canada, who has been accused of the crime set out in Article 275 of the Russian Criminal Code (state treason in the form of spying). The Directorate’s employees also monitored a US citizen who referred to himself as belonging to the ‘scientific community’, but whose entire ‘scientific activity’ during his stay in Russia amounted to something similar to that conducted by Edmund Pope, who was convicted of spying in December by the Moscow City Court. For us, as the state security agency, the discovery of spying activity is not only a major operational success, but above all [an opportunity to] obtain information about new forms and methods of conducting subversive intelligence activity against the Russian Federation. I will not hide the fact that such results are a source of pride and satisfaction for every employee of the Kaluga Directorate, especially as a report [on them] was submitted to the President of the Russian Federation.”
On 26 December 2000 it was stated on the Internet publication ‘UTRO. ru’: “Sutyagin is accused of gathering and handing over information which is classified as a state secret on the creation of a new generation of nuclear submarines. Sutyagin has confessed to everything and now faces a sentence of up to twenty years’ imprisonment”.
On 27 December 2000 the Internet publication “UTRO.ru” stated:
“According to the public relations unit of the Kaluga Region FSB, investigations have been conducted since October 1999 into the case of Igor Sutyagin. He is a weapons specialist and, working as head of the division of military and technological policy at the RAS Institute for the USA and Canada, he had access to secret documents”.
At 11.51 a.m. on 9 January 2001, it was stated on the RTR channel’s Vesti programme:
“He was arrested on 27 October of last year. For the moment all details of this operation by the Russian special services are being kept secret. It is known only that, during a search of Sutyagin’s work office, highly secret documents concerning Russia’s nuclear security were found. In addition, the investigators found a large amount in USA dollars. Sutyagin himself is currently detained in a pre-trial detention centre in Kaluga. If his guilt is proven in the course of court proceedings, he faces up to twenty years’ imprisonment”.
Interfax [news agency], based on FSB material, 9 January 2001:
“The security services have succeeded in ascertaining that, during a working visit to Britain in February 1998, Sutyagin established contact with a commercial organisation, ‘Alternative Futures’, which, according to FSB data, is a ‘cover’ for a foreign intelligence service and had no connection whatsoever with scientific activity. Since then, as FSB employees have established, Igor Satyugin, during business trips to Great Britain, Belgium, Italy, Poland and Hungary, has repeatedly met with representatives of foreign secret services and handed over information [to them] in exchange for money; most of the information was of a classified and secret nature.”
On 10 January 2001 the newspaper Izvestiya, no. 1 (25839), stated:
“However, not everything is so simple. The accusation brought against Sutyagin is not linked with his immediate professional activity in his capacity as head of division at the RAS Institute for the USA and Canada. Izvestiya has learned that in February 1998 Sutyagin, who was on a working visit to Britain, began to cooperate with a commercial firm ‘Alternative Futures’, which was allegedly involved in scientific activity. In actual fact, according to the FSB’s operational information, ‘Alternative Futures’ was a “cover” for a foreign intelligence service. In the course of this cooperation, Sutyagin had secret meetings over a period of a year and a half with employees of this firm, for the purpose of handing over information while on working visits to Britain, Belgium, Italy, Poland and Hungary. As it happens, Sutyagin was arrested on the eve of one of those journeys. According to the FSB, he handed over information on the state and military readiness of Russian nuclear weapons and missile [early-]warning systems and on the tactical and technical features of a series of Russian weapons systems, in exchange for financial compensation.”
Interfax, on the basis of information from the FSB’s press unit, 26 February 2001:
“The accusation of state treason brought against Igor Sutyagin, employee of the RAS Institute for the USA and Canada (ISKRAN), is based on his relations with the foreign organisation ‘Alternative Futures’, a ‘bogus intelligence structure for one of the NATO countries’. This information was given to Interfax by Lieutenant-General Nikolay Volobuyev, Deputy Head of the FSB’s Counter-Intelligence Department.
‘Anyone who wishes to can satisfy themselves of the well-foundedness of the accusation brought against Sutyagin, by attempting to explain on their own the fate of the pseudo-company “Alternative Futures”, which disappeared immediately after his arrest. Its contact details are: ...’
‘At the same time – said Volobuyev –, we cannot remain silent now, when, taking advantage of the closed nature of the trial, attempts are made to mislead Russian and international public opinion with regard to the essence of the case and to create a distorted public view in which Sutyagin is presented as ‘an innocent victim of the FSB’.
‘It is clear that those Russian citizens who work along the same lines as Sutyagin with incomprehensible foreign clients must give thought to potential conflicts with the law and discontinue [their activities] in time, rather than allowing the matter to go as far as the courts,’ said the General. [Volobuyev].”
On 5 March 2001 it was stated on the Internet site UTRO.ru:
“For its part, the RF FSB insists that it has irrefutable evidence that Igor Sutyagin was fully aware that he was working for foreign intelligence. According to Lieutenant-General Nikolay Volobuyev, Deputy Head of the FSB’s Counter-Intelligence Department, the accusation of state treason against Sutyagin is based specifically on his relations with ‘Alternative Futures’. At the same time, that firm is definitely ‘a bogus structure of one of the NATO countries’.”
FSB press service, Novosti [news agency], 10 August 2001:
“Igor Yakutov, an expert from the Russian Naval (VMF) headquarters, has confirmed his official conclusion that the scientist Igor Sutyagin disclosed state secrets, and also that he has inflicted damage on the country’s defence capability. Igor Yakutov is a specialist in wireless equipment on Akula-class nuclear submarines (NATO classification). In conversation with journalists after speaking at the hearing in Kaluga Regional Court, the military expert said that, in full accordance with the RF State Secrets Act, he had classified several items of information contained in the material submitted for [his] analysis as ‘subject to state secret’. Yakutov noted that this information concerned, in particular, ‘materials on the acoustic protection of nuclear submarines and questions concerning hydrophysics’.”
Rosbalt news agency, 3 December 2001:
“Kaluga, 3 December. At the request of Rosbalt’s correspondent, the Governor of Kaluga Region, Anatoliy Artamonov, has commented on the trial in the case of Igor Sutyagin, employee of the RAS Institute for the USA and Canada, who is accused of state treason in the form of spying (Article 275, RF Criminal Code). We remind our readers that on 25 December the Kaluga Regional Court will hear the defendant’s final statement.
‘My point of view has not changed’, stated A. Artamonov. ‘I cannot comment on the actual conduct of the court’s session, as I am not familiar with the materials in this voluminous case. Whether or not I. Sutyagin is guilty from a legal standpoint will be decided by the court. But as a human being and a citizen, I consider that the analysis of strategic information, even on the basis of open sources, and the sale abroad of the results of that work – something that I. Sutyagin does not hide, and does not consider shameful – ought to be condemned. He is guilty before society.’
At the same time, added the Kaluga Governor, the state ought to take a more serious attitude to protecting its secrets.”
Obninsk newspaper, no. 165-166, dated 2 December 2003 and the Vesti newspaper (Kaluga), no. 341, dated 15 December 2003:
“Whether it’s bad, a shame, or sufficiently precise [is unclear], but a list setting out the information which constitutes a state secret has been drawn up, and the activity in which Igor Sutyagin was involved is included on that list. Consequently, whether we like it or not, the analytical materials prepared by him have been classified as specially-protected state information ... But to come back to the fact that a list has [indeed] been drawn up. It follows that Sutyagin handed over information which is currently classified as a state secret, and that, as a matter of fact, there has been a betrayal of the motherland. The question of how the degree of his guilt is to be determined, and to what extent it was betrayal, is another matter.”
The newspaper Vecherniy Magadan, no. 50, dated 12 December 2003, stated:
“Sutyagin has been accused of handing over information classified as a state secret to a British firm. The defendant accepts that the information given by him was indeed a state secret. But he claims that he obtained it from newspapers and journals, in other words from open sources. Let us concede that that was the case. But let us examine these events through the eyes of sensible people. Firstly, Sutyagin ought to have sounded the alarm when he saw that secret information was coming to light in newspapers and journals. He did not do so, although he understood perfectly well that the information concerned was a state secret.”
The newspapers Zhizn (Moscow), no. 10, dated 20 January 2004, Zhizn (Rostov-on-Don), no. 10, dated 21 January 2004, Zhizn (Ulyanovsk), no. 11 dated 22 January 2004 and Zhizn (Krasnodar), no. 7, dated 27 January 2004, printed articles entitled “Spy gives language lessons to ‘werewolf’”:
“General Vladimir Ganeyev of the Ministry of Emergencies, who has been accused of organising bands of ‘uniformed werewolves’, has moved cell. The tax official with whom he had earlier shared a cell in Lefortovo pre-trial detention centre was sent to (another) prison, and Ganayev was left by himself. Having grown tired of solitude, the ‘country’s chief werewolf’ asked the authorities of the detention centre for permission to be moved ‘nearer to people’. The request was met. Ganeyev was moved to a ‘press-cell’, where Igor Satyugin, an employee of the Institute for the USA and Canada who has been accused of espionage, and Komi resident Alexander Kulachinskiy, involved in the case concerning the killing of State Duma member Sergey Yushenkov, were being held. Zhizn has been informed that the General has become particularly close to the spy. Ganeyev, who has surrounded himself with textbooks and exercise books, has taken to studying English intensively, and Sutyagin, who speaks that language fluently, immediately offered the General his help.”
B. Relevant domestic law
1. Composition of courts and assignment of cases to judges
The Code of Criminal Procedure of 2001 (the “Code”) provides as follows:
Article 242
Immutability of court composition
“1. The case must be examined by one and the same judge or by a court bench in one and the same composition.
2. If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”
Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:
Section 6.2
Powers of court Presidents and deputy
court Presidents
1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions:
(1) organises the court’s work;
...
(3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...
The instruction on courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management.
As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.
Under paragraph 19 of resolution of the Supreme Court’s Plenum no. 23 of 22 November 2005 setting out practice directions on the application of the Code, the replacement of a presiding judge in jury trials invalidates the trial which has taken place up to that moment and calls for the replacement of a jury because, under Article 328 of the Code, the obligation to form a jury is imposed on the presiding judge.
2. Jury trials
(a) General provisions
Article 30 of the Code reads as follows:
“...
2. In courts of first instance, criminal cases shall be examined by the following compositions:
...
2) At the defendant’s request, the judge of a federal court and a jury of twelve persons shall examine cases concerning the crimes set out in Article 31 § 3 of this Code. ...”
Article 31 § 3 of the Code includes, inter alia, a crime punishable under Article 275 of the Criminal Code.
A secretary or a judge assistant selects candidate jurors from a court’s annual list of jurors by drawing them at random (Article 326 of the Code).
One and the same person cannot sit as a juror more than once a year (Article 326 of the Code, Article 85 of the law On Judicial System).
Parties to proceedings can challenge candidate jurors with or without reasons, twice in the latter case (Article 327 of the Code). The parties can ask them questions for the purpose of uncovering circumstances which would prevent them from sitting in a case. The presiding judge explains to candidate jurors their duty to answer truthfully to questions put to them (Article 328 of the Code).
Under Article 330 of the Code, before the jurors take the oath it is open to the parties to proceedings to plead that the jury as a whole might be unable to deliver an objective verdict in view of the peculiarities of a case. After hearing the parties the presiding judge delivers a decision. If the request is found to be justified he or she will dismiss the jury.
Each juror takes an oath prior to the examination of a case. The oath reads as follows (Article 332 of the Code):
“In assuming the responsible duties of a juror, I solemnly swear to fulfil them honestly and impartially, to take into consideration all the evidence examined in court, both that which incriminates the defendant and that which exonerates him or her, to decide the criminal case on the basis of my inner conviction and conscience, not acquitting the guilty and not convicting the innocent, as befits a free citizen and fair person.”
The presiding judge reads the text of the oath, after which each juror replies when called by the judge: “I swear.”
The presiding judge’s summing-up takes place immediately before the jury withdraws to the retiring room. The presiding judge explains to the jury, among other things, the principle of presumption of innocence, the principle of assessment of evidence in their entirety and the rule that their verdict must be based only on evidence examined at the trial (Article 340 of the Code).
(b) Jurors’ list
The procedure for drawing up the list of jurors of Moscow for 2004 was regulated by the RSFSR Law on the Judicial System of 8 July 1981, as amended on 16 July 2003, and the Moscow Mayor’s instruction of 31 October 2003. It entailed the drawing up of the initial lists of jurors by the Moscow district councils, informing the public and providing the public with access to the lists with a view to enabling them to request their inclusion or exclusion from the lists. After necessary corrections the lists were then amalgamated by the prefectures of the Moscow administrative circuits and further served as the basis for drawing up separate lists of jurors for the Moscow City Court and the Moscow Circuit Military Court by the Moscow Territorial Administration Organs Department. The lists were to be approved by the Moscow mayor and forwarded to those courts. 30 November 2003 was fixed as a time-limit for sending the 2004 jurors’ lists, approved by the Mayor, to the Moscow City Court and the Moscow Circuit Military Court. The lists were to be published.
Under paragraph 14 of Recommendations of the RF Minister of Justice of 30 September 1993 concerning the procedure for drawing up lists of jurors, it was desirable to publish general and reserve lists of jurors in the regional press not later than two weeks before sending them to the relevant court. The publication had to explain to citizens their rights to request regional councils to include or exclude them from those lists.
3. Appeal court in jury trials and pre-trial detention orders
Article 379 of the Code reads as follows:
Article 379
Grounds for quashing or varying
judgments on appeal
“1. The grounds for quashing or varying a judgment on appeal are as follows:
(i) inconsistency between the court’s conclusions, as set out in the judgment, and the facts of the case, as established by the court ...;
(ii) a violation of criminal procedural law;
(iii) misapplication of [substantive] criminal law;
(iv) unfairness of the judgment.
2. The grounds for quashing or varying judgments delivered with the participation of jurors are the grounds stipulated in subparagraphs ii-iv of paragraph 1 of the present article.”
Article 380 of the Code provides that an inconsistency between the court’s conclusions and the facts of the case will occur if, inter alia, the court’s conclusions are not supported by the evidence examined at the hearing; if the court fails to take into consideration circumstances which could substantially affect its findings; if, in case of contradictory evidence, the judgment does not specify why some of it is accepted and the remainder is rejected; or if the court’s conclusions contain contradictions which can impact the decision as to the defendant’s guilt or innocence, the punishment or the application of the substantive law.
Issues of an accused’s guilt were not to be assessed by a judge when examining the lawfulness of and justification for a pre-trial detention order (Practice directions on the application of the Code of Criminal Procedure in Resolutions of the Supreme Court’s Plenum no. 3 of 27 April 1993 in respect of the old Code of 1960 and no. 1 of 5 March 2004 in respect of the new Code of 2001).
4. Examination of witnesses
Under Article 217 § 4 of the Code, on completion of the examination of a case file by a defendant and his or her counsel after the investigation, an investigator inquires what witnesses and experts are to be summoned to a court for examination and corroboration of the stand of the defence.
Under Article 220 § 4 of the Code, a bill of indictment comprises an attachment with a list of witnesses to be summoned to a court hearing for the prosecution and for the defence.
Under Article 271 § 4 of the Code, the court cannot dismiss a request for examination of a witness who has come to the court on the parties’ initiative.
5. Criminal liability for disclosure of state secrets
The Criminal Code of the Russian Federation of 1996 provides as follows:
Article 275. High Treason
“High treason, i.e. espionage, disclosure of state secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for their subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by 12 to 20 years’ imprisonment with or without confiscation of property.”
Article 29 § 4 of the Constitution of provides as follows:
“Everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means. The list of information constituting state secrets shall be defined by a federal law.”
Section 5 of the “Official Secrets Act” (RF Law no. 5485-1) of 21 July 1993, as amended on 6 October 1997, provided as follows:
“The following information shall be classified as state secrets:
(1) information in the military sphere:
On the content of strategic and operational plans, documents of the combat department on the preparation and conduct of operations, and on the strategic, operational and mobilisation deployment of the Armed Forces of the Russian Federation, and of other troops, military formations and units as envisaged in the Federal “Defence Act”, on their combat and mobilisation readiness, оn the creation and use of mobilisation resources;
On plans to develop the Armed Forces of the Russian Federation, other troops of the Russian Federation, on guidelines on the development of armaments and military hardware, on the content and results of special programmes, research and experimental design projects on the creation and modernisation of models of armaments and military hardware;
On the development, technology, production, output volume, storage and recycling of nuclear munitions, their components, fissionable materials used in nuclear munitions, on the technical systems and (or) methods for protecting nuclear munitions from unauthorised use, and also on nuclear power units and special physical installations for defence purposes;
Оn the tactical-technical specifications and potential for combat use of models of armaments and military hardware, on the properties, formulae or production technology of new forms of rocket fuel or explosives for military use;
On the disposition, names, degree of readiness, defence capabilities of operational and especially important facilities, their designs, construction and exploitation, and also on the assignment of land, underground areas and bodies of water for these facilities;
On the disposition, actual names, organisational structure, weapons, and numerical strength of troops and the status of their combat support systems, and also on military-political and (or) operational conditions;
...”
Under section 4 of the Official Secrets Act, the RF President approves, upon the Government’s submission, the list of information constituting state secrets.
Presidential Decree no. 1203 of 30 November 1995 defined the list of military information classified as state secrets as follows:
1. Information revealing strategic plans for the use of troops, operational plans, battle management documents, documents on bringing troops to various levels of combat readiness.
2. Information on the strategic and operational deployment of troops.
3. Information on construction plans, development, numerical strength, effective combat strength or quantity of troops, their combat readiness, and also on military-political and (or) operational conditions.
4. Information revealing the status of operational (combat) training of troops, support services for their activities, and the composition and (or) status of command and control systems.
5. Information on the mobilisation deployment of troops, their readiness for mobilisation, the creation and use of mobilised resources, the control and command system for mobilisation deployment and (or) on the potential for augmentation of troop strength with personnel, armaments, military hardware and other material and financial resources, and also military transport movements.
6. Information revealing the guidelines, long-term forecasts or plans for the development of armaments and military hardware, the content or results of special programmes and research and experimental design projects for the creation or modernisation of models of armaments or military hardware, and their tactical and technical specifications.
7. Information revealing the design and construction guidelines, production technology, isotope composition, combat, physical, chemical or nuclear characteristics, and procedure for use or operation of armaments and military hardware.
8. Information revealing the production capacity and actual or projected data on the production and (or) shipment (in physical terms) of bacteriological agents or medical protective means.
9. Information on the development, technology, production, output volume, storage and (or) recycling of nuclear munitions and (or) their components, fissionable materials, nuclear power units, special physical installations for defence purposes, and technical systems and (or) methods for the protection of nuclear munitions from unauthorised use.
Information revealing the content of previously completed projects concerning weapons of mass destruction, the results of such projects, and also information on the composition of the model and (or) receptor, production technology or equipment of products.
10. Information on the design, installation, operation or security support of nuclear installations.
11. Information revealing the achievements of nuclear science and engineering with important defence and economic implications or determining a qualitatively new level of potential for the creation of armaments and military hardware and (or) fundamentally new articles and technologies.
12. Information revealing the properties, formulae or production technology of rocket fuels, and also ballistic propellants, explosives or military demolition explosives, and also new alloys, special liquids, new fuels for armaments and military hardware.
13. Information revealing the disposition, actual names, organisational structure, weapons and numerical strength of troops where publication of such information is not foreseen by the international obligations of the Russian Federation.
14. Information on the use of the infrastructure of the Russian Federation to safeguard the State’s defensive capabilities and security.
15. Information on the disposition, names, level of readiness or protection of operations facilities not covered by the Russian Federation’s commitments under international treaties, on the selection, assignment of parcels of land, underground areas or bodies of water for the construction of these facilities, and also on planned or current exploratory, design or other projects for the establishment of such facilities. The same information in relation to the special facilities of government agencies.
16. Information on the use or developmental prospects of the coordinated communications network of the Russian Federation to safeguard the State’s defensive capabilities and security.
17. Information revealing the distribution or use of radio frequency bands of military or special electronic equipment.
18. Information revealing the organisation or functioning of all forms of communication and of radar or wireless troop support services.
19. Information revealing the content, organisation or results of the main types of activity of the Russian Federation border troops (FSB) and the organisation of the defence of the state borders, exclusive economic zone and continental shelf of the Russian Federation or those of the Member States of the CIS.
20. Information revealing the guidelines for the development of dual-purpose equipment and technology, the content and results of special programmes, research and (or) experimental design projects on the development or modernisation of such equipment or technology. Information on the use of dual-purpose resources and technology for military purposes.
21. Information on the prospects for the development and (or) use of the Russian Federation’s space infrastructure to safeguard the State’s defensive capabilities and security.
22. Information revealing the status and (or) guidelines of hydronautic projects to safeguard State defence and security.”
6. Rights of the accused
Under Article 47 § 4 (14) of the Code of Criminal Procedure, the accused is entitled complain about the acts (inactivity) and decisions of an investigator, a prosecutor and a court and to take part in their examination by court.
COMPLAINTS
A. Application form of 11 July 2002
B. Application form of 1 December 2004
After the final decision had been delivered in his case the applicant lodged a new application form with the Court in which he set out the following complaints:
(a) He argued that the Moscow City Court’s list of jurors had not been published until after his trial. He had therefore had no access to the list in order to verify whether the persons selected as candidate jurors for his trial had previously been on that list. Publication of the list of jurors was one of the guarantees of transparency and fortuitousness in jury selection. The breach of this requirement might lead to abuses, resulting in pre selected persons being invited to sit as jurors in cases in which the authorities had an interest, so that they could influence other jurors in achieving the “correct” result.
(b) The applicant complained that the procedure for the selection of candidate jurors as established by the rules of criminal procedure (Articles 326 §§ 1-2 and 4 and 327 § 4 of the Code of Criminal Procedure) did not provide for the possibility of participation by, or even the mere presence of, the defence. A list with candidate jurors’ names was to be prepared by the drawing of lots by a secretary or judge’s assistant. The defence had received this list at the beginning of the trial, immediately before the procedure for selection the jury. They had not therefore been able to verify that the selection of candidate jurors had been done correctly and impartially and to prevent the selection of persons who were more likely to take the authorities’ side in examining his case.
(c) The applicant contended that Mr G. Yakimishen, who was one of the jury members in his case, should not have taken part in its examination. Two separate lists of jurors should have existed – one for the Moscow City Court and one for the Moscow Circuit Military Court (paragraphs 3, 6.1 and 6.2 of Order no. 412-PM of the Mayor of Moscow of 31 October 2003, On preparation of general lists of jurors of the city of Moscow for 2004; Article 81 of the RSFSR Law of 8 July 1981 On Judicial System, as amended). The same person could not be included in both lists. The list of jurors for the Moscow Circuit Military Court, with Mr Yakimishen’s name on it, was published in May 2004, prior to publication of the list of jurors of the Moscow City Court which also included Mr Yakimishen (published in August 2004), and was thus more credible.
(d) The applicant complained that Mr Yakimishen had concealed his connection with the FSB when the relevant question had been put to the candidate jurors. The applicant referred to witnesses’ statements in various criminal proceedings and to a book entitled Alganov, Yakimishen and others. Behind the scenes of the Russian intelligence service, published in Poland in 1996, according to which a certain Mr Yakimishen had worked for the FSB.
(e) The applicant complained about the unexplained replacement of the presiding judge Mr Shtunder. There had been no indication that he was no longer able to participate in the trial. There had therefore been no lawful grounds for his replacement.
(f) The applicant complained that the change of the jury formation in his case had been unlawful. He explained that the Code of Criminal Procedure provided for two grounds for a jury’s dismissal. First, where the number of jurors who withdrew exceeded the number of substitute jurors (Article 329 § 3); second, if a party so requested (Article 330), where the jury formation was not capable of delivering an objective verdict in a case. No such grounds existed in his case. No formal decision had been given by the court when dismissing the jury, which had deprived the defence of a possibility to appeal against it to a higher court. The applicant further claimed that the original jury, formed on 3 November 2003, had been dismissed because their mood about the case, somehow known to the authorities, had not met the latter’s expectations. He referred to an investigation carried out by journalist Z. Svetova, who had met with and interviewed some of the jurors of the original formation (her article had been published in the newspaper Russkiy Kurier). According to the journalist, had the original formation not been dismissed the applicant would have been acquitted.
(a) on account of concealment by Mr Yakimishen of the fact that he belonged to the FSB, as explained in paragraph 1 (d) above. The applicant alleged that Mr Yakimishen could have influenced the verdict of the jury;
(b) on account of the jury selection, as stated above in paragraph 1 (a) and (b);
(c) in respect of the impartiality of the appellate court judges Mr Galiullin and Ms Rodionova:
Judge Mr Galiullin had previously participated in examining the applicant’s appeals on five occasions. On each occasion the appeals which, inter alia, challenged the applicant’s continued detention in custody had been rejected, mostly on the ground of the gravity of the offence with which he was charged. The applicant considered that judge Mr Galiullin had thus formed an opinion about the case and could not be impartial when examining the appeal against the judgment.
Judge Ms Rodionova had participated in examining the applicant’s appeals against the decisions extending the term of his pre trial detention on two occasions, on 9 August 2002 (the appeal court quashed the decision but had not ordered the applicant’s release) and on 12 November 2003 (when it upheld the decision).
(d) in respect of judge Ms Komarova:
The reasons for assigning the case to her had been unexplained. She had begun the trial three and a half months after the case was assigned to her. She had conducted the trial in a way favourable to the prosecution.
(a) The applicant complained that the judge had arbitrarily excluded from the jury’s examination the two expert assessments of 30 June and 17 August 2000, which had found that the applicant’s research on two topics (The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998, and Options for the structure of the RF’s strategic nuclear forces for the period up to 2007) had not contained state secrets. The expert assessment of 18 July 2002, which had come to the opposite conclusion, had been examined by the jury, despite the applicant’s motion to have it declared inadmissible as evidence, which the presiding judge had dismissed without giving reasons. According to the applicant, the expert report of 2002 had the same procedural defects as the above two reports of 2000, in that it lacked a “research” section. The applicant asserted that had the exonerating 2000 expert assessments been examined by the jury the latter might have acquitted him.
The applicant further complained that the judge had rejected his motion for examination before the jury of an opinion from the Russian aircraft construction corporation MiG, prepared at his lawyer’s request. The applicant argued that, had that opinion been examined by the jury, the defence might have been able to prove that the materials prepared by the applicant about the MiG aircraft did not contain state secrets.
(b) The applicant complained under Article 6 §§ 1 and 3 (d) of a violation of his right to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him. On completion of the preliminary investigation the applicant had requested that those experts who had carried out the above assessment of the secrecy of the materials in 2000, namely Mr Nazarenko and Mr Koshelev, be examined at the trial as defence witnesses. The investigator had placed their names on the list of persons to be summoned to the trial. From the prosecution side three witnesses, namely Mr Turta, Mr Velichko and Mr Garbuz, had been placed on that list. The prosecution witnesses had been examined at the trial before the jury. The defence witnesses had not been examined before the jury, as the judge rejected the applicant’s request for their examination following objections by the prosecution, contrary to Articles 217 § 4, 220 § 4 and 271 §§ 1 and 4 of the Code of Criminal Procedure.
(c) The applicant’s conviction had been based mainly on the expert assessment of 18 July 2002, according to which the information that he had handed over had been classified and could not have been obtained from open sources. The experts had not examined all the publications to which he had referred because the investigating authority had sent some of them to other experts. The applicant submitted that the experts’ role had in essence been one of legal assessment. There were legitimate doubts that those experts who were servicemen might not have been impartial. The applicant had had no admission or access to state secrets. The expert assessment should not have served as evidence to prove that the applicant had knowingly had handed over information containing state secrets.
He also alleged, in addition to his earlier complaint concerning the Kaluga Regional Court’s decision of 27 December 2001, that the Kaluga Regional Court’s judges could have been influenced in reaching their decision by the interview with Mr Artamonov, the Kaluga Region Governor.
Furthermore, the charges of 19 September 2000 had also not been sufficiently detailed. On 27 December 2001 the Kaluga Regional Court had remitted his case for further investigation precisely because the charges against him had been too vague.
As a result of the additional investigation, on 29 July 2002 the applicant was re-charged with espionage. Thus, the final charges were brought against him two years and nine months after the investigation had commenced and nine days before it was finalised, during which time he had been deprived of the possibility to defend himself.
(a) He complained that in convicting him the court had changed the constituent elements of the offence, to his detriment.
He had been convicted in the absence of any evidence that he had been aware that the materials which he had handed over contained state secrets. He had thus been convicted of high treason in the absence of mens rea, which was an essential element for his actions to be treasonable. The prosecution had failed to prove that he had obtained the information from closed sources. All of the information which he used in preparing the materials in question had previously appeared in the public domain. The jury had not been asked questions as to whether he had collected the information from closed sources and whether he had passed on information containing state secrets. The jury had therefore found him guilty of passing on materials which did not contain state secrets to the foreign intelligence service . As can be seen from the verdict, the jury had established neither the applicant’s intent to damage Russia’s national security nor his awareness of his interlocutors’ membership of a foreign intelligence service.
(b) The applicant further complained that the law defining state secrets had not been adequately accessible and sufficiently precise to enable him to regulate his conduct and foresee what action could have entailed criminal liability. This situation had contributed to the arbitrary application by the authorities of Article 275 of the Criminal Code to his case.
The Official Secrets Act of 1993, as amended in 1997, introduced a list of information containing state secrets. Its provisions, however, were only applicable to officials and citizens who were obliged, on account of their status, to comply with the legislation on state secrets. The Act had not applied to the applicant, who had never had admission or access to state secrets. In any event, the list of classified information was too vague. The list of classified information had been defined by presidential decree no. 1203 of 30 November 1995, although under Article 29 of the Constitution such a list was to be defined in a federal law. The expert assessment of 18 July 2002 of whether the applicant’s materials had contained state secrets had been carried out on the basis of secret Ministry of Defence decrees nos. 055 and 015, issued on 10 August 1996 and 25 March 2002 respectively.
The applicant had been convicted in spite of the fact that he obtained information from open sources. There had therefore been an interference with his right to receive and impart information. The law on the basis of which he had been convicted was vague and uncertain, as explained above in regard to the complaint under Article 7 of the Convention. The interference had not pursued legitimate aims and had not been necessary in a democratic society, which should protect the right of its citizens to free access to open information and to the exchange of open information between citizens of different countries. The interference had been disproportionate.
THE LAW
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...”
The Government submitted that during the period in question the applicant had not been detained. He had been examined as a witness and voluntarily recounted his activities, without requesting access to a lawyer. His presence at the FSB premises had been lawful. The grounds for his detention had been set out in the order of 29 October 1999 for his detention on remand. The applicant had not appealed against the allegedly unlawful detention from 27 to 29 October 1999 or against the detention order of 29 October 1999. He had not therefore exhausted domestic remedies.
The applicant disagreed, arguing that the fact of his unlawful detention had been established at the hearing on 1 November 2001 before the Kaluga Regional Court. At that hearing the prosecutor, Mr O.B. Belyak, had allegedly acknowledged the fact of his unlawful detention and asked the court to issue a special finding in this respect. Furthermore, he had appealed to the Supreme Court against the Kaluga Regional Court’s decision of 27 December 2001.
The Court observes that in its decision of 27 December 2001 the Kaluga Regional Court had remitted the case for additional investigation and ordered that the applicant should remain in custody. That decision did not concern the events of 1999 of which the applicant complained. Nor did the Supreme Court’s decision of 20 March 2002, in which the applicant’s appeal against the Kaluga Regional Court’s decision was rejected. Thus, the applicant cannot be said to have exhausted domestic remedies by complaining about the events of 1999 in his appeal against the above decision.
The Court further notes that the applicant did not support his statement concerning the prosecutor’s acknowledgment of his unlawful detention with documentary evidence, referring to the classified nature of the case file. Nor did he inform the Court of the Kaluga Regional Court’s decision in respect of the prosecutor’s request and the reasons thereof. The Government submitted no comments on this point.
The Court notes that according to the final judgment, the term of the applicant’s imprisonment was to include his pre-trial detention and be calculated from 29 October 1999. It does not therefore appear from the final judgment in the case and the Government’s denial of the very fact of the applicant’s detention that the judicial authorities had acknowledged any unlawful detention in 1999. In any event, the Court does not find it necessary to establish the truth of the applicant’s allegation because, even assuming that he had raised the complaint in question before the national authorities, resulting in the prosecutor’s acknowledgment on 1 November 2001, more than six months had passed from that moment until the applicant had lodged his application with the Court.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
“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. Release may be conditioned by guarantees to appear for trial.”
The Government submitted that the order for the applicant’s detention on remand of 29 October 1999 had been issued in accordance with Articles 89 and 96 of the old Code of Criminal Procedure. As the applicant had been suspected of treason, detention on remand could be applied in his case solely on the ground of the gravity of the offence. However, the gravity of the offence had not been the only ground for his detention. There had been a high probability of him fleeing from justice, since he had obtained an Italian visa, as noted in the detention order of 29 October 1999.
The applicant argued that even when Article 96 of the old Code had been in force, detention on remand could not be applied only on the basis of the gravity of an offence, as had been explained in decision no. 3 of the Plenum of the Supreme Court of the Russian Federation of 27 April 1993. He pointed out that the Kaluga Regional Court’s decision of 27 December 2001 had given no reasons for his continued detention, and nor had the Supreme Court’s decision of 20 March 2002. There had been no justification for his lengthy detention. His Italian visa had been valid from 28 October 1999 to 18 November 1999. There had been no other evidence that he might abscond.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government submitted, in addition to their observations in respect of the complaint under Article 5 § 3, that the applicant and his lawyers had delayed the proceedings. Thus, for more than half of the twelve month period of the proceedings before the Kaluga Regional Court the case had not been examined on account of reasons attributable to their conduct. They had also delayed the examination of the case file after the additional investigation. Therefore, the examination of his case had complied with the reasonable time requirement set forth by Article 6 § 1.
According to the applicant, the proceedings had started on 27 October 1999 and ended on 17 August 2004, having lasted four years, nine months and 21 days. The authorities had been responsible for major delays which could not be explained by the complexity of the case, which had been examined by the Moscow City Court in 15 working days, or by his conduct or that of his lawyers, which had delayed the proceedings only for three months and 13 days, and then for objective reasons. Familiarisation with the case file after the additional investigation had been organised in such a way that he had had an average of two and a half hours per day for that purpose. For five weeks no access was given, during five weeks access was given on one day per week, and for fifteen weeks access was given on two days per week.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
(a) The trial court’s composition
The Government submitted that the President of the Moscow City Court had decided to transfer the applicant’s case to judge Komarova in view of judge Shtunder’s high workload and his annual leave from 15 December 2003 to 14 January 2004. The law had not required any special decision to be issued if a case had been transferred from one judge to another.
The Government further noted that it had been open to the applicant, by virtue of Article 47 § 4 (14) of the Code of Criminal Procedure, to lodge a court appeal against the decision to transfer his case to another judge.
They further submitted, with reference to paragraph 19 of resolution no. 23 of the Plenum of the Supreme Court of 22 November 2005, that Ms Komarova had formed a new jury in accordance with Article 328 of the Code of Criminal Procedure, which conferred formation of a jury on a presiding judge, and had recommenced the trial in compliance with the principle of immutability of court composition set out in Article 242 of the Code.
According to the Government, the applicant’s challenge to Ms Komarova had been based only on his disagreement with her decisions to dismiss various motions by the defence.
The applicant argued that the only exception to the principle of immutability of court composition was where it was impossible for a judge to continue sitting in a case (Article 242 of the Code of Criminal Procedure), which was in agreement with the principle of independence of the judiciary, prohibiting any interference with judges’ administration of justice (Article 120 of the Constitution and Articles 9 and 10 of the Status of Judges Act). Therefore, where a judge had begun examination of a case any interference with his or her activity, in particular by a presiding judge, was inadmissible. The presiding judge could only replace a judge who had begun examining a case if there were objective reasons which made it impossible for that judge to complete the examination of the case. Replacement of a judge was not to be at an individual’s discretion; otherwise it could give rise to abuses aimed at securing a certain outcome in proceedings.
The applicant contended that the reasons cited by the Government to demonstrate that Mr Schtunder had no longer been able to sit in the case, namely his high workload and annual leave, were not convincing. High workload was typical for all judges in Russia. When assigning the case to Mr Shtunder the presiding judge had been aware of that judge’s workload, the complexity of the case and the fact that it had to be heard by a jury. Assessment of those factors had apparently shown that Mr Shtunder was genuinely able to examine applicant’s case and had time to do so. Furthermore, the applicant could have appeared at the court as early as 5 December 2003, since the quarantine in his cell had been lifted by that date. Mr Shtunder could therefore have continued the hearing in the case before his annual leave.
The applicant concluded that there had been no objective factors, such as withdrawal, challenge, lengthy illness or mission, which could have indicated that Mr Shtunder was no longer been able to sit in his case.
The applicant claimed that the replacement of the presiding judge in his case had been carried out in order to change the jury composition, which had apparently not satisfied the prosecution. Ms Komarova had been unable to deal with the case until three and a half months after the case was assigned to her. Numerous requests to resume the proceedings and to explain the reasons for the replacement, submitted by the defence to the President of the Moscow City Court and other authorities, had been left unanswered.
(b) Selection of jurors and Mr Yakimishen
The fact that the jurors’ list had not been published prior to the applicant’s trial had, in the Government’s view, no impact on its validity under domestic law and, hence, on the authority of the jurors selected to sit in the applicant’s case. The lawfulness of the jury was not therefore open to doubt. The Government stressed that the applicant made unsubstantiated statements about the court officials’ good faith and their compliance with the procedure for selecting the candidate jurors for his trial.
The defence had had ample opportunities to participate in the selection of jurors, by putting questions to the candidates and challenging any of them with or without reasons.
Furthermore, it had been open to the applicant, by virtue of Article 330 of the Code of Criminal Procedure, to challenge the jury as a whole if he considered that it might be unable to deliver an objective verdict in the case. The applicant had not availed himself of that opportunity.
The Government submitted that the law did not prohibit one and the same individual from being included in the list of jurors for different courts.
Under resolution no. 23 of the Plenum of the Supreme Court, the concealment of information by candidate jurors who were subsequently included in a jury was a ground for quashing the judgment, if that information could have influenced the outcome of the case and had deprived the parties of a right to challenge candidate juror in question.
There was no information that Mr Yakimishen sat as a juror in the Moscow City Court and the Moscow Circuit Military Court at the same time. Nor was there any information that he had worked for the FSB. The Government produced a certificate issued by the FSB stating that Mr Yakimishen had not been and was not an employee of the FSB.
The applicant submitted that the list of jurors should have been published two weeks prior to 30 November 2003, in line with the Recommendations of the Minister of Justice of 30 September 1993. He noted that the requirement of publication had been aimed at affording citizens the possibility to request exclusion from or inclusion in lists of jurors and at providing parties to proceedings with access to an official list in order to verify whether a certain person had indeed been included in it. It was possible to make use of such rights only if the list of jurors was published prior to the examination of a certain case by a court. The applicant argued that one and the same individual should not have been included in two jurors’ lists for the Moscow City Court and the Moscow Circuit Military Court, as those lists should have been separate and citizens could only be called to sit as jurors once a year.
He further alleged that the procedure for selection of candidate jurors, as established by the Code of Criminal Procedure, had offered no transparency and no possibility for the defence to verify whether the candidate jurors’ names for his trial had been drawn at random, as required by law, and to prevent an attempt to involve specific individuals in his trial through selection of those who might have been thought more suitable by the authorities.
The applicant referred to official records of questioning of witnesses, who had previously been warned by an investigator of their criminal liability for giving false statements, in various criminal proceedings concerning allegations of unlawful registration of immovable property belonging to a company whose general manager was a certain Mr Yakimishen. According to those records, a Mr Gilyarov stated in the course of his examination on 19 February 2004 by Moscow police investigator Mr Zhesterov that he had had personal and business relations with Mr Yakimishen and had known that Mr Yakimishen had served in the FSB. According to Mr Gilyarov, Mr Yakimishen had believed that he deserved a promotion in his service at the FSB and that his supervisors had underestimated him. According to another witness, Mr Kiyenko, a police officer who had questioned Mr Yakimishen in 2000, Mr Yakimishen stated that he had been a KGB officer and had had ‘connections’.
The applicant also referred to the book Alganov, Yakimishen and others. Behind the scenes of the Russian intelligence service. All about the Oleksy case, which was published in Poland in 1996. According to that book, Mr Yakimishen had served in the Russian intelligence service under diplomatic cover and had been accused in Poland of recruiting the Polish prime minister Mr Józef Oleksy. He had allegedly occupied the posts of first secretary and then press-secretary at the Russian Embassy in Poland, graduated from intelligence school in 1984, served at the Press Agency Novosti office in Gdansk, and been a lieutenant colonel of the Russian External Intelligence Service (“SVR”).
According to the applicant, Mr Yakimishen’s knowledge of Polish, as acknowledged by him in the court, indirectly confirmed the information given in the book. The FSB had investigated the applicant’s case and the SVR and the Armed Forces Chief Investigation Department (“GRU”) had been involved in the proceedings in the case. Anyone who had some connections with the intelligence services would therefore have been challenged by the defence, as were four candidate jurors who had acknowledged that they had once served at the FSB and who had been dismissed on a motion by the defence. Had Mr Yakimishen admitted his connection with the FSB he too would have been dismissed.
In reply to the Government’s submission concerning the applicant’s failure to challenge the jury as a whole under Article 330 of the Code of Criminal Procedure, the applicant stated that “in selecting the jury the defence had proceeded from the principle of trust in the candidate jurors”.
As regards the Government’s objection that the applicant could have lodged a court complaint about the replacement of the presiding judge under Article 47 § 14 of the Code of Criminal Procedure, the Court notes that the applicant raised that complaint in his appeal against the judgment as one of the grounds for having it quashed. The appeal court dismissed it with a general reference to the trial court’s compliance with Article 242 of the Code of Criminal Procedure. The Government provided no information as to whether the possibility of lodging a court complaint referred to by them had represented an available and sufficient remedy at the relevant time. Even assuming so, the applicant cannot be criticised for not having made use of a legal remedy which would have been directed to essentially the same end (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 11, § 23; Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999-II; and Miailhe v. France (no. 1), judgment of 25 February 1993, Series A no. 256 C, p. 87, § 27). The objection must therefore be dismissed.
The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
The Government submitted that those judges’ participation in the appeal examination of the applicant’s case had complied with domestic law. They noted that the applicant had challenged Mr Galiullin on the ground of his participation in examining an appeal against the Kaluga Regional Court’s decision of 27 December 2001.
The applicant argued that, in upholding his continued detention on five occasions and in keeping him in custody merely on the ground that he had been accused of a particularly serious crime, Mr Galiullin had agreed with the fact that there had been sufficient evidence to believe that the applicant had committed that crime. The same was true with regard to Ms Rodionova. Those circumstances had objectively justified the applicant’s fears about bias on the part of those judges.
The Court observes that the applicant’s fear of lack of impartiality was based, first of all, on the fact that Mr Galiullin, who presided over the appeal court, had earlier participated in the examination of the applicant’s appeals against the first-instance court’s decisions ordering his continued pre-trial detention, which had all been dismissed.
This kind of situation may occasion understandable misgivings on the part of the accused as to the impartiality of the judge. However, the mere fact that a judge has also made pre-trial decisions in the case, including those concerning detention on remand, cannot be held in itself as justifying fears regarding his or her impartiality. The questions which the judge has to answer when taking such pre-trial decisions are not the same as those which are decisive for the final judgment. When taking a decision on detention on remand and other pre-trial decisions of this kind the judge summarily assesses the available data in order to ascertain whether prima facie the police have grounds for their suspicion; when giving judgment at the conclusion of the trial he must assess whether the evidence that has been produced and debated in court suffices for finding the accused guilty. Suspicion and a formal finding of guilt are not to be treated as being the same (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, pp. 21-22, §§ 49-50). Therefore, what matters is the extent and nature of the pre trial measures taken by the judge (see Fey v. Austria, judgment of 24 February 1993, Series A no. 255 A, p. 12, § 30, and Sainte Marie v. France, judgment of 16 December 1992, Series A no. 253 A, p. 32, § 32).
The Court recalls that in Hauschildt it found the applicant’s fears to be objectively justified in view of such special circumstances as the judges’ reliance in their pre-trial decisions on a “particularly confirmed suspicion” that the accused had committed the crime with which he was charged, which required that the judges be convinced that there was a “very high degree of clarity” as to the question of guilt, which made tenuous the difference between the issue the judge had to settle when applying the relevant domestic law provision and the issue he was to settle when giving judgment at the trial (see Hauschildt, cited above, § 52). It found a violation of Article 6 § 1 where pre-trial decisions concerning the applicant’s detention on remand and its extension comprised the assessment of evidence establishing the applicant’s guilt, which could easily make one think that there had been sufficient evidence to conclude that the applicant had committed the crime (see Perote Pellon v. Spain, no. 45238/99, §§ 46-52, 25 July 2002). The Court came to a conclusion of no violation of Article 6 § 1 in a case in which a judge presiding in a trial gave six decisions on the applicant’s continued detention, repeatedly relying on two grounds, namely on the fact that the offences with which the applicant had been charged were characterised by a high degree of danger to society and that the applicant was criminally liable under the rules governing “relapse into crime”, since neither of those decisions created an appearance that the judge had pre judged the merits of the case (see Jasiński v. Poland, no. 30865/96, §§ 53-58, 20 December 2005).
In the present case there is no indication of any special circumstances which would objectively justify the applicant’s fear of lack of impartiality on the part of Mr Galiullin.
The Court notes first that, unlike in trials by an ordinary court composition, the appeal court’s competence in the applicant’s case, which had been decided by a jury court, excluded such grounds for quashing or varying the judgment as “an inconsistency between the conclusions reached by the court in the judgment and the facts established” being confined to a violation of procedural law, misapplication of substantive law and the fairness of the sentence (Articles 379 and 380 of the Code of Criminal Procedure). However, it is not necessary to examine the appeal court’s jurisdiction in respect of the issues concerning the applicant’s guilt because the complaint is in any event manifestly ill founded for the following reasons.
Over the period of two years and nine months, with intervals of nine, eleven and thirteen months before the trial, Mr Galiullin had participated in the examination of the applicant’s appeals against the first instance court’s five decisions ordering his continued pre trial detention, mainly on the ground that he was accused of a particularly grave offence. In its decisions of 7 February 2001, 20 March 2002, 25 December 2002 and 12 November 2003, given with Mr Galiullin’s participation, the Supreme Court had found that the first-instance court’s decisions had been well-founded and that it had had no grounds to quash or amend them. There is nothing in those decisions to indicate that they were a result of more than a review, from the point of view of its justification, of the applicant’s continued detention. They do not convey a conviction that the applicant had committed the offence in question and cannot be considered tantamount to a finding of guilt. Nor do they indicate any preconceived view on the sentence which should be imposed on the applicant (see Jasiński, cited above, § 56).
In addition, the Court notes in respect of the two first decisions that the Plenum of the Supreme Court stated in its resolution no. 3 of 27 April 1993 containing practice directions on the application of the old Code of Criminal Procedure that, when examining the lawfulness of and justification for a detention order, the judge was not allowed to assess the question whether the accused was guilty of the crime. The same explanation later appeared with respect to the new Code of Criminal Procedure in the Plenum’s resolution no. 1 of 5 March 2004.
As regards Ms Rodionova, who had taken two pre-trial decisions of 2 October 2002 and 12 November 2003, there is no indication that the applicant raised his objection in relation to her alleged bias in the domestic proceedings. He failed to do so without invoking any relevant reason for such an omission. It is therefore not now open to the applicant to complain about the impartiality of the judge in question (see Pavletić v. Slovakia, no. 39359/98, §§ 105-106, 22 June 2004).
In such circumstances, the Court does not find evidence to conclude that the applicant’s fears that the appeal court judges Mr Galiullin and Ms Rodionova lacked impartiality were objectively justified.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
The Government submitted that the applicant and his counsel had been afforded rights to examine witnesses and experts equal to those of the prosecution. The prosecution had not requested the examination of experts Mr Nazarenko and Mr Koshelev because their reports had related to counts on which the applicant’s prosecution had been discontinued. The request by the defence to examine expert Mr Nazarenko had been dismissed because his report had been declared inadmissible evidence. The defence had never requested the examination of expert Mr Koshelev. The judge’s decisions on the taking of evidence had been lawful. Furthermore, the expert opinion of 2002 had been only one item of the evidence concerning the applicant’s guilt in espionage.
The applicant argued that the reports by Mr Nazarenko and Mr Koshelev directly related to the charges against him. The defence had requested the court to examine Mr Koshelev as a witness.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
The Court will examine this complaint under Article 6 §§ 1 and 3 (a) and (b) of the Convention which in its relevant part reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
...”
The Government submitted that the charges against the applicant had been concretised in accordance with the decision of the Kaluga Regional Court of 27 December 2001 to remit the case for additional investigation. Therefore, the applicant’s complaint was unfounded.
The applicant maintained his complaint.
The Court recalls that the provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). The Court recalls further that the scope of Article 6 § 3 (a) must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair (see Pélissier and Sassi v. France [GC], no. 25444/94, § 52, ECHR 1999-II, and Mattocia v. Italy, no. 23969/94, § 58, ECHR 2000-IX). The fairness of proceedings must be assessed with regard to the proceedings as a whole (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001 II). Furthermore, the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (see Pélissier and Sassi, cited above, § 54, and Dallos, cited above, ibid.).
In the present case the Court notes that the applicant acknowledged that he had given his statements voluntarily, having decided to co-operate with the investigating authority. There is no evidence that in the material period the applicant’s right to silence or the right not to incriminate himself, which presupposes that the prosecution in a criminal case should seek to prove its case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused, was infringed (see Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996 VI, p. 2064, § 68).
The Court notes further that it is not disputed by the applicant that on 29 July 2002 he had been acquainted with the final charges against him which were sufficiently detailed. This was more than a year and seven months before the Moscow City Court had started the trial on 15 March 2004. In the absence of any indications to the contrary this time was manifestly sufficient for the applicant to react to those charges and organise his defence in a practical and effective manner (see, a contrario, Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 57, ECHR 2001 VIII).
The Court is therefore convinced that the circumstances which form the basis for the applicant’s complaint did not impair his chances to defend himself in respect of the charges of which he was eventually convicted.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Government submitted that the State officials had not asserted that the applicant was guilty. They had merely informed the public of the accusation against him. Furthermore, the applicant had not claimed non-pecuniary damages for defamation in the course of his criminal proceedings or by way of a civil-law action and had therefore failed to exhaust domestic remedies.
The applicant argued that he had had no effective domestic remedies to complain about the violation of his presumption of innocence by the publications in question. The Code of Criminal Procedure envisaged no such ground to appeal against the judgment or various procedural decisions taken in his case. The State officials’ statements reproduced information contained in the investigating authority’s official documents in the applicant’s case. It had therefore been impossible for the applicant to seek the rebutment of that information by way of a civil-law action (Article 152 of the Civil Code and Resolution no. 11 of the Supreme Court’s Plenum of 18 August 1992). The applicant further asserted that information in the State officials’ statements constituted value judgments and not facts. Therefore, he had had no basis in domestic law, which provided protection only in respect of statements of fact (Article 152 of the Civil Code), to bring a civil-law defamation action and, hence, request non-pecuniary damages.
The Court reiterates that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 38). In this respect, the Court has emphasised the importance of the choice of words by public officials in their statements to the press before a person has been tried and found guilty of an offence (see Daktaras v. Lithuania, no. 42095/98, §§ 41 and 44, ECHR 2000 X, and Butkevičius v. Lithuania, no. 48297/99, §§ 49 50, ECHR 2002 II (extracts)). Nevertheless, whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Adolf v. Austria, judgment of 26 March 1982, Series A no. 49, pp. 17-19, §§ 36-41, and Daktaras, cited above, § 41). In any event, the opinions expressed cannot amount to declarations by a public official of the applicant’s guilt which would encourage the public to believe him or her guilty and prejudge the assessment of the facts by the competent judicial authority (see Butkevičius, cited above, § 53).
A virulent press campaign can adversely affect the fairness of the trial and involve the State’s responsibility. This is so, in particular, with regard to the presumption of innocence (see Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004). The factors relevant for the Court’s assessment are the time elapsed between a press campaign and a trial, in particular, the determination of a composition of a trial court; whether the impugned publications were sparked off by authorities; and whether they influenced the judges and prejudiced the outcome of the proceedings (see, mutatis mutandis, Ninn-Hansen v. Denmark (dec.), no. 28972/95, 18 May 1999; Włoch v. Poland (dec.), no. 27785/95, 30 March 2000; Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004; and Lehtinen v. Finland (dec.), no. 41585/98, 13 December 2005).
In the present case the statements by the officials from the FSB, which investigated the applicant’s case, concerned the state of the investigation. The statement by Mr N. Volobuyev, Deputy Head of the FSB’s Counter Intelligence Department, also concerned the opinion that the accusation against the applicant had been well founded. Neither of those statements amounted to a declaration of the applicant’s guilt. Furthermore, they had been made more than three years before the applicant’s jury had been formed and the trial held.
As regards the interview by Mr A. Artamonov, the Kaluga Regional Governor, the last two sentences in the passage ‘Whether or not I. Sutyagin is guilty from a legal standpoint will be decided by the court. But as a human being and a citizen, I consider that the analysis of strategic information, even on the basis of open sources, and the sale abroad of the results of the work – something that I. Sutyagin does not hide, and does not consider shameful – ought to be condemned. He is guilty before society.’ are regrettable, even having been moderated by the first sentence. However, given the considerable period of time – more than two years and three months – which elapsed between the above statement and the determination of the composition of the jury and the applicant’s trial, and the fact that the statement was made by a regional governor while the case was examined by a court in Moscow, the Court does not consider that the statement in question can be said to have prejudged the assessment of the facts by the Moscow City Court.
As to the applicant’s complaint about the media campaign allegedly carried out by the FSB, the Court notes that most of the publications date back to 1999-2001, which was, as the Court has noted above, well before the determination of the composition of the court and the trial. Therefore, leaving open the question whether the press coverage of the applicant’s case was sparked off by the FSB, the Court is not convinced that the impugned publications could have prejudiced the outcome of the proceedings.
As regards the press articles which were published in December 2003 and January 2004, it does not seem that the media interest in the applicant’s trial amounted to a virulent press campaign aimed at hampering the fairness of the trial. Furthermore, there is no indication that those publications were attributable to the FSB or any other State organ. At the time the jury which tried the applicant had not yet been formed. Moreover, six of the impugned publications appeared in regional newspapers in Obninsk, Kaluga, Magadan, Rostov-on-Don, Ulyanovsk and Krasnodar, and it is not apparent that the judges in the applicant’s trial, which took place in Moscow, could have read them. As regards one article, which was published in Moscow in the newspaper Zhizn, in which the applicant was regrettably named a “spy”, the Court does not find it established that it could have had such a major influence on the applicant’s judges that it would have undermined his presumption of innocence.
Overall, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of Article 6 § 2 of the Convention. Therefore, the Court does not find it necessary to examine the question of exhaustion of domestic remedies disputed between the parties.
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.
“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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence 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.”
The Government submitted that the circumstances of the case, as established by the domestic courts, showed that the applicant had used his research abilities to damage Russia’s external security for the purpose of obtaining financial compensation. He had never had access to state secrets and had no work-related duties requiring him to collect them. The information he had passed on had not been publicly available and its dissemination had been in violation of domestic and international law. The fact that he had not had access to state secrets had not relieved him from criminal liability for divulging classified data to a foreign state. The applicant’s conviction had been based on Article 275 of the Criminal Code. The classified information could have been received by any means. Through his education and the post he occupied at the Institute of the USA and Canada, the applicant had work contacts with a number of officials in the Ministry of Defence who had had access to state secrets. He had been purposefully eliciting classified information from them. The Official Secrets Act, which had applied to the applicant, and Presidential decree no. 1203, which defined the list of classified information, had been accessible and foreseeable.
The applicant argued that the jury had not established that the information which he had transmitted had been classified. Nor had they established that he had had intent or had realised that the information was classified. The presiding judge had not been entitled to convict him on the basis of such a jury verdict. He had thus been convicted of high treason in the absence of mens rea, which was one of the compulsory elements for his acts to be treasonable. The prosecution had not identified any single closed source from which he had allegedly received the information. The conclusion that he had passed on classified information had been based solely on the expert assessment of 18 July 2002, carried out on the basis of secret decrees by the Ministry of Defence to which he had had no access. The list of information defined in the Official Secrets Act had been rather general and had not made it possible to identify what information was secret. Moreover, it had not applied to him since he had no admission or access to state secrets.
The applicant found the Government’s allegation that he had been eliciting classified information from officials of the Ministry of Defence shocking and inacceptable, since he had never been accused and found guilty of such acts.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
The Government submitted that Article 10 § 2 set forth that the right to freedom of expression carried with it duties and responsibilities and could be subject to formalities, conditions, restrictions and sanctions in the interests of national security. As a highly educated person and a scientist, the applicant could and should have known of restrictions on his right to impart information. His argument that the relevant information had been publicly available was untenable. It had been established at the trial that the information could not have been received from open sources and its divulgence had damaged Russia’s security and defence. The applicant’s attempts to challenge the judgment within the proceedings before the European Court, and put to discussion the issues of guilt, elements of a crime and evidence contained in a confidential criminal case did not conform to international and European law, in particular Article 32 of the Convention concerning the jurisdiction of the Court. Furthermore, in a jury trial, as regulated by the Russian law, the evidence and a defendant’s guilt were the exclusive competence of a jury. The jury in the applicant’s trial had unanimously found him guilty of having committed the crime. According to the law, the jury verdict could not be called into question. The applicant was entitled to request supervisory review of the judgment under Article 402 of the Code of Criminal Procedure.
The Government noted that they could not submit to the Court a copy of procedural documents of the case since the case file was classified.
They concluded that the complaint was manifestly ill-founded and that the applicant had failed to exhaust domestic remedies.
The applicant contended that his argument that he had transmitted information which had previously been published in open sources had never been refuted in the criminal proceedings against him. Such a question had not been put before the jury or examined in the judgment. It had not been established that his acts had damaged national security. He had had a right to search for and obtain military information from open sources and to impart it to a foreign organisation. The interference with his right had not been “necessary”. The applicant further noted that he had complained about a violation of his rights under Article 10 in his appeal against the judgment.
The Court agrees with the applicant that by raising the present complaint in his appeal against the judgment he can be said to have exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. It further notes that the supervisory-review procedure under the Code of Criminal Procedure of 2001 is not considered a remedy to be exhausted under Article 35 § 1 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004). The Government’s objection must therefore be dismissed.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the excessive length of his pre-trial detention and the proceedings in his case; the independence, impartiality and lawfulness of the Moscow City Court; the fairness of the trial, including the right to obtain the attendance and examination of witnesses on one’s behalf under the same conditions as witnesses against him; and the complaints concerning the alleged violations of Articles 7 and 10 of the Convention;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos
Rozakis
Registrar President