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PASKO v. RUSSIA - 69519/01 [2009] ECHR 1616 (22 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1616.html
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[2009] ECHR 1616
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FIRST
SECTION
CASE OF
PASKO v. RUSSIA
(Application
no. 69519/01)
JUDGMENT
STRASBOURG
22 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Pasko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 1 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 69519/01) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Grigoriy Mikhaylovich
Pasko (“the applicant”), on 20 January 2001.
The
applicant was represented by Mr F. Elgesem, a lawyer practising in
Oslo. The Russian Government (“the Government”) were
initially represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights, and
subsequently by their Representative, Mr G. Matyushkin.
The
applicant complained, in particular, of his conviction on the basis
of retrospective application of the relevant law and of a violation
of his freedom of expression. He relied on Articles 7 and 10 of the
Convention.
By
a decision of 28 August 2008, the Court declared the application
partly admissible.
The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in
Vladivostok.
At
the material time the applicant was a Navy officer and worked as a
military journalist on the Russian Pacific Fleet's newspaper Boyevaya
Vakhta (“Battle Watch”). The applicant's articles
mainly focused on problems of environmental pollution and other
issues related to the activity of the Russian Pacific Fleet.
According
to the applicant, he also worked, on a freelance basis, for a
Japanese TV station, NHK, and a Japanese newspaper, Asahi Simbun,
and supplied their representatives, in particular accredited
correspondents Mr T.Dz. and Mr T.O. with openly available
information and video footage. The Government submitted in this
connection, with reference to witness statements from the editor and
deputy editor of Boyevaya Vakhta, that the applicant had not
been entrusted with any task of cooperating with Mr T.O., apart from
assisting the latter in visiting Russian military units and apprising
him of the professional activities of Boyevaya Vakhta.
According to the Government, any further contacts with Mr T.O. were
maintained by the applicant of his own volition, and he did not
report to his superiors on such contacts. The applicant insisted that
his superiors had been aware of and accepted his contacts with
Japanese journalists.
A. The applicant's arrest and pre-trial detention
On
13 November 1997 customs officers at Vladivostok Airport searched the
applicant, who was about to leave on an official trip to Japan, and
seized a number of his papers, on the ground that they allegedly
contained classified information. Thereafter the applicant was
allowed to continue his trip.
On
20 November 1997 the Federal Security Service (Федеральная
служба
безопасности
– “the FSB”) brought criminal proceedings against
the applicant in connection with the above episode, and apprehended
him on his return from Japan. The applicant was then escorted to
pre-trial detention centre IZ 20/1 in Vladivostok, where he was
detained until his first conviction on 20 July 1999.
During
the night of 20 to 21 November 1997 the FSB searched the applicant's
flat and seized his personal computer and a number of documents. The
applicant's computer was returned to him some time later.
On
28 November 1997 the applicant was formally charged with treason
through espionage. These charges were based on a preliminary expert
opinion given by the Headquarters' 8th Department of the Pacific
Fleet (Восьмое
управление
штаба
Тихоокеанского
флота),
which concluded that some of the documents seized on 13 and 20
November 1997 contained State secrets.
B. The applicant's indictment
On
29 September 1998 a bill of indictment was served on the applicant.
It stated that the applicant had committed treason, through
espionage, by having collected, kept and transmitted ten items of
information classified as secret to two Japanese nationals in the
period between 1996 and 20 November 1997. The information in question
included a draft article by the applicant on the decommissioning of
Russian nuclear submarines, a copy of a report on the financial
situation of the Pacific Fleet, a copy of several pages of a manual
on searching for and rescuing space craft by the Navy, a report on
decommissioning and keeping afloat of Russian nuclear submarines, a
questionnaire on re-processing of liquid rocket fuel, a list of
accidents on Russian nuclear submarines, a copy of several pages of a
report on decommissioning of weapons and armaments, a map of the
territory of military unit no. 40752, and handwritten notes made by
the applicant at a meeting held at the headquarters of the Pacific
Fleet on 11 September 1997. The indictment further stated that
the applicant had orally divulged information concerning the time and
place of the departure of a trainload of spent nuclear fuel.
The
indictment was based on reports of 22 December 1997 and 14 March
1998 prepared by four expert groups appointed by the General
Headquarters' 8th Department of the Ministry of Defence (Восьмое
управление
Генштаба
Министерства
обороны).
C. First round of court proceedings
By
a judgment of 20 July 1999 the Pacific Fleet Military Court
reclassified the offence and convicted the applicant of abuse of
power, having found it unproven that the applicant had actually
transmitted State secrets to foreign nationals. The applicant was
sentenced to three years' imprisonment. By virtue of an Amnesty Act
of 18 June 1999 the applicant was discharged from serving this
sentence and released in the courtroom.
The
applicant, his lawyers and the prosecuting party appealed against the
first-instance judgment.
On
21 November 2000 the Military Section of the Supreme Court of Russia
(Военная
коллегия
Верховного
Суда
РФ – “the
Supreme Court”) quashed the judgment of 20 July 1999 on the
grounds of the trial court's failure to establish the essential
circumstances of the case and its inconsistent conclusions and
wrongful application of the law. The case was remitted to the Pacific
Fleet Military Court for a fresh examination.
D. Second round of court proceedings
1. Proceedings before the trial court
On
an unspecified date, following the Pacific Military Court's request,
the General Headquarters' 8th Department of the Ministry of Defence
appointed seven experts and the Ministry of Nuclear Energy appointed
an expert. The experts were asked whether the items of information
listed in the indictment contained State secrets.
On 14 September 2001 the experts submitted their
report, stating that three out of the ten items in question were of
“restricted distribution”, whilst the other seven
contained State secrets. According to the applicant, in defining
whether the disclosed information contained State secrets, the
experts had applied the Ministry of Defence's unpublished Decree no.
055 of 10 August 1996, Presidential Decree no. 1203:95 of 30 November
1995 and section 5 of the State Secrets Act, enacted on 21 July 1993
and amended on 6 October 1997. In the applicant's submission, he had
access to Decree no. 055, read it and signed a document to the effect
that he had read it in the autumn of 1996.
On
25 December 2001 the Pacific Fleet Military Court convicted the
applicant of treason through espionage under Article 275 of the
Russian Criminal Code.
As
regards the actus reus of the offence, the court found that in
1996-1997 the applicant had established friendly relations with a
Japanese journalist, Mr T.O., and provided him with information, at
the latter's requests, in exchange for regular payments. In
August-September 1997, in his telephone conversations with the
applicant, Mr T.O. had repeatedly expressed his interest in the
military exercises that were being conducted by the Pacific Fleet at
that time, especially their particular features and any differences
from previous exercises. The judgment further stated:
“On 10 September 1997, on an official invitation,
[the applicant], as a representative of the Boyevaya Vakhta
newspaper, attended a meeting of the Military Council of the Pacific
Fleet, where he learned that an appraisal of the results of the
military exercises of the Pacific Fleet was scheduled for
11 September 1997.
On 11 September 1997 [the applicant], with the
intention of obtaining classified information on the said exercises
and subsequently transferring it to [Mr T.O.], arrived at the
headquarters of the Pacific Fleet. Although he was not included in
the list of persons authorised to participate in the appraisal of the
tactical training exercises, the applicant attended the meeting and
collected information disclosing the actual names of highly critical
and secured military formations and units, including
military-intelligence units, that had taken part in the exercises and
information disclosing the means and methods of protection of
classified data by radio electronic warfare units that had
participated in the exercises. Under section 5 paragraphs 1 (6) and 4
(5) of the State Secrets Act of the Russian Federation (no. 5485-1)
of 21 July 1993, as amended by Federal Law no. 131-FZ of 6
October 1997, paragraphs 13 and 77 of the List of Information
classified as State Secrets approved by Decree no. 1203 of the
President of the Russian Federation of 30 November 1995, [the
impugned information] was classified as State secrets.
For the same purpose, namely for communicating it to [Mr
T.O.], the applicant then unlawfully kept this information ... On 20
November 1997 the handwritten notes made by [the applicant] during
[the meeting of 11 September 1997] were found and seized at his place
of residence.
...
According to a report by a forensic expert, the
handwritten text in those notes was made by [the applicant], which
the latter has not denied in court.”
The court based its findings on statements by a number
of witnesses, five recordings of the applicant's telephone
conversations with Mr T.O. made by the FSB in June-September 1997,
and the expert report of 14 September 2001, insofar as it stated
that the applicant's handwritten notes contained information
classified as secret. In particular, the court noted with regard to
the expert report of 14 September 2001:
“... The experts concluded that [the applicant's]
notes contained, in summary fashion, information on the composition
of the groups of the naval forces which had taken part in the
exercises, [such information] disclosing the actual names of highly
critical and secured military formations and units, including
military intelligence units, which constituted a State secret under
section 5, paragraph 1 (6) of the State Secrets Act of the Russian
Federation (no. 5485-1) of 21 July 1993, as amended by Federal
Law no. 131-FZ of 6 October 1997 and paragraph 13 of the List of
Information constituting State Secrets, approved by Decree no. 1203
of the President of the Russian Federation of 30 November 1995.
Also, the experts concluded that [the applicant's
handwritten notes] in summary fashion ... disclosed information on
the activities of radio electronic warfare units, and notably on
means and methods of protection of classified data, which constituted
a State secret under section 5, paragraph 4 (5) of the State Secrets
Act of the Russian Federation, no. 5485-1 of 21 July 1993, as
amended by Federal Law no. 131-FZ of 6 October 1997 and
paragraph 77 of the List of Information classified as State Secrets,
approved by Decree no. 1203 of the President of the Russian
Federation of 30 November 1995.
...
... The court finds that [the experts'] conclusions that
[the applicant's] notes on the exercises contain information
disclosing the actual names of highly critical and secured military
formations and units of the Pacific Fleet, including military
intelligence units and [information on] specific activities of radio
electronic warfare units ... which constitutes State secrets, are
consistent, well-reasoned and based on a correct application of the
legislation ...”
The
applicant confirmed that he had attended the meeting of 11 September
1997 and made summary notes of speeches and reports of its
participants, but pleaded not guilty and argued that he had lawfully
attended the said meeting, since he had the right to receive and
impart information as a journalist. The applicant insisted that he
had had no intention of transferring this information to Mr T.O. and
had kept it in order to enrich his own knowledge on the latest
developments in the Navy and to inform his subordinates thereof, and
to report on the results of the military exercises in the Boyevaya
Vakhta newspaper. The applicant stated that all his activities
had fully complied with Russian legislation.
As
regards the applicant's argument that he had the right to freedom of
expression, and was therefore entitled to attend the meeting of
11 September 1997, the court noted that the right to information
was not absolute and could be limited by law for the protection of
national security. Under national law, military personnel's right to
information was limited in the interests of military service and, in
particular, such personnel had an obligation not to disclose state or
military secrets. As a serving officer, the applicant was bound by
the legal provisions regulating the way in which servicemen accessed,
collected, kept, imparted and published information classified as
secret, and the way they communicated with foreign nationals.
The
court also rejected the applicant's argument that he had made the
impugned notes with a view to their publication in Boyevaya
Vakhta. In this respect the court noted that the applicant had
been fully aware of the relevant regulations which prohibited
publication of information disclosing the actual names of military
formations and units, and there had therefore been no practical use
for such information in the applicant's publications.
The court further examined the conclusions of the
expert report of 14 September 2001 in respect of the other items
of information imputed to the applicant, compared them with the other
materials of the case and rejected them as unreliable. In particular,
the court stated that some of the pieces of information imputed to
the applicant, including the list of accidents on Russian nuclear
submarines and the map of the territory of military unit no. 40752,
could be found in public sources, such as a military reference book
on submarines, or a Greenpeace report. In this respect the court
noted that receiving, keeping and disseminating publicly accessible
information was not punishable under the Russian legislation in force
and that there was no practical need to classify information which
could be found in public sources.
The
court thus acquitted the applicant of all the other charges listed in
the indictment, some of them having been waived by the prosecuting
party.
In view of the fact that the applicant had a minor
child, no criminal record and positive professional references and
decorations, and given that his offence had caused no damage, since
he had not transferred the impugned information, the court referred
to the “special-circumstances” clause of Article 64 of
the Russian Code of Criminal Procedure and sentenced the applicant to
a term below the statutory minimum, namely, four years' imprisonment
in a strict-security correctional colony, and deprivation of a
military rank.
2. Appeal proceedings
In
their appeal submissions the defence complained, inter alia,
that the experts who had drafted the report of 14 September 2001 had
relied on unpublished Decree no. 055 of the Ministry of Defence in
asserting the classified nature of the impugned information. The
defence argued that the use of Decree no. 055 by the experts had
resulted in the incorrect application of the State Secrets Act by the
first-instance court. They further argued that the State Secrets Act
had been applied retrospectively, since there had been no list of
information constituting State secrets at the time of the commission
of the offence in question. The
defence also contended that, in any event, the information contained
in the applicant's notes had been accessible from public sources.
On
25 June 2002 the Supreme Court of Russia upheld the applicant's
conviction on appeal, having excluded a reference to the unlawfulness
of his presence at the meeting of 11 September 1997 and to the
general unlawfulness of his off-duty contacts with foreign nationals.
The
Supreme Court noted that the question whether the applicant's
handwritten notes had contained State secrets had been thoroughly and
objectively examined in the first-instance judgment. It confirmed
that the trial court had based its judgment on the expert report of
14 September 2001, which had stated that “information
disclosing the actual names of highly critical and secured military
formations and units and information on the presence among the
participants in the military exercises of the military intelligence
units and information on the means and methods of protection of
classified data [constituted] State secrets under section 5,
paragraphs 1 (6) and 4 (5) of the State Secrets Act of the
Russian Federation (no. 5485 1) of 21 July 1993, as
amended by Federal Law no. 131-FZ of 6 October 1997, paragraphs
13 and 77 of the List of Information classified as State Secrets,
approved by Decree of the President of the Russian Federation no.
1203 of 30 November 1995, and paragraphs 129 and 240-1 of ... Decree
of the Ministry of Defence no. 055”. The appellate court
further noted that, when assessing the expert report of 14 September
2001, the trial court had rejected a number of its conclusions in
which the experts had groundlessly stated that some of the impugned
items of information had contained State secrets. The Supreme Court
thus concluded that the first-instance court had critically assessed
the expert report of 14 September 2001 and had only relied on those
conclusions which had been objectively confirmed during the trial.
The Supreme Court also upheld the first-instance
finding that the applicant's intent to transfer the impugned
information to Mr T.O. had been proved by the recordings of his
telephone conversations with the latter. The court further rejected
the applicant's argument that the information in his handwritten
notes could have been found in public sources. In that connection it
stated – with reference to the trial court's finding –
that “no data concerning the actual names of highly critical
and secured military units, ships and formations, and, in particular,
military intelligence units, the means and methods of radio
electronic warfare, as contained in [the applicant's] handwritten
notes, [was] openly published”.
The
court also rejected the applicant's argument that Decree no. 055 had
been unlawfully applied in his case, holding that this decree had
been operative on the date that the applicant had committed his
offence and was still in force.
Finally,
as regards the applicant's argument that the law had been applied
retrospectively in his case, the Supreme Court noted:
“According to the decision of the Constitutional
Court of Russia of 20 December 1995, ... the requirements of
Article 29 § 4 of the Constitution of the Russian Federation are
implemented in the State Secrets Act of the Russian Federation of
21 July 1993, which defines the notion of State secrets and
lists the information classifiable as State secrets. Later, on 30
November 1995, the List of Information classified as State secrets
was enacted by Decree no. 1203 of the President of the Russian
Federation.
Since collecting and keeping secret information for its
transfer to a foreign citizen, committed by [the applicant], [was] a
continuing criminal offence which was brought to an end on 20
November 1997, the [first-instance] court rightly applied the
aforementioned legal instrument as well as the State Secrets Act, as
amended on 6 October 1997, in the examination of his case.”
The
applicant unsuccessfully applied for supervisory review of his
conviction.
On
23 January 2003 the applicant was released on parole.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal liability for disclosure of State secrets
Article 275 (High Treason) of the Russian Criminal
Code, in force as of 1 January 1997, provides that high treason, that
is, espionage, disclosure of State secrets, or assistance otherwise
provided to a foreign state, a foreign organisation, or their
representatives, by way of hostile activities undermining the
external security of the Russian Federation, committed by a Russian
citizen, shall be punishable by twelve to twenty years' imprisonment
and confiscation of property.
B. Laws and regulations concerning State secrets
1. The Russian Constitution of 12 December 1993
Article 29 § 4 of the Russian Constitution
provides that everyone has the right to freely search, obtain,
impart, generate and disseminate information by all lawful means and
that a list of information constituting State secrets is to be
defined by a federal statute.
2. The Federal Law on State Secrets
(a) Period prior to 6 October 1997
Federal
Law on State Secrets no. 5485-1 (“the State Secrets Act”)
was enacted on 21 July 1993 and entered into force on 21 September
1993. Section 5 provided:
“The following information may be classified as
State secrets:
(1) information in the military field:
...
[information] about the location, actual names,
organisational structure, armament, numerical strength of troops ...
...
(4) information in the field of intelligence,
counter-intelligence and operational and search activities:
...
[information] about the means and methods of protection
of classified data ...”
Section
9 set out the procedure for classifying information as State secrets.
Authority to classify information was delegated to heads of State
agencies. The law itself did not contain the list of such officials
which was to be approved by the Russian President. The latter was
also to approve the List of Information classified as State secrets,
which was to be officially published. State agencies whose heads were
competent to decide to classify information were to draw up extended
lists of information that was to be classified as State secrets. The
State Secrets Act did not specify whether such “extended lists”
could be made public.
On 16 March, 26 and 27 October 1995 the State Duma,
noting that the absence of the list of classified information
“deprived the law-enforcement agencies of a legal basis for the
performance of their duty to protect the security of the State,
community and individuals”, repeatedly petitioned the
Government to prepare for the President's approval a draft decree
containing the list of classified information.
On
30 November 1995 the President approved Decree no. 1203 on the List
of Information classified as State Secrets. Paragraphs 13 and 77 of
the list provided for the classification of “information
disclosing the location, actual names, organisational structure,
armament and numerical strength of troops, which is not subject to
open declaration in accordance with the international obligations of
the Russian Federation” and “information disclosing
measures which are planned and/or being carried out to protect
information from unauthorised access, foreign technical intelligences
services and leaks through technical channels”. They also
designated the Ministry of the Interior, the Ministry of Defence and
several other State agencies as bodies authorised to classify such
information.
(b) Period after 6 October 1997
On 6 October 1997 Federal Law no. 131-FZ amending the
1993 State Secrets Act was enacted. The amendment was published and
became operative on 9 October 1997. Section 5 of the State Secrets
Act was amended to read:
“State secrets shall include: ...
(1) information in the military field:
...
[information] about the location, actual names,
organisational structure, armament, numerical strength of troops ...
...
(4) information in the field of intelligence,
counter-intelligence and operational and search activities:
...
[information] about the means and methods of protection
of classified data ...”
3. Case-law of the Russian courts
On
20 December 1995 the Russian Constitutional Court examined the
compatibility of the Criminal Code of the RSFSR, then in force, with
the Russian Constitution, in so far as the former established
criminal liability for State treason, and stated:
“... It follows that the State may classify as
State secrets information in the field of defence and economic and
other activities, disclosure of which is capable of undermining the
national defence and security of the State. In this connection
Article 29 § 4 of the Russian Constitution provides that
the list of information constituting State secrets is to be enacted
in the form of a federal statute. The State may also determine the
means and methods for the protection of State secrets, including by
way of establishing criminal liability for its disclosure and
communication to a foreign State.
However, by virtue of the above Constitutional
provision, criminal liability for disclosure of State secrets to a
foreign State is justified only on condition that the list of
information constituting State secrets is established in an
officially published and publicly accessible federal statute.
Pursuant to Article 15 § 3 of the Constitution, no
law-enforcement decision, including conviction by a court, may be
grounded on an unpublished legal instrument.
The requirement of Article 29 § 4 of the Russian
Constitution is implemented in the State Secrets Act of 21 July 1993,
which defines the notion of State secrets and lists the information
classifiable as State secrets.
Accordingly, establishing criminal liability for
disclosure of State or military secrets to a foreign State is not
incompatible with Articles 15 § 3, 29 § 4 and 55 § 3
of the Russian Constitution.”
On 29 December 1999 the St Petersburg City Court
acquitted Mr Nikitin, a former naval officer, of charges under
Articles 275 (High treason) and 283 § 1 (Divulging of
information constituting State secrets) of the Russian Criminal Code
(case no. 78-000-29). Mr Nikitin was accused, in particular, of
having collected in August 1995, and having transferred in September
1995, information constituting State secrets. The court held as
follows:
“... By virtue of the constitutional provisions, a
list of information constituting State secrets was to be defined by a
federal statute ...
There was no such statute at the time that Mr Nikitin
committed the alleged offences; Decree no. 1203 of the President of
the Russian Federation of 30 November 1995 was the only legal
instrument which began regulating legal relations in the field of the
protection of State secrets.
...
The State Secrets Act of the Russian Federation of 21
July 1993, which was subsequently subjected to considerable
amendments, constitutes the federal statute mentioned in Article 29 §
4 of the Russian Constitution.
...
However, the Russian Constitution prescribes the
definition of the list of information constituting State secrets
by a federal statute. This requirement of the Constitution was
only complied with in full when the State Secrets Act was amended in
November 1997 to include in section 5 the list of information
constituting State secrets instead of the list of information
which could be classified as State secrets, which was
mentioned in the [original version] of the Law.
By virtue of section 9 (4) of the Act, the list of
information constituting State secrets must be approved by the
President. ... By virtue of section 9 (4) of the Act in its version
of 21 July 1993 and as amended on 6 October 1997 [the list] will be
published and may be revised as and when needed.
...
An analysis of section 5 of the Act (irrespective of its
different versions) indicates that [the Act] itself does not
establish any degree of secrecy; in other words it does not classify
any information, since it is in accordance with a special
procedure provided for in section 9 of the Act that information
can be classified as secret ...
This also means that, in its original version, section 5
of the Act cannot serve as the sole basis for charging [a person]
with espionage or disclosure of State secrets. It must be
supplemented with other legal instruments.
It is [in particular] Decree no. 1203 of the Russian
President of 1995 which [was] used in the present case as [a legal
instrument] in addition to section 5 [of the State Secrets Act] ...
The materials of the case reveal that Mr Nikitin ended
his activity ... in September 1995.
The Presidential Decree of 30 November 1995 had not yet
entered into force ...
Accordingly, section 5 of the Act (in the version that
existed at the time when the defendant committed the acts imputed to
him) cannot be used as a basis for bringing formal charges without
supplementary legal instruments which would have formed a proper
legal basis for an accusation ... such legal instruments can be
applied on condition that they were officially published and entered
into force prior to the commission of the acts imputed to Mr Nikitin.
... In view of the above, the court finds that any
citizen of the Russian Federation... does not (did not) have any real
possibility of determining whether information constitutes a State
secret unless such information is included in the list of information
constituting a State secret defined by a federal statute or approved
by a decree of the Russian President ...
...
The new version of the State Secrets Act ... of 6
October 1997 brought the Act into compliance with the requirements of
the Constitution, and consequently, only then did it become possible
to apply section 5 of the State Secrets Act independently,
that is, without referring to the List of Information
classified as State Secrets enacted by decree of the Russian
President on 30 November 1995.
Accordingly, in the period from 12 December 1993 until
30 November 1995 there was no statutory definition of information
constituting State secrets, and therefore classifying any information
as secret during the period under consideration ... was arbitrary and
not based on law.”
On 17 April 2000 the Supreme Court of Russia upheld Mr
Nikitin's acquittal in the following terms:
“Having acquitted Mr Nikitin for the lack of
constitutive elements of a criminal offence in his acts, the
[first-instance] court proceeded from the premise that between 12
December 1993 and 30 November 1995 there had been no statutory
definition of information constituting State secrets, with the result
that the qualification of Mr Nikitin's acts by the investigating
bodies had not been based on law.
...
By virtue of Article 29 § 4 of the Russian
Constitution, which was enacted on 12 December 1993 and was in
force during the period when Mr Nikitin committed the alleged
offences, the list of information constituting State secrets was to
be defined in a federal statute. Such a list was first defined in the
federal law introducing changes and amendments to the State Secrets
Act of the Russian Federation of 6 October 1997.
Taking into account that during the period when Mr
Nikitin committed the alleged acts, there was no list of information
constituting State secrets that met the requirements of the
Constitution, the information that he had collected... and disclosed
... cannot be said to have contained State secrets ... As the actus
reus of the offences under Articles 275 and 283 of the Criminal
Code refers only to acts involving State secrets, the same acts
involving other information cannot be held to be high treason and
disclosure of State secrets ...
...
... The [State Secrets] Act [in its 1993 version] could
not have been applied to Mr Nikitin as it did not contain the
list of information constituting State secrets, since section 5 of
that Law referred only to information that could be classified as
State secrets. However, Article 29 § 4 of the Constitution
required that the said list be established in a federal statute. As
section 5 of the State Secrets Act of 21 July 1993 and Article 29 §
4 of the Constitution refer to different subjects, the court cannot
agree with the argument of [the prosecuting party] to the effect that
the difference between these provisions is merely semantic ...”
On 25 July 2000 the Supreme Court of Russia quashed on
appeal, and remitted for a fresh examination to a trial court, the
sentence of Mr Moiseyev, a former employee of the Russian
Ministry of Foreign Affairs, who had been charged with offences under
Article 275 of the Russian Criminal Code. It found as follows:
“In finding [the applicant] guilty of the offence
under Article 275 of the Criminal Code, the [first-instance] court
noted that ... between early 1994 and 3 July 1998 [the applicant] had
... communicated information and documents containing State secrets
to the South Korean intelligence service. The [first-instance] court
only gave a general list of information and documents ..., without
specifying which information and documents [the applicant] had
communicated, and when. As the offences imputed to [the applicant]
were continuous and spanned the period from 1992-1993 to July 1998,
during which time the Russian laws evolved, the determination of
these issues is of crucial importance for the case.
Pursuant to Article 29 § 4 of the Constitution ...
the list of information constituting State secrets was to be defined
in a federal statute. Such a list was first established in the
federal law of 6 October 1997 introducing changes and amendments to
the State Secrets Act of the Russian Federation. Hence, until that
date there was no list of information constituting State secrets that
met the requirements of the Constitution. As there is no indication
in the judgment about the time when [the applicant] transmitted the
information and documents, it is impossible to reach the correct
conclusion as to which of the offences imputed to the applicant were
committed during the period when the federal law containing the list
of State secrets and compatible with the requirements of the
Constitution was in force.”
THE LAW
ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE CONVENTION
The applicant complained under Article 7 of the
Convention that the domestic courts had retrospectively applied and
extensively construed the State Secrets Act in his case. He further
complained under Article 10 of the Convention of a violation of his
freedom of expression. The applicant claimed that he had been
subjected to an overly broad and politically motivated criminal
persecution as a reprisal for his critical publications. In
particular, he had never transferred any information containing State
secrets to Mr T.O., a Japanese journalist. Nevertheless, he had been
convicted for his alleged intention to transfer his handwritten
notes, which had been found to contain State secrets, to Mr T.O., the
only basis for such a finding being the fact that he had previously
legitimately communicated information to the Japanese journalist on
several occasions. The applicant further complained that in so far as
his handwritten notes had been found to have contained the actual
names of military formations and units and the activities of radio
electronic warfare units, this information had been publicly
accessible from a number of public sources, including internet sites,
and that he had been unable to foresee that this information had
constituted State secrets, as this finding had been based on the
unpublished – and therefore inaccessible – Decree no. 055
of the Ministry of Defence. The respective Convention provisions, in
their relevant parts, provide:
Article 7
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed ...
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
Article 10
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Submissions by the parties
1. The applicant
In
so far as his complaints under Article 7 of the Convention were
concerned, the applicant insisted that he had been convicted on the
basis of retrospective application of the State Secrets Act. He
argued, in particular, that between 11 September 1997, the date on
which he had collected the information in question, and 9 October
1997, the date on which the amendment to the State Secrets Act
incorporating the list of information classified as secret had become
operative, there had been no such list defined in a federal statute,
and therefore there had been no legal basis for his conviction for
the alleged offence for that period. The applicant contended that
Presidential Decree no. 1203 of 30 November 1995, approving the list
of information classified as State secrets, could not be regarded as
a proper legal basis for his conviction, given that Article 29 § 4
of the Constitution clearly stated that “a list of information
constituting State secrets shall be defined by a federal statute”.
He also insisted that in the absence of such a list he had been
unable to foresee that his actions had been criminally liable.
In
that respect, the applicant relied on the case-law of the Russian
courts in the cases of Nikitin v. Russia (no. 50178/99, ECHR
2004-VIII) and Moiseyev v. Russia (no. 62936/00, 9
October 2008). In particular, he pointed out that the Supreme Court
of Russia in its decision of 17 April 2000, given in the case of
Nikitin, and in its decision of 25 July 2000, given in the
case of Moiseyev, had consistently stated that the list of
information constituting State secrets should be defined in a federal
statute, and that such a list had first been established in the
federal law of 6 October 1997 introducing changes and amendments to
the State Secrets Act of the Russian Federation.
The
applicant further contended that the domestic courts had relied on
unpublished Decree no. 055 of the Ministry of Defence, which, in his
opinion, had lead to an extensive interpretation and overly broad
application of the State Secrets Act. Whilst he accepted that the
trial court had not referred to Decree no. 055 directly, he
considered that the court had relied on it indirectly by using the
expert report of 14 September 2001. According to the applicant, the
report in question had established the classified nature of his
handwritten notes on the basis of the above-mentioned unpublished
decree. In his view, this was confirmed by the formula “the
activities of radio electronic warfare units during the exercises”
used by the trial court in his conviction and taken word for word
from Decree no. 055, rather than from section 5 of the State Secrets
Act. In the applicant's submission, the formula employed in the Act
was narrower and covered only one type of the activities of radio
electronic warfare units, namely information concerning “the
means and methods of protection of classified data”. The
applicant also pointed out that the use of Decree no. 055 in his case
had been acknowledged by the appellate court, which had stated in its
decision of 25 June 2002 that the expert report of 14 September
2001 had been based on the State Secrets Act, Presidential Decree no.
1203 and Ministerial Decree no. 055.
The
applicant thus argued that, in any event, he could not have foreseen
that the information which he had collected at the meeting of
11 September 1997 could have been of a classified nature, as
none of the participants at the said meeting had informed the others
about the secret nature of the information which had been distributed
at the meeting. He also insisted that the information which he had
collected and kept at home was of minor importance.
The
applicant further maintained his complaint under Article 10 of the
Convention. He insisted that the authorities had persecuted him for
his journalistic activity and his publication of articles on serious
environmental issues. He also contended that the impugned information
could have been found in public sources, and in particular in reports
by various environmental organisations, that it was of minor
importance and that it could not therefore be regarded as a State
secret.
2. The Government
The
Government argued that in the applicant's case the domestic courts
had not applied the domestic law retrospectively, nor had they
construed it extensively.
They
submitted that the courts' assessment of the applicant's actions and,
consequently, his conviction had been based on Article 275 of the
Russian Criminal Code, the State Secrets Act as amended on 6 October
1997 and Decree no. 1203 of the Russian President of 30 November
1995, which approved the List of Information classified as State
Secrets. They referred to the decision of 25 June 2002 in which the
appellate court confirmed that the trial court had lawfully applied
the said legal instruments in the applicant's case, given that the
offence imputed to the applicant had been of a continuous nature, had
commenced on 11 September 1997, when the applicant collected the
imputed notes, and had been halted on 20 November 1997, when the
notes had been seized from the applicant. According to the
Government, in a situation where there was a criminal offence of a
continuing nature, it was legislation in force at the moment when
such an offence was halted that was applicable. The Government
contended that the applicant could not but have foreseen the
application of the above-mentioned legal instruments, as all of them
had been duly published and had therefore been accessible to him.
The
Government disputed the applicant's argument that at the time when he
had committed the offences imputed to him the information classified
as secret had not been defined by law. In the Government's
submission, the decision of the Constitutional Court of Russia dated
20 December 1995 had established that the requirements of
Article 29 § 4 of the Constitution of Russia had been fulfilled
by enactment of the State Secrets Act of 21 July 1993, which had
defined the notion of State secrets and listed the information
classifiable as State secrets. They also submitted that,
subsequently, Presidential Decree no. 1203 of 30 November 1995 had
enacted the list of information classified as State secrets. The
Government pointed out that, in any event, the amendment of 6 October
1997 had not changed the provisions of section 5 of the State Secrets
Act which had formed the basis for the applicant's conviction.
In
so far as the applicant complained that the domestic courts had
relied on a secret Decree no. 055 of the Ministry of Defence, which
had allegedly lead to an extensive interpretation and overly broad
application of the State Secrets Act, the Government contended that
the said decree only defined the degree of secrecy of information
classified as State secrets under federal law and had not prescribed
any rules of conduct for individuals, but had been intended only for
establishing the manner and criteria for defining the degree of
secrecy of information classified as State secrets, and therefore had
not pertained to a category of legal instruments which were to be
published. The Government thus insisted that Decree no. 055 had been
relied on in the applicant's case only in so far as it had been
necessary to assess the degree of importance and secrecy of the
information collected by the applicant rather than for determining
whether that information had constituted a State secret, this latter
question having been decided on the basis of the State Secrets Act
and Presidential Decree no. 1203.
The
Government further argued that the applicant's case was
distinguishable from the Nikitin case referred to by the
applicant. They pointed out that in the latter case, the offences
imputed to Mr Nikitin had been committed before 5 October 1995, that
is, before Presidential Decree no. 1203 had been enacted,
whereas in the present case the actions imputed to the applicant had
been halted on 20 November 1997, when the said decree was already in
force. The Government further contended that the applicant's
reference to the case of Moiseyev was also incorrect, given
that the decision of the Supreme Court of Russia on which the
applicant relied had been quashed and Mr Moiseyev had been convicted
of espionage in a new set of court proceedings. The Government
pointed out that legal arguments concerning the allegedly
retrospective application of the State Secrets Act deployed by the
appellate court in its final decision in the case of Moiseyev had
been similar to those of the appellate court in its decision of 25
June 2002 in the applicant's case, and therefore there had been no
conflict on that issue in the practice of the domestic courts.
They
also pointed out that the applicant could not but have realised that
the information which he had recorded in his written notes had been
classified, since it had been disclosed among a limited group of
persons at the meeting of 11 September 1997 on condition that it
would be kept secret. The Government concluded that the provisions of
Article 7 of the Convention had not been infringed in the applicant's
case.
The
Government further disputed as unsubstantiated the applicant's
argument that he had been a victim of political persecution because
of his journalistic activities and critical articles and pointed out
that his conviction had been based on various pieces of evidence
relied on by the Pacific Fleet Military Court in its judgment of 25
December 2001. The Government argued that the interference with the
applicant's freedom of expression had been justified under Article 10
§ 2 of the Convention. They submitted that, in accordance with
the domestic legislation on the media, divulging information
containing State secrets was prohibited and that information must be
received and imparted lawfully. They further pointed out that at the
material time the applicant had been a serving military officer and
by virtue of the relevant legal provisions he had been entitled to
have access to any classified information only in so far as this had
been rendered necessary by his professional duties and only to write
down classified information on the source material that had been
registered by a competent authority. Moreover, he had been under an
obligation to keep secret any classified information he had received
and prevent any leaks of such information. It had also been
prohibited to take secret materials outside the premises of the
headquarters or to keep them in an inappropriate place. They insisted
that, by virtue of his status of a serviceman, the applicant had been
fully aware of all those limitations and could have clearly foreseen
the negative consequences of a breach of the relevant regulations.
The
Government conceded that the applicant had indeed been convicted not
for the transfer of the imputed information to Mr T.O., but rather
for his intention to transfer it. In this connection, however, they
pointed out that the elements of an offence punishable under Article
275 of the Russian Criminal Code included not only the transfer
itself but also the collection, theft or storage with the intention
to transfer of information constituting State secrets and that the
applicant's intention to transfer the imputed information to Mr T.O.
had been proven by evidence examined by the trial court, namely by
the recordings of the applicant's telephone conversations with Mr
T.O.
The
Government further contested the applicant's allegation that the
information contained in his handwritten notes had been available
from public sources. They submitted that these arguments had been
thoroughly examined by the domestic courts and rejected as unfounded.
The Government pointed out that the materials of the criminal case
against the applicant had contained several publications, including
that of the applicant, which had reported on the results of the
tactical training exercises but did not disclose any classified
information, in particular any information concerning the actual
names of military units, or the means and methods of radio electronic
warfare. Having compared those publications and the applicant's
handwritten notes, the courts rightly concluded that the information
in the applicant's handwritten notes had not been accessible from
public sources.
Lastly,
the Government disputed the applicant's assertion that by collecting
the impugned information, he had carried out his usual journalistic
activity. In this connection they referred to the recordings of the
applicant's telephone conversations with Mr T.O., which clearly
showed that the latter had expressed an interest only in information
of a classified nature.
B. The Court's assessment
The Court observes that the applicant was convicted of
having collected on 11 September 1997 and kept until 20 November
1997, the date on which he was arrested, information containing State
secrets. The applicant complained, in essence, that his conviction
had been unlawful, since in so far as the period between 11 September
1997 and 8 October 1997 was concerned, there had been no statutory
list of information constituting State secrets, whilst with regard to
the period from 9 October 1997, the date on which an amendment
incorporating such a list into domestic law had become effective,
until 20 November 1997, the domestic courts had extensively
interpreted the applicable domestic law and based his conviction on
an unpublished ministerial decree. The applicant argued that he had
therefore been unable to foresee criminal responsibility for his
conduct during either of these periods.
Having regard to the circumstances of the present
case, the Court considers that the crux of it is the alleged
violation of the applicant's right to freedom of expression. It is
therefore considers it appropriate to examine the applicant's
complaints under Article 10 of the Convention.
Bearing
in mind that the applicant was a serving officer, the Court
reiterates that the freedom of expression guaranteed by Article 10 of
the Convention applies to servicemen just as it does to other persons
within the jurisdiction of Contracting States. Also, the information
disclosure of which was imputed to the applicant does not fall
outside the scope of Article 10, which is not restricted to certain
categories of information, ideas or forms of expression (see
Hadjianastassiou v. Greece, 16 December 1992, § 39,
Series A no. 252). The Court is therefore satisfied that Article
10 of the Convention is applicable in the present case and that the
sentence imposed on the applicant constituted an interference with
his right to freedom of expression. Such interference infringes
Article 10 unless it was “prescribed by law”, pursued one
or more of the legitimate aims set out in paragraph 2 of Article 10
and was “necessary in a democratic society” in order to
attain those aims.
1. Whether the interference was lawful
The Court reiterates that the expression “prescribed
by law”, within the meaning of Article 10 § 2 of the
Convention, requires first of all that the impugned measure should
have some basis in domestic law; however, it also refers to the
quality of the law in question, requiring that it should be
accessible to the person concerned, who must be able to foresee the
consequences of his or her actions, and that it should be
sufficiently precise.
(a) Basis in national law
As regards the first aspect, the Court observes that
the Russian Constitution of 12 December 1993 in its Article 29 §
4 states that “the list of information constituting State
secrets shall be defined by a federal statute”. Until 9 October
1997, section 5 of the State Secrets Act, which predated the Russian
Constitution by a few months, only referred to a list of information
that “may be” classified as State secrets, following the
relevant procedure. Authority to classify information was conferred
on the heads of State agencies, and the power to approve such a list
was delegated to the President. The latter enacted the relevant
decree on 30 November 1995. On 6 October 1997 section 5 of the State
Secrets Act was amended so as to incorporate the list of information
constituting State secrets, and the amendment was published and
entered into force on 9 October 1997 (see paragraphs 38-43 above).
Against this background, the applicant suggested that
two consecutive periods should be distinguished: the period between
11 September 1997 (the date on which the applicant collected the
information in question) and 8 October 1997; and between 9
October 1997 (the date on which the amendments to the State Secrets
Act became operative) and 20 November 1997, the date on which the
applicant was arrested. The Government and the domestic courts, on
the contrary, considered this distinction immaterial because the
criminal offence of which the applicant was convicted was classified
as “continuous perpetration” that is punishable under the
law in force at the time that the applicant was intercepted by the
authorities. However, their principal argument was that in any event
the applicant's conduct constituted a criminal offence even before 9
October 1997. The Court will therefore begin by examining the legal
basis for the applicant's conviction in these two periods.
(i) 11 September-8 October 1997
In so far as the first period is concerned, the
parties disagreed as to whether the applicant's conviction for the
offence imputed to him had a formal basis in national law, or whether
the applicant's actions were punishable under the Russian law then in
force. The applicant contended that there had been no such basis
during the relevant period as the State Secrets Act contained only a
list of information that “may be” – rather than
“shall be” – classified as State secrets, whereas
the enactment of that list in Presidential Decree no. 1203 of 30
November 1995 was in contravention of Article 29 § 4 of the
Russian Constitution, which clearly required such list to be defined
by a federal statute. The Government insisted that the State Secrets
Act of 21 July 1993, together with Presidential Decree no. 1203 of 30
November 1995, formed a sufficient legal basis for the applicant's
conviction for the imputed offence during the relevant period, given
that both documents had been duly published and were accessible to
him.
The Court observes that under Article 29 § 4 of
the Russian Constitution the list of information classified as secret
was to be defined by a federal statute. The said constitutional
provision presupposed that in the absence of such a statute there was
no legal basis for the criminal prosecution of a person for
disclosure of State secrets. However, the State Secrets Act as in
force at the relevant time only listed information classifiable –
and not classified – as secret, and could not therefore be said
to have clearly provided a list of such information. On the other
hand, during the relevant period such a list was defined by
Presidential Decree no. 1203 of 30 October 1995. The domestic
courts relied on those two legal instruments as the basis for the
applicant's conviction. The question to be decided in the present
case is therefore whether, in view of the relevant requirements of
the Russian Constitution, a sufficient legal basis for the alleged
interference with the applicant's rights under Article 10 of the
Convention can be established in a situation where a federal
statute's reference to a list of information that “may be”
classified as State secret was detailed in a presidential decree –
a legal instrument of a lower rank than a statute.
The
respondent Government advanced an argument to the effect that the
Constitutional Court of Russia (“the Constitutional Court”)
in its decision of 20 December 1995 had held that the requirements of
Article 29 § 4 of the Russian Constitution had been fulfilled by
the State Secrets Act of 21 July 1993. In the circumstances of the
present case, the Court does not consider it necessary to address the
question of whether during the period under examination the State
Secrets Act, taken alone, could have constituted a sufficient legal
basis for the applicant's conviction, as in any event it was not
applied in his case alone, but in conjunction with the Presidential
Decree of 30 November 1995.
The
Court further reiterates that, according to its settled case-law, the
concept of “law” must be understood in its “substantive”
sense, not its “formal” one. It therefore includes
everything that goes to make up the written law, including enactments
of lower rank than statutes and the court decisions interpreting them
(see Association Ekin v. France, no. 39288/98, § 46,
ECHR 2001-VIII). In the present case, the Court notes that the
Russian Constitution established a principle that a list of
classified information should be defined by a federal statute and
that amendments were subsequently made to the State Secrets Act so as
to bring it into conformity with the relevant constitutional
requirement. It is clear that in the period between 12 December 1993,
the date on which the Russian Constitution entered into force, and 9
October 1997, the date on which the amendments to the State Secrets
Act became operative, there was a pressing need for a legal
instrument which would have provided the competent authorities with a
legal basis “for the performance of their duty to protect the
security of the State, community and individuals” (see
paragraph 41 above). The Court is inclined to consider that the
Russian authorities were justified in responding to that need through
the enactment of a presidential decree – the procedure for the
adoption of such a legal instrument being less complicated and more
speedy than that of a federal statute – given in particular
their margin of appreciation in regulating the protection of State
secrecy (see Stoll v. Switzerland [GC], no. 69698/01, §
107, ECHR 2007 ...). The adopted decree clearly
listed categories of information classified as secret and was
accessible to the public so that any individual, including the
applicant, could coordinate their conduct accordingly.
The
Court further notes that in support of his argument that the State
Secrets Act in its original version and Presidential Decree no. 1203
of 30 November 1995 could not be regarded as a proper legal
basis for his conviction, the applicant referred to two decisions by
the Supreme Court of Russia in two other criminal cases concerning
disclosure of State secrets, namely those of Nikitin and
Moiseyev, in which the Supreme Court had consistently stated
that the list of information constituting State secrets should be
defined in a federal statute, and that such a list had first been
defined in the federal law of 6 October 1997 introducing changes and
amendments to the State Secrets Act of the Russian Federation.
In
so far as the applicant referred to Mr Nikitin's case, the Court
notes the Government's argument that the offences imputed to Mr
Nikitin were committed in August and September 1995, when
Presidential Decree no. 1203 was not yet in force. The first-instance
court in its judgment of 29 December 1999 directly referred to
this circumstance as the ground for Mr Nikitin's acquittal, stating
that the classification of information as a State secret prior to 30
November 1995 had been arbitrary and not based on law. However, the
first-instance court does not seem to have doubted that from that
date onwards there was a sufficient legal basis for criminal
prosecution for disclosure of State secrets. Admittedly, the trial
court stated that the respective requirement of Article 29 § 4
of the Russian Constitution was complied with in full only when the
amendment of 6 October 1997 entered into force, but it also
consistently held that the State Secrets Act in its original version,
applied in conjunction with the Presidential Decree of 30 November
1995, could have constituted a proper legal basis for bringing
charges for disclosure of State secrets (see paragraph 45 above).
When
giving its ruling on appeal, the Supreme Court confirmed that during
the period that Mr Nikitin committed his acts there had been no list
of information classified as State secrets, and therefore the
information that he had collected and disclosed could not be said to
have contained State secrets. It is true that the appellate court
also stated that such a list had first been defined following the
enactment of the amendment of 6 October 1997 to the State Secrets
Act; however, it did not express any opinion as to whether prior to
the enactment of the amendment, the application of the State Secrets
Act, taken together with the Presidential Decree of 30 November
1995, would have sufficed for a criminal prosecution for disclosure
of State secrets (see paragraph 46 above).
Secondly,
as regards Mr Moiseyev's case, the latter was accused of offences
that spanned the period from 1992-1993 to July 1998. The decision of
the Supreme Court of 25 July 2000 in Mr Moiseyev's case, referred to
by the applicant, stated that the first-instance court had failed to
determine the precise timing of the commission of the offences, and
that it was therefore unclear which of those offences had been
committed during the period when the State Secrets Act had complied
with the requirements of Article 29 § 4 of the Russian
Constitution. As in Mr Nikitin's case, the Supreme Court did not say
anything concerning the Presidential Decree of 30 November 1995 (see
paragraph 47 above). The Court is not therefore convinced that the
court decisions relied on by the applicant are directly relevant in
his situation, or that they should be interpreted in the way
suggested by him, particularly as those indicating that the State
Secrets Act in its original version and the Presidential Decree of 30
November 1995 had not constituted a sufficient legal basis for his
conviction.
Lastly,
the Court notes that the domestic courts in the applicant's case
consistently referred to the State Secrets Act and the Presidential
Decree of 30 November 1995 as the basis for the applicant's
conviction. It reiterates in this connection that it is primarily for
the national authorities, notably the courts, to interpret and apply
domestic law and that the Court will not express its opinion contrary
to theirs unless their interpretation appear arbitrary or manifestly
unreasonable. In the light of the foregoing considerations, the Court
sees no reasons to depart from the interpretation given by the
domestic courts. It therefore considers that the State Secrets Act of
21 July 1993 listing categories of information that may be classified
as secret, and which was supplemented by Presidential Decree no. 1203
of 30 November 1995, listing information classified as secret with
sufficient precision – both documents being publicly available
so as to enable the applicant to foresee the consequences of his
actions – constituted a sufficient legal basis for the
interference with the applicant's rights under Article 10 of the
Convention with regard to the period between 11 September and 8
October 1997.
(ii) 9 October-20 November 1997
As regards the second period, the Court notes that it
is not in dispute between the parties that the State Secrets Act in
its amended version constituted a legal basis for the applicant's
conviction.
(iii) Overall
In
view of the above the Court finds that there existed sufficient legal
basis for the applicant's conviction throughout the whole period
between 11 September and 20 November 1997. Furthermore, the
Court gives weight to the undisputed existence of such basis as of 20
November 1997 which, given the continuous nature of the offence, was
sufficient under the domestic law to bring the applicant's conduct
within the provision of the Criminal Code applicable in his case.
(b) Quality of law
The
applicant also complained that the domestic courts' finding that
information collected by him had contained State secrets had been
based on Decree no. 055 of the Ministry of Defence, a secret and
therefore inaccessible document relied on by the experts in their
report of 14 September 2001, which had led to an extensive
interpretation and overly broad application of the State Secrets Act
and Presidential Decree no. 1203. He insisted that in such
circumstances he could not have foreseen that the information he had
collected had been classified and that his actions had been
criminally liable. The Government conceded that the ministerial
decree referred to by the applicant had been applied in his case, but
argued that it had only been used to assess the degree of importance
and secrecy of the information collected by the applicant rather than
for deciding whether that information constituted a State secret.
The
applicant disputed, in essence, that the domestic law applied in his
case had met the criteria of foreseeability and accessibility, or, in
other words, that his conviction had been “lawful” within
the meaning of Article 10 of the Convention. In this connection,
the Court notes firstly that, as it has already held above, the State
Secrets Act, taken together with Presidential Decree no. 1203, were
in themselves sufficiently precise to enable the applicant to foresee
the consequences of his actions. In so far as the applicant
complained of the extensive and therefore unforeseeable
interpretation of the said legal instruments by the domestic courts,
which had allegedly relied on an unpublished ministerial decree, it
is clear from the facts of the present case that the applicant, by
virtue of his office, had access to Decree no. 055, read it and
signed a document to that effect in autumn 1996 (see paragraph 19
above), that is, prior to the commission of the offences imputed to
him. Against this background, the Court rejects the applicant's
argument concerning the alleged lack of accessibility and
foreseeability of the domestic law applied in his case.
Overall,
the Court is satisfied that in the circumstances of the present case
the domestic law met the qualitative requirements of accessibility
and foreseeability, and that therefore the alleged interference with
the applicant's rights under Article 10 of the Convention was lawful,
within the meaning of the Convention.
2. Whether the interference pursued a legitimate aim
84. The
Court further has no difficulties in accepting that the measure
complained of pursued a legitimate aim, namely protection of the
interests of national security.
3. Whether the interference was necessary in a
democratic society
As
regards the proportionality of the interference at issue, the Court
notes first of all that the applicant's argument that his intent to
transfer the impugned information was not proven and that the said
information could be found in public sources appear unconvincing. The
domestic courts carefully scrutinised each of the applicant's
arguments and corroborated their findings with several items of
evidence. They relied, in particular, on several recordings of the
applicant's telephone conversations with a Japanese national, proving
his intention to transfer the information in question to Mr T.O. (see
paragraphs 22 and 32 above). The domestic courts also gave due
consideration to, and rejected as unreliable, the applicant's
argument that the information collected by him was publicly
accessible. Indeed, they critically assessed the expert report of 14
September 2001, having compared the experts' conclusions with other
materials of the case, and rejected those conclusions which listed as
classified information that could be found in public sources, such as
a military reference book on submarines or a Greenpeace report (see
paragraph 26 above). In respect of the information collected by the
applicant, they noted, however, that it was not openly published (see
paragraph 32 above).
The
Court further cannot but accept the arguments of the domestic courts
and the Government that, as a serving military officer, the applicant
was bound by an obligation of discretion in relation to anything
concerning the performance of his duties (see Hadjianastassiou,
cited above, § 46). The Court also considers that the disclosure
of the information concerning military exercises which the applicant
had collected and kept was capable of causing considerable damage to
national security. It is true that the applicant did not in fact
transfer the information in question to a foreign national; on the
other hand, the Court does not overlook the fact that his sentence
was very lenient, much lower than the statutory minimum, and notably
four years' imprisonment as compared with twelve to twenty years'
imprisonment and confiscation of property (see paragraphs 28 and 37
above).
Overall,
the Court observes that the applicant was convicted as a serving
military officer, and not as a journalist, of treason through
espionage for having collected and kept, with the intention of
transferring it to a foreign national, information of a military
nature that was classified as a State secret. The materials in the
Court's possession reveal that the domestic courts carefully examined
the circumstances of the applicant's case, addressed the parties'
arguments and based their findings on various items of evidence.
Their decisions appear reasoned and well-founded. On balance, the
Court considers that the domestic courts cannot be said to have
overstepped the limits of the margin of appreciation which is to be
left to the domestic authorities in matters of national security (see
Hadjianastassiou, cited above, § 47). Nor does the
evidence disclose the lack of a reasonable relationship of
proportionality between the means employed and the legitimate aim
pursued. There is nothing in the materials of the case to support the
applicant's allegation that his conviction was overly broad or
politically motivated or that he had been sanctioned for any of his
publications.
In
the light of the foregoing, the Court finds that there has been no
violation of Article 10 of the Convention in the present case.
The
Court further notes that the applicant's complaints under Article 7
of the Convention concern the same facts as those examined under
Article 10 of the Convention. Having regard to its findings under
this latter provision, the Court considers that it is unnecessary to
examine those complaints separately.
FOR THESE REASONS, THE COURT
Holds by six votes to one that there has been no
violation of Article 10 of the Convention;
Holds unanimously that the applicant's
complaints under Article 7 of the Convention raise no separate issue.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Giorgio Malinverni is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE MALINVERNI
Unlike the majority,
I am of the opinion that there has been a violation of Article 10 in
respect of the period between 11 September and 8 October 1997.
The Court should have strictly interpreted the requirement of
Article 29 § 4 of the Russian Constitution and held that in the
absence of a federal statute complying with that requirement, there
was no proper basis in domestic law for the applicant's conviction.
The reasons why I
have serious doubts that the State Secrets Act in its original
version, taken alone, could be regarded as a legal basis for the
applicant's conviction are the following.
Firstly, the Supreme
Court of Russia, in its decisions on appeal in the cases of Nikitin
and Moiseyev of 17 April and 25 July 2000 respectively, noted that
the requirements of Article 29 § 4 of the Russian Constitution
had been met only after the amendments of 6 October 1997 were made
to the State Secrets Act (see paragraphs 46 and 47). Moreover, the
fact that on 30 October 1995 the Russian President enacted Decree
no. 1203 on the List of Information classified as State Secrets
suggests that the Russian authorities acknowledged the existence of
a legal lacuna in this field.
As regards
Presidential Decree no. 1203, it is true that this document,
officially published and publicly available, established the list of
information classified as State secrets. Nevertheless, I am not
convinced that the relevant constitutional requirements were met by
the enactment of this legal instrument, given that Article 29 §
4 of the Russian Constitution clearly referred to “a federal
statute” – a legal act adopted by the national
parliament as the result of a legislative process – rather
than any enactments of lower rank such as presidential or
governmental decrees. The fact that the necessary amendments were
eventually made to the State Secrets Act to bring it into conformity
with Article 29 § 4 of the Russian Constitution indicates, in
my view, that the Russian authorities did not themselves consider
that the relevant requirements of the Russian Constitution had been
met by the adoption of a presidential decree.
In the light of the
above considerations I am unable to conclude that the State Secrets
Act in its original version and the presidential decree of
30 November 1995 could be regarded as a sufficient legal basis
for the alleged interference with the applicant's rights under
Article 10 of the Convention with regard to the period between 11
September and 8 October 1997.
