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FORMER
FIRST SECTION
CASE OF
SUTYAGIN v. RUSSIA
(Application
no. 30024/02)
JUDGMENT
STRASBOURG
3 May 2011
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 Sutyagin 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,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 5 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30024/02) 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
Igor Vyacheslavovich Sutyagin (“the applicant”), on 11
July 2002, as supplemented on 1 December 2004.
- The
applicant was represented 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 Representatives Mrs
V. Milinchuk and Mr G.
Matyushkin.
- The
applicant alleged, in particular, that the length of his detention on
remand and the length of the criminal proceedings against him had
been excessive, that the court that had tried him had not been
independent, impartial and lawful, that he had not had a fair trial
and that his conviction had violated Articles 7 and 10 of the
Convention.
- By
a decision of 8 July 2008, the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits. The Court decided,
after consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in
fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1965 and currently lives in
London.
- 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.
A. 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
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 the FSB, acting on the basis of a search warrant,
searched the applicant’s flat in the presence of the applicant
and his wife and seized notes, books, press clippings, computers,
money in foreign currencies (cash) and other items. They took the
applicant to their office in Obninsk. Over the next three days an
investigator questioned him as a witness, having warned him about his
criminal liability if he refused to testify or 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 the
applicant on suspicion of high treason in the form 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, systematised
and summarised information of a military-technical nature and then
passed it on to representatives of a foreign organisation,
Alternative Futures, for remuneration, during meetings with them
outside Russia. Thus, in September 1998 in Budapest the applicant had
allegedly handed over analytical materials 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,
intending 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 also
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 in the
form 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 requested the
investigator to replace the applicant’s detention with another
preventive measure that would not involve deprivation of liberty. He
specifically requested 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 at the institute. The request was
supported by applications from a Vice-President of the Russian
Academy of Science and another scientist, 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 various 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
[the courts] 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 charges against the applicant had not been
completed. 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 expert K., 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 derived 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 an application 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
charges 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 expert N., stated 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 derived 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, and information from other non-established sources, and of
passing on 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 were working under cover of the
consultancy firm Alternative Futures, to be used to damage Russia’s
national security. According to the charge sheet, the applicant had
handed over 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 of the information used in charging him was
obtained by the investigating authority from his statements given 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.
B. Proceedings before 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 counsels, in order to allow
time for examination of the case file.
- On
7 February 2001 the Supreme Court of the Russian Federation
(“the Supreme Court”) 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
with regard to 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 counsels 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 until 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, the First Deputy Prosecutor of the Kaluga
Region B., 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 until 27 December 2001 on account
of illness among the judges.
- On
27 December 2001 the court heard the applicant’s final
statement. The applicant stated that he had gathered information for
Alternative Futures using open sources and denied the charges against
him.
- On
the same day, after deliberations, the Kaluga Regional Court remitted
the case for additional investigation.
1. Kaluga Regional Court’s decision of 27
December 2001
- In
its decision the Kaluga Regional Court stated that the investigating
authority had significantly 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 investigating authority had contradicted itself in the
statement of charges and the bill of indictment by referring to the
same information as classified and non-classified.
- A
general criticism about the charges on twenty-nine 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 “top secret”; (ii) statements
by a certain expert 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 their examination by the investigating authority.
Thus, after the charges had been served on him Mr Sutyagin contended
that he had taken certain information, 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 their examination 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 of his information, including that 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 preliminary investigation, expert examinations had been conducted
into the secrecy of the 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 examination the experts had been
governed by order no. 055 of the Ministry of Defence of 10
August 1996, containing a 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 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 which 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 should 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 were to be formulated in detail in a statement of
charges, in accordance with the requirements of Article 144 of the
Code. A bill of indictment had to comply with Article 205 of the Code
and contain, in particular, the detailed formulation of a charge,
which was not to differ significantly from the formulation in the
statement of charges to the detriment of the accused. The bill of
indictment had further to 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.
2. Appeal against the decision of 27 December 2001
- The
applicant and his counsel appealed against this decision. They did
not dispute the trial court’s findings with regard to the
procedural violations by the investigating authority. 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 upholding the applicant’s
detention. They submitted that there was no evidence that he would
flee. The applicant and his family and relations – his wife,
two minor children, parents and brother – resided permanently
in Obninsk. His wife and children were in a difficult financial
situation. The applicant had a number of diseases which could not be
treated properly in his detention facility. There was no 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 for the Protection of Human Rights and
Fundamental Freedoms 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 dismissed 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.
C. 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 comprehensive expert report on whether
the information which the applicant had allegedly 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 legal assessment. The applicant
requested that he be allowed to be present at the expert examination
and to provide explanations to the experts. He also noted that for
unknown reasons the investigating authority had not forwarded to the
experts a number of publications 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 been forwarded for expert examination,
except for those to which the applicant had referred without any
ground, as they were 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 submitted to the experts, including the
applicant’s statements, were sufficient to answer the questions
put to them.
- On
18 June 2002 the case was transferred to the FSB central
investigation department in Moscow on the Deputy Prosecutor General’s
instruction.
- 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 interrogations 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 unpublished decrees of the Ministry of Defence nos. 055
and 015 issued on 10 August 1996 and 25 March 2002
respectively.
- 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, using the opportunities provided by his job at
the Institute of the USA and Canada, information on five topics
containing State secrets from various sources, including closed
sources, and transmitting it, on five occasions in 1998-1999, to
representatives of a foreign state with a view to damaging the
national security of Russia. 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 was composed of more than 8,120 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
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, in view of his open visa for a trip abroad, 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 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 N. and K., 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 with
the bill of indictment. Three prosecution witnesses, the Obninsk Navy
training unit officers T., V. and G., were also added to that list.
D. Jury 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
trial.
- On
8 September 2003 a judge of the Moscow City Court listed a
preliminary hearing for 15 September 2003. The hearing 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 assigned the
case to judge Sh., 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 Sh. examined an application for release
lodged by the defence. He observed that the applicant had been
detained in connection with the accusation of a particularly grave
offence, on well-founded grounds which were still valid. He held that
the applicant’s detention as a preventive measure should
therefore remain in place. The defence appealed, arguing that the
decision contained no reasons for the applicant’s continued
detention.
- The
jury was formed and 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 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 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
remand the applicant in custody as a preventive measure were still
valid and that there had been no violations of the rules of criminal
procedure.
- On
18 November 2003 the examination of the case was adjourned to
25 November 2003 as the applicant had not been transported to
court on account of quarantine in his detention facility.
- On
25 November 2003 the court adjourned the hearing until the end of the
quarantine period and the applicant’s recovery.
- On
26 November 2003, as the defence later learned from the materials of
the case file, the President of the Moscow City Court assigned the
case to judge K. The materials of the case file contain the following
resolution by the President: “To M.A. K., [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
K. 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. They were all left unanswered.
- On
24 February 2004 judge K. examined a request by the prosecution for
extension of the term of the applicant’s detention. She also
examined an application 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 extended 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 K. held a hearing on 15 March 2004 at which she
carried out the selection of a new jury from thirty-one candidate
jurors.
- The
request by the defence to have the case examined by the initial
composition of the jury, which, they alleged, had been unlawfully
dismissed, was rejected. So
too 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 there were among them 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 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 about 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 Y., 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 the 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
22 March 2004 the prosecution witnesses, notably T., V., G. and L.,
were examined before the jury.
- At
a hearing on 29 March 2004 the presiding judge granted the motion by
the defence to have those publications, which, according to the
applicant, had been the only source for the information transmitted
to Alternative Futures, presented to the jury. The publications were
presented.
- The
expert reports of 18 July 2002 and 17 August 2000 were then read out
before the jury on a motion by the defence.
- It
follows from the records of the hearing that the defence then
requested the examination of N. as one of the experts who had
prepared the report of 17 August 2000. The representatives of the
prosecution objected, stating that it was impossible to understand
from the report which part of the examination had been carried out by
a particular expert; that in 2000 and 2002 the experts had examined
different materials; and that the 2000 report had lacked the
“research part”, as a result of which a new expert
examination – conducted in compliance with the legal
requirements – had been commissioned at the stage of the
additional investigation in 2002. The prosecution requested that the
report of 17 August 2000, which had been conducted in breach of the
law on criminal procedure, be declared inadmissible evidence. The
presiding judge granted the motion by the defence to examine N. as an
expert. Since his examination was connected with the issue of
admissibility of evidence the judge ordered N.’s examination in
the jury’s absence and adjourned the decision on the
admissibility of evidence until after N.’s examination. After
hearing N. the judge declared the expert report of 17 August 2000
inadmissible evidence on the ground that the expert examination had
been carried out with breaches of the law on criminal procedure,
notably Article 191 of the RSFSR Code of Criminal Procedure, in force
at the material time. Thus, the report did not state what examination
had been carried out by a particular expert, what facts a particular
expert had established and what conclusions he or she had reached.
The judge rejected the motion by the defence to have N. examined
before the jury since “the expert’s examination [was]
connected with the issue of admissibility of evidence”. Upon
the jury’s return to the court room they were told that the
expert report of 17 August 2000 had been declared inadmissible
evidence and that the parties could not therefore refer to it.
- On
30 March 2004 more publications, from which, the applicant alleged,
he had obtained information for Alternative Futures, were presented
to the jury. The defence asked to examine the expert report of 30
June 2000 before the jury. The presiding judge declared the report
inadmissible evidence for the same reasons as the report of 17 August
2000. It follows from the records of the hearing that the defence
asked to examine as a witness K., one of the experts who had prepared
the report of 30 June 2000 and who came to the court at the request
of the defence. The defence asked to examine him on issues unrelated
to the expert examination in question. The prosecution objected,
arguing that at the preliminary investigation K. had carried out the
expert examination and had later been examined as an expert in the
trial before Kaluga Regional Court. This prevented him from being
examined as a witness in the case. K. had erroneously been put on the
list of witnesses in the bill of indictment. The prosecution
requested that the motion by the defence be rejected. The presiding
judge rejected the motion to examine K. on the ground that K.’s
procedural status as an expert who had carried out the examination
and given statements at the earlier hearing excluded the possibility
of examining him as a witness.
- The
applicant asked that the expert assessment report of 18 July 2002 be
declared inadmissible 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. The applicant argued before the jury that not all
publications from which he had obtained the information transmitted
to Alternative Futures had been examined by the experts who prepared
the report of 18 July 2002.
- The
judge rejected 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 the MiG-29 aircraft (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 the 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 at the Institute. As a researcher at the institute, the
applicant had to be aware of all publicly available information
concerning the armament policies of the USA 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 K.,
since they considered that she had 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 domestic missile early warning system”,
specifically ... was collected and stored, and subsequently handed
over to S. Kidd, representative of US military intelligence, at
hotel A 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 ... was
collected and stored, and subsequently handed over to Locke and Kidd,
representatives of US military intelligence, at hotel B in 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 ... was collected and stored,
and subsequently handed over to S. Kidd, representative of US
military intelligence, at hotel C in London (Great 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 ... was collected and stored, and subsequently handed
over to N. Locke, representative of US military intelligence, at
hotel D in Birmingham (Great 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 domestic air-to-air directed
missiles”, specifically ...was collected and stored, and was
handed over to N. Locke, representative of US military intelligence,
at hotel E in 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 collected and
transmitted information contained State secrets and had been obtained
from closed sources. Their motion was refused by the presiding judge.
- On
5 April 2004 the jury unanimously found the applicant guilty, having
answered the first three questions put to them in the affirmative and
the fourth question in the negative.
- On
7 April 2004 the judgment was delivered. It stated as follows:
“The court ..., having examined in a closed
hearing a criminal case on the charges against Sutyagin Igor
Vyacheslavovich of having committed an offence provided for by
Article 275 of RF CC [Criminal Code]
ESTABLISHED:
By the jury verdict of 5 April
2004 that Sutyagin is found guilty in that from 19 February
to June 1998 in the cities of Birmingham and London (Great Britain)
[he] met with Sh. Kidd, representative of US military
intelligence, and gave his consent for co-operation for collection of
data about the Russian Federation with its subsequent transfer to the
said person. On Sh. Kidd’s instructions Sutyagin collected,
stored and transferred, at different times, at the RAN [Russian
Academy of Science] Institute for the USA and Canada in Moscow and
Obninsk, Kaluga Region, the following data:
(a) from 24 June to 15 September 1998,
information on the topic “the structure and state of the
domestic missile early warning system”, specifically ... , was
collected and stored, and subsequently handed over to Sh. Kidd,
representative of US military intelligence, at ... [hotel A] 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 ..., was collected and stored, and
subsequently handed over to Sh. Locke and N. Kidd, representatives of
US military intelligence, at ... [hotel B], room ..., 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 ..., was collected and stored, and subsequently handed
over to Sh. Kidd, representative of US military intelligence, at ...
[hotel C], London (Great 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 ..., was
collected and stored, and subsequently handed over to N. Locke,
representative of US military intelligence, at ... [hotel D] in
Birmingham (Great 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
domestic air-to-air directed missiles”, specifically ..., was
collected and stored, and was handed over to N. Locke, representative
of USA military intelligence, at ... [hotel E], Brussels (Belgium)
from 14 to 18 July 1999.
On the basis of circumstances as established by the
guilty verdict the court determines that the accused Sutyagin’s
acts were high treason in the form of espionage under Article 275 of
the RF CC, specifically transmission, collection and storage with a
view to transmission to foreign state representatives, of information
constituting State secrets, to be used to damage the RF’s
national security committed by a RF citizen.
It has been established that the aforementioned
information, which Sutyagin collected and stored with a view to
transmission, and transmitted to US military intelligence
representatives, constitutes State secrets.
Furthermore, the mechanism of the espionage activities
committed by him is characterised by a mercenary motive ...
[Sutyagin] transmitted to foreign state representatives information
about the Russian Federation of a military and
military-political
nature constituting State secrets to damage the RF’s national
security in exchange for a cash award in an attempt to derive gains
of a pecuniary nature.
...
In deciding on the culprit’s
punishment in accordance with Article 60 of the RF CC the court takes
into account the nature and the degree of social danger of the
committed acts, information on his personality, and the impact of the
punishment imposed on his reformation and on the conditions of his
family’s life.
The court takes into account
Sutyagin’s positive references from his place of work and
residence, his having two dependant minor children, born in 1990 and
1991, and his state of health.
Under the jury’s verdict the
culprit does not deserve leniency. The court found no circumstances
extenuating or aggravating Sutyagin’s punishment.
Taking into consideration the specific circumstances of
the case, and the fact that the RF’s defence and security was
damaged as a result of the transmission by Sutyagin of information
about Russia constituting State secrets to foreign state
representatives, the court concludes that the culprit’s
correction and reformation are only possible in the conditions of his
isolation from society by serving his sentence in a strict-regime
correctional colony.
On the basis of the aforesaid and being governed by
Articles 343, 348, 350 paragraph 3 and 351 of the RF CCP, the court
SENTENCED:
Sutyagin Igor Vyacheslavovich to be convicted of an
offence provided for by Article 275 of the RF CC and to be punished
by way of deprivation of liberty for 15 years, to be served in a
strict-regime correctional colony.
I.V. Sutyagin’s
sentence is to be calculated from 29 October 1999.
...”
- The
applicant appealed against the judgment. In particular, he complained
that the replacement of Judge Sh. and the original jury composition
by assigning judge K. to the case had been unlawful; that juror Y.
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 questions to the jury had been formulated
in breach of the domestic law. The presiding judge had dismissed his
request to put to the jury questions as to whether the information
collected, stored and transmitted by him had constituted State
secrets and had been received from closed sources. No questions had
been put to the jury as to whether he had had intent to damage
national security, whether the representatives of Alternative Futures
had belonged to foreign intelligence or whether he had transmitted
information which had previously been published in open sources. Nor
was the latter question examined in the judgment. The applicant
further argued that the trial court had had no grounds to declare the
exculpatory expert reports of 30 June and August 2000 inadmissible
evidence, to reject his request for examination of N. and K. 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 evidence. In his appeal
the applicant relied on Articles 6, 7 and 10 of the Convention for
the Protection of Human Rights and Fundamental Freedoms.
- In
May 2004 the general list of jurors for the Moscow Circuit Military
Court was published with Y.’s name on it.
- On
17 August 2004 the Supreme Court 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 RF Code of
Criminal Procedure on the part of the trial court, in particular in
its reasoned refusal to examine experts as witnesses and to admit
their reports in evidence, as well as in its formulation of questions
to the jury. The Supreme Court 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. It noted that Y. had
been included in the approved list of jurors of Moscow. It held that
the court’s finding of the applicant’s guilt had been
based on the jury’s lawful verdict and that the applicant’s
acts had been legally characterised in accordance with the factual
circumstances established by the jury’s verdict. The
applicant’s arguments concerning the failure to prove his guilt
could not be taken into consideration as the judgment delivered as a
result of the jury trial could not be appealed against and quashed on
those grounds, of which the applicant had been aware.
- 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 Y. According to the applicant, thereafter the defence
obtained information that juror Mr Y. had allegedly worked for
the FSB.
- In
July 2010, after signing a clemency petition to the President of the
Russian Federation in which the applicant acknowledged his guilt in
the crime of which he was convicted, he was
released as part of an exchange of prisoners between Russia and the
United States.
He was taken to Britain, where he currently resides. The applicant
claims that he was coerced into acknowledging his guilt by the
circumstances surrounding the exchange and that he in fact denies his
guilt.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention during criminal proceedings
- For
the domestic law regulating detention during criminal proceedings see
Bykov v. Russia [GC], no. 4378/02, §§ 49 55,
ECHR 2009 ... in respect of the period until 1 July 2002,
and Veliyev v. Russia, no. 24202/05, §§ 107-113,
24 June 2010 in respect of the period since 1 July 2002.
B. Composition of courts and assignment of cases to
judges
- The Constitution of the Russian Federation guarantees
the right to have one’s case examined in a court and by a judge
whose jurisdiction to examine the case is established by law (Article
47). According to the Constitutional Court’s judgment of 16
March 1998, such a law (laws) must contain criteria which would
predetermine in which court this or that civil or criminal case falls
to be examined. This would allow the court (judge), parties and other
participants in the proceedings to avoid uncertainty in this
question. Such uncertainty would have otherwise
to be obviated by way of an enforcement decision, that is, the
discretionary power of an enforcement body or official. In the latter
case jurisdiction would not be determined on the basis of law.
- The
Constitution provides that judges are independent and that they are
subordinate only to the Constitution and the federal law (Article
120).
- The Code of Criminal Procedure of the Russian
Federation in force since 1 July 2002 (Law no. 174-FZ of 18
December 2001, the “CCrP”),
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 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
(Instruction no. 169 of the Courts Administration Office at the
Supreme Court of the Russian Federation of 28 December 1999).
- As
a matter of common practice, a court President distributed cases
lodged with a court between the judges of that court.
- Under
paragraph 19 of Resolution no. 23 of the Supreme Court Plenum 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.
C. Jury trial
- Article
30 of the CCrP 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 the
court’s annual list of jurors by drawing them at random
(Article 326 of the Code).
- 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. The initial lists of jurors were drawn up 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 Administration’s
Territorial 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 submitting 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.
- One
and the same person cannot sit as a juror more than once a year
(Article 326 of the CCrP and section 85 of the Judicial System Act).
- Parties
to proceedings can challenge candidate jurors with or without
reasons, twice in the latter case (Article 327 of the CCrP). 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
questions put to them truthfully (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 specific
features of a case. After hearing the parties the presiding judge
delivers a decision. If the request is found to be justified the jury
will be dismissed.
- 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 which
incriminates the defendant and 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.”
- Under
Articles 334 § 1 and 339 of the CCrP, jurors take decisions on
the following questions which are put to them after examining the
evidence and hearing the parties:
–
has it been proven that the acts of which the culprit is accused were
committed;
–
has it been proven that those acts were committed by the culprit;
–
is the culprit guilty of committing those acts?
Jurors
can also be asked particular questions about, inter alia,
circumstances which may have an impact on the issues of guilt or may
entail the culprit’s exemption from liability. No questions
requiring legal assessment can be put to jurors.
If
the culprit is found guilty the jurors also state whether the culprit
deserves leniency.
The
questions to the jury are formulated in writing by the presiding
judge. The parties can make their observations on the questions and
propose new questions (Article 338 of the CCrP).
- Questions
other than those to be decided by jurors, as stated above, are
decided by the presiding judge alone without jurors’
participation (Article 334 § 2 of the CCrP).
- Issues
of inadmissibility of evidence are examined without jurors’
participation. After hearing the parties the presiding judge takes a
decision to exclude evidence which he or she found inadmissible
(Article 335 §§ 5 and 6 of the CCrP).
- Before
the jury retires to the deliberation room the presiding judge gives
directions (Article 340 of the CCrP). The presiding judge sums up the
charges; informs them about the applicable criminal law provisions;
sums up the evidence examined at the trial and the positions of the
prosecution and the defence; and explains the rules of assessment of
evidence in their entirety, the principle of presumption of
innocence, the rule of interpreting insoluble doubts in favour of the
accused, the rule that their verdict must only be based on evidence
examined at the trial and that no evidence has predetermined force
for them. The presiding judge further brings jurors’ attention
to the fact that the culprit’s refusal to give statements at
the trial should not be interpreted as evidence of guilt. The
presiding judge explains the rules of deliberations and voting. The
jurors are reminded of the oath taken by them.
- No
one except the jurors may be present in the deliberation room
(Article 341 of the CCrP). The questions put to the jurors are
answered by way of affirmation or negation, to be supplemented by a
word or a phrase to make the meaning of the answer precise (Article
343 § 7 of the CCrP).
- If
the jury delivers a guilty verdict the trial continues without the
jurors to examine, inter alia, circumstances relevant to the
legal characterisation of the acts committed by the culprit,
sentencing and determination of a civil claim. The parties’
submissions may concern any legal issues to be resolved in a judgment
(Articles 346-347 of the CCrP) which will be delivered by the
presiding judge on the basis of the jury’s verdict. The
presiding judge may deviate from the guilty verdict and acquit the
culprit if he or she finds that the acts committed by the culprit do
not contain the elements of a crime. The presiding judge may dissolve
the jury and order a fresh examination of the case by a new
composition of the court if he or she finds that the event of a crime
or the culprit’s participation in a crime have not been
established and that the guilty verdict has therefore been delivered
in respect of an innocent person and there are sufficient grounds for
his or her acquittal (Article 348 of the CCrP). The jury’s
opinion that the culprit deserves leniency is binding on the
presiding judge (Article 349 of the CCrP).
- A
higher court which examines the case on appeal may not quash or
change a judgment delivered as a result of a jury trial on the ground
of inconsistency between the conclusions reached by the trial court
in its judgment and the facts established by that court. Permissible
grounds for quashing or changing a judgment in such a case are
violation of the procedural law, misapplication of criminal law, and
unfairness of the sentence imposed (Article 379 of the CCrP).
D. Criminal liability for disclosure of State secrets
- Article
29 § 4 of the Constitution provides:
“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.”
The Constitutional Court of the Russian
Federation held that this provision was motivated by the need to
defend the sovereignty of Russia and to ensure its defence and
security, and is in accord with Article 55 § 3 of the
Constitution, which permits restrictions of human rights and freedoms
and, therefore, the right to information for the above-mentioned
purposes. It follows that the legislature may establish a list of
information which can be classified as State secrets and regulate its
declassification and protection, as well as admission and access to
such information. Under section 1 of the State Secrets Act, its
provisions are binding within and outside the territory of the
Russian Federation for, inter alia,
nationals of the Russian Federation who have accepted obligations or
are obliged in view of their status to enforce the requirements of
the Russian legislation on State secrets. The duty to observe the
legislation on State secrets flows from the general legal duty to
observe the Constitution and the laws (Article 15 § 2
of the Constitution). Thus, section 1 of the State Secrets Act is in
conformity with the Constitution (the Constitutional Court’s
judgment of 27 March 1996).
- The Criminal Code of the
Russian Federation of 1996 provides:
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.”
- Section
5 of the “Official Secrets Act” (RF
Law no. 5485-1) of 21 July 1993, as amended on 6 October 1997,
provided:
“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, on 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;
On 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 (FPS) 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.”
III. INTERNATIONAL TEXTS AND DOCUMENTS
- The
UN Human Rights Council Special Rapporteur on the Independence of
Judges and Lawyers, Leandro Despouy, in his report on his mission to
the Russian Federation (19 to 29 May 2008), published on 23 March
2009, stated:
“61. The distribution of cases among
the judges is left to the discretion of the court chairperson. It
appears that there is no system for ensuring that cases are allocated
according to objective criteria. Instances have been reported in
which more sensitive cases are allocated to ‘certain’
judges or where a criminal case was transferred to another judge
during the ongoing trial because the judge in question refused to be
influenced.
...
96. In order to assist the Russian Federation
in pursuing and renewing efforts in the judicial reform process, the
Special Rapporteur recommends that:
...
99. To enhance the independent role of
judges:
...
A mechanism be established to allocate court cases in an
objective manner.”
- In
its Resolution 1685 (2009)
entitled Allegations
of politically motivated abuses of the criminal justice system in
Council of Europe member states adopted
on 30 September 2009, the Parliamentary Assembly of the Council of
Europe stressed the fundamental importance, for the
rule of law and the protection of individual freedom, of shielding
criminal justice systems throughout Europe from politically motivated
interference. It held as follows:
“3.1 ...True independence of judges
also requires a number of legal and practical safeguards, including:
...
3.1.4. the independence of judges vis-à-vis
court chairpersons ... shall be protected, inter alia, by the
allocation of cases on the basis of predetermined, objective systems,
by strict rules protecting judges from being taken off individual
cases without reasons specifically defined by law...”
The
Assembly noted, inter alia, that in the Russian Federation
court chairpersons have disproportionate power over other judges, in
particular because of their power to decide on the distribution of
cases (paragraph 4.3.6.). The
Assembly called on the Russian Federation to:
“5.5.3. strengthen the system of
allocation of cases among the courts and to individual judges or
sections within the courts, in such a way as to prevent any “forum
shopping” by the prosecutor’s office and the exercise of
any discretion in this respect by the court chairpersons;
5.5.4. promote the
development of a spirit of independence and critical analysis in
legal education in general and in initial and continued training of
judges and prosecutors in particular, and to robustly sanction any
local, regional or federal officials that continue to try to give
instructions to judges, as well as any judges who seek to obtain such
instructions; ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
- The
applicant complained that the length of his pre-trial detention was
unreasonable, in breach of Article 5 § 3 of the
Convention, which provides:
“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 during the preliminary investigation and
the trial the applicant had been detained on remand in accordance
with the law, in particular, Articles 89 and 96 of the old Code of
Criminal Procedure. In deciding to detain the applicant on remand it
had been taken into account that he could obstruct the establishment
of truth in the case, continue his criminal activities and flee from
justice. The probability of him fleeing had existed in view of his
“open” Italian visa or other possibilities at his
disposal. All those circumstances had triggered further decisions to
extend the applicant’s detention.
- 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, nor had the Supreme Court’s decision of 20
March 2002. 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 reiterates that under the second limb of Article 5 §
3, a person charged with an offence must always be released pending
trial unless the State can show that there are “relevant and
sufficient” reasons to justify his continuing detention. The
domestic courts must, paying due regard to the principle of the
presumption of innocence, examine all the facts arguing for or
against the existence of a genuine requirement of public interest
justifying a departure from the rule of respect for individual
liberty and must set them out in their decisions on the applications
for release (see, among other authorities, Kalashnikov v.
Russia, no. 47095/99, § 114, ECHR 2002 VI,
and Bykov, cited above, §§ 61-64).
- The Court reiterates that, in determining the length
of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the
day the accused is taken into custody and ends on the day when the
charge is determined, even if only by a court of first instance (see,
among other authorities, Wemhoff v. Germany, 27 June
1968, § 9, Series A no. 7, and Labita v. Italy
[GC], no. 26772/95, §§ 145 and 147,
ECHR 2000-IV). It notes that the date on which the applicant in
the present case was taken into custody was in dispute between the
parties, falling in the period between 27 and 30 October 1999, and
that the applicant’s relevant complaint under Article 5 § 1 (c)
was declared inadmissible (see Sutyagin v. Russia (dec.), no.
30024/02, 8 July 2008). The Court cannot therefore resolve this
discrepancy. In the circumstances of the present case it can,
however, examine the complaint under Article 5 § 3
without establishing the exact date in question. The applicant’s
detention pending trial ended on 7 April 2004, when the trial court
delivered a judgment in his case. It thus lasted more than four years
and five months.
- The
Court observes that in refusing the applicant’s release
throughout the whole period of his detention the domestic courts
consistently relied on the gravity of the charges against him as the
sole or decisive factor justifying his remand in custody. Where they
relied on other reasons – the risk of absconding, obstructing
investigation and reoffending – or stated that such reasons
underlying the original detention order remained valid four years
later, they made no reference in their decisions to any factual
circumstances to explain the existence of such risks at the
particular time of their review (the Moscow City Court’s
decisions of 3 and 4 October 2002 as upheld by the Supreme Court on
25 December 2002, and the Moscow City Court’s decision of 29
September 2003 as upheld by the Supreme Court on 12 November 2003).
The applicant’s argument that his visa for a trip abroad, to
which Moscow City Court referred in its decisions of 3 and 4 October
2002, had expired in November 1999 was ignored by Supreme Court on
appeal. So were other arguments, such as his family ties and his
permanent place of residence, put forward by the defence in their
applications for release, some of which were supported by
non governmental and other organisations and persons as the
applicant’s potential guarantors. In two decisions no reasons
whatsoever were cited for the applicant’s continued detention
(the Kaluga Regional Court’s decision of 27 December 2001 as
upheld by the Supreme Court’s decision of 20 March 2002).
At no point did the domestic courts consider having recourse to
alternative measures to ensure the applicant’s appearance at
the trial.
- According
to the Court’s well-established case-law, such a situation is
incompatible with Article 5 § 3 (see, among many other
authorities, Sarban v. Moldova, no. 3456/05, §§
100-101 and 103-104, 4 October 2005; Shcheglyuk v. Russia,
no. 7649/02, §§ 11-14 and 16, 14 December 2006;
Pshevecherskiy v. Russia, no. 28957/02, §§ 19-25,
24 May 2007; Bykov, cited above, §§
65 and 67, and Logvinenko v.
Russia, no. 44511/04,
§§ 45 49, 17 June 2010).
- There has, accordingly, been a
violation of Article 5 § 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument. In particular, they pointed out
that for more than half of the twelve-month period of the proceedings
before the Kaluga Regional Court the case had not been examined for
reasons attributable to the conduct of the applicant and his lawyers,
who had further delayed the examination of the case file after the
additional investigation.
- According
to the applicant, the authorities had been responsible for major
delays which could be explained neither by the complexity of the
case, which had been examined by the Moscow City Court in fifteen
working days, nor by his conduct or that of his lawyers, which had
delayed the proceedings only for three months and thirteen days for
valid 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 notes that the period to be taken into consideration began
between 27 and 30 October 1999, the exact date being disputed between
the parties (see paragraph 142 above), when the applicant was taken
into custody, and ended on 17 August 2004 when the Supreme Court
upheld the judgment on appeal. It thus lasted more than four years
and nine months for the pre-trial proceedings and the court
proceedings at two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II).
- The
Court notes that the first round of the pre-trial investigation
lasted one year, the first round of the court proceedings before
Kaluga Regional Court one year and two months and the proceedings
before the Supreme Court less than three months, the additional
investigation almost one year and five months and the final round of
the court proceedings before Moscow City Court seven months and
before Supreme Court over four months.
- The
case which involved expert examinations concerning the secrecy of
information had a certain complexity. However, the last such
examination, which resulted in the only expert opinion examined by
the trial court, was carried out within one
month. Furthermore, it took Moscow City Court in its final
composition less than two months to examine the case and deliver its
judgment.
- The
Kaluga Regional Court’s findings in its decision of 27 December
2001 to remit the case for additional investigation suggest that this
was the fault of the investigating authorities, which had
failed to prepare the charges properly. It
thus took the authorities about two years and five months to bring
the final charges against the applicant on 29 July 2002, which
reveals little diligence on their part.
The Government did not offer any justification for this delay.
- As
regards one year for the defence’s acquaintance with the
materials of the case file after the additional investigation, the
Court considers that the authorities should have afforded the defence
more time to be able to read the case file within a shorter period,
especially after the substantial delay during the investigation
stage.
- The
Court has frequently found violations of Article 6 § 1 of
the Convention in cases raising issues similar to that in the present
case (see Pélissier and Sassi, cited above).
- Given
what was at stake for the applicant, who had spent most of the time
in question – more than four years and five months –
in detention pending investigation and trial, the Court, having
examined all the material submitted to it, considers that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE INDEPENDENCE, IMPARTIALITY AND LAWFULNESS
OF THE TRIAL COURT
- The
applicant complained that his trial court had not been “an
independent and impartial tribunal established by law” in view
of the change in the composition of the court by way of reassigning
the case from Judge Sh. to Judge K., the selection of the candidate
jurors from an unpublished list of jurors and in a way that allegedly
impeded verification of its lawfulness, and in view of Y.’s
participation in the trial as a juror.
The
applicant relied on Article 6 § 1 of the Convention which, in so
far as relevant, provides:
“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. Submissions by the parties
1. The trial court’s composition
(a) The Government
- The
Government submitted that the President of the Moscow City Court had
decided to transfer the applicant’s case to judge K. in view of
judge Sh.’s high workload, as he had had several other complex
criminal cases, and his annual leave from 15 December 2003 to 14
January 2004. The law did not require any special decision to be
issued if a case was transferred from one judge to another.
- 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 K.
had formed a new jury in accordance with Article 328 of the Code of
Criminal Procedure, which conferred the task of jury formation 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 K. had
been based only on his disagreement with her decisions to dismiss
various motions by the defence.
(b) The applicant
- 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 line with the principle of
independence of the judiciary, prohibiting any interference with
judges’ administration of justice (Article 120 of the
Constitution and sections 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 impermissible. 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 of proceedings.
- The
applicant contended that the reasons cited by the Government to
demonstrate that judge Sh. 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 judge Sh. 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 Sh. was genuinely able to examine the
applicant’s case and had 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 Sh. 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 Sh. was no longer able to sit in the case.
- The
applicant claimed that the replacement of the presiding judge in his
case had been carried out in order to change the composition of the
jury, which had apparently not satisfied the prosecution. Ms K. had
been unable to deal with the case until three and a half months after
her assignment. 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.
2. Selection of jurors and Mr Y.
(a) The Government
- 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 Y. 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 Y. had
not been and was not an employee of the FSB.
(b) The applicant
- 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
the 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.
The list of jurors for the Moscow Circuit Military Court, with Mr
Y.’s name on it, was published prior to publication of the list
of jurors of the Moscow City Court which also included Mr Y.,
and was thus more credible. According to the applicant, Mr Y.
should not have therefore sat as a juror in his case.
- The
applicant 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 considered more suitable by the
authorities.
- The
applicant claimed that Mr Y. had concealed his connection with
the FSB when the relevant question had been put to the candidate
jurors. 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 Y. According to those records,
a Mr G. stated in the course of his examination on 19 February 2004
by Moscow police investigator Mr Zh. that he had had personal
and business relations with Mr Y. and had known that Mr Y. had served
in the FSB. According to Mr G., Mr Y. 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
K., a police officer who had questioned Mr Y. in 2000, Mr Y. stated
that he had been a KGB officer and had had ‘connections’.
The applicant also referred to a book published in Poland in 1996.
According to that book, Mr Y. 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 (“the SVR”).
- According
to the applicant, Mr Y.’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 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
Y. admitted his connection with the FSB he too would have been
dismissed.
- 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; 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.
- In
reply to the Government’s submission concerning the applicant’s
failure to challenge the final 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”.
B. The Court’s assessment
1. Replacement of judge Sh. by judge K.
Independent and impartial tribunal
- The
Court will first examine the applicant’s complaint that the
replacement of Judge Sh. by Judge K. had been incompatible with the
requirements of “independence” and “impartiality”
of a tribunal.
- The
Court reiterates that in order to establish whether a tribunal can be
considered “independent” for the purposes of Article 6 §
1, regard must be had, inter alia, to the manner of
appointment of its members and their term of office, the existence of
safeguards against outside pressures and the question whether it
presents an appearance of independence (see, among many other
authorities, Findlay v. the United Kingdom, 25 February 1997,
§ 73, Reports of Judgments and Decisions
1997-I).
- The
existence of “impartiality” for the purposes of Article 6
§ 1 must be determined according to a subjective test, that
is, on the basis of the personal conviction of a particular judge in
a given case, and also according to an objective test, that is,
ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect (see Fey v. Austria,
24 February 1993, § 28, Series A no. 255-A).
- As
to the subjective test, the applicant has not alleged, in so far as
the replacement of judge Sh. by judge K. was concerned, that judge K.
acted with personal bias. In any event, the personal impartiality of
a judge must be presumed until there is proof to the contrary and in
the present case there is no such proof. There thus remains the
application of the objective test.
- Under
the objective test, it must be determined whether, quite apart from
the judges’ personal conduct, there are ascertainable facts
which may raise doubts as to their impartiality. In this respect even
appearances may be of a certain importance. What is at stake is the
confidence which the courts in a democratic society must inspire in
the public and, above all, as far as criminal proceedings are
concerned, in the accused. This implies that in deciding whether in a
given case there is a legitimate reason to fear that a particular
judge lacks impartiality, the standpoint of the accused is important
but not decisive. What is determinant is whether this fear can be
held to be objectively justified (see Hauschildt v. Denmark,
24 May 1989, § 48, Series A no. 154, and Kyprianou v.
Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII).
- Since
the requirement of independence and the objective aspect of the
requirement of impartiality are closely linked, they are considered
together (see Findlay, cited above, ibid.).
- The
Court observes that in September 2003 the applicant’s case was
assigned to judge Sh. of Moscow City Court, who started the
proceedings immediately, formed the jury and commenced the
examination of the case on 3 November 2003. On 26 November 2003 the
President of Moscow City Court reassigned the case to judge K., who
recommenced the proceedings in the case in February 2004, conducted
the selection of a new composition of jury and started the trial anew
in March 2004. The defence unsuccessfully challenged judge K. on
several occasions. They did not exercise their right to challenge the
jury. The complaint about the replacement of Judge Sh. was one of the
points of their appeal against the judgment. The Supreme Court
stated, inter alia, without further elaboration, that the
principle of immutability of court composition provided for by
Article 242 of the Code of Criminal Procedure had been complied with
and upheld the judgment.
- The
Court observes further that the defence received no explanation,
despite their inquiries, as to the grounds and reasons for the
replacement of judge Sh. by judge K. No procedural decision was
issued in this respect. Nor had the law required that one was issued,
as the Government confirmed in their submissions. The proceedings in
the applicant’s case were governed by the new 2001 Code of
Criminal Procedure.
- Repeated
replacements of members of a trial bench composed of a presiding
judge and two lay judges which were carried out for unascertainable
reasons and were not circumscribed by any procedural safeguards have
led the Court to find a violation of the guarantee of independent and
impartial tribunal in an earlier case against Russia, in which the
trial proceedings were governed by the former 1960 Code of Criminal
Procedure (see Moiseyev v. Russia, no. 62936/00, §§
167 185, 9 October 2008).
- The
Court reiterates that it is the role of the domestic courts to manage
their proceedings with a view to ensuring the proper administration
of justice. The assignment of a case to a particular judge or court
falls within the margin of appreciation enjoyed by the domestic
authorities in such matters. There is a wide range of factors, such
as, for instance, resources available, qualification of judges,
conflict of interests, accessibility of the place of hearings for the
parties etc., which the authorities must take into account when
assigning a case. Although it is not the role of the Court to assess
whether there were valid grounds for the domestic authorities to
(re)assign a case to a particular judge or court, the Court must be
satisfied that such (re)assignment was compatible with Article 6 § 1,
and, in particular, with its requirements of independence and
impartiality (see Bochan v. Ukraine, no. 7577/02, §
71, 3 May 2007, and Moiseyev, cited above, § 176).
- Under
section 6.2 of the Status of Judges Act, the court President
distributed duties between the judges in accordance with the
procedure provided for by Federal Law (see paragraph 114 above). As a
matter of common practice, cases lodged with a court were distributed
between the judges of that court by the court President at his or her
own discretion.
- After
the case has been assigned and the proceedings begun, the law
required that the case remain with the same court composition until
the final decision was reached. This principle, known as the rule of
immutability of the court composition, was set out in Article 242 of
the new 2001 Code of Criminal Procedure of the Russian Federation
(see paragraph 113 above). It provided for the possibility of
replacing a judge who was no longer able to take part in the hearing
with another judge. Neither the Code of Criminal Procedure nor any
other law set out the circumstances in which such a replacement could
occur and the procedure to be followed. In particular, there was no
requirement that a court procedural decision, setting out grounds and
reasons for the replacement and amenable to appeal to a higher court,
be issued.
- It
is conceivable that Article 242 could encompass such situations as
self-withdrawal by a judge, recusation of a judge by a party or
external events which would preclude him or her from continuing to
sit – for example, discontinuation of his or her judicial
status. However, no such circumstances occurred during the
applicant’s trial. The Government argued before the Court that
the reasons for the replacement of the presiding judge were Judge
Sh.’s involvement in several other criminal proceedings in
complex cases and his annual leave scheduled from 15 December 2003 to
14 January 2004. The Court considers that workload and annual leave,
akin to those cited by the Government, may be inherent in any judge’s
professional reality and cannot plausibly explain that Judge Sh.
could “no longer take part” in the proceedings. If the
intention behind the transfer had been to avoid the delay in
examining the case, such counterarguments as the need to carry out
the selection of a new composition of the jury and start the trial
from zero should have been taken into account too. Moreover, the new
presiding judge was not able to start the trial until March 2004,
three and a half months after her assignment. It appears that since
the jury had been formed and the trial started, the reasons cited by
the Government could not in the circumstances plausibly explain that
the need to change the entire composition of the court and to
re-commence the trial outweighed the interest of justice in the
continued examination of the case by its original composition (see,
with necessary changes made, Mellors v. the United Kingdom
(dec.), no. 57836/00, 30 January 2003). In any event, it is not
for the Court to establish the circumstances which called for the
replacement of the judge. They should have been made known to the
defence in the domestic trial proceedings. However, no procedural
decision stating the grounds and reasons for the replacement had been
issued and the defence had been kept in uncertainty until the end of
the trial despite their inquiries. They did not, therefore, have the
possibility of challenging the decision to replace the judge.
- The
Supreme Court upheld the judgment. In similar circumstances the Court
concluded that defects that took place in the
first-instance proceedings had not been cured by a higher
court which upheld conviction and sentence (see De Cubber v.
Belgium, 26 October 1984, § 33, Series A
no. 86; Findlay, cited above, § 79, and
Kyprianou, cited above, § 134). Nor did the Supreme Court
in the present case cure the failing in question.
- In
the light of the foregoing the Court finds that the applicant’s
doubts as to the independence and impartiality of the trial court in
his criminal case may be said to have been objectively justified in
view of the replacement of the presiding judge, which occurred for
unascertainable reasons and were not circumscribed by any procedural
safeguards.
- There
has therefore been a violation of Article 6 § 1 on account of
the lack of the trial court’s independence and impartiality
under the objective test.
2. The remaining complaints
- This
finding makes it unnecessary to examine separately the applicant’s
other misgivings about the independence and impartiality of Moscow
City Court on account of the selection and composition of the jury.
It also renders unnecessary the separate examination of the
applicant’s allegation, on account of the same facts, that his
trial court was not “established by law” which,
although made in a different legal context, coincides in
substance with the complaint concerning independence and impartiality
(see Findlay,
cited above, § 80, and Piersack v. Belgium,
1 October 1982, § 33, Series A no. 53).
IV. ALLEGED VIOLATION OF ARTICLE 6 §
1 AND 3 (d) OF THE CONVENTION AS REGARDS THE TAKING OF EVIDENCE AND,
IN PARTICULAR, EXAMINATION OF WITNESSES
- The
applicant complained that the presiding judge had acted arbitrarily
in deciding on the issues of admissibility of evidence and
examination of witnesses, in breach of the principle of
equality of arms, the guarantee to examine defence witnesses under
the same conditions as prosecution witnesses, and, more generally,
the right to a fair hearing guaranteed by Article 6 §§ 1
and 3 (d) of the Convention, which, in so far as relevant, provides:
“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
applicant disagreed with the trial court’s decision to declare
the expert reports of 30 June and 17 August 2000 inadmissible
evidence. He argued that those reports might have helped him prove
that the information transmitted to Alternative Futures on two out of
five 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 constituted State secrets. He alleged that the
expert report of 18 July 2002, which had been examined before the
jury, had the same procedural flaws as the above two reports of 2000,
in that it lacked a “research” section. Nevertheless, his
motion to have it declared inadmissible evidence had been rejected by
the presiding judge without giving reasons. The report of 18 July
2002, according to which the information transmitted to Alternative
Futures had constituted State secrets and could not have been
obtained from open sources, had been the only prosecution evidence of
the secret nature of the information at issue. The applicant further
alleged that the experts had not examined all publications to which
he had referred; that they had in essence carried out legal
assessment which should have been done by the judges and that their
impartiality was open to doubt, given their status as servicemen.
- The
applicant further submitted that experts N. and K., who were among
those who prepared the above reports of 30 June and 17 August
2000, should have been examined before the jury in accordance with
Articles 217 § 4, 220 § 4 and 271 of the Code of Criminal
Procedure. Both experts had been included in
the list of persons to be summoned to the trial, which was enclosed
with the bill of indictment. The prosecution witnesses T., V. and G.,
also included on that list, had been examined before the jury.
- The
applicant further claimed that the judge had arbitrarily rejected his
motion for examination before the jury of an opinion from the Russian
aircraft construction corporation MiG, prepared at his lawyer’s
request. That opinion could have helped him prove that the materials
prepared by him on the topic concerning the MiG aircraft had not
contained State secrets.
- The
Government submitted that the presiding judge’s decisions on
the taking of evidence had been lawful. Thus, the decision to declare
the expert report of August 2000 inadmissible evidence was lawful and
duly reasoned, as the expert assessment had been carried out in
violation of Article 191 of the RSFSR Code of Criminal Procedure. The
expert assessment of 2002, the results of which had been read out
before the jury at the request by the defence, had only been one item
of evidence supporting the applicant’s guilt, which was
assessed as part of the totality of evidence and had had no
preference over other evidence. All the publications to which the
applicant had referred as the sources of his information had been
made available to the experts. Furthermore, the defence had examined
those publications before the jury with a view to challenging the
experts’ conclusions.
- 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 request by the defence to examine expert N. had
been dismissed because his report had been declared inadmissible
evidence. The defence had requested the examination of K. as a
witness and not as an expert. Their request had been lawfully
rejected because K.’s participation in the proceedings as an
expert in the course of the preliminary investigation and the trial
before the Kaluga Regional Court had excluded the possibility of
questioning him as a witness about the circumstances of the
preliminary investigation, under Article 57 of the RF Code of
Criminal Procedure. The defence had not objected to the examination
of the prosecution witnesses T., V. and G.
- In
view of the grounds on which it has found a violation of Article 6
§ 1 of the Convention (see paragraphs 189-193 above), the Court
considers that no separate issue arises under this head (see
Kyprianou, cited above, § 141, and, with necessary
changes made, Findlay,
cited above, § 80, and Taxquet v. Belgium [GC],
no. 926/05, § 102, 16 November 2010).
V. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE
CONVENTION
- The
applicant complained, invoking Article 7 of the Convention, that he
had been convicted in the absence of criminal intent, as one of the
constituent elements of the offence of espionage, and that he should
instead have been acquitted. Thus, he had not realised that he was
dealing with information containing State secrets, since he had
received that information from open publications. Questions had not
been put to the jury as to whether he transmitted information
containing State secrets and whether he collected it from closed or
open sources; the jury therefore found that he had transferred
non-classified information to foreign intelligence – acts which
were not embraced by the corpus
delicti of espionage. Furthermore,
it had not been established by the jury verdict that he had had
criminal intent to damage the national security of the Russian
Federation by abetting foreign intelligence services. Hence, the
presiding judge should have acquitted him on the basis of such a
verdict by the jury. The applicant concluded that the presiding judge
had manipulated the questions to the jury, having disregarded the
request by the defence to change their formulation, and had changed
the constituent elements of the offence of espionage to his
detriment. The applicant further disagreed with the application of
domestic law in his case. He argued that the Official Secrets Act
defining the list of classified information, which had in any event
been rather vague, had not been applicable to him since he had never
had admission or access to State secrets by virtue of his office;
that the list of classified information
had also 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; and that the
expert assessment of the secrecy of the transmitted information of
18 July 2002 had been carried out on the basis of unpublished
Ministry of Defence decrees nos. 055 and 015 of 10 August
1996 and 25 March 2002 respectively, to which he had not had
access. The applicant considered that this situation had contributed
to his arbitrary conviction by the presiding judge. The applicant
further complained that all of the above had also led to a violation
of Article 10 of the Convention. Articles 7 and 10 of the Convention
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. 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.”
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 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 the exercise of the right to freedom of
expression carried with it duties and responsibilities and could be
subject to formalities, conditions, restrictions or penalties in the
interests of national security, territorial integrity or public
safety. According to the Court’s case law, the disclosure
of the State’s interest in a given weapon and that of the
corresponding technical knowledge, which may give some indication of
the state of progress in its manufacture, were capable of causing
considerable damage to national security (they referred to
Hadjianastassiou v. Greece, 16 December 1992, § 45,
Series A no. 252). The conviction of an individual for such a
disclosure could not be seen as a violation of Article 10 of the
Convention. The State had not violated Article 10 by holding the
applicant criminally liable for disclosure of State secrets of a
military nature to a foreign intelligence service. The circumstances
of the case, as established by the domestic courts, showed that the
applicant had used his research skills to damage Russia’s
external security for the purpose of obtaining financial
compensation. The fact that he had not had access to State secrets
did not relieve him of criminal liability for divulging classified
data to a foreign state. 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
professional 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. In his
videoed statements to FSB officials, which were used as evidence at
the trial, the applicant had repeatedly affirmed that he had realised
that his interlocutors were agents of foreign intelligence services;
however, he had continued to transmit information to them because of
his difficult financial situation. As an educated person and a
scientist, the applicant could and should have known of the
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
Government stated that the applicant’s attempts to challenge
the judgment in proceedings before the European Court of Human Rights
and to put to discussion the issues of guilt, elements of crime and
evidence contained in the 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 Russian law, evidence and a
defendant’s guilt were the exclusive competence of a jury. The
jury in the applicant’s trial had considered the evidence
submitted by the prosecution sufficient to find the applicant guilty
of the charges brought against him. They had unanimously found him
guilty. According to the law, the jury verdict could not be called
into question. Furthermore, the applicant’s conviction had been
based on Article 275 of the Criminal Code. The decrees by the
Ministry of Defence had merely been specific documents which were
used for the expert assessment. The main documents defining the list
of classified information had been the Official Secrets Act and
Presidential decree no. 1203, which had complied with the
requirements of accessibility and foreseeability.
- The
Government noted that, since the case file was classified, they could
not submit to the Court a number of documents, such as documents
describing information which the applicant had handed over to
Alternative Futures, the expert reports which analysed that
information with a view to determining whether it contained State
secrets, full records of the trial hearings or the presiding judge’s
procedural decisions on the admissibility and examination of
evidence.
- It is a common rule in the Court’s practice
that the Court is master of the characterisation to be given in law
to the facts of the case, and is not bound by the characterisation
given by the applicant or the Government. A complaint is
characterised by the facts alleged in it and not merely by the legal
grounds or arguments relied on (see Şerife Yiğit v.
Turkey [GC], no. 3976/05, § 52, ECHR 2010-...). Having
regard to this observation, the Court considers that the essence of
the applicant’s complaints is that he did not receive a fair
trial, a matter which primarily falls within the ambit of Article 6 §
1 of the Convention. Having found a violation of Article 6 § 1
of the Convention on the ground of the lack of independence and
impartiality of the trial court (see paragraphs 189-193 above), the
Court does not consider it necessary to examine whether such a court
afforded the applicant a fair trial (see Kyprianou, cited
above, § 141, and, with necessary changes made, Findlay,
cited above, § 80, and Taxquet, cited above, §
102).
- The
Court further notes, having regard to the material of the case file,
that it does not have sufficient information which would enable it to
adjudicate on the complaint under Article 10 of the Convention and
that it is not called upon, in the circumstances of the present case,
to do so.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed 300,000 euros (EUR) in respect of
non-pecuniary
damage. He argued that the fact that he had been imprisoned for such
a long time while innocent had caused him severe mental suffering,
equivalent to cruel torture, and physical suffering. He asserted that
the authorities had taken every step to obtain his conviction, in
particular by ensuring that the case had been heard by the “right”
jury composition, and subsequently to make him serve his sentence in
harsher conditions, namely by placing him in prisons in remote
regions in breach of the relevant legislation, which had inevitably
hindered his contacts with his family and affected his emotional
state, and by artificially creating circumstances – in bringing
disciplinary proceedings against him for keeping a mobile phone –
which had ultimately prevented the applicant’s pardon by the
President of the Russian Federation in 2007. The applicant also
referred to his deteriorated health and his hospitalisation in
February 2008.
- The
Government submitted that, if the Court were to find a violation of
the Convention, that conclusion would in itself constitute sufficient
just satisfaction. They noted that in applying for the applicant’s
pardon in 2007 the applicant and his supporters had not questioned
the finding of his guilt. As regards the claim for compensation for
an alleged deterioration in the applicant’s health while
serving his sentence, they noted that that issue was not a subject of
the case and no causal link had existed between the applicant’s
state of health and his punishment, or at least no evidence to that
effect had been submitted by the applicant.
- The
Court notes that the conditions of the applicant’s detention
following his conviction and the dismissal of the applications for
pardon have not been part of the present case. The Court notes that
it has found violations of Article 5 § 3 on account of
the length of the applicant’s detention on remand and of
Article 6 § 1 on account of the length of the criminal
proceedings against the applicant and the lack of independence and
impartiality of the trial court.
- It
considers that those violations must have induced feelings of
frustration, uncertainty and anxiety in the applicant, which cannot
be compensated solely by the finding of a violation. The Court
accordingly awards the sum of EUR 20,000 under this head.
- The
applicant made no claim in respect of costs and expenses and no award
will therefore be made under this head.
Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the
length of the applicant’s detention pending investigation and
trial;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the
length of the criminal proceedings against the applicant;
- Holds that there has been a violation of
Article 6 § 1 of the Convention in that the trial
court was not independent and impartial;
- Holds that it is not necessary to examine the
complaint of a violation of Article 6 § 1 and 3 (d)
of the Convention concerning the taking of evidence and, in
particular, examination of witnesses;
- Holds that it is not called upon, in the
circumstances of the present case, to examine the complaints
submitted under Articles 7 and 10 of the Convention.
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President