Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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.

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.

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.

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.

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.

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.

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 sixmonth 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.

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.

For the domestic law regulating detention during criminal proceedings see Bykov v. Russia [GC], no. 4378/02, §§ 4955, 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.

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:

“1. The case must be examined by one and the same judge or by a court bench in one and the same composition.

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:

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.

Article 30 of the CCrP reads as follows:

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).

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:

“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 militarypolitical 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:

Information revealing strategic plans for the use of troops, operational plans, battle management documents, documents on bringing troops to various levels of combat readiness.

Information on the strategic and operational deployment of troops.

Information on construction plans, development, numerical strength, effective combat strength or quantity of troops, their combat readiness, and also on militarypolitical and (or) operational conditions.

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.

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.

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.

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.

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.

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.

Information on the design, installation, operation or security support of nuclear installations.

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.

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.

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.

Information on the use of the infrastructure of the Russian Federation to safeguard the State’s defensive capabilities and security.

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.

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.

Information revealing the distribution or use of radio frequency bands of military or special electronic equipment.

Information revealing the organisation or functioning of all forms of communication and of radar or wireless troop support services.

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.

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.

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.

Information revealing the status and (or) guidelines of hydronautic projects to safeguard State defence and security.”

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.

In order to assist the Russian Federation in pursuing and renewing efforts in the judicial reform process, the Special Rapporteur recommends that:

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; ...”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Juraj Horňák, is a Slovak national who was born in 1959 and lives in Bratislava. He was represented before the Court by Ms E. Kliniecová, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 April 2000 the applicant challenged several decisions taken by the general meeting of a limited liability company on 23 March 2000.

The members of the chamber of the Žilina Regional Court to whom the case fell to be examined requested to be excluded. They explained that they had a negative opinion of the applicant in view of his inappropriate behaviour in other sets of proceedings. On 27 June 2000 the Supreme Court refused to exclude those judges.

On 27 October 2000 the Regional Court discontinued the proceedings as the applicant had not paid court fees within the time-limit set.

On 8 December 2000 it quashed that decision as the applicant had subsequently paid the fees.

On 5 February 2001 the Regional Court dismissed the applicant’s action.

On 9 April 2002 the Supreme Court quashed the first-instance judgment and remitted the case to the Regional Court.

In the later period the file was transferred to the Supreme Court several times in order to decide on (i) the applicant’s requests to exclude the judges from dealing with the case and to transfer the case to another court, and (ii) the judges’ requests to be excluded from the examination of the case, inter alia on the ground that they and the applicant were involved in litigation.

On 9 September 2004 the Regional Court found in the applicant’s favour. The judgment was served on him on 11 February 2005.

On 15 March 2005 the defendant appealed.

On 13 April 2005 the Constitutional Court found that the Regional Court had not violated the applicant’s right to a hearing within a reasonable time. The case was not complex, but the applicant by his conduct had significantly contributed to the length of the proceedings in that (i) he had not paid the court fees on time, (ii) he had repeatedly challenged judges and had requested that the case be transferred to a different court and (iii) he had not appeared before the Regional Court on 5 February 2001. As to the conduct of the Regional Court, there was a single delay between 18 December 2002 and 23 May 2003. Otherwise the Regional Court had proceeded with the case in an appropriate manner.

The file was transferred to the Supreme Court on 27 April 2005.

On 27 July 2006 the Supreme Court found against the applicant. The judgment became final on 20 September 2006.

On 29 December 2000 the applicant filed an action with the Žilina Regional Court. He challenged the validity of decisions which the general meeting of a limited liability company had taken on 8 December 2000.

On 4 January 2001 the President of the Regional Court asked the Supreme Court to exclude three Regional Court judges from examination of the case. She argued that the judges were biased because the applicant, who had been a party to numerous sets of proceedings before the same Regional Court (for example the proceedings mentioned under the point A above), had behaved in an arrogant manner towards the judges in those proceedings. She also stated that the applicant had lodged an action for protection of his integrity against those judges. On 4 February 2002 the Supreme Court exempted the judges from examination of the case.

Subsequently the newly appointed judges also requested, on three occasions, to be excluded from examination of the case. The Supreme Court examined the requests for the total period of approximately two months and did not exempt the judges from dealing with the case.

On 19 May 2003 the Regional Court asked the applicant to pay the court fees within ten days. As he had failed to do so, the proceedings were discontinued on 26 January 2004. After the decision to discontinue the proceedings had been served on the applicant, he paid the fees.

On 18 August 2004 the Constitutional Court found that the Regional Court had not violated the applicant’s right to a hearing within a reasonable time. The Constitutional Court noted that the applicant had been obliged to pay the fees at the time of filing his action. He had done so after the Regional Court had decided to discontinue the proceedings. It concluded that the applicant was not genuinely interested in having the point in issue determined in the proceedings complained of and that his complaint about delays in those proceedings was therefore devoid of substance.

On 29 October 2004 the Regional Court quashed its decision of 26 January 2004 noting that the applicant had paid the court fees.

The Regional Court found against the applicant on 20 April 2006. In the absence of an appeal, the judgment became final on 3 January 2007.


The applicant, Mrs Aila Timperi, is a Finnish national, who was born in 1951 and lives in Oulu. She is represented before the Court by Mr Heikki Sillanpää, a lawyer practising in Forssa.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was employed by the city of Forssa as an adviser in housekeeping, giving for instance cooking courses. Her employer made a report to the police, alleging that she had embezzled money.

The public prosecutor brought charges against the applicant for aggravated embezzlement etc. during the period September 1988 and November 1996, amounting to FIM 450,000 (EUR 75,684). The complainant, the city of Forssa, claimed damages. The applicant denied the charges as well as the other claims.

The District Court of Forssa (käräjäoikeus, tingsrätten) heard some twenty witnesses during four days. On 9 September 1997 the District Court, composed of a professional judge and three laymen, convicted the applicant and sentenced her to nine months' imprisonment. She was ordered to pay damages amounting to FIM 439,133 plus interest and legal costs. Insofar as the sentence was concerned, the judgment was not unanimous, as it was based on the opinion of three lay judges, whereas the professional judge in his dissenting opinion considered that one year and two months' suspended imprisonment was a sufficient sanction.

At this point, the public prosecutor ordered a further pre-trial investigation to be carried out as to what information the applicant's superiors and other employees of the complainant had in the spring of 1996 concerning income allegedly unaccounted for.

Subsequently, the applicant learned that lay judge T., who had examined the case in the District Court, was an employee of the complainant in her case.

The applicant appealed to the Turku Court of Appeal (hovioikeus, hovrätten), denying the charges. She argued that lay judge T. had been disqualified from deciding her case for the aforementioned reason. She also requested an oral hearing with a view to adducing more documentary evidence, rehearing a witness and hearing new witnesses. According to the applicant, the witness statements before the District Court were not properly entered into the minutes and only statements supporting the District Court's conclusions were included.

On 20 January 1999 the Court of Appeal gave judgment, finding that lay judge T. had not been disqualified and, having listened to the audio tapes from the District Court's hearings and read the new pre-trial report, that the proposed new evidence would not clarify the matter further. Thus, holding an oral hearing was manifestly unnecessary. The Court of Appeal upheld the District Court's judgment.

The applicant requested leave to appeal to the Supreme Court, still denying the charges and requesting, at any rate, that her sentence be reduced. She maintained that lay judge T. had been disqualified from deciding her case. She also requested an oral hearing before the Supreme Court.

On 27 May 1999 the Supreme Court granted the applicant leave to appeal.

The Supreme Court gave judgment on 22 February 2000 (KKO 2000:21). As to the alleged disqualification, the Supreme Court found that lay judge T., who at the relevant time had worked as a special teacher employed by the city of Forssa, had not lacked impartiality. The Supreme Court, referring to the relevant provisions in domestic law, gave the following reasoning for its decision:

In assessing whether a judge is disqualified, attention has to be paid also to the provisions in the European Convention on Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights. In light of the Human Rights Court's case-law, a judge must not hold a preconception or a have a prejudged view of the case in question or have a desire to favour one of the parties' interests (subjective impartiality). In addition, all legitimate doubts as to the judge's and the tribunal's impartiality must be eliminated (objective impartiality). In assessing impartiality from the last-mentioned point of view, attention has to paid to whether the judge's previous activities, his relations to the parties or the composition of the court from an objective point of view give a party reason to believe that impartiality is jeopardized.

No one has indeed argued that lay judge T. would have been disqualified on subjective grounds. The question is what position should be taken on the fact that T. was an employee of the complainant, the city of Forssa. A party, such as the defendant in criminal proceedings, may understandably be worried, if the composition of the District Court includes a layman employed by the opposing party. Some weight may be given to the party's opinion of partiality based on employment, but what is decisive is whether the suspicion can be considered to be objectively justified. In assessing the case from this point of view the Supreme Court supposes that a layman cannot be considered disqualified merely on the ground that he is employed by a party to the proceedings. Attention has to be paid on the one hand to the size of the employer and the importance of the case in question to the employer and on the other hand to the character of the employee's functions. In the present case, by the end of 1997, the city of Forssa had 1,135 employees, including both permanent and temporary staff. Lay judge T., in his capacity as a temporary special teacher, was not part of the city's governing body nor had he any commission of trust. Neither was he involved in the housekeeping service in question. T. had a permanent post as a school welfare officer within the Lounais-Häme federation of municipalities vocational school, to which he could return when his temporary post ended. According to Timperi, special attention was paid to the guarantees of an impartial trial when the lay judges were chosen to sit in on the present case. In these circumstances, Timperi's doubts as to the impartiality of the court cannot be considered to be justified from an objective point of view.

Thus, the Supreme Court finds that the afore-mentioned relationship between T. and the city of Forssa, the complainant in these criminal proceedings, is not such that it could justifiably call his independence and impartiality as a lay judge of the District Court into question. Thus, T. cannot be considered to be disqualified.

The Supreme Court furthermore, noting that the Court of Appeal had found that holding an oral hearing would not have clarified the matter, saw no reason to differ. It upheld the applicant's conviction, but reduced the sentence to nine months' suspended imprisonment.

Chapter 13, section 1 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the material time, provided in relevant part:

“...The following shall be the legal grounds for disqualification [of a judge]: when the judge is related by blood or marriage to one or the other party in a manner where marriage is prohibited under chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; when the judge is the opposing party or a public opponent of a party; when the judge or his or her relative here listed has an interest in the case, when they stand to obtain particular benefit or suffer particular loss as a result of it; when the judge has served as a judge in the case in another court; when the judge has served as an advocate or a witness in the case; or when the judge has previously, on the orders of a court, decided a part of the case; or when the judge has a similar case pending before another court. ...”

According to the District Court Act section 10, the provisions of law concerning disqualification of a judge apply also to laymen.


The applicant, Mr Kjartan Gunnarsson, is an Icelandic national who was born in 1951 and lives in Reykjavik. He was represented before the Court by Mr J.R Möller, a lawyer practising in the same town.

On 31 August 2000 the newspaper Dagur published an article amidst a heated public debate in the wake of the acquisition of a large part of the shares of the Icelandic Investment Bank by a group, Orca SA in Luxembourg, and strong criticism of leaders of the Independence Party, of which the applicant was the Secretary General. The author of the article, an Advocate named Sigurdur G. Gudjónsson, had advanced the view that members of the general public were not treated equally when at the hands of Independence Party leaders. He recounted events that had occurred in May 1994 when he, a Mr J. O. and several others, had purchased shares in the Islendska útvarpsfélagid (the Icelandic Broadcasting Company, hereinafter referred to as “the IBC”). The acquisition created a new shareholder majority in the IBC. Following a change in the IBC’s Board of Directors, the Islandsbanki had withdrawn a loan offer to, and had in fact broken off with, the IBC. The article further stated that the Islandsbanki’s Managing Director and the former Chairperson of its Board of Directors had close family ties and that the Chairperson was a member of the Independence Party’s Finance Committee. The article then went on (the two passages in italics were the subject of defamation proceedings brought by the applicant):

“At this point, we approached Landsbanki. The Chairperson of Landsbanki’s Board of Directors at the time was [the applicant], Secretary General of the Independence Party and Chairperson of the Broadcasting Licensing Committee, which is concerned with the affairs of independent Broadcasting stations. On 29 July 1994, the IBC received a letter from Landsbanki, notifying that it declined to do any business with the IBC. No explanations were given, but those of us [the respondent and other shareholders] who represented the IBC in the negotiations with the Bank were told that [the applicant] was opposed to Landsbanki’s doing business with a company where Mr J. O. was involved. No formal negotiations took place with the other State owned bank, Bunadarbanki, as we were told in informal discussions that it could not take up business with the IBC as some of its shareholders who had lost their majority holdings in the IBC at the share holders’ meeting in July were customers of the bank and might be offended if the bank were to assist the IBC or take up business relations with the IBC. Fortunately there were savings banks in Iceland at the time who regarded business with the IBC as being a positive and lucrative option. Here, decisions regarding business of IBC were made on the basis of interests of the saving banks, not on the basis of what was best for the Independence Party and acceptable to the leaders of the Party’s Finance Committee.”

The applicant subsequently brought defamation proceedings against the author of the article, requesting - in addition to compensation - that the following two statements be declared null and void:

(1) “No explanations were given, but those of us [the respondent and other shareholders] who represented the Company in the negotiations with the Bank were told that [the applicant] was opposed to Landsbanki’s doing business with a company where Mr J.O. was involved.”

(2)“ Here, decisions regarding business of IBC were made on the basis of interests of the saving banks, not on the basis of what was best for the Independence Party and acceptable to the leaders of the Party’s Finance Committee”.

The applicant categorically denied as false the allegation that he had played any part in the decision by Landsbanki (hereinafter “the Bank”) and this was supported by two managing directors. The applicant pointed out that members of the Bank’s Board of Directors normally did not involve themselves in the Bank’s lending activities. He considered the allegations as defamatory in that they accused him of allowing interests other than those of the Bank determine his position regarding the Bank’s business with individual companies and of unlawful conduct, in breach of general business rules and ethics and administrative practice.

By a judgment of 3 May 2000 the District Court found for the respondent and against the applicant. The latter appealed but by a judgment of 19 December 2000 the Supreme Court rejected his appeal.

The Supreme Court observed that the author of the disputed article had made no attempt to prove that the applicant had been involved in the decision in question. However, he had submitted that the employees of the Bank who had been responsible for assessing the IBC’s credit rating had told him and his associates about the applicant’s involvement. The documentary evidence provided no indication that the refusal of credit could not have been based on legitimate business reasons. The take over by the new majority shareholders had given rise to considerable struggle resulting in some uncertainty about the IBC’s future but everything indicated that things had worked out well.

Turning to the impugned statements, the Supreme Court noted that allegation (2) did not specifically address the applicant. As to allegation (1), it observed that the remark did not refer to the Bank’s decision-making process but only to informal explanations offered by its employees – no formal explanation had actually been provided for its withdrawal of the offer of credit. The respondent could only be required to prove what the representatives of the company had been told, by providing statements from the bank’s employees. It would not be sufficient for him merely to provide statements by his associates; he would have to summon the relevant bank employees to give oral evidence before the court. The respondent had refused to do so in order to avoid embarrassing the employees concerned, which was understandable in view of the statutory confidentiality rules in section 43 of the Act on Commercial Banks and Saving Banks applicable to bank employees and the fact that they might be reluctant to give evidence about conduct regarded as embarrassing or even illicit by a member of the Bank’s Board of Directors. Having regard in particular to the context in which the impugned remarks had been made, the applicant’s interest in having them declared null and void could hardly be regarded as sufficient to require the Bank’s employees to give evidence. In the view of the Supreme Court, the respondent could not be required to prove the truth of the disputed remarks as this would be unreasonably difficult for him to do. Considering the applicant’ prominent position within the Independence Party and that he served on the Bank’s Board of Directors and as Chairperson of the Broadcasting Licensing Committee, nominated by the Independence Party and elected by Parliament, as well as the requirement that his work in these areas be independent from his role as Secretary General of the Party, he ought to accept public discussion on these connections. Cautiousness should be observed in any attempts to limit such discussion.

In a dissenting opinion Supreme Court Justice Mr Gardar Gislason stated inter alia that it could hardly have been difficult for the respondent author to summon the bank employees to give evidence. Not only had the plaintiff asked him to do so but it could also not be maintained that the bankers would thereby act in breach of confidence contrary to section 43 of the Act on Commercial Banks and Saving Banks. It had not been shown that requiring proof from the respondent would amount to an unreasonable burden being placed on him.