CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 août 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB32C24BA { margin-top:0pt; margin-bottom:0pt; text-indent:17.1pt; text-align:justify } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 69519/01 by Grigoriy Mikhaylovich PASKO against Russia The European Court of Human Rights (First Section), sitting on 28   August 2008 as a Chamber composed of:   Christos Rozakis, President ,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni ,   George Nicolaou, judges , and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 20 January 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Grigoriy Mikhaylovich Pasko, is a Russian national who was born in 1962 and lives in Vladivistok. He was represented before the Court by Mr F. Elgesem, a lawyer practising in Oslo. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. At the material time the applicant was a Navy officer and worked as a military journalist on the Russian Pacific Fleet’s newspaper Boyevaya Vakhta (“Battle Watch”). The applicant’s articles mainly focused on problems of environmental pollution and other issues related to the activity of the Russian Pacific Fleet. According to the applicant, he also worked, on a freelance basis, for a Japanese TV station NHK and a Japanese newspaper Asahi Simbun , and supplied their representatives, in particular accredited correspondents Mr   T.   Dz. and Mr T. O. with openly available information and video footage. The Government submitted in this connection, with reference to witness statements of the editor and deputy editor of Boyevaya Vakhta , that the applicant had not been entrusted with any task of cooperating with Mr   T.   O., apart from assisting the latter in visiting Russian military units and apprising him of the professional activities of Boyevaya Vakhta . According to the Government, any further contacts with Mr T. O. were maintained by the applicant of his own volition, and he did not report to his superiors on such contacts. The applicant insisted that his superiors had been aware of and accepted his contacts with Japanese journalists. 1.     The applicant’s arrest and pre-trial detention On 13   November   1997 customs officers at Vladivostok Airport searched the applicant, who was on an official trip to Japan, and seized a number of his papers, as they allegedly contained classified information. Thereafter the applicant was allowed to continue his trip. On 20   November   1997 the Federal Security Service ( Федеральная служба безопасности – “the FSB”) brought criminal proceedings against the applicant in connection with the above episode, and apprehended him upon his return from Japan. The applicant was then escorted to pre-trial detention centre IZ 20/1 in Vladivostok where he was detained until his first conviction on 20   July   1999. During the night of 20 to 21   November   1997 the FSB searched the applicant’s flat and seized his personal computer and a number of documents. The applicant stated that his personal computer was returned to him some time later, but a number of files had been deleted. On 28   November   1997 the applicant was formally charged with treason through espionage. These charges were based on a preliminary expert opinion given by the Headquarters’ 8 th Department of the Pacific Fleet ( Восьмое управление штаба Тихоокеанского флота ), which concluded that some of the documents seized on 13 and 20   November   1997 contained State secrets. While in custody, the applicant repeatedly applied for review of the lawfulness of his pre-trial detention and for his release pending trial, but to no avail. 2.     The applicant’s indictment On 29   September   1998 a bill of indictment was served on the applicant. It stated that the applicant had committed treason, through espionage, by having collected, kept and transmitted ten items of information classified as secret to two Japanese nationals in the period between 1996 and 20   November 1997. The information in question included a draft article by the applicant on decommissioning of Russian nuclear submarines, a copy of a report on the financial situation in the Pacific Fleet, a copy of several pages of a manual for searching for, and rescuing, space craft by the Navy, a report on decommissioning and keeping afloat of Russian nuclear submarines, a questionnaire on re-processing of liquid rocket fuel, a list of accidents on Russian nuclear submarines, a copy of several pages of a report on decommissioning of weapons and armaments, a map of a territory of military unit no. 40752, and handwritten notes made by the applicant at a meeting that had been held at the headquarters of the Pacific Fleet on 11   September   1997. The indictment further stated that the applicant had orally divulged information regarding the time and place for the departure of a trainload of spent nuclear fuel. The indictment was based on reports of 22 December 1997 and 14   March   1998 made by four expert groups appointed by the General Headquarters’ 8 th Department of the Ministry of Defence ( Восьмое управление Генштаба Министерства обороны ). 3.     First set of court proceedings On 29   September   1998 the Military Court of the Pacific Fleet ( военный суд Тихоокеанского флота – “the Pacific Fleet Military Court”) set the case down for a first hearing on 14   October   1998. Between October 1998 and July 1999 hearings were adjourned on several occasions in connection with the examination of the applicant’s appeal against his pre-trial detention and the exclusion of one of his defence lawyers from the proceedings. On 20   July   1999 the Pacific Fleet Military Court reclassified the offence and convicted the applicant of abuse of power, having found it unproven that the applicant had actually transmitted State secrets to foreign nationals. The applicant was sentenced to three years’ imprisonment. By virtue of an Amnesty Act of 18 June 1999 the applicant was absolved of serving this sentence and released in the courtroom. On the same date the Pacific Fleet Military Court gave a separate ruling ( частное определение ), which drew the attention of the military prosecutor of the Pacific Fleet ( военный прокурор Тихоокеанского флота ) and the head of the Pacific Fleet Department of the FSB ( начальник Управления ФСБ по Тихоокеанскому флоту ) to serious flaws in the pre-trial investigation. In particular, the court referred to a falsification by the FSB investigating officer Ye. of a report of 21 November 1997 on the examination of objects and documents seized at the applicant’s flat on 20   November 1997, stating that it had been established that the signatures of two attesting witnesses on that report had been made by the same person. This piece of evidence had been ruled inadmissible at the trial. On 27 July 1999 and on other dates the applicant, his lawyers and the prosecuting party appealed against the first-instance judgment. On 21 November 2000 the Military Section of the Supreme Court of Russia ( Военная коллегия Верховного Суда РФ – “the Supreme Court”) quashed the judgment of 20   July   1999 on the grounds of the trial court’s failure to establish the essential circumstances of the case and its inconsistent conclusions and wrongful application of the law. The case was remitted to the Pacific Fleet Military Court for a fresh examination. 4.     Second set of court proceedings (a)   Proceedings before the trial court On 22   March   2001 presiding judge K. of the Pacific Fleet Military Court notified the applicant that the trial would recommence on 4   June   2001. On 4 June 2001, upon a request by the prosecution, the Pacific Fleet Military Court adjourned the proceedings until 20 June 2001. On the latter date the Pacific Military Court adjourned a hearing until 11 July 2001 without any explanation. The proceedings were resumed on 11   July   2001. On an unspecified date, following the Pacific Military Court’s request, the General Headquarters’ 8 th Department of the Ministry of Defence appointed seven experts and the Ministry of Nuclear Energy appointed an expert. The experts were asked whether the items of information listed in the indictment contained State secrets. On 29   August   2001 the defence filed a written challenge against the experts, stating that the latter lacked independence since they had security clearance and were therefore influenced by the FSB, a body that had instituted criminal proceedings against the applicant and conducted the investigation. The applicant’s lawyers further maintained that they were unable to choose alternative experts since it was unclear what scientific or professional knowledge they should have and that experts who had no legal qualifications lacked competence to carry out the study, which involved an assessment of national legislation on State secrets. The defence also stated that “the documents used in the present criminal case as evidence had been obtained illegally” and that therefore “any report on an expert examination of these documents would be inadmissible evidence”. With reference to all the above, the applicant’s lawyers challenged all the experts and informed the court that the defence would not participate in the expert study. According to the applicant, the Pacific Fleet Military Court rejected this challenge without explaining the reasons. The Government insisted that the court had given reasons for disallowing the defence’s challenge. On 14   September   2001 the experts submitted their report, stating that three out of ten items of the information in question were of “limited distribution”, whilst the other seven contained State secrets. According to the applicant, to define whether the disclosed information contained State secrets, the experts had applied the Ministry of Defence’s unpublished decree no. 055 of 10   August   1996, Presidential Decree no. 1203:95 of 30   November 1995 and section 5 of the Law on State Secrets enacted on 21   July 1993 as amended on 6 October 1997. The applicant stated that he had had access to decree no. 055, had read it and had signed a document to the effect that he had read it in the autumn of 1996. Between 19 and 21 September   2001 the experts were examined in court. During the cross-examination the defence put a number of questions to the experts. In late September 2001 the trial was adjourned until 10 October and then until 29 October 2001 pending the results of an unrelated expert examination. On 29 October 2001 the defence challenged the expert report of 14   September   2001 complaining that the experts had obtained new documents and questioned new witnesses during their study, and that they had based their conclusions on unpublished decree no. 055. On the same date the defence also challenged decree no. 055 stating that it classified as “secret” categories of information which were not defined as secret in section 5 of the Law on State Secrets, and that it should not have been relied on by the experts in their report. These applications were examined, and included in the case file, by the court on the same date. On 2 September 2001, as alleged by the Government, or 29   October   2001 as alleged by the applicant, and on 29 October 2001 respectively the Pacific Fleet Military Court, acting of its own motion, called new witnesses: high-ranking Navy officers D. and Z. They were cross-examined in court on 29 and 30 October 2001 respectively. Both witnesses gave oral evidence that the notes made by the applicant during the meeting of 11   September   1997 contained classified information on new and advanced submarine tracking devices. Witness Z. also stated that the major part of the information distributed during the said meeting had been of a secret nature and that he had therefore warned all those who had attended the meeting of the necessity of complying with the requirements of secrecy. Thereafter the trial was adjourned until 29 November 2001 pending the results of the witness examination. (b)   Judgment of 25   December   2001 On 25   December   2001 the Pacific Fleet Military Court convicted the applicant of treason through espionage under Article 275 of the Russian Criminal Code. As regards the actus reus of the offence, the court found that in 1996   –1997 the applicant had established friendly relations with a Japanese journalist, Mr T. O., and provided him with information, upon the latter’s requests, for regular pay. In August   –   September 1997, in his telephone conversations with the applicant, Mr T. O. had repeatedly expressed his interest in the military exercises of the Pacific Fleet that were being conducted at that time, in their particularities and the differences from the previous exercises. The judgment further stated: “On 10   September   1997, on an official invitation, [the applicant], as a representative of the Boyevaya Vakhta newspaper, attended a meeting of the Military Council of the Pacific Fleet, where he found out that an appraisal of the results of the military exercises of the Pacific Fleet was scheduled for 11   September 1997. On 11   September   1997 [the applicant], with the intention of obtaining classified information on the said exercises and subsequently transferring it to [Mr T. O.], arrived at the headquarters of the Pacific Fleet. Although he was not included in the list of persons authorised to participate in the appraisal of the tactical training exercises, the applicant attended the meeting and collected information disclosing actual names of highly critical and secured military formations and units, including military intelligence units, that had taken part in the exercises and information disclosing means and methods of protection of classified data by radio electronic warfare units that had participated in the exercises. Under section 5, paras.1 (6) and 4, (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21   July   1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paras. 13 and 77 of the List of Information classified as State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995, [the impugned information] was classified as State secrets. For the same purpose, namely for communicating it to [Mr T. O.], the applicant then unlawfully kept this information ... On 20   November   1997 the handwritten notes made by [the applicant] during [the meeting of 11   September   1997] were found and seized at his place of residence. ... According to a report of a forensic expert, the handwritten text in those notes was made by [the applicant], which the latter has not denied in court.” The court based its findings on statements of a number of witnesses, including witnesses D. and Z., five recordings of the applicant’s telephone conversations with Mr T. O. made by the FSB in June   –   September 1997, and the expert report of 14   September   2001 insofar as it stated that the applicant’s hand-written notes contained information classified as secret. In particular, the court noted with regard to the expert report of 14   September   2001: “...The experts concluded that [the applicant’s] notes contained, in summary fashion, information on a composition of the groups of the naval forces which had taken part in the exercises, [such information] disclosing actual names of highly critical and secured military formations and units, including military intelligence units, which constituted a State secret under section 5, para.1 (6) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21   July   1993, as amended by Federal Law no. 131-FZ of 6 October 1997 and para. 13 of the List of Information constituting State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995. Also, the experts concluded that [the applicant’s handwritten notes] in summary fashion ... disclosed information on the activities of radio electronic warfare units, and notably on means and methods of protection of classified data, which constituted a State secret under section 5, para.4 (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21   July   1993, as amended by Federal Law no. 131-FZ of 6   October 1997 and para. 77 of the List of Information classified as State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30   November 1995. ... ...The court finds that [the experts’] conclusions that [the applicant’s] notes on the exercises contain information disclosing actual names of highly critical and secured military formations and units of the Pacific Fleet, including military intelligence units and [information on] specific activities of radio electronic warfare units ... which constitutes State secrets, are consistent, well-reasoned and based on a correct application of the legislation ...” The court also referred to the report on the search of the applicant’s flat of 20   November   1997 and the report on the examination of objects and documents of 21   November   1997, having noted that: “Although it has been established that the investigating bodies breached procedural guarantees during the search and the examination [of objects and documents], the court sees no reason to declare the reports [on these investigating actions], in so far as they confirm the seizure of the said handwritten notes from [the applicant], inadmissible, as the established breaches do not affect the objectivity of the conclusion that these notes belonged to, and were kept by, [the applicant].” The applicant confirmed that he had attended the meeting of 11   September   1997 and made summary notes of speeches and reports of its participants, but pleaded not guilty and argued that he had lawfully attended the said meeting, since he had the right to receive and impart information as a journalist. The applicant insisted that he had had no intention to transfer this information to Mr T. O. and had kept it in order to enrich his own knowledge on the latest developments in the Navy and to inform his subordinates thereof, and to report on the results of the military exercises in the Boyevaya Vakhta newspaper. The applicant stated that all his activities had fully complied with the Russian legislation. As regards the applicant’s argument that he had the right to freedom of expression, and therefore was entitled to attend the meeting of 11   September   1997, the court noted that the right to information was not absolute and could be limited by law for the protection of national security. Under national law military personnel’s right to information was limited in the interests of military service and, in particular, such personnel had an obligation not to disclose state or military secrets. Being a serving officer, the applicant was bound by the legal provisions regulating the way servicemen access, collect, keep, impart and publish information classified as secret, and the way they communicate with foreign nationals. The court also rejected the applicant’s argument that he had made the impugned notes with a view to their publication in Boyevaya Vakhta . In this respect the court noted that the applicant had been fully aware of the relevant regulations which prohibited publication of information disclosing actual names of military formations and units, and therefore there had been no practical use for such information in the applicant’s publications. The court further examined the conclusions of the expert report of 14   September 2001 in respect of the other items of information imputed to the applicant, compared them with other materials of the case and rejected them as unreliable. In particular, the court stated that some of the pieces of information imputed to the applicant, including the list of accidents on Russian nuclear submarines and the map of a territory of military unit no.   40752, could be found in public sources, such as a military reference book on submarines, or a Greenpeace report. In this respect the court noted that receiving, keeping and disseminating publicly accessible information was not punishable under the Russian legislation in force and that there was no practical need to classify information which could be found in public sources. The court thus acquitted the applicant of all the other charges listed in the indictment, some of them having been waived by the prosecuting party. In view of the fact that the applicant had a minor child, no criminal record, positive professional references and decorations, and given that his offence had caused no damage, since he had not transferred the impugned information, the court invoked the “special-circumstances” clause of Article   64 of the Russian Code of Criminal Procedure and sentenced the applicant to a term below the statutory minimum, namely, four years’ imprisonment in a strict-security correctional colony, and deprivation of a military rank. As regards the documentary evidence, including the applicant’s draft article, the court ordered that it be kept in the case file after the applicant’s conviction became final. (c)   Appeal proceedings In their appeal submissions the defence complained that the judgment of 25 December 2001 had mainly been based on the report of 20   November   1997 on the search in the applicant’s flat, the report of 21   November 1997 on the examination of objects and documents seized at the applicant’s flat on 20   November 1997 and the applicant’s handwritten notes of 11 September 1997. The defence argued in this respect that the search and examination had been carried out with serious breaches of procedural law, but, in breach of the relevant legal provisions, the trial court had nevertheless admitted in evidence the reports concerning those investigative actions. The applicant’s lawyers further submitted that the experts who had drafted the report of 14 September 2001 had security clearance from the FSB, and therefore were not independent, and that they had relied on unpublished decree no. 055 of the Ministry of Defence to confirm the classified nature of the impugned information. The defence argued that the use of decree no. 055 by the experts in their report had resulted in the incorrect application of the Law on State Secrets by the first-instance court. The defence also complained that the experts had relied on some new documents and questioned a number of persons during their study. They further argued that the Law on State Secrets had been applied retrospectively, since there had been no list of information constituting State secrets at the time of the commission of the offence in question. Lastly, the defence contended that, in any event, the information contained in the applicant’s notes had been accessible from public sources. Neither the applicant nor his lawyers appealed against the examination of witnesses D. and Z. or against the public statements about the applicant’s case. On 25   June   2002 the Supreme Court of Russia upheld the applicant’s conviction on appeal, having excluded a reference to the unlawfulness of his presence at the meeting of 11   September   1997 and to the general unlawfulness of his off-duty contacts with foreign nationals. The court dismissed the applicant’s argument about the FSB’s alleged influence on the experts, having noted that they served in another state body, namely, the Ministry of Defence, and were therefore independent of the FSB. It stated that the experts’ security clearance, as such, did not indicate their dependence on the FSB. As regards the experts’ alleged incompetence, the court noted that they had specific knowledge in the field of military science, including the fleet’s composition and its commanding bodies, specific features of military exercises, activities of radio and electronic warfare units. Such knowledge had allowed the experts to conduct their study. The Supreme Court also noted that the question whether the applicant’s handwritten notes had contained State secrets had been thoroughly and objectively examined in the first-instance judgment. It confirmed that the trial court had based its judgment on the expert report of 14   September   2001, which had stated that “information disclosing actual names of highly critical and secured military formations and units and information on the presence among the participants of the military exercises of the military intelligence units and information on the means and methods of protection of classified data [constituted] State secrets under section 5, paras.1 (6) and 4 (5) of the Law of the Russian Federation on State Secrets, no. 5485-1 of 21   July   1993, as amended by Federal Law no. 131-FZ of 6   October 1997, paras. 13 and 77 of the List of Information classified as State Secrets approved by Decree of the President of the Russian Federation no. 1203 of 30 November 1995 and paras. 129 and 240-1 of ... Decree of the Ministry of Defence no. 055”. The appellate court further noted that, while assessing the expert report of 14 September 2001, the trial court had rejected a number of its conclusions in which the experts had groundlessly stated that some of the impugned items of information had contained State secrets. The Supreme Court thus concluded in this respect that the first-instance court had critically assessed the expert report of 14   September   2001 and had only relied on those of its conclusions which had been objectively confirmed during the trial. The Supreme Court also upheld the first-instance finding that the applicant’s intent to transfer the impugned information to Mr T. O. had been proved by the recordings of his telephone conversations with the latter. The court further rejected the applicant’s argument that the information in his handwritten notes could have been found in public sources. In that connection it stated – with reference to the trial court’s finding – that “no data concerning the actual names of highly critical and secured military units, ships and formations, in particular, military intelligence units, means and methods of radio electronic warfare, contained in [the applicant’s] handwritten notes, [was] openly published”. As regards the unlawfully obtained evidence, the Supreme Court deferred to the reasoning of the Pacific Military Court. The court also rejected the applicant’s argument that decree no. 055 had been unlawfully applied in his case, holding that this decree had been operative at the time when the applicant had committed his offence and was still in force. Finally, as regards the applicant’s argument that the law had been applied retrospectively in his case, the Supreme Court noted the following: “According to the decision of the Constitutional Court of Russia of 20   December   1995, ... the requirements of Article 29   §   4 of the Constitution of the Russian Federation are implemented in the Law of the Russian Federation on State Secrets of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets. Later, on 30 November 1995, the List of Information classified as State secrets was enacted by Decree no. 1203 of the President of the Russian Federation. Since collecting and keeping secret information for its transfer to a foreign citizen, committed by [the applicant], is a continuing criminal offence which was brought to an end on 20 November 1997, the [first-instance] court rightly applied the aforementioned legal instrument as well as the Law on State Secrets, as amended on 6   October 1997, during the examination of his case.” The applicant unsuccessfully applied for supervisory review of his conviction. On 23   January   2003 the applicant was released on parole. 5.     Statements regarding the applicant’s case On 11   December   1997 and 16   October   1998 a regional daily newspaper Vladivostok quoted Mr V. Kondratov, the Representative of the Russian President in the Primorskiy Region, who stated that the papers seized from the applicant were “top secret” and that his activities “threatened national security”. On 20   February   1998 Vladivostok quoted Rear Admiral G. Ugryumov, the then head of the Pacific Fleet Department of the FSB, as saying: “...Documents found [on the applicant] prove that he was passing secrets to Japan rather than working as a journalist when he was arrested...” On 11   August   1999 the Moscow Times , a daily newspaper, published a statement by Rear Admiral N. Sotskov, the new head of the Pacific Fleet Department of the FSB, who claimed that the applicant’s first sentence was “very lenient” due to “unprecedented pressure from the media and human-rights organisations”. In his observations of 5 December 2005 the applicant also submitted an article published in December 2001 on a Russian Internet site, in which the Head of the Press Office of the FSB, Mr A. Zdanovich, had stated that the applicant had been convicted “not as a journalist, but as a serviceman who had disclosed information constituting State secrets”, and that “by order of foreign organisations, he had collected and transferred secret information unrelated to the ecological state of objects. In particular, using his position as a correspondent on a fleet newspaper, [the applicant] had visited the closed secret meeting of the fleet command”. Mr Zdanovich had also stated that the FSB “did not invent any secrets” and that it “protected from disclosure the information put by other State bodies on the list of information classified as secret”. 6.     Proceedings against Mr Sotskov At some point the applicant brought defamation proceedings, seeking damages for a number of public statements made by Mr Sotskov concerning his criminal case. In a judgment of 7 February 2000 the Frunzenskiy District Court of Vladivostok granted the applicant’s claims in part, holding that a number of Mr Sotskov’s statement had been defamatory. The court ordered Mr   Sotskov to refute his statements and awarded compensation of non-pecuniary damage in the applicant’s favour. On 6 March 2000 the Primorskiy Regional Court quashed the above judgment and remitted the case for a fresh consideration. On 30 August 2002 the Frunzenskiy District Court of Vladivostok discontinued the proceedings on the ground that the applicant had abandoned his claim. B.     Relevant domestic law and practice 1.     Criminal liability for disclosure of State secrets Article 275 (High Treason) of the Russian Criminal Code, in force as of 1 January 1997, provides that high treason, that is, espionage, disclosure of State secrets, or assistance otherwise provided to a foreign state, a foreign organisation, or their representatives, by way of hostile activities undermining the external security of the Russian Federation, committed by a Russian citizen, shall be punishable by twelve to twenty years’ imprisonment and confiscation of property. 2.     Laws and regulations concerning State secrets (a)     The Russian Constitution of 12 December 1993 Article 29 § 4 of the Russian Constitution provides that everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means and that a list of information constituting State secrets shall be defined by a federal statute. (b)     The Federal Law on State Secrets i.     Period prior to 6 October 1997 Federal Law on State Secrets no. 5485-1 was enacted on 21 July 1993 and entered into force on 21 September 1993. Section 5 provided: “The following information may be classified as State secrets: 1) information in the military field: ... [information] about the location, actual names, organisational structure, armament, numerical strength of troops... ... 4) information in the field of intelligence, counter-intelligence and operational and search activities: ... [information] about the means and methods of protection of classified data...” Section 9 set out the procedure for classifying information as State secrets. The authority to classify information was delegated to heads of State agencies. The law itself did not contain the list of such officials, which was to be approved by the Russian President. The latter was also to approve the List of Information classified as State secrets that had to be officially published. The State agencies whose heads were competent to take decisions to classify information were to draw up extended lists of information that had to be classified as State secrets. The Law did not specify whether such “extended lists” could be made public. On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of the list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President’s approval a draft decree containing the list of classified information. On 30 November 1995 the President approved Decree no. 1203 on the List of Information classified as State Secrets. Paragraphs 13 and 77 of the list provided for the classification of “information disclosing the location, actual names, organisational structure, armament, numerical strength of troops, which is not subject to open declaration in accordance with the international obligations of the Russian Federation” and “information disclosing measures which are planned and/or being carried out to protect information from unauthorised access, foreign technical intelligences services and leaks through technical channels”. They also designated the Ministry of the Interior, the Ministry of Defence and several other State agencies as bodies authorised to classify such information. ii.     Period after 6 October 1997 On 6 October 1997 Federal Law no. 131-FZ amending the 1993 Law on State Secrets was enacted. The amendment was published and became operative on 9 October 1997. Section 5 of the Law on State Secrets was amended to read: “State secrets shall include: ... 1) information in the military field: ... [information] about the location, actual names, organisational structure, armament, numerical strength of troops... ... 4) information in the field of intelligence, counter-intelligence and operational and search activities: ... [information] about means and methods of protection of classified data...” (c)     Case-law of the Russian courts On 20 December 1995 the Russian Constitutional Court examined the compatibility with the Russian Constitution of the then in force Criminal Code of the RSFSR, in so far as it established criminal liability for State treason, and stated as follows: “...It follows that the State may classify as State secrets information in the field of defence and economic and other activities, disclosure of which is capable of undermining the national defence and security of the State. In this connection Article   29 § 4 of the Russian Constitution provides that the list of information constituting State secrets is to be enacted in the form of a federal statute. The State may also determine means and methods for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State. However, by virtue of the above Constitutional provision, criminal liability for disclosure of State secrets to a foreign State is justified only on condition that the list of information constituting State secrets is established in an officially published and publicly accessible federal statute. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including conviction by a court, may be grounded on an unpublished legal instrument. The requirement of Article 29 § 4 of the Russian Constitution is implemented in the Law on State Secrets of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets. Accordingly, establishing criminal liability for disclosure of State or military secrets to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Russian Constitution.” On 29 December 1999 the St Petersburg City Court acquitted Mr Nikitin, a former naval officer, of charges under Articles 275 (High treason) and 283   § 1 (Divulging of information constituting State secrets) of the Russian Criminal Code (case no.   78-000-29). Mr Nikitin was accused, in particular, of having collected in August 1995, and having transferred in September   1995, information constituting State secrets. The court held as follows: “...By virtue of the constitutional provisions, a list of information constituting State secrets shall be defined by a federal statute... There was no such statute at the time when Mr Nikitin committed the alleged offences; Decree no. 1203 of the President of the Russian Federation of 30   November   1995 became the only legal instrument which started regulating legal relations in the field of the protection of State secrets. ... The Law of the Russian Federation on State Secrets of 21 July 1993, which was subsequently subjected to considerable changes, constitutes the federal statute mentioned in Article 29 § 4 of the Russian Constitution. ... However, the Russian Constitution prescribes the definition of the list of information constituting State secrets by a federal statute. This requirement of the Constitution was only complied with in full when the Law on State Secrets was amended in November 1997 to include in section 5 the list of information constituting State secrets instead of the list of information which could be classified as State secrets , which was mentioned in the [original version] of the Law. By virtue of section 9, para. 4, of the Law, the list of information constituting State secrets must be approved by the President. ... By virtue of section 9, para. 4, of the Law in its version of 21 July 1993 and as amended on 6 October 1997 [the list] will be published and may be revised as and when needed. ... An analysis of section 5 of the Law (irrespective of its different versions) indicates that [the Law] itself does not establish any degree of secrecy; in other words it does not classify any information, since it is in accordance with a special procedure provided for in section 9 of the Law that information can be classified as secret... This also means that, in its original version, section 5 of the Law cannot serve as the sole basis for charging with espionage or disclosure of State secrets. It has to be supplemented with other legal instruments. It is [in particular] Decree no. 1203 of the Russian President of 1995 which [was] used in the present case as [a legal instrument] in addition to section 5 [of the Law on State Secrets]... The materials of the case reveal that Mr Nikitin finished his activity ... in September   1995. The President’s Decree of 30 November 1995 had not yet entered into force... Accordingly, section 5 of the Law (in the version that existed at the time when the defendant committed the acts imputed to him) cannot be used as a basis for bringing formal charges without supplementary legal instruments which would have formed a proper legal basis for an accusation... such legal instruments can be applied on condition that they were officially published and entered into force prior to the commission of the acts imputed to Mr Nikitin. ...In view of the above, the court finds that any citizen of the Russian Federation... does not (did not) have any real possibility of determining whether information constitutes a State secret unless such information is included in the list of information constituting a State secret defined by a federal statute or approved by a decree of the Russian President... ... The new version of the Law on State Secrets ... of 6 October 1997 brought the Law into compliance with the requirements of the Constitution, and consequently, only then did it become possible to apply section 5 of the Law on State Secrets independently , that is, without referring to the List of Information classified as State Secrets enacted by decree of the Russian President on 30 November 1995. Accordingly, in the period from 12 December 1993 until 30 November 1995 there was no statutory definition of information constituting State secrets, and therefore classifying any information as secret during the period under consideration ... was arbitrary and not based on law.” On 17 April 2000 the Supreme Court of Russia upheld Mr Nikitin’s acquittal in the following terms: “Having acquitted Mr Nikitin for the lack of constitutive elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no statutory definition of information constituting State secrets, with the result that the qualification of Mr   Nikitin’s acts by the investigating bodies had not been based on law. ... By virtue of Article 29 § 4 of the Russian Constitution, which was enacted on 12   December 1993 and was in force during the period when Mr Nikitin committed the alleged offences, the list of information constituting State secrets was to be defined in a federal statute. Such list was first defined in the federal law introducing changes and amendments to the Law of the Russian Federation on State Secrets of 6 October 1997. Taking into account that during the period when Mr Nikitin committed the alleged acts, there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of the offences under Articles 275 and 283 of the Criminal Code refers only to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets... ... ...The Law [on State Secrets in its 1993 version] could not have been applied to Mr   Nikitin as it did not contain the list of information constituting State secrets, since section 5 of that Law referred only to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal statute. As section 5 of the Law on State Secrets of 21   July   1993 and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of [the prosecuting party] to the effect that the difference between these provisions is merely semantic...” On 25 July 2000 the Supreme Court of Russia quashed on appeal, and remitted for a fresh examination to a trial court, the sentence of Mr   Moiseyev, a former employee of the Russian Ministry of Foreign Affairs, charged with offences under Article 275 of the Russian Criminal Code. It found as follows: “In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that... between early 1994 and 3 July 1998 [the applicant] had... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court only gave a general list of information and documents..., without specifying which information and documents [the applicant] had communicated and when. As the offences imputed to [the applicant] were continuous and spanned the period from 1992-1993 to July 1998, during which the Russian laws evolved, the determination of these issues is of crucial importance for the case. Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal statute. Such list was first established in the federal law introducing changes and amendments to the Law of the Russian Federation on State Secrets of 6 October 1997. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about the time when [the applicant] transmitted the information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing the list of State secrets and compatible with the requirements of the Constitution was in force.” 3.     Appeal against a first-instance judgment in criminal proceedings The Code of Criminal Procedure of 1960, in force at the material time, in its Article 342 provided for the following grounds for quashing or varying judgments on appeal: “(i)     prejudicial or incomplete inquiry, investigation or court examination; (ii)     inconsistency between the facts of the case and the conclusions reached by the court; (iii)     serious breach of criminal procedural law; (iv)     misapplication of [substantive] law; (v)     inappropriateness of the sentence to the gravity of offence and the offender’s personality.” Article 345 (Serious breach of criminal procedural law) of the Code provided: “Breaches of the requirements of Articles of this Code which by depriving or limiting the rights guaranteed by law to participants of the criminal proceeding during the examination of a case, or in any other way, have precluded the court from comprehensively considering the case and influenced or could have influenced the imposition of a lawful and well-founded sentence shall be considered as serious breaches of criminal procedural law. The sentence shall in any event be liable to be quashed if: (i)     a court did not discontinue criminal proceedings despite the existence of grounds provided for in Article 259 of this Code; (ii)     the sentence was given by a court sitting in an unlawful composition; (iii)     a case was examined in the defendant’s absence in a situation where his presence was obligatory; (iv)     a case was examined in the absence of defence counsel in a situation where his presence was obligatory; (v)     confidentiality of judges’ deliberations was breached; (vi)     the sentence was not signed by any one of the judges; (vii)     there is no transcript of the court hearings in the case materials.” COMPLAINTS 1.     The applicant complained under Article 3 of the Conventio