CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 mai 2011

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBA727180 { width:35.3pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .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 } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s164C98F9 { font-family:Arial; color:#339966 } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s51BE140A { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCD71EA34 { margin-top:24pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .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 } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s20AFED81 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sEBA8B701 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s53DD1685 { width:11.41pt; display:inline-block } .s44862A5E { width:174.55pt; display:inline-block } .s68C1165D { width:11.08pt; display:inline-block } .sF69F396A { width:193.88pt; display:inline-block }   FORMER FIRST SECTION           CASE OF SUTYAGIN v. RUSSIA   (Application no. 30024/02)               JUDGMENT       STRASBOURG   3 May 2011     FINAL   28/11/2011     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Sutyagin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and André Wampach, Deputy Section Registrar , Having deliberated in private on 5 April 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   30024/02) against the Russian Federation lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Igor Vyacheslavovich Sutyagin (“the applicant”), on 11 July 2002, as supplemented on 1   December 2004. 2.     The applicant was represented by Ms K. Moskalenko and Ms   A.   Stavitskaya, lawyers with the International Protection Centre in Moscow. The respondent Government were initially represented by Mr   P.   Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representatives Mrs V. Milinchuk and Mr G. Matyushkin. 3.     The applicant alleged, in particular, that the length of his detention on remand and the length of the criminal proceedings against him had been excessive, that the court that had tried him had not been independent, impartial and lawful, that he had not had a fair trial and that his conviction had violated Articles 7 and 10 of the Convention. 4.     By a decision of 8 July 2008, the Court declared the application partly admissible. 5.     The applicant and the Government each filed further written observations (Rule   59   §   1) on the merits. The Court decided, after consulting the parties, that no hearing on the merits was required (Rule   59   §   3 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1965 and currently lives in London. 7.     The applicant worked at the Institute of the USA and Canada at the Russian Academy of Science as the head of the Military-Technical and Military-Economic Policy Department. He resided in Obninsk, Kaluga Region. A.     Preliminary investigation 8.     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. 9.     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. 10.     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. 11.     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. 12.     On 1 November 1999 the applicant was questioned as a suspect in the presence of his lawyer. 13.     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. 14.     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. 15.     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. 16.     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. 17.     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. 18.     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. 19.     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. 20.     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. 21.     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. 22.     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. 23.     Information relating to thirty-eight other topics was found by the experts to have contained State military secrets. 24.     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. 25.     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. 26.     On 26 September 2000 the preliminary investigation was finalised. 27.     On 23 October 2000 the defence finished examining the case file. 28.     On 26   October   2000 the Deputy Kaluga Regional Prosecutor transmitted the case to the Kaluga Regional Court for trial. B.     Proceedings before Kaluga Regional Court 29.     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. 30.     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. 31.     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.” 32.     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. 33.     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. 34.     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. 35.     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. 36.     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. 37.     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. 38.     On 12 November 2001 the court heard pleadings by the defence. 39.     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. 40.     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. 41.     On the same day, after deliberations, the Kaluga Regional Court remitted the case for additional investigation. 1.     Kaluga Regional Court’s decision of 27 December 2001 42.     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. 43.     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. 44.     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. 45.     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. 46.     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. 47.     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. 48.     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). 49.     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. 50.     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. 51.     The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant, those charges were to be formulated in detail in a statement of charges, in accordance with the requirements of Article 144 of the Code. A bill of indictment had to comply with Article 205 of the Code and contain, in particular, the detailed formulation of a charge, which was not to differ significantly from the formulation in the statement of charges to the detriment of the accused. The bill of indictment had further to describe and examine evidence produced by the investigating authority and the accused’s arguments in his defence. Expert examination of the information included in the charges should, if necessary, be carried out so that the accused’s rights would be duly respected. 2.     Appeal against the decision of 27 December 2001 52.     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. 53.     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. 54.     On 20 March 2002 the Supreme Court dismissed the appeal and upheld the decision. It maintained that the charges against the applicant had been too vague, and stated that the Kaluga Regional Court had rightly decided to remit the case for additional investigation and remand the applicant in custody, and that it found no ground to quash or amend that decision. C.     Additional investigation 55.     On 8 April 2002 the investigation department of the FSB of the Kaluga Region commenced the additional investigation. 56.     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. 57.     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. 58.     On 18 June 2002 the case was transferred to the FSB central investigation department in Moscow on the Deputy Prosecutor General’s instruction. 59.     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. 60.     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. 61.     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. 62.     On 7 August 2002 the additional investigation was finalised. 63.     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. 64.     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. 65.     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. 66.     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. 67.     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. 68.     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. 69.     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. 70.     On 15 August 2003 the defence finished its examination of the case file. The applicant requested that N. and K., who had carried out the expert assessment in the case in 2000, be examined by a trial court. The investigating authority included these individuals in the list of witnesses to be examined by a trial court, which was enclosed with the bill of indictment. Three prosecution witnesses, the Obninsk Navy training unit officers T., V. and G., were also added to that list. D.     Jury trial 71.     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. 72.     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. 73.     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. 74.     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. 75.     The jury was formed and the trial commenced on 3 November 2003. 76.     On 5 November the prosecution asked that the hearing be adjourned to 11   November 2003 in order to produce evidence. The request was granted. 77.     On 11 November the hearing was postponed to 18 November 2003 as the prosecution witnesses had failed to appear. 78.     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. 79.     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. 80.     On 25 November 2003 the court adjourned the hearing until the end of the quarantine period and the applicant’s recovery. 81.     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”. 82.     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. 83.     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. 84.     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. 85.     On 24 February 2004 judge K. examined a request by the prosecution for extension of the term of the applicant’s detention. She also examined an application for the applicant’s release, supported by an application from representatives of various non-governmental organisations, the State Duma and the Academy of Science. The judge noted that the six ‑ month period of the applicant’s detention in custody, from the moment of the receipt of the case by the court, would expire on 25 February 2004. Under Article 255   §   3 of the Code of Criminal Procedure, in cases concerning grave and particularly grave offences a court could prolong the terms of detention in custody for not more than three months each time. In the circumstances, the judge concluded that the period of the applicant’s detention should be extended until 25 May 2004. The defence appealed against this decision, arguing that it contained no reasons to justify the extension of the applicant’s detention. 86.     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. 87.     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. 88.     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. 89.     On the same day the individuals who were selected to serve on the jury took the oath. 90.     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. 91.     On 22 March 2004 the prosecution witnesses, notably T., V., G. and L., were examined before the jury. 92.     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. 93.     The expert reports of 18 July 2002 and 17 August 2000 were then read out before the jury on a motion by the defence. 94.     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. 95.     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. 96.     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. 97.     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. 98.     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 applic