CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 octobre 2009

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Russia (application no. 69519/01 )   MILITARY JOURNALIST’S CONVICTION   AND SENTENCING FOR TREASON NOT DISPROPORTIONATE   No violation of Article 10 (freedom of expression and information) of the European Convention on Human Rights     Principal facts   The applicant, Grigoriy Pasko, is a Russian national who was born in 1962 and lives in Vladivostok. At the time of the events he was a Navy officer and worked as a military journalist on the Russian Pacific Fleet’s Newspaper “Boyevaya Vakhta”.   The parties disagree about the nature of the exchanges the applicant had with two Japanese journalists between 1996 and 1997. Mr   Pasko submitted that he worked on a free-lance basis for a Japanese TV station and a newspaper, and supplied them with openly available information and video footage. The Russian authorities maintained that Mr   Pasko was only asked by “Boyevaya Vakhta” to assist two Japanese journalists in visiting Russian military units and to inform them of the professional activities of the Fleet’s newspaper; all further contacts with those journalists were pursued by Mr   Pasko of his own volition and were not reported to his superiors.   In November 1997, Mr   Pasko was searched at the Vladivostok airport from where he flew to Japan. A number of his papers were confiscated then with the explanation that they contained classified information. Shortly after that criminal proceedings were brought against Mr   Pasko in connection with the above episode. He was arrested on 20   November 1997 upon his return from Japan. The same month he was charged with treason through espionage for having collected secret information on 11   September 1997 with the intention of transferring it to a foreign national. He was found guilty as charged in December 2001 and was sentenced by the Pacific Military Fleet Court to four years’ imprisonment. Following Mr   Pasko’s appeal, in June 2002 the Supreme Court upheld his conviction. Mr   Pasko applied for supervisory review of his sentence, without success. He was released on parole in January 2003.   The Russian Constitution of 1993 required that information constituting State secrets had to be defined by a federal statute. The State Secrets Act was adopted in 1993 listing information which could be classified as secret, without précising which is that information. In 1995 a Presidential Decree was adopted listing precisely what information was classified as State secret.   Complaints, procedure and composition of the Court   Relying on Articles 7 (no punishment without law) and 10, Mr   Pasko complained about the authorities having applied retrospectively criminal law legislation and subjected him to an overly broad and politically motivated criminal persecution as a reprisal for his critical publications.   The applications were lodged with the European Court of Human Rights on 20   January 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges , and Søren Nielsen , Section Registrar .   Decision of the Court   The Court considered that the essence of the case was the alleged violation of Article   10 and Mr   Pasko’s complaints under Article   7 concerned the same facts as those related to Article   10. The Court therefore decided to examine Mr   Pasko’s complaints under Article   10 only.   The Court first noted that both pieces of law on which the domestic courts had based their findings, namely the federal law “State Secret Act” (the Act) of 1993 listing categories of information that may be classified as secret and a Presidential Decree (the Decree) of 1995 listing information classified as secret with sufficient precision, had been in force during the period of the events, had been publicly available and thus enabling Mr   Pasko to foresee the consequences of his actions. Although the State Secret Act had only been amended on 8 October 1997 to conform to the Constitutional requirement to list clearly the categories of information classified as secret, the Court observed that the domestic courts had consistently referred to both the Act and the Decree as the legal basis for the applicant’s conviction and had applied them in conjunction. Having found that the domestic courts’ decisions had been neither arbitrary nor unreasonable, the Court held that those two legal documents had constituted sufficient legal basis for the applicant’s conviction. Furthermore, the Court - referring to the date when Mr   Pasko had collected the information (11   September 1997) and the date of his arrest (20   November 1997) - emphasised the continuous nature of his offence. The Court thus concluded that the legislation which had had to apply had been the one in force at the   end of the offence, namely after 8   October 1997 when the State Secret Act had been amended and as of when it had become undisputed between the parties that the Act had been a proper legal basis.   In addition, the Court observed that, as a serving military officer, the applicant had been bound by an obligation of discretion in relation to anything concerning the performance of his duties. The domestic courts had carefully scrutinised each of his arguments. They had corroborated their findings with evidence, including recordings of his conversation with a Japanese national, about the information in question. The courts had found that he had collected and kept, with the intention of transferring to a foreign national, information of a military nature that had been classified as a State secret, and which had been capable of causing considerable damage to national security. Finally, the applicant had been convicted of treason through espionage as a serving military officer and not as a journalist. The domestic courts’ decisions appeared reasoned and well-founded. There had been nothing in the materials of the case to support the applicant’s allegations that his conviction had been overly broad or politically motivated or that he had been sanctioned for any of his publications.   On balance, the Court found that the domestic courts had struck a right balance of proportionality between the aim to protect national security and the means used for that, namely the sentencing of the applicant to a lenient sentence, much lower than the minimum stipulated in law. Accordingly, the Court held by six votes to one, that there had not been a violation of Article   10.     *** The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77) Frédéric Dolt (tel : + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.