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    You are here: BAILII >> Databases >> European Court of Human Rights >> Igor Vyacheslavovich SUTYAGIN v Russia - 30024/02 [2008] ECHR 782 (8 July 2008)
    URL: http://www.bailii.org/eu/cases/ECHR/2008/782.html
    Cite as: [2008] ECHR 782

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    FIRST SECTION

    DECISION

    AS TO THE ADMISSIBILITY OF

    Application no. 30024/02
    by Igor Vyacheslavovich SUTYAGIN
    against Russia

    The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:

    Christos Rozakis, President,
    Nina Vajić,
    Anatoly Kovler,
    Elisabeth Steiner,
    Khanlar Hajiyev,
    Dean Spielmann,
    Sverre Erik Jebens, judges,
    and Søren Nielsen, Section Registrar,

    Having regard to the above application lodged on 11 July 2002,

    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 Igor Vyacheslavovich Sutyagin, is a Russian national who was born in 1965. The applicant was represented before the Court 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 Representative Mrs V. Milinchuk.

    A.  The circumstances of the case

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

    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.

    1.  Preliminary investigation

    On 26 October 1999 the Kaluga Region Department of the Federal Security Service of the Russian Federation (Управление Федеральной службы безопасности Российской Федерации по Калужской области, “the FSB”) opened criminal proceedings under Article 283 § 1 of the Criminal Code in connection with the publication in 1998 of the book “Strategic nuclear weaponry of Russia”, which allegedly contained state secrets.

    On 27 October 1999 at about 7 a.m. the FSB searched the applicant’s flat and seized books, national and international press clippings and computers. They took the applicant to their office in Obninsk, explaining that there was a need to talk. For the next three days, during which the applicant remained in the FSB office, an investigator questioned him as a witness, having warned him about potential criminal responsibility if he refused to testify and if he made false statements. The applicant had no access to a lawyer. Nor did he request that one be appointed.

    On 29 October 1999 the FSB brought criminal proceedings against him on a suspicion of high treason by way of espionage, punishable under Article 275 of the Criminal Code.

    On the same day an investigator joined the two cases and ordered the applicant’s detention on remand under Article 90 of the Code of Criminal Procedure. The detention order, upheld by the prosecutor of Obninsk on the same day and served on the applicant at 12.30 a.m. on 30 October 1999, stated that the applicant had gathered, systematized and summarized information of a military-technical nature and then passed it on to representatives of a foreign organisation, Alternative Futures, for remuneration, during his meetings with them outside Russia. Thus, in September 1998 in Budapest the applicant had allegedly handed over analytical materials, allegedly 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, in order 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 further stated that the preparation of charges against the applicant had not been completed, that he might obstruct the investigation and continue his criminal activities and that he might abscond.

    On 1 November 1999 the applicant was questioned as a suspect in the presence of his lawyer.

    On 5 November 1999 the applicant was charged with high treason by way of espionage under Article 275 of the Criminal Code. The charges were formulated in a one-page document. The applicant was accused of collecting and handing over to the UK-based consultancy firm Alternative Futures information containing state secrets and other information damaging to Russia’s national security, in the manner described in the detention order of 29 October 1999.

    On 24 December 1999 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 March 2000.

    On 25 February 2000 the applicant’s counsel asked the investigator to alter the applicant’s detention for another preventive measure that would not involve deprivation of liberty. He specifically asked 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 in the institute. The request was supported by applications from the Vice-President of the Russian Academy of Science, Mr Velikhov, and the scientist Mr Zakharov, who wished to be the applicant’s personal guarantors. On 1 March 2000 the investigator from the Kaluga Region Department of the FSB rejected the request. The applicant appealed against this decision.

    On 23 March and 13 April 2000 the prosecutor’s office extended the term of the preliminary investigation and the applicant’s detention on remand to 26 April and 26 July 2000 respectively.

    On 26 April 2000 the Regional Prosecutor’s office dismissed the applicant’s appeal against the investigator’s decision of 1 March 2000, stating that the investigator had rightly rejected the request because the applicant had been charged with a particularly serious offence. A further appeal to the Deputy General Prosecutor of the Russian Federation was rejected on 28 April 2000 on the same ground.

    On an unspecified date the applicant filed a court appeal complaining that his detention was unlawful and unjustified and requesting his release. In particular, he argued that he had been unlawfully detained from 27 to 29 October 1999. He pointed out that there was no evidence that he might flee, and that some 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 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 applicant’s charge had not been completed. It confirmed the detention. It did not comment on the applicant’s allegations concerning the period from 27 to 29 October 1999. The decision of 29 June 2000 was subject to appeal to the Kaluga Regional Court. There is no indication that the applicant appealed against it.

    The investigating authority ordered that an expert examination be carried out with a view to determining whether the materials which the applicant had allegedly collected, stored and passed on to Alternative Futures contained state secrets and whether they could have been obtained from the publications to which the applicant referred as the sources of his information. The applicant asked the investigating authority to give him an opportunity to provide explanations to the experts. His motion was rejected.

    On 30 June 2000 a commission of experts from the Land Forces Headquarters, which included the expert Mr Koshelev, 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 obtained from open publications and did not contain state secrets.

    On 12 July 2000 the Deputy General Prosecutor extended the term of the applicant’s detention in custody until 26 September 2000. An appeal by the applicant against this decision and request 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 charge against the applicant as the only reason for his continued detention. There is no indication that the applicant appealed to the Kaluga Regional Court against this decision.

    On 17 August 2000 another group of experts from the General Headquarters of the Russian armed forces, which included the expert Mr Nazarenko, gave its opinion 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 obtained from open sources, represented the result of analytical research, was untrue and did not contain state secrets.

    Information relating to thirty-eight other topics was found by the experts to have contained state military secrets.

    On 19 September 2000 the finalised charges were brought against the applicant. They consisted of thirty-eight items, set out on eleven pages. The applicant was accused of gathering, by way of analysing and systematising information published in Russia and other countries, as well as information from other non-established sources, and passing the 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 worked under the cover of the consultancy firm Alternative Futures, to be used to damage Russia’s national security. According to the charges, the applicant had handed over the materials on thirty-eight topics of the above nature for remuneration during seven meetings in 1998-1999 in Birmingham, London, Budapest and Brussels.

    According to the applicant, all the information used in charging him was obtained by the investigating authority from the statements which he had given when questioned on 27-29 October 1999, 1-5 and 24 November 1999, 25 January and 4 September 2000.

    On 26 September 2000 the preliminary investigation was finalised.

    On 23 October 2000 the defence finished examining the case file.

    On 26 October 2000 the Deputy Kaluga Regional Prosecutor transmitted the case to the Kaluga Regional Court for trial.

    2.  Proceedings before the Kaluga Regional Court

    On 9 December 2000 the Kaluga Regional Court ordered that the case be heard by a bench composed of a judge and two people’s assessors, in a closed trial. On the same day the court rejected the applicant’s request for release, supported by two non governmental organisations, on the ground of the gravity of the charges against him.

    A hearing was originally scheduled for 26 December 2000. It was adjourned until 9 January and then until 26 February 2001, on a request by the applicant’s two new counsel, in order to allow time for the examination of the case file.

    On 7 February 2001 the Supreme Court of the Russian Federation (“the Supreme Court”) presided by judge Mr Galiullin 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 on the unlawfulness and groundlessness of the judge’s decision to maintain detention on remand as a measure of restraint.”

    The hearing took place on 27 and 28 February 2001. On 1 March it was adjourned to 5 March 2001, 3 and 4 March being non-working days, because one of the defence counsel would be busy in another trial on the following day.

    The hearing was held on 5-7 March 2001. Between 14 March and 21 May 2001 no hearing took place because one of the defence counsel was ill.

    The examination of the case continued on 25, 28-30 May, 4-9, 14-15, and 18-20 June 2001. On the latter date the court granted the prosecutor’s request to call witnesses and experts and adjourned the hearing to 17 July 2001.

    The trial continued on 18-20, 23-27 and 30-31 July, 2-3, 6-10, 13-14 and 16-17 August 2001. On 20 August 2001 the hearing was adjourned to 4 September 2001 on account of the defence counsel’s illness. It continued on 5-7, 10-14, 17 18, 20-21 September 2001. On the latter date the court granted the prosecution’s request to adjourn the hearing until 29 October 2001 to allow time for preparation of their pleadings.

    The hearing continued on 29-31 October 2001. The defence asked that the hearing be adjourned to 12 November 2001 to allow the defence time to prepare on the basis of the prosecutor’s submissions. The request was granted.

    On 1 November 2001 the court heard the prosecutor’s pleadings. According to the applicant, Mr Belyak, the First Deputy Prosecutor of the Kaluga Region, who represented the prosecution, acknowledged that the applicant had been unlawfully detained by the FSB department of the Kaluga Region from 27 to 29 October 1999 and asked the court to issue a “special finding” (частное определение) with such an acknowledgment.

    On 12 November 2001 the court heard pleadings by the defence.

    On 13 November 2001 the court adjourned the hearing until 25 December 2001, giving no reasons, and then to 27 December 2001 on account of the illness of the judges.

    On 27 December 2001 the court held a hearing in chambers. It heard the applicant’s final statement. The applicant denied the charges against him. He confirmed that he had gathered information for Alternative Futures but submitted that he had done so by using open sources.

    On the same day, after deliberations, the Kaluga Regional Court remitted the case for additional investigation.

    (a)  The Kaluga Regional Court’s decision of 27 December 2001

    In its decision the court stated that the investigating authority had essentially 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 investigation authority had contradicted itself in the statement of charges and the bill of indictment by referring to the same information as classified information and non classified information.

    The general criticism about the charges on the 29 topics was that it remained unclear exactly what information the applicant had allegedly gathered, stored and transmitted. This made it impossible for the court to assess the arguments put forward by the prosecution and the defence; to establish factual questions concerning the sources and circumstances in which the information was collected; to assess whether the information was truthful and comprised state secrets and to assess the possibility that it was damaging to Russia’s external security. The vague formulation of the charges, which made it impossible for the applicant to know exactly what he was accused of, also violated his right to defend himself.

    The investigating authority had established the applicant’s guilt based, inter alia, on the applicant’s own statements. At the same time they had failed to set out and analyse in the bill of indictment the applicant’s statements concerning the circumstances in which the information was collected and stored and the content of that information.

    According to the investigating authority, the applicant’s guilt was corroborated by the applicant’s four notebooks. There was nothing in the bill of indictment about the content of those notebooks or its analysis.

    The bill of indictment referred to mutually exclusive evidence which had not been analysed and was not assessed by the investigating authority. Thus, the applicant was accused of gathering, storing and transmitting secret information concerning “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”. The bill of indictment referred to three expert reports as evidence: (i) report of 29 February 2000 by the commission of experts from the Armed Forces General Headquarters, according to which this information was State “top secret”; (ii) statements by the expert Mr Kilesso, to the effect that this information was partially untrue but did however contain state secrets; and (iii) report of 17 August 2000 by the commission of experts from the Armed Forces General Headquarters , according to which the information was untrue and did not contain state secrets.

    The bill of indictment did not set out the applicant’s arguments and any results of examination of them by the investigating authority. Thus, after the charges had been served on him Mr Sutyagin contended that he had taken certain information, which was 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 examination of them 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 information, including the information which according to the experts, had comprised state secrets from open sources. These arguments by the applicant had not been properly examined in the course of the preliminary investigation. The results of the examination had not been set out in the bill of indictment.

    During the course of the preliminary investigation, expert examinations had been carried out into the secrecy of 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 examinations the experts had been governed by order no. 055 of the Ministry of Defence of 10 August 1996 containing the 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 of information 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 and should be registered; normative acts void of registration were invalid).

    The trial court agreed with the defence that the expert examinations (reports of 29 February, 25 July, 2 and 17 August 2000) had been ordered and carried out in violation of the law on criminal procedure.

    In view of the above violations the trial court remitted the case to the Kaluga regional prosecutor for additional investigation, as required by Articles 232 § 1 (2) and 308 of the Code of Criminal Procedure, and ordered, without giving any reasons, that the applicant remain in detention.

    The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant, those charges must be formulated in detail in a statement of charges, in accordance with the requirements of Article 144 of the Code. A bill of indictment must comply with Article 205 of the Code and contain, in particular, the detailed formulation of a charge which must not differ significantly from the formulation in the statement of charges to the detriment of the accused. The bill of indictment must further 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.

    (b)  Appeal against the decision of 27 December 2001

    The applicant and his counsel appealed against this decision. They did not dispute the procedural violations by the investigating authority as established by the trial court. They argued, however, that the vague formulation of the charges, as well as the violations in preparing the bill of indictment and in ordering and carrying out expert examinations, showed the irreparable incompleteness of the investigation, which warranted the applicant’s acquittal. The trial court should not have remitted the case for additional investigation on its own initiative without relevant requests to that effect by the parties. The flawed preliminary investigation should have resulted in the applicant’s acquittal.

    The defence also appealed against the decision that the applicant should be remanded in custody. They submitted that there was no evidence that he would flee. The applicant and his family – wife, two minor children, parents and brother   resided permanently in Obninsk. Nor was there any 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, in particular, given that the gravity of the offence was the sole ground for the applicant’s continued detention.

    On 20 March 2002 the Supreme Court, presided by judge Mr Galiullin, rejected 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.

    3.  Additional investigation

    On 8 April 2002 the investigation department of the FSB of the Kaluga Region commenced the additional investigation.

    On 6 June 2002 they ordered a new complex expert report on whether the information which the applicant had 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 a legal assessment. The applicant requested that he be allowed to be present at the expert examination and give explanations to the experts. He also noted that for unknown reasons the investigating authority had not forwarded to the experts a number of open sources of information used by him. He requested that those publications be sent to the experts for their examination.

    In his decision of 17 June 2002 the head of the investigation department rejected the applicant’s requests. He stated, in particular, that all open sources had allegedly been forwarded for the expert examination except for those to which the applicant had referred without any ground, as they were allegedly 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 produced for the experts, including the applicant’s statements, were sufficient to answer the questions put to the experts.

    On 18 June 2002 the case was transferred to the FSB central investigation department in Moscow on an instruction by the Deputy Prosecutor General.

    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 interrogation and the publications to which the applicant referred as the sources of his information) and reached the conclusion that the materials on the following five topics constituted state secrets, were true and could not have been obtained from the publications examined by them:

    –  the structure and state of the missile [early-]warning system;

    –  the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998;

    –  options for the structure of the RF’s strategic nuclear forces for the period up to 2007;

    –  specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29;

    –  possible directions in the development of Russian air-to-air missiles.

    In their assessment the experts were governed by the Official Secrets Act, as amended on 6 October 1997, Presidential decree no. 1203 of 30 November 1995, the Code of Criminal Procedure and secret decrees of the Ministry of Defence nos. 055 and 015 issued on 10 August 1996 and 25 March 2002 respectively.

    According to the applicant, the experts did not examine all publications to which he had referred as the sources of his information. Thus, the applicant had argued before the investigating authority that he had received information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” from articles by Falichev in the newspaper Krasnaya Zvezda of 13 August 1998 and 12 January 1999, comprising interviews with the Minister of Defence and the first deputy head of the Headquarters of the Armed Forces. According to the expert report of 18 July 2002, Krasnaya Zvezda of 13 August 1998 had been given to an expert who had carried out an examination on another topic, namely “the structure and stationing of permanent readiness units”, and Krasnaya Zvezda of 12 January 1999 had been given to an expert who had carried out an examination on “engineering of new equipment for land forces”. The applicant had referred to the following three sources in respect of the topic “possible directions in the development of Russian air-to-air missiles”: (i) A. Karpenko, Russian rocket weapons 1943-1993; (ii) Fridman, Normal Naval Weapons Systems 1997-1998, and (iii) V. Lipetskiy, MiGs’ continued upgrading. According to the expert report of 18 July 2002, all three sources had been given to an expert covering the topic “plans and directions in the creation of aviation complexes of the 5th and 4th+ generation”. The applicant had referred to an article by Rodikov in the magazine Vestnik vozdushnogo flota of March April 1998, comprising an interview with the chief designer of the MiG enterprise as the source of his knowledge on the topic “specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29”. According to the expert report of 18 July 2002, this article had been given to an expert on a different topic, namely the anti aircraft missile C-400. 18 of 44 sources relating to the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007” had been given to experts covering different topics. The book “Modern nuclear armaments of Russia”, from which the applicant had allegedly received information on the topic “the structure and state of the missile [early-]warning system”, had not been given to the experts who carried out the assessment on that topic.

    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, by using the opportunities provided by his job at the Institute of USA and Canada, information on the above-mentioned five topics containing state secrets from various sources, including closed sources, and passing it on, on five occasions in 1998-1999, to representatives of a foreign state with a view to damaging the national security of Russia.

    The investigating authority did not identify any closed source from which the applicant had allegedly obtained the information. The charges in respect of the remaining items were withdrawn.

    On 7 August 2002 the additional investigation was finalised.

    On the same day the applicant and his counsel began examination of the case file. The case file composed of more than 8120 pages, computer files, audio and video records.

    On 9 August 2002 the Moscow City Court extended the applicant’s detention on remand to 8 October 2002 at the investigator’s request. The applicant appealed. On 2 October 2002 the Supreme Court composed, inter alia, of judge Ms Rodionova, quashed the decision as unlawful and ordered a fresh examination. It stated in its decision that pre trial detention could only be extended if legitimate grounds were supported by the relevant factual circumstances.

    Following this decision, an investigator from the prosecutor’s office submitted to the Moscow City Court a copy of a document from which it followed that the applicant had received an entry visa for Italy which had expired in November 1999.

    On 3 October 2002 the City Court gave a new decision extending the applicant’s detention until 8 October 2002 on the grounds that he could abscond or otherwise obstruct the investigation and that he was accused of committing a particularly serious offence.

    On 4 October 2002 the Moscow City Court extended the applicant’s detention, on the same grounds, until such time as the applicant had completed examination of the case file.

    The defence appealed against the two decisions, pointing out, inter alia, that, according to the applicant’s passport, his Italian visa had been issued for the period from 28 October 1999 to 18 November 1999.

    On 25 December 2002 the Supreme Court presided by judge Mr Galiullin rejected the appeals, holding that there were no grounds for the applicant’s release and referring to the gravity of the charges.

    On 15 August 2003 the defence finished its examination of the case file. The applicant requested that Mr Nazarenko and Mr Koshelev, 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 to the bill of indictment. Three prosecution witnesses, Mr Turta, Mr Velichko and Mr Garbuz, officers from the Navy Obninsk training unit, were also added to that list.

    4.  The applicant’s trial

    In August 2003 the applicant lodged a request for his case to be heard by a jury. The case was transferred to the Moscow City Court for a trial.

    On 8 September 2003 judge Ms Kolyshnitsyna of the Moscow City Court listed a preliminary hearing for 15 September 2003. It started on the latter date but was adjourned to 25 September 2003 at the prosecutor’s request to allow time for preparation.

    On 23 September 2003 the President of the Moscow City Court Ms Yegorova assigned the case, for unknown reasons, to another judge, Mr Shtunder, who held a preliminary hearing on 25 September and scheduled a hearing on the merits by a jury for 3 November 2003.

    On 29 September 2003 judge Mr Shtunder of the Moscow City Court examined the defence’s request for the applicant’s release. He observed that the applicant had been taken into detention in connection with the accusation against him of a particularly grave offence, on well-founded grounds which were still valid. The applicant’s detention as a preventive measure should therefore remain the same. The defence appealed, arguing that the decision contained no reasons for the applicant’s continued detention.

    The trial commenced on 3 November 2003.

    On 5 November the prosecution asked that the hearing be adjourned to 11 November 2003 in order to allow it to produce evidence. The request was granted.

    On 11 November the hearing was postponed to 18 November 2003, as the prosecution witnesses had failed to appear.

    On 12 November 2003 the Supreme Court, composed of the President Mr Galiullin and judges Ms Rodionova and Ms Lamintseva, 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 apply the detention in custody as a preventive measure were still valid and that there had been no violations of the rules of criminal procedure which would warrant a change in the preventive measures.

    On 18 November the examination of the case was adjourned to 25 November 2003 as the applicant had not been transported to court on account of a medical examination.

    On 25 November 2003 the court adjourned the hearing for an indefinite period on the ground of quarantine in the applicant’s detention facility, until the applicant’s recovery and the end of quarantine.

    On 26 November 2003, as the defence later learned from the materials of the case file, the President of the Moscow City Court Ms Yegorova assigned the case to another judge, Ms Komarova. The materials of the case file contain the following resolution by Ms Yegorova: “To M.A. Komarova. [I] [a]sk [you] to take the case over for examination”.

    The list of jurors of the Moscow City Court for 2004 was approved by the Mayor of Moscow on 4 December 2003 and later sent to the court.

    According to the applicant, the quarantine ended on 5 December 2003. The defence filed numerous requests with the presiding judge, the President of the court and various authorities, seeking to have hearings in the case resumed.

    On 16 February 2004 the defence was notified that the hearing would take place on 15 March 2004 and that the case had been assigned to judge Ms Komarova. 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, Ms Yegorova. They were all left unanswered.

    On 24 February 2004 judge Ms Komarova of the Moscow City Court examined a request by the prosecution for extension of the term of the applicant’s detention in custody. She also examined a request by the defence 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 prolonged until 25 May 2004. The defence appealed against this decision, arguing that it contained no reasons to justify the extension of the applicant’s detention.

    The new presiding judge Ms Komarova held a hearing on 15 March 2004 at which she carried out the selection of a new jury composition from 31 candidate jurors.

    The request by the defence to have the case examined the initial composition of the jury, which it alleged had been unlawfully dismissed, was rejected. So was a motion challenging the presiding judge who, according to the defence, was conducting the trial in a way favourable to the prosecution.

    One of the questions put to the candidate jurors by the presiding judge was whether their number included 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 once 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 on 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 Yakimishen, answered that he worked as a deputy head of a foreign company representative office and spoke Polish.

    On the same day the individuals who were selected to serve on the jury took an oath.

    The hearing was adjourned until 17 March 2004 in order for the applicant to have additional time to examine the case file, as requested by him. On the latter date the defence unsuccessfully challenged the presiding judge.

    On 29 March 2004 the defence requested the court to examine before the jury the report of 17 August 2000 by the commission of experts from the General Headquarters of the RF Armed Forces, according to which the materials transmitted by the applicant on one of the five topics (Options for the structure of the RF’s strategic nuclear forces for the period up to 2007) did not contain state secrets and could have been obtained from open sources. The defence also asked the court to examine expert Mr Nazarenko, who was a member of that commission, and who had come to the court at the request by the defence. The presiding judge examined Mr Nazarenko in the jury’s absence and declared the expert report of 17 August 2000 inadmissible as evidence, on the grounds that it did not meet procedural requirements, since it lacked the “research” section which should have explained what expert had examined which materials, and as a result of what research he or she had reached the conclusions. According to the applicant, she then invited the prosecution to state their view as to Mr Nazarenko’s examination before the jury and, following their objections, dismissed the relevant motion by the defence.

    On 30 March 2004 the defence asked to examine before the jury the report of 30 June 2000 by the commission of experts from the Land Forces Headquarters, according to which the information on the topic “The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998” was not classified and could have been obtained from open sources. The presiding judge declared the report inadmissible as evidence, for the same reasons as the report of August 2000.

    The defence asked to examine Mr Koshelev, who had prepared the report of 30 June 2000, as a witness. Mr Koshelev came to the court at the request of the defence. According to the applicant, the presiding judge, having heard the prosecution’s objections, dismissed the request on the ground that the expert report of 30 June 2000 had been declared inadmissible as evidence.

    Prosecution witnesses, in particular Mr Turta, Mr Velichko and Mr Garbuz, were examined at the trial before the jury. The applicant was not asked whether he objected to their examination.

    The applicant asked that the expert assessment report of 18 July 2002 be declared inadmissible as 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, giving no reasons.

    The judge also rejected, without giving reasons, 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 airplane MiG-29 (specific features of the construction and military potential of the MiG 29 SMT aircraft and the military potential of the modernised MiG 29) did not contain state secrets.

    The applicant consistently claimed that in preparing the materials for Alternative Futures he had only used information from publicly available sources – Russian and foreign publications   which were listed in his statements to the investigating authority and the court. According to Mr S.M. Rogov, 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 for the Institute. As a researcher at the institute, the applicant had to be aware of all publicly available information concerning the armament policy of the US and Russia. The institute did not have at its disposal information containing state secrets. According to the applicant, the prosecution did not establish any closed source from which he had allegedly obtained classified information.

    On 30 and 31 March 2004 the defence again challenged presiding judge Ms Komarova, since they considered that she violated the principle of equality of arms. She dismissed the requests.

    On 1 April 2004 the Supreme Court dismissed the applicant’s appeal against the decision of 24 February 2004 extending his pre-trial detention, stating that he could not be released because the trial was underway.

    The following four questions were put to the jury by the presiding judge:

    Question 1. Has it been shown that, from 19 February to June 1998, meetings occurred in Birmingham and London (Great Britain) at which a cooperation agreement was concluded with S. Kidd, a representative of US military intelligence, on gathering information about the Russian Federation, for subsequent transfer to the above-mentioned individual; in accordance with instructions from S. Kidd, the following information was collected in the Institute for the USA and Canada in Moscow and Obninsk (Kaluga oblast), stored and handed over on various dates:

    (a)  from 24 June to 15 September 1998, information on the topic “the structure and state of the Russian missile early warning system”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at the Forum-Intercontinental Hotel in Budapest (Hungary) from 15 to 17 September 1998;

    (b)  from 22 October 1998 to 15 January 1999, information on the topic “the RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to Locke and Kidd, representatives of US military intelligence, at the Marriot Hotel, Budapest (Hungary) from 15 to 18 January 1999;

    (c)  from 18 January to 27 March 1999, information on the topic “options for the structure of the RF’s strategic nuclear forces for the period up to 2007”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to S. Kidd, representative of US military intelligence, at the Tower Hilton Hotel, London (Britain) from 27 to 31 March 1999;

    (d)  from 31 March to 20 May 1999, information on the topic “specific features of the construction and military potential of the MiG-29 SMT aircraft and the military potential of the modernised MiG-29”, specifically ... (there follows information described as secret) was collected and stored, and subsequently handed over to N. Locke, representative of US military intelligence, at a hotel in Birmingham (Britain) from 20 to 23 May 1999;

    (e)  from 23 May to 14 July 1999, information on the topic “possible directions in the development of Russian air-to-air directed missiles”, specifically ... (there follows information described as secret) was collected and stored, and was handed over to N. Locke, representative of US military intelligence, at the “Globus” Hotel, Brussels (Belgium) from 14 to 18 July 1999;

    Question 2. If an affirmative answer has been given to the first question, then has it been shown that the actions set out in it were committed by Sutyagin and that he received financial compensation for them?

    Question 3. If affirmative answers have been given to Questions 1 and 2, then is Sutyagin guilty of having committed the above-mentioned actions?

    Question 4. If an affirmative answer has been given to Question 3, then does Sutyagin deserve leniency?

    The applicant’s lawyers sought to have other questions put to the jury, in particular a question as to whether the transmitted information contained state secrets, but the judge refused their motion.

    On 5 April 2004 the jury unanimously found the applicant guilty, having answered the questions put to them in the affirmative.

    On 7 April 2004 the judgment was delivered. The applicant was convicted of high treason by way of espionage under Article 275 of the Criminal Code, specifically of “the transmission, collection and storage of information, constituting state secrets, to be used to damage the national security of the RF”. The applicant was sentenced to fifteen years’ imprisonment in a strict regime colony. His sentence was to be calculated from 29 October 1999.

    The applicant appealed against the judgment. In particular, he complained that the replacement of the presiding judge and the jury had been unlawful; that juror Mr Yakimishen should not have sat in his trial as he had been included in the list of jurors of the Moscow Circuit Military Court; and that the list of jurors of the Moscow City Court had not been published. The applicant further complained that the presiding judge had dismissed his request to put to the jury questions as to whether the information transmitted by him had been secret. He asserted that the questions to the jury had been formulated in breach of the domestic law. He argued that the trial court had had no grounds to declare the exculpatory expert reports of 30 June and August 2000 inadmissible as evidence, to reject his request for examination of Mr Nazarenko and Mr Koshelev as witnesses, and simultaneously to refuse to declare the inculpatory expert report of 18 July 2002, which had the same procedural flaw as the former two reports, inadmissible as evidence. The applicant also complained that no question had been put to the jury as to whether he had had intent to damage national security or whether the transmitted information had contained state secrets. It had not been refuted in the course of the trial that he had transmitted information which had previously been published in open sources. This issue had not been examined in the judgment. In his appeal the applicant relied on Articles 6, 7 and 10 of the Convention.

    In May 2004 the general list of jurors for the Moscow Circuit Military Court was published with Mr Ykimishen’s name on it.

    On 17 August 2004 the Supreme Court, composed of President Mr Galiullin and judges Ms Rodionova and Ms Borisova, delivered a final decision in the case. It rejected the appeal and upheld the judgment, having succinctly stated that there had been no violations of the rules of criminal procedure on the part of the trial court, including its taking of evidence, and that Mr Yakimishen had been included in the approved list of jurors of Moscow. It also stated that the principle of immutability of a court composition had not been violated in the case, which had been examined in compliance with the requirements of Article 242 of the Code of Criminal Procedure.

    During the appeal hearing the applicant and his counsel challenged judge Mr Galiullin on the ground that he had previously taken part in examination of the applicant’s appeals against decisions extending his pre-trial detention and had consistently rejected them. The challenge was dismissed.

    The general list of jurors of the Moscow City Court (for the North administrative circuit of Moscow) was published on 18 August 2004. It included Mr Yakimishen. After the case had been heard by the appeal court the defence learned that juror Mr Yakimishen had allegedly worked for the FSB.

    The applicant is currently serving his sentence.

    5.  Mass media reports

    On 30 October 1999 it was stated on the Vesti programme on the RTR television channel: “Igor Vyacheslavovich Sutyagin is an employee of the Russian Academy of Science (RAS). He is suspected of collecting and handing over information which is classified as a state secret on the creation of a new generation of nuclear submarines. According to FSB information, he has admitted to everything.”

    On 2 November 1999 the Kaluga newspaper Znamya, no. 160 (26211), contained the following text:

    Last Saturday 30 October, the programmes Vremya and Vesti were broadcast simultaneously at 9 p.m. on different channels. Some people chose to watch Pavel Sheremet, because they were unaware of the information being given on the programme presented by A. and S. Dadyko. The discussion was on the following topic. Photographic stills were broadcast (showing the FSB’s filming logo) which had been taken in an American agent’s flat. A search of the flat was carried out, and produced documents containing information about secret developments in the area of nuclear reactors for submarines. It was stated that this information had been given to the American by a certain Mr Sutyagin, a resident of Obninsk.”

    On 20 December 2000 the newspaper Komsomolskaya Pravda, no. 234 (22458), pp. 8-9, published an interview with the Director of the Russian FSB, Mr N.P. Patrushev, who stated:

    In October 1999 Sutyagin, an employee of the (RAS) Institute for the USA and Canada, was arrested. In the course of the investigation, acts of spying by his contact – the American citizen Joshua Hendler, a specialist in nuclear safety who is now in the USA – were uncovered. It has been preliminarily established that Hendler received secret information about the Russian armed forces from Sutyagin and handed them over to intelligence bodies. Unfortunately, some journalists, not knowing this, have described Sutyagin in their publications as an ‘honest and courageous citizen who is sticking up for democratic freedoms’.”

    On 20 December 2000 the Kaluga regional newspaper Vest, no. 293 (2641), and the municipal newspaper Obninsk, no. 200 (1736), dated 21 December 2000, printed articles by Mr Valeriy Loginov, the chief of the Kaluga Region Department of the FSB – “Service on behalf of the individual, society and the state” (“Service on behalf of the security of the individual, society and the state”), in which he stated:

    We are observing growing interest in the current reforms in the Russian Armed Forces, and especially in our nuclear submarine fleet, strategic missiles, and everything connected with new approaches to nuclear energy and science-intense technologies. This year the directorate investigated and sent for trial a criminal case concerning Igor Sutyagin, an employee of the RAS Institute for the USA and Canada, who has been accused of the crime set out in Article 275 of the Russian Criminal Code (state treason in the form of spying). The Directorate’s employees also monitored a US citizen who referred to himself as belonging to the ‘scientific community’, but whose entire ‘scientific activity’ during his stay in Russia amounted to something similar to that conducted by Edmund Pope, who was convicted of spying in December by the Moscow City Court. For us, as the state security agency, the discovery of spying activity is not only a major operational success, but above all [an opportunity to] obtain information about new forms and methods of conducting subversive intelligence activity against the Russian Federation. I will not hide the fact that such results are a source of pride and satisfaction for every employee of the Kaluga Directorate, especially as a report [on them] was submitted to the President of the Russian Federation.”

    On 26 December 2000 it was stated on the Internet publication ‘UTRO. ru’: “Sutyagin is accused of gathering and handing over information which is classified as a state secret on the creation of a new generation of nuclear submarines. Sutyagin has confessed to everything and now faces a sentence of up to twenty years’ imprisonment”.

    On 27 December 2000 the Internet publication “UTRO.ru” stated:

    According to the public relations unit of the Kaluga Region FSB, investigations have been conducted since October 1999 into the case of Igor Sutyagin. He is a weapons specialist and, working as head of the division of military and technological policy at the RAS Institute for the USA and Canada, he had access to secret documents”.

    At 11.51 a.m. on 9 January 2001, it was stated on the RTR channel’s Vesti programme:

    He was arrested on 27 October of last year. For the moment all details of this operation by the Russian special services are being kept secret. It is known only that, during a search of Sutyagin’s work office, highly secret documents concerning Russia’s nuclear security were found. In addition, the investigators found a large amount in USA dollars. Sutyagin himself is currently detained in a pre-trial detention centre in Kaluga. If his guilt is proven in the course of court proceedings, he faces up to twenty years’ imprisonment”.

    Interfax [news agency], based on FSB material, 9 January 2001:

    The security services have succeeded in ascertaining that, during a working visit to Britain in February 1998, Sutyagin established contact with a commercial organisation, ‘Alternative Futures’, which, according to FSB data, is a ‘cover’ for a foreign intelligence service and had no connection whatsoever with scientific activity. Since then, as FSB employees have established, Igor Satyugin, during business trips to Great Britain, Belgium, Italy, Poland and Hungary, has repeatedly met with representatives of foreign secret services and handed over information [to them] in exchange for money; most of the information was of a classified and secret nature.”

    On 10 January 2001 the newspaper Izvestiya, no. 1 (25839), stated:

    However, not everything is so simple. The accusation brought against Sutyagin is not linked with his immediate professional activity in his capacity as head of division at the RAS Institute for the USA and Canada. Izvestiya has learned that in February 1998 Sutyagin, who was on a working visit to Britain, began to cooperate with a commercial firm ‘Alternative Futures’, which was allegedly involved in scientific activity. In actual fact, according to the FSB’s operational information, ‘Alternative Futures’ was a “cover” for a foreign intelligence service. In the course of this cooperation, Sutyagin had secret meetings over a period of a year and a half with employees of this firm, for the purpose of handing over information while on working visits to Britain, Belgium, Italy, Poland and Hungary. As it happens, Sutyagin was arrested on the eve of one of those journeys. According to the FSB, he handed over information on the state and military readiness of Russian nuclear weapons and missile [early-]warning systems and on the tactical and technical features of a series of Russian weapons systems, in exchange for financial compensation.”

    Interfax, on the basis of information from the FSB’s press unit, 26 February 2001:

    The accusation of state treason brought against Igor Sutyagin, employee of the RAS Institute for the USA and Canada (ISKRAN), is based on his relations with the foreign organisation ‘Alternative Futures’, a ‘bogus intelligence structure for one of the NATO countries’. This information was given to Interfax by Lieutenant-General Nikolay Volobuyev, Deputy Head of the FSB’s Counter-Intelligence Department.

    Anyone who wishes to can satisfy themselves of the well-foundedness of the accusation brought against Sutyagin, by attempting to explain on their own the fate of the pseudo-company “Alternative Futures”, which disappeared immediately after his arrest. Its contact details are: ...’

    At the same time – said Volobuyev –, we cannot remain silent now, when, taking advantage of the closed nature of the trial, attempts are made to mislead Russian and international public opinion with regard to the essence of the case and to create a distorted public view in which Sutyagin is presented as ‘an innocent victim of the FSB’.

    It is clear that those Russian citizens who work along the same lines as Sutyagin with incomprehensible foreign clients must give thought to potential conflicts with the law and discontinue [their activities] in time, rather than allowing the matter to go as far as the courts,’ said the General. [Volobuyev].”

    On 5 March 2001 it was stated on the Internet site UTRO.ru:

    For its part, the RF FSB insists that it has irrefutable evidence that Igor Sutyagin was fully aware that he was working for foreign intelligence. According to Lieutenant-General Nikolay Volobuyev, Deputy Head of the FSB’s Counter-Intelligence Department, the accusation of state treason against Sutyagin is based specifically on his relations with ‘Alternative Futures’. At the same time, that firm is definitely ‘a bogus structure of one of the NATO countries’.”

    FSB press service, Novosti [news agency], 10 August 2001:

    Igor Yakutov, an expert from the Russian Naval (VMF) headquarters, has confirmed his official conclusion that the scientist Igor Sutyagin disclosed state secrets, and also that he has inflicted damage on the country’s defence capability. Igor Yakutov is a specialist in wireless equipment on Akula-class nuclear submarines (NATO classification). In conversation with journalists after speaking at the hearing in Kaluga Regional Court, the military expert said that, in full accordance with the RF State Secrets Act, he had classified several items of information contained in the material submitted for [his] analysis as ‘subject to state secret’. Yakutov noted that this information concerned, in particular, ‘materials on the acoustic protection of nuclear submarines and questions concerning hydrophysics’.”

    Rosbalt news agency, 3 December 2001:

    Kaluga, 3 December. At the request of Rosbalt’s correspondent, the Governor of Kaluga Region, Anatoliy Artamonov, has commented on the trial in the case of Igor Sutyagin, employee of the RAS Institute for the USA and Canada, who is accused of state treason in the form of spying (Article 275, RF Criminal Code). We remind our readers that on 25 December the Kaluga Regional Court will hear the defendant’s final statement.

    My point of view has not changed’, stated A. Artamonov. ‘I cannot comment on the actual conduct of the court’s session, as I am not familiar with the materials in this voluminous case. Whether or not I. Sutyagin is guilty from a legal standpoint will be decided by the court. But as a human being and a citizen, I consider that the analysis of strategic information, even on the basis of open sources, and the sale abroad of the results of that work – something that I. Sutyagin does not hide, and does not consider shameful – ought to be condemned. He is guilty before society.’

    At the same time, added the Kaluga Governor, the state ought to take a more serious attitude to protecting its secrets.”

    Obninsk newspaper, no. 165-166, dated 2 December 2003 and the Vesti newspaper (Kaluga), no. 341, dated 15 December 2003:

    Whether it’s bad, a shame, or sufficiently precise [is unclear], but a list setting out the information which constitutes a state secret has been drawn up, and the activity in which Igor Sutyagin was involved is included on that list. Consequently, whether we like it or not, the analytical materials prepared by him have been classified as specially-protected state information ... But to come back to the fact that a list has [indeed] been drawn up. It follows that Sutyagin handed over information which is currently classified as a state secret, and that, as a matter of fact, there has been a betrayal of the motherland. The question of how the degree of his guilt is to be determined, and to what extent it was betrayal, is another matter.”

    The newspaper Vecherniy Magadan, no. 50, dated 12 December 2003, stated:

    Sutyagin has been accused of handing over information classified as a state secret to a British firm. The defendant accepts that the information given by him was indeed a state secret. But he claims that he obtained it from newspapers and journals, in other words from open sources. Let us concede that that was the case. But let us examine these events through the eyes of sensible people. Firstly, Sutyagin ought to have sounded the alarm when he saw that secret information was coming to light in newspapers and journals. He did not do so, although he understood perfectly well that the information concerned was a state secret.”

    The newspapers Zhizn (Moscow), no. 10, dated 20 January 2004, Zhizn (Rostov-on-Don), no. 10, dated 21 January 2004, Zhizn (Ulyanovsk), no. 11 dated 22 January 2004 and Zhizn (Krasnodar), no. 7, dated 27 January 2004, printed articles entitled “Spy gives language lessons to ‘werewolf’”:

    General Vladimir Ganeyev of the Ministry of Emergencies, who has been accused of organising bands of ‘uniformed werewolves’, has moved cell. The tax official with whom he had earlier shared a cell in Lefortovo pre-trial detention centre was sent to (another) prison, and Ganayev was left by himself. Having grown tired of solitude, the ‘country’s chief werewolf’ asked the authorities of the detention centre for permission to be moved ‘nearer to people’. The request was met. Ganeyev was moved to a ‘press-cell’, where Igor Satyugin, an employee of the Institute for the USA and Canada who has been accused of espionage, and Komi resident Alexander Kulachinskiy, involved in the case concerning the killing of State Duma member Sergey Yushenkov, were being held. Zhizn has been informed that the General has become particularly close to the spy. Ganeyev, who has surrounded himself with textbooks and exercise books, has taken to studying English intensively, and Sutyagin, who speaks that language fluently, immediately offered the General his help.”

    B.  Relevant domestic law

    1.  Composition of courts and assignment of cases to judges

    The Code of Criminal Procedure of 2001 (the “Code”) provides as follows:

    Article 242
    Immutability of court composition

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

    2.  If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”

    Law no. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:

    Section 6.2
    Powers of court Presidents and deputy court Presidents

    1.  The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions:

    (1)  organises the court’s work;

    ...

    (3)  distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...

    The instruction on courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management.

    As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.

    Under paragraph 19 of resolution of the Supreme Court’s Plenum no. 23 of 22 November 2005 setting out practice directions on the application of the Code, the replacement of a presiding judge in jury trials invalidates the trial which has taken place up to that moment and calls for the replacement of a jury because, under Article 328 of the Code, the obligation to form a jury is imposed on the presiding judge.

    2.  Jury trials

    (a)  General provisions

    Article 30 of the Code reads as follows:

    ...

    2.  In courts of first instance, criminal cases shall be examined by the following compositions:

    ...

    2)  At the defendant’s request, the judge of a federal court and a jury of twelve persons shall examine cases concerning the crimes set out in Article 31 § 3 of this Code. ...”

    Article 31 § 3 of the Code includes, inter alia, a crime punishable under Article 275 of the Criminal Code.

    A secretary or a judge assistant selects candidate jurors from a court’s annual list of jurors by drawing them at random (Article 326 of the Code).

    One and the same person cannot sit as a juror more than once a year (Article 326 of the Code, Article 85 of the law On Judicial System).

    Parties to proceedings can challenge candidate jurors with or without reasons, twice in the latter case (Article 327 of the Code). The parties can ask them questions for the purpose of uncovering circumstances which would prevent them from sitting in a case. The presiding judge explains to candidate jurors their duty to answer truthfully to questions put to them (Article 328 of the Code).

    Under Article 330 of the Code, before the jurors take the oath it is open to the parties to proceedings to plead that the jury as a whole might be unable to deliver an objective verdict in view of the peculiarities of a case. After hearing the parties the presiding judge delivers a decision. If the request is found to be justified he or she will dismiss the jury.

    Each juror takes an oath prior to the examination of a case. The oath reads as follows (Article 332 of the Code):

    In assuming the responsible duties of a juror, I solemnly swear to fulfil them honestly and impartially, to take into consideration all the evidence examined in court, both that which incriminates the defendant and that which exonerates him or her, to decide the criminal case on the basis of my inner conviction and conscience, not acquitting the guilty and not convicting the innocent, as befits a free citizen and fair person.”

    The presiding judge reads the text of the oath, after which each juror replies when called by the judge: “I swear.”

    The presiding judge’s summing-up takes place immediately before the jury withdraws to the retiring room. The presiding judge explains to the jury, among other things, the principle of presumption of innocence, the principle of assessment of evidence in their entirety and the rule that their verdict must be based only on evidence examined at the trial (Article 340 of the Code).

    (b)  Jurors’ list

    The procedure for drawing up the list of jurors of Moscow for 2004 was regulated by the RSFSR Law on the Judicial System of 8 July 1981, as amended on 16 July 2003, and the Moscow Mayor’s instruction of 31 October 2003. It entailed the drawing up of the initial lists of jurors by the Moscow district councils, informing the public and providing the public with access to the lists with a view to enabling them to request their inclusion or exclusion from the lists. After necessary corrections the lists were then amalgamated by the prefectures of the Moscow administrative circuits and further served as the basis for drawing up separate lists of jurors for the Moscow City Court and the Moscow Circuit Military Court by the Moscow Territorial Administration Organs Department. The lists were to be approved by the Moscow mayor and forwarded to those courts. 30 November 2003 was fixed as a time-limit for sending the 2004 jurors’ lists, approved by the Mayor, to the Moscow City Court and the Moscow Circuit Military Court. The lists were to be published.

    Under paragraph 14 of Recommendations of the RF Minister of Justice of 30 September 1993 concerning the procedure for drawing up lists of jurors, it was desirable to publish general and reserve lists of jurors in the regional press not later than two weeks before sending them to the relevant court. The publication had to explain to citizens their rights to request regional councils to include or exclude them from those lists.

    3.  Appeal court in jury trials and pre-trial detention orders

    Article 379 of the Code reads as follows:

    Article 379
    Grounds for quashing or varying judgments on appeal

    1.  The grounds for quashing or varying a judgment on appeal are as follows:

    (i)  inconsistency between the court’s conclusions, as set out in the judgment, and the facts of the case, as established by the court ...;

    (ii)  a violation of criminal procedural law;

    (iii)  misapplication of [substantive] criminal law;

    (iv)  unfairness of the judgment.

    2.  The grounds for quashing or varying judgments delivered with the participation of jurors are the grounds stipulated in subparagraphs ii-iv of paragraph 1 of the present article.”

    Article 380 of the Code provides that an inconsistency between the court’s conclusions and the facts of the case will occur if, inter alia, the court’s conclusions are not supported by the evidence examined at the hearing; if the court fails to take into consideration circumstances which could substantially affect its findings; if, in case of contradictory evidence, the judgment does not specify why some of it is accepted and the remainder is rejected; or if the court’s conclusions contain contradictions which can impact the decision as to the defendant’s guilt or innocence, the punishment or the application of the substantive law.

    Issues of an accused’s guilt were not to be assessed by a judge when examining the lawfulness of and justification for a pre-trial detention order (Practice directions on the application of the Code of Criminal Procedure in Resolutions of the Supreme Court’s Plenum no. 3 of 27 April 1993 in respect of the old Code of 1960 and no. 1 of 5 March 2004 in respect of the new Code of 2001).

    4.  Examination of witnesses

    Under Article 217 § 4 of the Code, on completion of the examination of a case file by a defendant and his or her counsel after the investigation, an investigator inquires what witnesses and experts are to be summoned to a court for examination and corroboration of the stand of the defence.

    Under Article 220 § 4 of the Code, a bill of indictment comprises an attachment with a list of witnesses to be summoned to a court hearing for the prosecution and for the defence.

    Under Article 271 § 4 of the Code, the court cannot dismiss a request for examination of a witness who has come to the court on the parties’ initiative.

    5.  Criminal liability for disclosure of state secrets

    The Criminal Code of the Russian Federation of 1996 provides as follows:

    Article 275. High Treason

    High treason, i.e. espionage, disclosure of state secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for their subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by 12 to 20 years’ imprisonment with or without confiscation of property.”

    Article 29 § 4 of the Constitution of provides as follows:

    Everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means. The list of information constituting state secrets shall be defined by a federal law.”

    Section 5 of the “Official Secrets Act” (RF Law no. 5485-1) of 21 July 1993, as amended on 6 October 1997, provided as follows:

    The following information shall be classified as state secrets:

    (1)  information in the military sphere:

    On the content of strategic and operational plans, documents of the combat department on the preparation and conduct of operations, and on the strategic, operational and mobilisation deployment of the Armed Forces of the Russian Federation, and of other troops, military formations and units as envisaged in the Federal “Defence Act”, on their combat and mobilisation readiness, оn the creation and use of mobilisation resources;

    On plans to develop the Armed Forces of the Russian Federation, other troops of the Russian Federation, on guidelines on the development of armaments and military hardware, on the content and results of special programmes, research and experimental design projects on the creation and modernisation of models of armaments and military hardware;

    On the development, technology, production, output volume, storage and recycling of nuclear munitions, their components, fissionable materials used in nuclear munitions, on the technical systems and (or) methods for protecting nuclear munitions from unauthorised use, and also on nuclear power units and special physical installations for defence purposes;

    Оn the tactical-technical specifications and potential for combat use of models of armaments and military hardware, on the properties, formulae or production technology of new forms of rocket fuel or explosives for military use;

    On the disposition, names, degree of readiness, defence capabilities of operational and especially important facilities, their designs, construction and exploitation, and also on the assignment of land, underground areas and bodies of water for these facilities;

    On the disposition, actual names, organisational structure, weapons, and numerical strength of troops and the status of their combat support systems, and also on military-political and (or) operational conditions;

    ...”

    Under section 4 of the Official Secrets Act, the RF President approves, upon the Government’s submission, the list of information constituting state secrets.

    Presidential Decree no. 1203 of 30 November 1995 defined the list of military information classified as state secrets as follows:

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

    2.  Information on the strategic and operational deployment of troops.

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

    4.  Information revealing the status of operational (combat) training of troops, support services for their activities, and the composition and (or) status of command and control systems.

    5.  Information on the mobilisation deployment of troops, their readiness for mobilisation, the creation and use of mobilised resources, the control and command system for mobilisation deployment and (or) on the potential for augmentation of troop strength with personnel, armaments, military hardware and other material and financial resources, and also military transport movements.

    6.  Information revealing the guidelines, long-term forecasts or plans for the development of armaments and military hardware, the content or results of special programmes and research and experimental design projects for the creation or modernisation of models of armaments or military hardware, and their tactical and technical specifications.

    7.  Information revealing the design and construction guidelines, production technology, isotope composition, combat, physical, chemical or nuclear characteristics, and procedure for use or operation of armaments and military hardware.

    8.  Information revealing the production capacity and actual or projected data on the production and (or) shipment (in physical terms) of bacteriological agents or medical protective means.

    9.  Information on the development, technology, production, output volume, storage and (or) recycling of nuclear munitions and (or) their components, fissionable materials, nuclear power units, special physical installations for defence purposes, and technical systems and (or) methods for the protection of nuclear munitions from unauthorised use.

    Information revealing the content of previously completed projects concerning weapons of mass destruction, the results of such projects, and also information on the composition of the model and (or) receptor, production technology or equipment of products.

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

    11.  Information revealing the achievements of nuclear science and engineering with important defence and economic implications or determining a qualitatively new level of potential for the creation of armaments and military hardware and (or) fundamentally new articles and technologies.

    12.  Information revealing the properties, formulae or production technology of rocket fuels, and also ballistic propellants, explosives or military demolition explosives, and also new alloys, special liquids, new fuels for armaments and military hardware.

    13.  Information revealing the disposition, actual names, organisational structure, weapons and numerical strength of troops where publication of such information is not foreseen by the international obligations of the Russian Federation.

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

    15.  Information on the disposition, names, level of readiness or protection of operations facilities not covered by the Russian Federation’s commitments under international treaties, on the selection, assignment of parcels of land, underground areas or bodies of water for the construction of these facilities, and also on planned or current exploratory, design or other projects for the establishment of such facilities. The same information in relation to the special facilities of government agencies.

    16.  Information on the use or developmental prospects of the coordinated communications network of the Russian Federation to safeguard the State’s defensive capabilities and security.

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

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

    19.  Information revealing the content, organisation or results of the main types of activity of the Russian Federation border troops (FSB) and the organisation of the defence of the state borders, exclusive economic zone and continental shelf of the Russian Federation or those of the Member States of the CIS.

    20.  Information revealing the guidelines for the development of dual-purpose equipment and technology, the content and results of special programmes, research and (or) experimental design projects on the development or modernisation of such equipment or technology. Information on the use of dual-purpose resources and technology for military purposes.

    21.  Information on the prospects for the development and (or) use of the Russian Federation’s space infrastructure to safeguard the State’s defensive capabilities and security.

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

    6.  Rights of the accused

    Under Article 47 § 4 (14) of the Code of Criminal Procedure, the accused is entitled complain about the acts (inactivity) and decisions of an investigator, a prosecutor and a court and to take part in their examination by court.

    COMPLAINTS

    A.  Application form of 11 July 2002

  1. The applicant complained under Article 5 § 1 (c) of the Convention that he had been unlawfully detained for sixty-five hours, from 7.10 a.m. on 27 October 1999 until 12.30 a.m. on 30 October 1999, when the detention order of 29 October 1999 was served on him. There had been no legal grounds for his detention, a formal decision for his detention had not been issued and the procedure involving a public prosecutor’s intervention had not been complied with. The detention order of 29 October 1999 had been unsubstantiated. He further complained that he had not been informed of the reasons for his detention. During the period in question he had had no legal assistance and had not been informed of his rights to defend himself, including the right not to incriminate himself. He had therefore given statements which had subsequently been used in bringing charges against him. The detention order of 29 October 1999 had authorised his detention before he had been charged with an offence. The charges of 5 November 1999 had been incomplete. He had been informed of the finalised charges, which differed significantly from the initial charges, only on 19 September 2000. He had been charged on the basis of information which he himself had provided to the investigating authority in the course of almost a year. The applicant alleged a violation of Articles 5 § 2 and 6 § 3 (a) of the Convention.
  2. The applicant complained, relying on Articles 5 § 1 and 6 § 2 of the Convention, that his continued detention pending trial had been based solely on the gravity of the offence with which he was charged. He further complained under Article 5 § 3 that his pre-trial detention had lasted too long and that he had not been brought in person before a competent authority after his detention.
  3. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.
  4. The applicant complained that the Kaluga Regional Court’s decision of 27 December 2001 to remit the case for additional investigation instead of acquitting him had afforded the investigating authority an additional opportunity to eliminate their errors and had thus breached the principle of impartiality, guaranteed under Article 6 § 1, and of the presumption of innocence, guaranteed by Article 6 § 2 of the Convention.
  5. B.  Application form of 1 December 2004

    After the final decision had been delivered in his case the applicant lodged a new application form with the Court in which he set out the following complaints:

  6. He complained under Article 6 § 1 of the Convention that the court which tried him had not been established by law:
  7. (a)  He argued that the Moscow City Court’s list of jurors had not been published until after his trial. He had therefore had no access to the list in order to verify whether the persons selected as candidate jurors for his trial had previously been on that list. Publication of the list of jurors was one of the guarantees of transparency and fortuitousness in jury selection. The breach of this requirement might lead to abuses, resulting in pre selected persons being invited to sit as jurors in cases in which the authorities had an interest, so that they could influence other jurors in achieving the “correct” result.

    (b)  The applicant complained that the procedure for the selection of candidate jurors as established by the rules of criminal procedure (Articles 326 §§ 1-2 and 4 and 327 § 4 of the Code of Criminal Procedure) did not provide for the possibility of participation by, or even the mere presence of, the defence. A list with candidate jurors’ names was to be prepared by the drawing of lots by a secretary or judge’s assistant. The defence had received this list at the beginning of the trial, immediately before the procedure for selection the jury. They had not therefore been able to verify that the selection of candidate jurors had been done correctly and impartially and to prevent the selection of persons who were more likely to take the authorities’ side in examining his case.

    (c)  The applicant contended that Mr G. Yakimishen, who was one of the jury members in his case, should not have taken part in its examination. Two separate lists of jurors should have existed – one for the Moscow City Court and one for the Moscow Circuit Military Court (paragraphs 3, 6.1 and 6.2 of Order no. 412-PM of the Mayor of Moscow of 31 October 2003, On preparation of general lists of jurors of the city of Moscow for 2004; Article 81 of the RSFSR Law of 8 July 1981 On Judicial System, as amended). The same person could not be included in both lists. The list of jurors for the Moscow Circuit Military Court, with Mr Yakimishen’s name on it, was published in May 2004, prior to publication of the list of jurors of the Moscow City Court which also included Mr Yakimishen (published in August 2004), and was thus more credible.

    (d)  The applicant complained that Mr Yakimishen had concealed his connection with the FSB when the relevant question had been put to the candidate jurors. The applicant referred to witnesses’ statements in various criminal proceedings and to a book entitled Alganov, Yakimishen and others. Behind the scenes of the Russian intelligence service, published in Poland in 1996, according to which a certain Mr Yakimishen had worked for the FSB.

    (e)  The applicant complained about the unexplained replacement of the presiding judge Mr Shtunder. There had been no indication that he was no longer able to participate in the trial. There had therefore been no lawful grounds for his replacement.

    (f)  The applicant complained that the change of the jury formation in his case had been unlawful. He explained that the Code of Criminal Procedure provided for two grounds for a jury’s dismissal. First, where the number of jurors who withdrew exceeded the number of substitute jurors (Article 329 § 3); second, if a party so requested (Article 330), where the jury formation was not capable of delivering an objective verdict in a case. No such grounds existed in his case. No formal decision had been given by the court when dismissing the jury, which had deprived the defence of a possibility to appeal against it to a higher court. The applicant further claimed that the original jury, formed on 3 November 2003, had been dismissed because their mood about the case, somehow known to the authorities, had not met the latter’s expectations. He referred to an investigation carried out by journalist Z. Svetova, who had met with and interviewed some of the jurors of the original formation (her article had been published in the newspaper Russkiy Kurier). According to the journalist, had the original formation not been dismissed the applicant would have been acquitted.

  8. The applicant complained under Article 6 § 1 that the trial court had not been independent and impartial:
  9. (a)  on account of concealment by Mr Yakimishen of the fact that he belonged to the FSB, as explained in paragraph 1 (d) above. The applicant alleged that Mr Yakimishen could have influenced the verdict of the jury;

    (b)  on account of the jury selection, as stated above in paragraph 1 (a) and (b);

    (c)  in respect of the impartiality of the appellate court judges Mr Galiullin and Ms Rodionova:

    Judge Mr Galiullin had previously participated in examining the applicant’s appeals on five occasions. On each occasion the appeals which, inter alia, challenged the applicant’s continued detention in custody had been rejected, mostly on the ground of the gravity of the offence with which he was charged. The applicant considered that judge Mr Galiullin had thus formed an opinion about the case and could not be impartial when examining the appeal against the judgment.

    Judge Ms Rodionova had participated in examining the applicant’s appeals against the decisions extending the term of his pre trial detention on two occasions, on 9 August 2002 (the appeal court quashed the decision but had not ordered the applicant’s release) and on 12 November 2003 (when it upheld the decision).

    (d)  in respect of judge Ms Komarova:

    The reasons for assigning the case to her had been unexplained. She had begun the trial three and a half months after the case was assigned to her. She had conducted the trial in a way favourable to the prosecution.

  10. The applicant complained under Article 6 § 1 that the trial had been unfair. In particular, he complained about a violation of the principle of equality of arms. He alleged that the presiding judge had arbitrarily barred the jury from examining exculpatory evidence:
  11. (a)  The applicant complained that the judge had arbitrarily excluded from the jury’s examination the two expert assessments of 30 June and 17 August 2000, which had found that the applicant’s research on two topics (The RF Ministry of Defence’s failure to implement in full plans to set up permanent readiness units in 1998, and Options for the structure of the RF’s strategic nuclear forces for the period up to 2007) had not contained state secrets. The expert assessment of 18 July 2002, which had come to the opposite conclusion, had been examined by the jury, despite the applicant’s motion to have it declared inadmissible as evidence, which the presiding judge had dismissed without giving reasons. According to the applicant, the expert report of 2002 had the same procedural defects as the above two reports of 2000, in that it lacked a “research” section. The applicant asserted that had the exonerating 2000 expert assessments been examined by the jury the latter might have acquitted him.

    The applicant further complained that the judge had rejected his motion for examination before the jury of an opinion from the Russian aircraft construction corporation MiG, prepared at his lawyer’s request. The applicant argued that, had that opinion been examined by the jury, the defence might have been able to prove that the materials prepared by the applicant about the MiG aircraft did not contain state secrets.

    (b)  The applicant complained under Article 6 §§ 1 and 3 (d) of a violation of his right to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him. On completion of the preliminary investigation the applicant had requested that those experts who had carried out the above assessment of the secrecy of the materials in 2000, namely Mr Nazarenko and Mr Koshelev, be examined at the trial as defence witnesses. The investigator had placed t