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

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

The applicant was born in DATE and currently lives in GPE .

The applicant worked at ORG at ORG as the head of ORG . He resided in GPE , GPE .

On DATE ORG of ORG of GPE ( ORG службы безопасности Российской PERSON по GPE области , the “ ORG ” ) opened criminal proceedings under LAW in connection with the publication in DATE of the book “ Strategic Nuclear Weaponry of GPE ” which allegedly contained ORG secrets .

On DATE the ORG , acting on the basis of a search warrant , searched the applicant ’s flat in the presence of the applicant and his wife and seized notes , books , press clippings , computers , money in foreign currencies ( cash ) and other items . They took the applicant to their office in GPE . Over DATE an investigator questioned him as a witness , having warned him about his criminal liability if he refused to testify or made false statements . The applicant had no access to a lawyer , nor did he request that one be appointed .

On DATE the ORG brought criminal proceedings against the applicant on suspicion of high treason in the form of espionage , punishable under LAW .

On DATE an investigator joined the CARDINAL cases and ordered the applicant ’s detention on remand under LAW . The detention order , upheld by the prosecutor of GPE on DATE and served on the applicant at TIME on DATE , stated that the applicant had gathered , systematised and summarised information of a military - technical nature and then passed it on to representatives of a foreign organisation , ORG , for remuneration , during meetings with them outside GPE . Thus , in DATE in GPE the applicant had allegedly handed over analytical materials containing ORG secrets on the state of the NORP rocket attack warning system . In DATE in GPE he had allegedly passed on materials concerning the latest NORP aircraft complexes and had been requested to collect information on the PERSON submarine and the PERSON aircraft . He had prepared that information and obtained an entry visa for GPE , intending to hand it over in GPE in DATE . 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 LAW . The order also stated that the preparation of charges against the applicant had not been completed , that he might obstruct the investigation and continue his criminal activities and that he might abscond .

On DATE the applicant was questioned as a suspect in the presence of his lawyer .

On DATE the applicant was charged with high treason in the form of espionage under LAW . The charges were formulated in a CARDINAL - page document . The applicant was accused of collecting and handing over to the GPE - based consultancy firm ORG information containing ORG secrets and other information damaging to GPE ’s national security , in the manner described in the detention order of DATE .

On DATE the prosecutor ’s office extended the term of the preliminary investigation and the applicant ’s detention on remand to DATE .

On DATE the applicant ’s counsel requested the investigator to replace the applicant ’s detention with another preventive measure that would not involve deprivation of liberty . He specifically requested that factors other than the gravity of the charge against him be taken into consideration . He pointed out that GPE was the place of the applicant ’s permanent residence , that the applicant was married and had CARDINAL small children , that his family did not have a source of income other than his salary , that he had a number of diseases which required medical care and that he wished to continue his work at the institute . The request was supported by applications from a Vice - President of ORG and another scientist , who wished to be the applicant ’s personal guarantors . On DATE the investigator from ORG of the ORG rejected the request . The applicant appealed against this decision .

On DATE and DATE the prosecutor ’s office extended the term of the preliminary investigation and the applicant ’s detention on remand to DATE and DATE respectively .

On DATE ORG office dismissed the applicant ’s appeal against the investigator ’s decision of DATE , 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 GPE was rejected on DATE 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 CARDINAL to DATE . He pointed out that there was no evidence that he might flee , and that various other factors , including his family situation , made him eligible for release . On DATE the ORG of LOC rejected the application as unfounded . The court pointed out that the applicant was accused of a crime falling into the category of particularly serious offences . It then observed that the domestic law permitted [ the courts ] to remand in custody those accused of such offences by a mere reference to the gravity of the offence . The court added that the investigation into the charges against the applicant had not been completed . It did not comment on the applicant ’s allegations concerning the period from CARDINAL to DATE . The decision of CARDINAL DATE was subject to appeal to ORG . 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 ORG contained ORG 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 DATE a commission of experts from ORG , which included expert PERSON , reached the conclusion that materials on the topic “ ORG failure to implement in full plans to set up permanent readiness units in DATE ” could have been derived from open publications and did not contain State secrets .

On DATE the Deputy General Prosecutor extended the term of the applicant ’s detention in custody until DATE . An appeal by the applicant against this decision and an application for release were rejected by ORG on DATE . In its decision the court again referred to the gravity of the charges against the applicant as the only reason for his continued detention . There is no indication that the applicant appealed to ORG against this decision .

On DATE another group of experts from ORG of the NORP armed forces , which included expert ORG , stated that the information on the topic “ Options for the structure of the ORG ’s strategic nuclear forces for the period up to DATE ” could have been derived from open sources , represented the result of analytical research , was untrue and did not contain State secrets .

Information relating to CARDINAL other topics was found by the experts to have contained State military secrets .

On DATE the finalised charges were brought against the applicant . They consisted of CARDINAL items , set out on CARDINAL pages . The applicant was accused of gathering , by way of analysing and systematising information published in GPE and other countries , and information from other non - established sources , and of passing on materials concerning GPE ’s military and defence potential which contained ORG secrets and other materials of a military and military - technical nature , to CARDINAL representatives of the GPE intelligence service , who were working under cover of the consultancy firm ORG , to be used to damage GPE ’s national security . According to the charge sheet , the applicant had handed over materials on CARDINAL topics of the above nature , for remuneration , during CARDINAL meetings in DATE in GPE , GPE , GPE and GPE .

According to the applicant , all of the information used in charging him was obtained by the investigating authority from his statements given on DATE , CARDINAL - CARDINAL and DATE , CARDINAL DATE and CARDINAL September CARDINAL .

On DATE the preliminary investigation was finalised .

On DATE the defence finished examining the case file .

On DATE the Deputy ORG transmitted the case to ORG for trial .

On DATE ORG ordered that the case be heard by a bench composed of a judge and CARDINAL people ’s assessors , in a closed trial . On DATE the court rejected the applicant ’s request for release , supported by CARDINAL non - governmental organisations , on the ground of the gravity of the charges against him .

A hearing was originally scheduled for DATE . It was adjourned until DATE and then until DATE , on a request by the applicant ’s CARDINAL new counsels , in order to allow time for examination of the case file .

On DATE ORG of GPE ( “ the ORG ” ) dismissed the applicant ’s appeal against the decision of DATE . It stated that , under LAW , 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 , ORG is accused of committing a particularly grave crime . In these circumstances one can not accept the arguments in the appeal with regard to the unlawfulness and groundlessness of the judge ’s decision to maintain detention on remand as a measure of restraint . ”

The hearing took place on CARDINAL and DATE . On DATE it was adjourned to CARDINAL DATE , CARDINAL and DATE being non - working days , because CARDINAL of the defence counsel would be busy in another trial on DATE .

The hearing was held on DATE . DATE and DATE no hearing took place because CARDINAL of the defence counsels was ill .

The examination of the case continued on CARDINAL , DATE May , CARDINAL - CARDINAL , DATE , and DATE . On DATE the court granted the prosecutor ’s request to call witnesses and experts and adjourned the hearing until DATE .

The trial continued on DATE , DATE and DATE , CARDINAL , CARDINAL , CARDINAL - CARDINAL and DATE . On DATE the hearing was adjourned to CARDINAL September CARDINAL on account of the defence counsel ’s illness . It continued on CARDINAL - CARDINAL , CARDINAL - CARDINAL , CARDINAL , DATE . On DATE the court granted the prosecution ’s request to adjourn the hearing until DATE to allow time for preparation of their pleadings .

The hearing continued on DATE . The defence asked that the hearing be adjourned to CARDINAL DATE to allow the defence time to prepare on the basis of the prosecutor ’s submissions . The request was granted .

On DATE the court heard the prosecutor ’s pleadings . According to the applicant , the First Deputy Prosecutor of the Kaluga Region B. , who represented the prosecution , acknowledged that the applicant had been unlawfully detained by the ORG department of LOC from CARDINAL to DATE and asked the court to issue a “ special finding ” ( частное определение ) with such an acknowledgment .

On DATE the court heard pleadings by the defence .

On DATE the court adjourned the hearing until DATE , giving no reasons , and then until DATE on account of illness among the judges .

On DATE the court heard the applicant ’s final statement . The applicant stated that he had gathered information for ORG using open sources and denied the charges against him .

On DATE , after deliberations , ORG remitted the case for additional investigation .

In its decision ORG stated that the investigating authority had significantly breached the rules of criminal procedure in the course of the preliminary investigation , thus prejudicing the applicant ’s right to defend himself . The charges against the applicant in the statement of charges of DATE 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 ORG , was a ground for remitting the case for additional investigation . With regard to certain other charges , the court noted that the investigating authority had contradicted itself in the statement of charges and the bill of indictment by referring to the same information as classified and non - classified .

A general criticism about the charges on CARDINAL 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 ORG secrets , and to assess the possibility that it was damaging to GPE ’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 CARDINAL 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 ORG ’s strategic nuclear forces for the period up to DATE ” . The bill of indictment referred to CARDINAL expert reports as evidence : ( i ) report of DATE by the commission of experts from ORG , according to which this information was “ top secret ” ; ( ii ) statements by a certain expert to the effect that this information was partially untrue but did however contain ORG secrets ; and ( iii ) report of CARDINAL DATE by the commission of experts from ORG , according to which the information was untrue and did not contain State secrets .

The bill of indictment did not set out the applicant ’s arguments and any results of their examination by the investigating authority . Thus , after the charges had been served on him PERSON contended that he had taken certain information , allegedly secret , from various published interviews with NORP military commanders . He asked whether such information had been declassified . Neither the applicant ’s arguments nor the results of their examination were set out in the bill of indictment . The applicant had argued that he obtained some information from the foreign press in LANGUAGE . However , the experts submitted to the trial court that they had never examined these publications . The applicant had contended that he had received all of his information , including that which , according to the experts , had comprised ORG secrets , from open sources . These arguments by the applicant had not been properly examined in the course of the preliminary investigation . The results of the examination had not been set out in the bill of indictment .

During the preliminary investigation , expert examinations had been conducted into the secrecy of the information allegedly gathered , stored and transmitted by the applicant . CARDINAL expert commissions had concluded that part of the information contained ORG secrets of different levels . The experts’ conclusions had been included in the formulation of charges . In their examination the experts had been governed by order no . CARDINAL of ORG of DATE , containing a list of information subject to classification in ORG , to which the applicant had never had access . By failing to provide the applicant with access to that document the investigating authority had violated his right to defend himself . Furthermore , that list was a secret document and had never received State registration ; it should not therefore have been relied on by the experts ( ORG in its decision of DATE held that this order was a document touching upon human rights which should be registered ; normative acts void of registration were invalid ) .

The trial court agreed with the defence that the expert examinations ( reports of DATE , DATE , CARDINAL and CARDINAL DATE ) 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 NORP regional prosecutor for additional investigation , as required by ORG CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL of LAW , and ordered , without giving any reasons , that the applicant should remain in detention .

The court held that should the evidence gathered as a result of the new investigation be sufficient to bring charges against the applicant , those charges were to be formulated in detail in a statement of charges , in accordance with the requirements of LAW . A bill of indictment had to comply with LAW and contain , in particular , the detailed formulation of a charge , which was not to differ significantly from the formulation in the statement of charges to the detriment of the accused . The bill of indictment had further to describe and examine evidence produced by the investigating authority and the accused ’s arguments in his defence . Expert examination of the information included in the charges should , if necessary , be carried out so that the accused ’s rights would be duly respected .

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

The defence also appealed against the decision upholding the applicant ’s detention . They submitted that there was no evidence that he would flee . The applicant and his family and relations – his wife , CARDINAL minor children , parents and brother – resided permanently in GPE . His wife and children were in a difficult financial situation . The applicant had a number of diseases which could not be treated properly in his detention facility . There was no evidence that the applicant could obstruct the investigation or would engage in criminal activities . The counsel complained about violations of LAW in particular , given that the gravity of the offence was the sole ground for the applicant ’s continued detention .

On DATE ORG dismissed the appeal and upheld the decision . It maintained that the charges against the applicant had been too vague , and stated that ORG had rightly decided to remit the case for additional investigation and remand the applicant in custody , and that it found no ground to quash or amend that decision .

On DATE the investigation department of the ORG of LOC commenced the additional investigation .

On DATE they ordered a new comprehensive expert report on whether the information which the applicant had allegedly transmitted to ORG contained ORG secrets . The defence objected to that decision , arguing that the experts were supposed to compare the statutory list of classified information and the transmitted information , which was in fact legal assessment . The applicant requested that he be allowed to be present at the expert examination and to provide explanations to the experts . He also noted that for unknown reasons the investigating authority had not forwarded to the experts a number of publications used by him . He requested that those publications be sent to the experts for their examination .

In his decision of CARDINAL DATE the head of the investigation department rejected the applicant ’s requests . He stated , in particular , that all open sources had been forwarded for expert examination , except for those to which the applicant had referred without any ground , as they were mismatched chronologically ( published after the events incriminated to the applicant ) or textually with the information transmitted by the applicant . He stated that the applicant ’s presence at the expert examination was not necessary since the materials submitted to the experts , including the applicant ’s statements , were sufficient to answer the questions put to them .

On DATE the case was transferred to the ORG central investigation department in GPE on ORG instruction .

On DATE a commission of experts from the ORG of ORG of GPE carried out an assessment of the materials given to them by the investigating authority ( records of the applicant ’s interrogations and the publications to which the applicant referred as the sources of his information ) and reached the conclusion that the materials on the following CARDINAL 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 DATE ;

– options for the structure of the ORG ’s strategic nuclear forces for the period up to DATE ;

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

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

NORP In their assessment the experts were governed by LAW , as amended on DATE , Presidential decree no . DATE of DATE , LAW and unpublished decrees of ORG nos . CARDINAL and CARDINAL issued on DATE and DATE respectively .

On DATE the applicant was re - charged with CARDINAL counts of treason by way of espionage under LAW . He was accused of gathering , using the opportunities provided by his job at ORG , information on CARDINAL topics containing ORG secrets from various sources , including closed sources , and transmitting it , on CARDINAL occasions in DATE , to representatives of a foreign state with a view to damaging the national security of GPE . The charges in respect of the remaining items were withdrawn .

On DATE the additional investigation was finalised .

On DATE the applicant and his counsel began examination of the case file . The case file was composed of CARDINAL pages , computer files , audio and video records .

On DATE ORG extended the applicant ’s detention on remand to DATE at the investigator ’s request . The applicant appealed . On DATE ORG 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 ORG a copy of a document from which it followed that the applicant had received an entry visa for GPE which had expired in DATE .

On DATE ORG gave a new decision extending the applicant ’s detention until DATE , on the grounds that , in view of his open visa for a trip abroad , he could abscond or otherwise obstruct the investigation and that he was accused of committing a particularly serious offence .

On DATE ORG extended the applicant ’s detention on the same grounds until such time as the applicant had completed examination of the case file .

DATE . The defence appealed against the CARDINAL decisions , pointing out , inter alia , that , according to the applicant ’s passport , his NORP visa had been issued for the period from DATE to DATE .

On DATE ORG rejected the appeals , holding that there were no grounds for the applicant ’s release and referring to the gravity of the charges .

On DATE the defence finished its examination of the case file . The applicant requested that ORG and PERSON , who had carried out the expert assessment in the case in DATE , be examined by a trial court . The investigating authority included these individuals in the list of witnesses to be examined by a trial court , which was enclosed with the bill of indictment . CARDINAL prosecution witnesses , the ORG training unit officers CARDINAL , ORG and PERSON , were also added to that list .

In DATE the applicant lodged a request for his case to be heard by a jury . The case was transferred to ORG for trial .

On DATE a judge of ORG listed a preliminary hearing for DATE . The hearing started on the latter date but was adjourned to QUANTITY DATE at the prosecutor ’s request to allow time for preparation .

On DATE the President of ORG assigned the case to judge PERSON . , who held a preliminary hearing on DATE and scheduled a hearing on the merits by a jury for DATE .

On DATE judge PERSON . examined an application for release lodged by the defence . He observed that the applicant had been detained in connection with the accusation of a particularly grave offence , on well - founded grounds which were still valid . He held that the applicant ’s detention as a preventive measure should therefore remain in place . The defence appealed , arguing that the decision contained no reasons for the applicant ’s continued detention .

The jury was formed and the trial commenced on DATE .

DATE . On DATE the prosecution asked that the hearing be adjourned to CARDINAL DATE in order to produce evidence . The request was granted .

On DATE the hearing was postponed to DATE as the prosecution witnesses had failed to appear .

On DATE ORG rejected the applicant ’s appeal against the decision of DATE and upheld that decision . It noted the seriousness of the charges against the applicant and stated that the reasons for the initial decision to remand the applicant in custody as a preventive measure were still valid and that there had been no violations of the rules of criminal procedure .

On DATE the examination of the case was adjourned to CARDINAL DATE as the applicant had not been transported to court on account of quarantine in his detention facility .

On DATE the court adjourned the hearing until the end of the quarantine period and the applicant ’s recovery .

On DATE , as the defence later learned from the materials of the case file , the President of ORG assigned the case to judge PERSON materials of the case file contain the following resolution by the President : “ To PERSON , [ I ] [ a]sk [ you ] to take the case over for examination ” .

The list of jurors of ORG for DATE was approved by the Mayor of GPE on DATE and later sent to the court .

According to the applicant , the quarantine ended on DATE . 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 DATE the defence was notified that the hearing would take place on DATE and that the case had been assigned to judge PERSON 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 CARDINAL March CARDINAL addressed to the President of ORG . They were all left unanswered .

On DATE judge PERSON examined a request by the prosecution for extension of the term of the applicant ’s detention . She also examined an application for the applicant ’s release , supported by an application from representatives of various non - governmental organisations , ORG and ORG . The judge noted that DATE of the applicant ’s detention in custody , from the moment of the receipt of the case by the court , would expire on DATE . Under LAW § CARDINAL 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 DATE each time . In the circumstances , the judge concluded that the period of the applicant ’s detention should be extended until DATE . 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 PERSON held a hearing on DATE at which she carried out the selection of a new jury from CARDINAL candidate jurors .

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

One of the questions put to the candidate jurors by the presiding judge was whether there were among them heads or deputy heads of bodies of the representative or executive authorities , deputies , servicemen , clergymen , judges , prosecutors , investigators , advocates , notaries and persons serving in ORG or the ORG . CARDINAL persons responded that they had served in the ORG . They were dismissed at the request of the defence . The defence asked the candidate jurors CARDINAL questions , some of which were addressed to all of them , for example , questions about their place of work , knowledge of foreign languages and Internet use . The defence challenged some of the candidate jurors twice without giving reasons . A candidate juror , PERSON , answered that he worked as a deputy head of a foreign company representative office and spoke NORP .

On DATE the individuals who were selected to serve on the jury took the oath .

The hearing was adjourned until DATE 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 DATE the prosecution witnesses , notably T. , V. , PERSON and PERSON , were examined before the jury .

At a hearing on DATE the presiding judge granted the motion by the defence to have those publications , which , according to the applicant , had been the only source for the information transmitted to ORG , presented to the jury . The publications were presented .

The expert reports of DATE and CARDINAL DATE were then read out before the jury on a motion by the defence .

It follows from the records of the hearing that the defence then requested the examination of ORG as one of the experts who had prepared the report of CARDINAL DATE . The representatives of the prosecution objected , stating that it was impossible to understand from the report which part of the examination had been carried out by a particular expert ; that in DATE and DATE the experts had examined different materials ; and that the DATE report had lacked the “ research part ” , as a result of which a new expert examination – conducted in compliance with the legal requirements – had been commissioned at the stage of the additional investigation in DATE . The prosecution requested that the report of CARDINAL DATE , which had been conducted in breach of the law on criminal procedure , be declared inadmissible evidence . The presiding judge granted the motion by the defence to examine ORG as an expert . Since his examination was connected with the issue of admissibility of evidence the judge ordered ORG ’s examination in the jury ’s absence and adjourned the decision on the admissibility of evidence until after ORG ’s examination . After hearing ORG the judge declared the expert report of CARDINAL DATE inadmissible evidence on the ground that the expert examination had been carried out with breaches of the law on criminal procedure , notably LAW , in force at the material time . Thus , the report did not state what examination had been carried out by a particular expert , what facts a particular expert had established and what conclusions he or she had reached . The judge rejected the motion by the defence to have ORG examined before the jury since “ the expert ’s examination [ was ] connected with the issue of admissibility of evidence ” . Upon the jury ’s return to the court room they were told that the expert report of CARDINAL DATE had been declared inadmissible evidence and that the parties could not therefore refer to it .

On DATE more publications , from which , the applicant alleged , he had obtained information for ORG , were presented to the jury . The defence asked to examine the expert report of DATE before the jury . The presiding judge declared the report inadmissible evidence for the same reasons as the report of CARDINAL DATE . It follows from the records of the hearing that the defence asked to examine as a witness PERSON , CARDINAL of the experts who had prepared the report of DATE and who came to the court at the request of the defence . The defence asked to examine him on issues unrelated to the expert examination in question . The prosecution objected , arguing that at the preliminary investigation PERSON had carried out the expert examination and had later been examined as an expert in the trial before ORG . This prevented him from being examined as a witness in the case . PERSON had erroneously been put on the list of witnesses in the bill of indictment . The prosecution requested that the motion by the defence be rejected . The presiding judge rejected the motion to examine PERSON on the ground that PERSON ’s procedural status as an expert who had carried out the examination and given statements at the earlier hearing excluded the possibility of examining him as a witness .

The applicant asked that the expert assessment report of DATE be declared inadmissible evidence since , he claimed , it had the same procedural defects as the above CARDINAL expert reports , given that it also lacked a “ research ” section . The judge rejected the motion . The applicant argued before the jury that not all publications from which he had obtained the information transmitted to ORG had been examined by the experts who prepared the report of DATE .

The judge rejected a request by the defence to examine before the jury an opinion obtained by the defence from the NORP aircraft construction corporation MiG , which allegedly could help the defence to prove that the materials concerning the PERSON aircraft ( specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised PERSON ) did not contain ORG secrets .

The applicant consistently claimed that in preparing the materials for ORG he had only used information from publicly available sources – NORP and foreign publications DATE which were listed in his statements to the investigating authority and the court . According to the Director of ORG , who was examined at the trial , the applicant did not have admission or access to information containing ORG secrets during his work at the ORG . As a researcher at the institute , the applicant had to be aware of all publicly available information concerning the armament policies of the GPE and GPE . The institute did not have at its disposal information containing ORG secrets . According to the applicant , the prosecution did not establish any closed source from which he had allegedly obtained classified information .

On DATE the defence again challenged presiding judge PERSON , since they considered that she had violated the principle of equality of arms . She dismissed the requests .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE extending his pre - trial detention , stating that he could not be released because the trial was underway .

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

Question CARDINAL . Has it been shown that , from DATE , meetings occurred in GPE and GPE ( GPE ) at which a cooperation agreement was concluded with PERSON , a representative of GPE military intelligence , on gathering information about GPE , for subsequent transfer to the above - mentioned individual ; in accordance with instructions from PERSON , the following information was collected in ORG in GPE and GPE ( GPE ) , stored and handed over on various dates :

( a ) from DATE to DATE information on the topic “ the structure and state of the domestic missile early warning system ” , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel A in GPE ( GPE ) from DATE ;

( b ) from DATE to DATE information on the topic “ ORG failure to implement in full plans to set up permanent readiness units in DATE ” , specifically ... was collected and stored , and subsequently handed over to PERSON and PERSON , representatives of GPE military intelligence , at hotel B in GPE ( GPE ) from DATE ;

( c ) from DATE information on the topic “ options for the structure of the ORG ’s strategic nuclear forces for the period up to DATE ” , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel C in GPE ( GPE ) from DATE ;

( d ) from DATE to CARDINAL DATE information on the topic “ specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised MiG-CARDINAL ” , specifically ... was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at hotel NORP in GPE ( GPE ) from DATE ;

( e ) from DATE to DATE information on the topic “ possible directions in the development of domestic air - to - air directed missiles ” , specifically ... was collected and stored , and was handed over to PERSON , representative of GPE military intelligence , at hotel E in GPE ( GPE ) from DATE ;

Question CARDINAL . 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 PERSON and that he received financial compensation for them ?

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

Question CARDINAL . If an affirmative answer has been given to Question CARDINAL , then does ORG deserve leniency ?

NORP The applicant ’s lawyers sought to have other questions put to the jury , in particular a question as to whether the collected and transmitted information contained ORG secrets and had been obtained from closed sources . Their motion was refused by the presiding judge .

On DATE the jury unanimously found the applicant guilty , having answered the first CARDINAL questions put to them in the affirmative and the fourth question in the negative .

On DATE the judgment was delivered . It stated as follows :

“ The court ... , having examined in a closed hearing a criminal case on the charges against PERSON of having committed an offence provided for by LAW [ Criminal Code ]

ESTABLISHED :

By the jury verdict of DATE that ORG is found guilty in that from DATE in the cities of GPE and GPE ( GPE ) [ he ] met with PERSON . PERSON , representative of GPE military intelligence , and gave his consent for co - operation for collection of data about GPE with its subsequent transfer to the said person . On Sh . PERSON ’s instructions PERSON collected , stored and transferred , at different times , at the RAN [ ORG for the GPE and GPE in GPE and GPE , GPE , the following data :

( a ) from DATE to DATE , information on the topic “ the structure and state of the domestic missile early warning system ” , specifically ... , was collected and stored , and subsequently handed over to Sh . PERSON , representative of GPE military intelligence , at ... [ hotel A ] in GPE ( GPE ) from DATE ;

( b ) from DATE to DATE , information on the topic “ ORG failure to implement in full plans to set up permanent readiness units in DATE ” , specifically ... , was collected and stored , and subsequently handed over to PERSON . PERSON and PERSON , representatives of GPE military intelligence , at ... [ hotel B ] , room ... , GPE ( GPE ) , from DATE ;

( c ) from DATE , information on the topic “ options for the structure of the ORG ’s strategic nuclear forces for the period up to DATE ” , specifically ... , was collected and stored , and subsequently handed over to PERSON . PERSON , representative of GPE military intelligence , at ... [ hotel C ] , GPE ( GPE ) from DATE ;

( d ) from DATE to CARDINAL DATE , information on the topic “ specific features of the construction and military potential of the MiG-CARDINAL SMT aircraft and the military potential of the modernised MiG-CARDINAL ” , specifically ... , was collected and stored , and subsequently handed over to PERSON , representative of GPE military intelligence , at ... [ hotel D ] in GPE ( GPE ) from DATE ;

( e ) from DATE to DATE , information on the topic “ possible directions in the development of domestic air - to - air directed missiles ” , specifically ... , was collected and stored , and was handed over to PERSON , representative of GPE military intelligence , at ... [ hotel E ] , GPE ( GPE ) from DATE .

On the basis of circumstances as established by the guilty verdict the court determines that the accused ORG acts were high treason in the form of espionage under LAW , specifically transmission , collection and storage with a view to transmission to foreign state representatives , of information constituting ORG secrets , to be used to damage the ORG ’s national security committed by a ORG citizen .

It has been established that the aforementioned information , which ORG collected and stored with a view to transmission , and transmitted to GPE military intelligence representatives , constitutes ORG secrets .

Furthermore , the mechanism of the espionage activities committed by him is characterised by a mercenary motive ... [ Sutyagin ] transmitted to foreign state representatives information about GPE of a military and military - political nature constituting ORG secrets to damage the ORG ’s national security in exchange for a cash award in an attempt to derive gains of a pecuniary nature .

In deciding on the culprit ’s punishment in accordance with LAW the court takes into account the nature and the degree of social danger of the committed acts , information on his personality , and the impact of the punishment imposed on his reformation and on the conditions of his family ’s life .

The court takes into account ORG ’s positive references from his place of work and residence , his having CARDINAL dependant minor children , born in DATE and DATE , and his state of health .

Under the jury ’s verdict the culprit does not deserve leniency . The court found no circumstances extenuating or aggravating ORG ’s punishment .

and the fact that the ORG ’s defence and security was damaged as a result of the transmission by ORG about GPE constituting ORG secrets to foreign state representatives , the court concludes that the culprit ’s correction and reformation are only possible in the conditions of his isolation from society by serving his sentence in a strict - regime correctional colony .

On the basis of the aforesaid and being governed by ORG , CARDINAL , CARDINAL paragraph CARDINAL and CARDINAL of ORG , the court

SENTENCED :

PERSON to be convicted of an offence provided for by LAW and to be punished by way of deprivation of liberty for DATE , to be served in a strict - regime correctional colony .

ORG sentence is to be calculated from DATE .

The applicant appealed against the judgment . In particular , he complained that the replacement of Judge PERSON . and the original jury composition by assigning judge PERSON to the case had been unlawful ; that juror PERSON should not have sat in his trial as he had been included in the list of jurors of ORG ; and that the list of jurors of ORG had not been published . The applicant further complained that the questions to the jury had been formulated in breach of the domestic law . The presiding judge had dismissed his request to put to the jury questions as to whether the information collected , stored and transmitted by him had constituted ORG secrets and had been received from closed sources . No questions had been put to the jury as to whether he had had intent to damage national security , whether the representatives of ORG had belonged to foreign intelligence or whether he had transmitted information which had previously been published in open sources . Nor was the latter question examined in the judgment . The applicant further argued that the trial court had had no grounds to declare the exculpatory expert reports of DATE and DATE inadmissible evidence , to reject his request for examination of ORG and PERSON as witnesses and simultaneously to refuse to declare the inculpatory expert report of DATE , which had the same procedural flaw as the former CARDINAL reports , inadmissible evidence . In his appeal the applicant relied on Articles CARDINAL , CARDINAL and DATE of the Convention for the Protection of Human Rights and Fundamental Freedoms .

In DATE the general list of jurors for ORG was published with Y. ’s name on it .

On DATE ORG 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 LAW on the part of the trial court , in particular in its reasoned refusal to examine experts as witnesses and to admit their reports in evidence , as well as in its formulation of questions to the jury . ORG 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 LAW . It noted that Y. had been included in the approved list of jurors of GPE . It held that the court ’s finding of the applicant ’s guilt had been based on the jury ’s lawful verdict and that the applicant ’s acts had been legally characterised in accordance with the factual circumstances established by the jury ’s verdict . The applicant ’s arguments concerning the failure to prove his guilt could not be taken into consideration as the judgment delivered as a result of the jury trial could not be appealed against and quashed on those grounds , of which the applicant had been aware .

NORP The general list of jurors of ORG ( for the LOC administrative circuit of GPE ) was published on DATE . It included Mr Y. According to the applicant , thereafter the defence obtained information that juror Mr Y. had allegedly worked for the ORG .

In DATE , after signing a clemency petition to the President of GPE in which the applicant acknowledged his guilt in the crime of which he was convicted , he was released as part of an exchange of prisoners between GPE and GPE . He was taken to GPE , where he currently resides . The applicant claims that he was coerced into acknowledging his guilt by the circumstances surrounding the exchange and that he in fact denies his guilt .

For the domestic law regulating detention during criminal proceedings see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , ORG DATE ... in respect of the period until DATE , and PERSON v. GPE , no . GPE , § § CARDINAL , DATE in respect of the period since DATE .

The LAW of the Russian Federation guarantees the right to have one ’s case examined in a court and by a judge whose jurisdiction to examine the case is established by law ( LAW ) . According to ORG judgment of DATE , such a law ( laws ) must contain criteria which would predetermine in which court this or that civil or criminal case falls to be examined . This would allow the court ( judge ) , parties and other participants in the proceedings to avoid uncertainty in this question . Such uncertainty would have otherwise to be obviated by way of an enforcement decision , that is , the discretionary power of an enforcement body or official . In the latter case jurisdiction would not be determined on the basis of law .

The LAW provides that judges are independent and that they are subordinate only to LAW and the federal law ( LAW .

The Code of Criminal Procedure of GPE in force since DATE ( Law no . CARDINAL of DATE , the “ CCrP ” ) , provides as follows :

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

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

Law no . ORG of DATE “ On ORG in the NORP Federation ” provides :

The ORG President , at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by LAW , carries out the following functions :

( CARDINAL ) organises the court ’s work ;

( CARDINAL ) NORP distributes duties between the President ’s deputies and , in accordance with the procedure provided for by ORG , between the judges ; ...

The instruction on ORG internal document management , in force at the material time , provided that the court President was responsible for the court ’s clerical and office management ( Instruction no . CARDINAL of ORG at ORG of GPE of DATE ) .

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

Under paragraph CARDINAL of Resolution no . CARDINAL of ORG of DATE , 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 LAW of the Code , the obligation to form a jury is imposed on the presiding judge .

DATE of the ORG reads as follows :

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

( CARDINAL ) At the defendant ’s request , the judge of a federal court and a jury of CARDINAL persons shall examine cases concerning the crimes set out in DATE Code .... ”

Article CARDINAL § CARDINAL of the LAW includes , inter alia , a crime punishable under LAW .

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

The procedure for drawing up the list of jurors of GPE for DATE was regulated by LAW on LAW of DATE , as amended on DATE , and the GPE Mayor ’s instruction of DATE . The initial lists of jurors were drawn up by the GPE 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 GPE administrative circuits and further served as the basis for drawing up separate lists of jurors for ORG and ORG by ORG . The lists were to be approved by the GPE mayor and forwarded to those courts . CARDINAL DATE was fixed as a time - limit for submitting ORG lists , approved by the Mayor , to ORG and ORG . The lists were to be published . Under paragraph CARDINAL of Recommendations of the ORG Minister of Justice of DATE 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 DATE before sending them to the relevant court . The publication had to explain to citizens their rights to request regional councils to include or exclude them from those lists .

One and the same person can not sit as a juror more than once a year ( Article CARDINAL of the ORG and LAW of LAW ) .

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

Under LAW , before the jurors take the oath it is open to the parties to proceedings to plead that the jury as a whole might be unable to deliver an objective verdict in view of the specific features of a case . After hearing the parties the presiding judge delivers a decision . If the request is found to be justified the jury will be dismissed .

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

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

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

Under Articles CARDINAL § CARDINAL and CARDINAL of the ORG , jurors take decisions on the following questions which are put to them after examining the evidence and hearing the parties :

– has it been proven that the acts of which the culprit is accused were committed ;

– has it been proven that those acts were committed by the culprit ;

– is the culprit guilty of committing those acts ?

Jurors can also be asked particular questions about , inter alia , circumstances which may have an impact on the issues of guilt or may entail the culprit ’s exemption from liability . No questions requiring legal assessment can be put to jurors .

If the culprit is found guilty the jurors also state whether the culprit deserves leniency .

The questions to the jury are formulated in writing by the presiding judge . The parties can make their observations on the questions and propose new questions ( LAW ) .

Questions other than those to be decided by jurors , as stated above , are decided by the presiding judge alone without ORG participation ( Article CARDINAL § CARDINAL of the CCrP ) .

Issues of inadmissibility of evidence are examined without ORG participation . After hearing the parties the presiding judge takes a decision to exclude evidence which he or she found inadmissible ( LAW CARDINAL and CARDINAL of the CCrP ) .

NORP Before the jury retires to the deliberation room the presiding judge gives directions ( LAW ) . The presiding judge sums up the charges ; informs them about the applicable criminal law provisions ; sums up the evidence examined at the trial and the positions of the prosecution and the defence ; and explains the rules of assessment of evidence in their entirety , the principle of presumption of innocence , the rule of interpreting insoluble doubts in favour of the accused , the rule that their verdict must only be based on evidence examined at the trial and that no evidence has predetermined force for them . The presiding judge further brings ORG attention to the fact that the culprit ’s refusal to give statements at the trial should not be interpreted as evidence of guilt . The presiding judge explains the rules of deliberations and voting . The jurors are reminded of the oath taken by them .

No one except the jurors may be present in the deliberation room ( Article CARDINAL of the CCrP ) . The questions put to the jurors are answered by way of affirmation or negation , to be supplemented by a word or a phrase to make the meaning of the answer precise ( LAW of the CCrP ) .

If the jury delivers a guilty verdict the trial continues without the jurors to examine , inter alia , circumstances relevant to the legal characterisation of the acts committed by the culprit , sentencing and determination of a civil claim . The parties’ submissions may concern any legal issues to be resolved in a judgment ( ORG CARDINAL - CARDINAL of the CCrP ) which will be delivered by the presiding judge on the basis of the jury ’s verdict . The presiding judge may deviate from the guilty verdict and acquit the culprit if he or she finds that the acts committed by the culprit do not contain the elements of a crime . The presiding judge may dissolve the jury and order a fresh examination of the case by a new composition of the court if he or she finds that the event of a crime or the culprit ’s participation in a crime have not been established and that the guilty verdict has therefore been delivered in respect of an innocent person and there are sufficient grounds for his or her acquittal ( Article CARDINAL of the CCrP ) . The jury ’s opinion that the culprit deserves leniency is binding on the presiding judge ( Article CARDINAL of the CCrP ) .

A higher court which examines the case on appeal may not quash or change a judgment delivered as a result of a jury trial on the ground of inconsistency between the conclusions reached by the trial court in its judgment and the facts established by that court . Permissible grounds for quashing or changing a judgment in such a case are violation of the procedural law , misapplication of criminal law , and unfairness of the sentence imposed ( LAW ORG ) .

Article CARDINAL § CARDINAL of the LAW provides :

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

ORG held that this provision was motivated by the need to defend the sovereignty of GPE and to ensure its defence and security , and is in accord with LAW , which permits restrictions of human rights and freedoms and , therefore , the right to information for the above - mentioned purposes . It follows that the legislature may establish a list of information which can be classified as ORG secrets and regulate its declassification and protection , as well as admission and access to such information . Under LAW , its provisions are binding within and outside the territory of GPE for , inter alia , nationals of GPE who have accepted obligations or are obliged in view of their status to enforce the requirements of the NORP legislation on ORG secrets . The duty to observe the legislation on ORG secrets flows from the general legal duty to observe the LAW and the laws ( LAW ) . Thus , section CARDINAL of LAW is in conformity with LAW ( the Constitutional Court ’s judgment of DATE ) .

LAW of the Russian Federation of DATE provides :

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

Section CARDINAL of the “ LAW ” ( RF Law no . CARDINAL ) of CARDINAL DATE , as amended on DATE , provided :

“ The following information shall be classified as ORG secrets :

( CARDINAL ) 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 ORG , and of other troops , military formations and units as envisaged in LAW ” , on their combat and mobilisation readiness , on the creation and use of mobilisation resources ;

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

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

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

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

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

Under section CARDINAL of LAW , the ORG President approves , upon the ORG ’s submission , the list of information constituting ORG secrets . Presidential Decree no . ORG of CARDINAL DATE defined the list of military information classified as ORG secrets as follows :

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

Information on the strategic and operational deployment of troops .

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

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

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

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

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

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

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

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

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

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

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

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

Information on the use of the infrastructure of GPE to safeguard the ORG ’s defensive capabilities and security .

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

Information on the use or developmental prospects of the coordinated communications network of GPE to safeguard the ORG ’s defensive capabilities and security .

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

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

Information revealing the content , organisation or results of the main types of activity of the GPE border troops ( FPS ) and the organisation of the defence of the state borders , exclusive economic zone and continental shelf of GPE or those of GPE ORG .

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

Information on the prospects for the development and ( or ) use of GPE space infrastructure to safeguard the ORG ’s defensive capabilities and security .

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

ORG Special Rapporteur on ORG , PERSON , in his report on his mission to GPE ( DATE ) , published on DATE , stated :

“ CARDINAL . The distribution of cases among the judges is left to the discretion of the court chairperson . It appears that there is no system for ensuring that cases are allocated according to objective criteria . Instances have been reported in which more sensitive cases are allocated to ‘ certain’ judges or where a criminal case was transferred to another judge during the ongoing trial because the judge in question refused to be influenced .

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

To enhance the independent role of judges :

A mechanism be established to allocate court cases in an objective manner . ”

In its Resolution CARDINAL ( DATE ) entitled Allegations of politically motivated abuses of the criminal justice system in ORG member states adopted on DATE , ORG of ORG stressed the fundamental importance , for the rule of law and the protection of individual freedom , of shielding criminal justice systems throughout LOC from politically motivated interference . It held as follows :

“ CARDINAL ... True independence of judges also requires a number of legal and practical safeguards , including :

NORP the independence of judges vis - à - vis court chairpersons ... shall be protected , inter alia , by the allocation of cases on the basis of predetermined , objective systems , by strict rules protecting judges from being taken off individual cases without reasons specifically defined by law ... ”

The ORG noted , inter alia , that in the GPE court chairpersons have disproportionate power over other judges , in particular because of their power to decide on the distribution of cases ( paragraph CARDINAL . ) . The ORG called on GPE to :

“ CARDINAL.CARDINAL.CARDINAL . strengthen the system of allocation of cases among the courts and to individual judges or sections within the courts , in such a way as to prevent any “ forum shopping ” by the prosecutor ’s office and the exercise of any discretion in this respect by the court chairpersons ;

promote the development of a spirit of independence and critical analysis in legal education in general and in initial and continued training of judges and prosecutors in particular , and to robustly sanction any local , regional or federal officials that continue to try to give instructions to judges , as well as any judges who seek to obtain such instructions ; ... ”


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant challenged several decisions taken by the general meeting of a limited liability company on DATE .

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

On DATE ORG discontinued the proceedings as the applicant had not paid court fees within the time - limit set .

On DATE it quashed that decision as the applicant had subsequently paid the fees .

On DATE ORG dismissed the applicant ’s action .

On DATE ORG quashed the first - instance judgment and remitted the case to ORG .

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

On DATE ORG found in the applicant ’s favour . The judgment was served on him on DATE .

On DATE the defendant appealed .

On DATE ORG found that ORG had not violated the applicant ’s right to a hearing within a reasonable time . The case was not complex , but the applicant by his conduct had significantly contributed to the length of the proceedings in that ( i ) he had not paid the court fees on time , ( ii ) he had repeatedly challenged judges and had requested that the case be transferred to a different court and ( iii ) he had not appeared before ORG on DATE . As to the conduct of ORG , there was a single delay DATE and DATE . Otherwise ORG had proceeded with the case in an appropriate manner .

The file was transferred to ORG on DATE .

On DATE ORG found against the applicant . The judgment became final on DATE .

On DATE the applicant filed an action with ORG . He challenged the validity of decisions which the general meeting of a limited liability company had taken on DATE .

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

Subsequently the newly appointed judges also requested , on CARDINAL occasions , to be excluded from examination of the case . ORG examined the requests for the total period of DATE and did not exempt the judges from dealing with the case .

On DATE ORG asked the applicant to pay the court fees within DATE . As he had failed to do so , the proceedings were discontinued on DATE . After the decision to discontinue the proceedings had been served on the applicant , he paid the fees .

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

On DATE ORG quashed its decision of CARDINAL DATE noting that the applicant had paid the court fees .

ORG found against the applicant on DATE . In the absence of an appeal , the judgment became final on DATE .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

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

The public prosecutor brought charges against the applicant for aggravated embezzlement etc . during the period DATE and DATE , amounting to ORG ( EUR CARDINAL,CARDINAL ) . The complainant , the city of GPE , claimed damages . The applicant denied the charges as well as the other claims .

ORG käräjäoikeus , tingsrätten ) heard some twenty witnesses during DATE . On DATE ORG , composed of a professional judge and CARDINAL laymen , convicted the applicant and sentenced DATE imprisonment . She was ordered to pay damages amounting to ORG plus interest and legal costs . Insofar as the sentence was concerned , the judgment was not unanimous , as it was based on the opinion of CARDINAL lay judges , whereas the professional judge in his dissenting opinion considered that DATE and DATE suspended imprisonment was a sufficient sanction .

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

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

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

On DATE ORG gave judgment , finding that lay judge T. had not been disqualified and , having listened to the audio tapes from ORG hearings and read the new pre - trial report , that the proposed new evidence would not clarify the matter further . Thus , holding an oral hearing was manifestly unnecessary . ORG upheld ORG judgment .

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

On DATE ORG granted the applicant leave to appeal .

ORG gave judgment on DATE ( ORG CARDINAL ) . As to the alleged disqualification , ORG found that lay judge PERSON , who at the relevant time had worked as a special teacher employed by the city of GPE , had not lacked impartiality . ORG , referring to the relevant provisions in domestic law , gave the following reasoning for its decision :

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

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

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

ORG furthermore , noting that ORG had found that holding an oral hearing would not have clarified the matter , saw no reason to differ . It upheld the applicant 's conviction , but reduced the sentence to DATE suspended imprisonment .

LAW , LAW ( oikeudenkäymiskaari , rättegångsbalken ) , as in force at the material time , provided in relevant part :

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

According to the LAW section CARDINAL , the provisions of law concerning disqualification of a judge apply also to laymen .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in the same town .

On DATE the newspaper NORP published an article amidst a heated public debate in the wake of the acquisition of a large part of the shares of ORG by a group , ORG in GPE , and strong criticism of leaders of ORG , of which the applicant was the Secretary General . The author of the article , an Advocate named PERSON , had advanced the view that members of the general public were not treated equally when at the hands of ORG leaders . He recounted events that had occurred in DATE when he , PERSON and several others , had purchased shares in the ORG útvarpsfélagid ( ORG , hereinafter referred to as “ the ORG ” ) . The acquisition created a new shareholder majority in the ORG . Following a change in the ORG ’s ORG , the ORG had withdrawn a loan offer to , and had in fact broken off with , the ORG . The article further stated that the ORG ’s Managing Director and the former Chairperson of its ORG had close family ties and that the Chairperson was a member of ORG . The article then went on ( the CARDINAL passages in italics were the subject of defamation proceedings brought by the applicant ) :

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

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

( CARDINAL ) “ No explanations were given , but those of us [ the respondent and other shareholders ] who represented the ORG in the negotiations with the ORG were told that [ the applicant ] was opposed to ORG doing business with a company where PERSON was involved . ”

( CARDINAL ) “ Here , decisions regarding business of ORG were made on the basis of interests of the saving banks , not on the basis of what was best for ORG and acceptable to the leaders of ORG ” .

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

By a judgment of CARDINAL DATE ORG found for the respondent and against the applicant . The latter appealed but by a judgment of DATE ORG rejected his appeal .

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

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

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