CASE OF MOISEYEV v. RUSSIA
Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violations of Art. 6-1;Violation of Art. 6-3-b and 6-3-c;No Violation of Art. 7;Violations of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1946 and lives in Moscow. 7. On 3 July 1998 Mr C., a South Korean diplomatic officer, was apprehended by the Federal Security Service of the Russian Federation (“the FSB”) while receiving certain materials from the applicant who was then deputy head of the First Asian Department in the Ministry of Foreign Affairs of the Russian Federation. On the following day Mr C. was declared persona non grata and left Russia. 8. On 3 July 1998 at 11.30 p.m. a group of eight armed FSB officers entered and searched the applicant’s flat. They apprehended the applicant and escorted him to the Lefortovo remand prison. 9. On 3 August 1998 the Ministry of Foreign Affairs dismissed the applicant for serious breaches of the Russian legislation on the civil service. 10. On 4 July 1998 investigators from the FSB Investigations Department interrogated the applicant as a suspect in a high treason case. 11. On 6 July 1998 a deputy Prosecutor General remanded the applicant in custody. The applicant’s detention was subsequently extended on several occasions. 12. On 13 July 1998 the applicant was charged with high treason in the presence of his legal-aid counsel, Mr Konoval. He was accused of having disclosed classified information to a South Korean intelligence agent. 13. On 15 July 1998 the applicant retained Mr Gervis as his defence counsel. 14. On 22 and 23 July, 16 September and 12 November 1998 the investigator ordered seizure of the applicant’s car and garage, 5,447 US dollars and a computer from his home, as security in respect of possible forfeiture of the applicant’s property following a conviction. 15. On 14 January, 12 March and 20 May 1999 the applicant attempted to challenge the orders authorising his continued detention on remand. 16. On 1 February and 4 June 1999 the Moscow City Court examined the applicant’s complaints and rejected them as unsubstantiated. The court found that the investigator had correctly imposed the preventive measure, having regard to the gravity of the charge and the applicant’s potential to abscond or interfere with the investigation. 17. On 10 June 1999 the pre-trial investigation was completed and the applicant was granted access to the case file. 18. On 25 August 1999 the bill of indictment was served on the applicant. The applicant was refused permission to take a copy of the indictment to his cell because the document contained classified information. The applicant could examine the indictment at the special department (спецчасть) in the remand centre. 19. On 16 December 1999 the Moscow City Court found the applicant guilty as charged, sentenced him to twelve years’ imprisonment and ordered confiscation of his property. 20. On 15 June 2000 and other dates the applicant and his lawyers appealed against the conviction. 21. On 25 July 2000 the Supreme Court of the Russian Federation quashed the conviction and remitted the case to the trial court for a fresh examination. It found as follows: “In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that... between early 1994 and 3 July 1998 [the applicant] had... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court gave only a general list of information and documents..., without specifying which information and documents and when [the applicant] had communicated. As the offences imputed to [the applicant] were continuous in time and spanned the period from 1992-1993 to July 1998, during which period Russian legislation evolved, the determination of these issues is of crucial importance for the case. Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first established in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about when exactly [the applicant] transmitted information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing a list of State secrets and compatible with the requirements of the Constitution was in force. The case file shows that... experts from the Ministry of Foreign Affairs prepared their report [on the classified nature of the information transmitted by the applicant] on the basis of the State Secrets Act of 21 July 1993, the President’s decree of 30 November 1995 and the Government resolution of 18 September 1992, and the expert from the Main Intelligence Department of the General Headquarters of the Russian Army worked on the basis of the Security Act of 5 March 1992, the State Secrets Act of 21 July 1993 and the President’s decree of 30 November 1995. However, it has to be taken into account that the State Secrets Act of 21 July 1993 on which the above experts relied contained no list of information constituting State secrets. Section 5 of the Act (text of 21 July 1993) referred only to the information that could be classified as State secrets. The conclusions of these reports... have to be re-assessed with regard to the above considerations. Taking into account that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets, the [first-instance] court should have determined which information and documents listed in the indictment and communicated by [the applicant] could have been considered as State secrets in accordance with the requirements of the laws in force at the material time.” 22. On 5 September 2000 the Moscow City Court began hearing the applicant’s case. Presiding Judge Gubanova and two lay judges sat on the bench. 23. The applicant applied to the court for release pending trial. On the same day the court rejected the application. It held that detention on remand could be imposed on a person charged with high treason on the sole ground of the dangerousness of the offence and that there were therefore no grounds to release the applicant. 24. On 11 September 2000 the applicant requested the court to change the measure of restraint applied to him. On the same day the court dismissed the request, finding that the dangerousness of the offence alone was a sufficient ground to remand him in custody. On 15 September 2000 the applicant appealed against that decision to the Supreme Court. The appeal was not examined. According to the applicant, by a letter of 14 March 2001, Judge Galiullin of the Supreme Court informed Judge Yegorova, President of the Moscow City Court, that “there had been no grounds to lodge an appeal against that decision of the court”. A copy of the letter was not made available to the Court, but the Government did not dispute the applicant’s rendition of the letter’s content. 25. On 12 September 2000 one of the lay judges was replaced by the substitute lay judge. 26. On 24 or 29 November 2000 the acting President of the City Court ordered a change in the court’s composition, referring to Judge Gubanova’s prolonged sick leave. He assigned Judge Koval and two new lay judges to sit in the case. 27. On the same day the applicant challenged the new composition of the bench as unlawful and asked for copies of the decision officialising the change and of documents confirming the lawfulness of the appointment of new lay judges, as no reasons for replacement of the lay judges had been given. On 1 December 2000 Judge Koval dismissed the complaint, finding that the case had been reassigned by order of the acting President of the City Court and that no procedural decision on that matter was required. 28. The applicant appealed to the Supreme Court. On 14 March 2001 the Supreme Court dismissed the appeal. It found that Judge Gubanova had been on sick leave from 15 November to 13 December 2000 and then from 18 December 2000 to 18 January 2001, and that the decision on her replacement had therefore been lawful and justified. The Supreme Court did not mention the appointment of new lay judges. 29. On 1 December 2000 the applicant again applied for release, claiming his innocence. The City Court dismissed the application, finding that the measure of restraint had been imposed in accordance with the law and there was no reason to change it. The applicant appealed to the Supreme Court. The appeal was not examined. 30. On 10 April 2001 the proceedings were adjourned until 13 June 2001, pending translation of various documents from Korean into Russian. The applicant challenged the decision on the adjournment of the proceedings, which had the effect of extending his detention; the City Court dismissed the challenge. On 6 June 2001 the Supreme Court dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated. 31. On 10 July 2001 the entire bench was replaced and the case was assigned to Judge Medvedev and two new lay judges. No reasons for the replacement were given. 32. The applicant unsuccessfully challenged the substitution of the bench. 33. On 16 July 2001 the applicant appealed against the rejection of his challenge to the Supreme Court, which dismissed the appeal as unsubstantiated on 26 September 2001. 34. On 20 July 2001 the President of the City Court instructed Judge Komarova to accept the case. Judge Medvedev and both lay judges were replaced by Judge Komarova and two new lay judges, A.A. and N.A. No reasons were indicated. 35. The applicant challenged the new bench; his challenge was dismissed on the same day. His request to have the substitute lay judge appointed in accordance with Article 242 of the RSFSR Code of Criminal Procedure was also refused. 36. An appeal to the Supreme Court was examined and rejected in a summary fashion on 26 September 2001. 37. On 31 July 2001 lay judge A.A. stepped down for family reasons and was replaced by lay judge A.M. 38. The applicant unsuccessfully challenged the replacement. His appeal was dismissed in a summary fashion by the Supreme Court on 26 September 2001. 39. On 10, 20 and 31 July 2001 the applicant lodged three further applications for release. Those were rejected by the Moscow City Court on the same days. Each time the court determined that the measure of restraint had been imposed lawfully and there were no grounds to change or revoke it. 40. On 16 and 24 July and in early August 2001 the applicant filed appeals against these decisions with the Supreme Court. 41. On 26 September 2001 the Supreme Court examined all three appeals and upheld the decisions of the City Court. 42. On 14 August 2001 the Moscow City Court convicted the applicant of high treason committed in the form of espionage, an offence under Article 275 of the Criminal Code of the Russian Federation. 43. As regards the actus reus of the offence, the court found that during his long-term diplomatic mission in Seoul in 1992-1994 the applicant had consented to informal co-operation with South Korea’s Agency for National Security Planning (“the KCIA”) in return for regular payment. In fulfilment of the KCIA’s instructions, between early 1994 and 3 July 1998 the applicant had arranged no less than 80 meetings with the KCIA’s agent, Mr C., and communicated to the KCIA the following documents collected at the KCIA’s request: “-secret information constituting State secrets, on Russia’s position and approach to the friendly relationship, friendship and co-operation with the Democratic People’s Republic of Korea (the DPRK), set out in two draft treaties on the basis of friendly relationships between the two states: in September 1995 – the draft treaty on the basis of a friendly relationship between Russia and DPRK; in September 1996 – the draft treaty on friendship and co-operation between Russia and the DPRK, - in autumn 1997, secret information constituting State secrets that was contained in the updated report of the Korean Department of the MFA on military co-operation between Russia and DPRK... which he had copied and kept in his office at the MFA until communication; - secret information constituting State secrets in the field of military co-operation: in November 1994 – on the beginning of implementation of the inter-governmental treaty, contained in the letter addressed to the Russian Ambassador in the DPRK, dated 19 September 1994; in August 1994 – on the Russian proposal to initiate closed negotiations in the field of military co-operation; in May 1995 – on the position of the Russian Ministry of Defence... on 18 March 1996 – information in the area of politically sensitive relationships between Russian and DPRK, contained in two documents of 14 March 1996... on 20 June 1996 – on termination of the Russian-North Korean treaty on military intelligence, received by the MFA from the Russian Embassy to the DPRK on 11 June 1996; - other information which did not contain State secrets, by communicating copies of internal documents: in 1994: copies of documents on negotiations between deputy foreign ministers of Russia and the DPRK... list of diplomats of the DPRK Embassy, report on certain developments in the political life of the DPRK...; in 1995: copies of... a report by the Russian Embassy in Pyongyang on the political situation in the DPRK in 1994, report on the situation in the DPRK following the death of Kim Il-sung, list of diplomats of the DPRK Embassy in Moscow... list of Russian citizens working in the DPRK; in 1996: copies of the 1995 directory of the DPRK management cadres... a draft press-release following a visit by a State Duma delegation to Pyongyang and the list of the delegation members... in 1997: copies of the 1996 directory of the DPRK management cadres... contract between the Russian Industria concern and the foreign relations committee of the DPRK... in 1998: copies of the 1997 directory of the DPRK management cadres... updated report on the situation in DPRK... report by the Russian Embassy on the situation in the DPRK, information on the members of a delegation accompanying the Vice-Prime Minister of the Russian Federation on a forthcoming visit to the Republic of Korea... In addition, between 5 January 1994 and 5 November 1996 Mr Moiseyev orally communicated to the South Korean intelligence no fewer than thirty-five pieces of information on various aspects of inter-State relationship that did not contain State secrets. Having received from Mr C. in 1997 the list of information that was of interest for the KCIA, Mr Moiseyev copied and communicated to the South Korean intelligence service certain internal documents, such as protocols and co-operation treaties between Russia and the DPRK in various areas.” 44. The court established that the KCIA had paid the applicant no less than fourteen thousand US dollars in remuneration. 45. The court founded its findings on, in particular, the applicant’s own statements, obtained in the days immediately following his arrest, and statements by several witnesses. Most witnesses were identified in the judgment only by their three initials, i.e. the first letters of their first, father’s (patronymic) and last names. For some witnesses, only the first letter of their last name was given. 46. Witness “K.G.B.” stated in his pre-trial deposition that virtually all documents concerning Russia’s bilateral relationships with other countries and appraisal of the political and economic situation in these countries, which had been prepared within the Ministry of Foreign Affairs, had contained sensitive information and their disclosure or communication to other states had been highly undesirable. The court noted that on 12 September 1990 the applicant, when taking up his duties at the Ministry of Foreign Affairs, had signed an undertaking not to disclose State or work-related secrets. In their pre-trial depositions witnesses “M.A.I” and “I.A.T.” confirmed that the applicant had had access to sensitive documents which had been of interest to the South Koreans and that Mr C.’s affiliation with the intelligence service had been common knowledge among experts in Korean issues. Their depositions were read out in court and witness “T.G.D.” also made oral submissions to the same effect. Both “I.A.T” and “T.G.D.” testified that the South Koreans had had good knowledge of issues which they were not supposed to have been aware of. 47. The court further noted that, according to information from the External Intelligence Service of the Russian Federation (СВР РФ) and the Main Investigations Department of the Russian Army Headquarters (ГРУ ГШ ВС РФ), during his work in Seoul between June 1992 and February 1994 the applicant had had contacts with employees of the Korean intelligence services and had negligently discussed sensitive matters in unprotected areas. In 1996 it was discovered that the South Korean intelligence service regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with Mr C. in return for remuneration. Witness “M.”, an employee of the Federal Security Service, testified to the court that in January 1996 he had contacted the applicant and advised him of Mr C.’s official mission as a representative of the KCIA in Moscow. The applicant had acknowledged that he had been aware of this fact. 48. Referring to a letter from the Counter-intelligence Operations Department of the Federal Security Service of the Russian Federation (УКРО ДКР ФСБ РФ) of 9 July 1998, the court established that in February 1997 the External Intelligence Service had provided the Federal Security Service with copies of a “draft order on the organisation of the work of KCIA agents, resident in Moscow in 1997” and the applicant’s “personal residence file”, from which it followed that the applicant had been recruited by the KCIA during his stay in South Korea and enlisted as a functioning agent of that service. 49. The court relied on the experts’ findings in establishing that the information communicated by the applicant had contained State secrets. It found as follows: “The court agrees with the experts’ conclusions because the [study] was performed by competent persons in compliance with the rules of criminal procedure and [has been] scientifically proven. According to the experts, the information [disclosed] reveals the substance of Russia’s foreign policy and co-ordination agreements with foreign states in the field of military co-operation and intelligence and also contains politically sensitive data. The arguments put forward by the defendant and his lawyer about a lack of competence on the part of the experts cannot be considered substantiated, because the expert study was carried out by a panel that included experts designated by [the applicant] and his defence; at their request the experts who had been on the expert panel at the pre-trial investigation stage took part in the court hearing and supplied [the court] with their written conclusions and clarifications...” 50. Finally, the court dismissed in the following terms the applicant’s argument that he could not be held liable for disclosure of State secrets because there had been no list of classified information prior to the amendment of the State Secrets Act of 6 October 1997: “Pursuant to section 2 of the State Secrets Act of 6 October 1997, the list of information constituting State secrets is the aggregate of categories of information which can be classified as State secrets... This definition was included in the terminology part [of the law] in order to bring its original wording into compliance with the Russian Constitution. Since the information constituting State secrets cannot be explicitly enumerated in the law, the approach chosen was that the list was to be understood as an aggregate of the relatively generic categories of information described in section 5 of the new law [i.e. that of 6 October 1997]. Hence, there is merely an unimportant semantical difference between section 5 of the State Secrets Act in its 1993 wording and that of 1997. By no means does it imply that there were no legal instruments countering encroachments upon the fundamentals of the constitutional structure and the security of the Russian State until 6 October 1997... Nor are the arguments to the effect that the actus reus of the offence under Article 275 of the Criminal Code only comprises acts involving State secrets based on the law. The object of espionage may include information constituting State secrets, as well as other information that is being collected and transmitted at the request of a foreign intelligence service for use detrimental to the external security of the Russian Federation...” 51. Having regard to the applicant’s clean criminal record, age, state of health, lengthy detention in custody, positive work references and the absence of aggravating circumstances, the court invoked the “special-circumstances” clause of Article 64 of the Code of Criminal Procedure and sentenced him to a shorter term than that provided in the relevant sanction, specifically to four years and six months’ imprisonment in a strict-security correctional colony, with account for the time served from 4 July 1998, and confiscation of his property. 52. On 26 December 2001 and other dates the applicant and his three lawyers appealed to the Supreme Court against the conviction. They alleged violations of the applicant’s rights as guaranteed by the Russian Constitution and various Convention provisions. The points of appeal touched on substantially the same issues as those raised before this Court. 53. On 9 January 2002 the Supreme Court upheld the conviction. The court rejected the arguments by the defence and found that the first-instance court and the investigators had fully complied with both national and international law throughout the proceedings. There had been no violations of law capable of rendering the judgment unfounded or unlawful. The Supreme Court reproduced verbatim the city court’s reasoning concerning liability for disclosure of State secrets. 54. From 4 July 1998 to 25 January 2002 the applicant was held in the Lefortovo remand prison, run by the Federal Security Service. 55. According to the Government, the applicant was held in a two-person cell measuring 8.2 sq. m. The cell was equipped with heating, mandatory ventilation, a window that could be opened, furniture, a fridge, a TV set, a sink and a lavatory. The applicant had an individual sleeping place and bedding. He received food three times a day in accordance with standard norms. The applicant was given cutlery and personal hygiene items, as well as books and magazines from the library. He could exercise outside for one hour a day. 56. In the applicant’s submission, the cell of 8.2 sq. m was designed for three inmates and contained three bunk beds fixed to the concrete floor and walls. He shared the cell with two other detainees in February and March 2000 and then from 19 September 2000 to 15 January 2001. The furniture consisted of two small tables and an open shelf, which the detainees mockingly referred to as “a TV set” because all the items on the shelf were on display. Contrary to the Government’s assertion, there was no fridge or TV set. 57. The lavatory in the corner of the cell had no flush system and inmates filled a pail with water from the sink to eliminate waste. The toilet was not separated from the living area; the applicant had to use the toilet and apply his treatment for haemorrhoids in front of his cellmates and the wardens who observed them through a peephole in the door. Detainees cleaned the cell themselves. No broom, dustbin or detergent was given to them. Once in a while they received 100 g of sodium hydrate to disinfect the lavatory. The applicant had access to the showers once a week and received 50 g of laundry soap for washing. 58. The cell was dimly lit by two 40-60-watt bulbs, fixed in the ceiling and covered with metal bars and opaque glass. The artificial light was never switched off. The window pane also had frosted glass. The exercise courts were located on the roof of the facility and measured about 10 sq. m. The external walls were three metres high and the opening to the sky was protected with metal bars and netting. 59. On 5 December 2001 the applicant lodged a complaint with the Lefortovskiy District Court of Moscow about the general conditions of his detention, inadequate medical assistance, meagre food provisions and lack of privacy in the cell. On the same day the applicant was visited by the head of the remand prison and senior medical officer and asked about the reasons for lodging the above complaint. The head of the prison had a printed copy of the applicant’s complaint, originally hand-written, which had never been addressed to the prison administration. 60. On 17 December 2001 the Lefortovskiy District Court invited the applicant to identify the authority against which he was complaining and to pay the court fee by 27 December 2001. The applicant received this decision only on 27 December 2001. On the same day the court disallowed the applicant’s complaint because the instructions of 17 December 2001 had not been fulfilled; the copy of that decision was served on the applicant on 8 January 2002 and on the following day his conviction became final. 61. The applicant was transported from the remand centre to the courthouse and back more than 150 times. 62. The prison vans in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle. The cubicles were equipped with hard benches. In addition to the detainees’ cubicles, the cabin contained a 1.5-m wide lobby for two police officers. According to the Government, the applicant was placed in a single-occupancy cubicle on the basis of a written request by the prison administration, in order to prevent him from communicating with other detainees (a copy of that request has not been provided to the Court). The applicant submitted that he was usually placed in a multi-occupancy cubicle with up to eighteen other detainees, who had stood or sat on one another’s laps. Even when he was confined to the tiny solitary cubicle, he had had to share it with another person and they had taken turns sitting on each other’s laps. He was never transported alone and he could not be isolated from others because the van was so overcrowded. 63. The Government submitted that the prison-van heaters and interior lights had been powered by the van engine. The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. The passenger cabin was cleaned and disinfected on a daily basis. The applicant insisted that the natural flow of air through the hatches was insufficient and that it was stiflingly hot in summer. Moreover, as the hatches were located in the wardens’ lobby, the latter opened and closed the hatches on whim. In winter there was no heating when the engine was not running, and detainees were locked for hours inside the extremely cold van at assembly points. The floor of the cabin was extremely dirty and covered with cigarette butts, food crumbs and packaging, plastic bottles and bags with urine; no access to the toilet was possible during the transport. 64. According to the Government, the travel time from the Lefortovo prison to the Moscow City Court and back did not exceed thirty minutes. The applicant pointed out that for attendance at court hearings he had usually been taken out of the detention centre early in the morning but was never brought back until ten to fifteen hours later. The road from the Moscow City Court to the Lefortovo facility took much longer than thirty minutes because the van called en route at either the Matrosskaya Tishina or Butyrka remand prison, both of which served as assembly points for detainees. As a result, the travel time was as long as three to eight hours. By way of example, the applicant gave the following figures: on 26 December 2000 the travel time from the court to the Lefortovo prison was 3 h 10 min; 11 January 2001 – 4 h 30 min; 17 January 2001 – 4 h 15 min; 5 February 2001 – 3 h 20 min; 27 July 2001 – 3 h 30 min (to the court) and 4 h 20 min (from the court); 30 July 2001 – 4 h 50 min; 3 August 2001 – 5 h 20 min; 9 August 2001 – 5 h 50 min (until 1.10 a.m. on the following day). 65. The applicant gave the following account of the conditions of his transport in a complaint of 25 December 2000 addressed to the Prosecutor General’s Office (resent on 25 January 2001): “On 22 December 2000 [we] left the premises of the Moscow City Court around 5 p.m., and I was brought back to the FSB (Lefortovo) remand prison at 1.15 a.m. on the following morning, that is, 8 hours later. During the entire period I was kept in an unheated van [used] for the transport of detainees, although the outside temperature was approximately -10o C, without anything to eat or drink and without access to a toilet. Each cubicle of the van contained up to 18 persons: they had to stand or to sit on each other’s laps. Following this ‘trip’ I had the symptoms of flu, I had an acute attack of gastroduodenitis, [suffered from] a headache and other symptoms resulting from a lengthy period of sitting on cold benches in the frost. This situation was in no way exceptional: on 19 December [2000], for example, we started from the courthouse of the Moscow City Court at approximately at 9.30 p.m., although the court hearing ended at about 5 p.m. We arrived at the detention centre at about 11 p.m.... Similar incidents also occurred thereafter: instead of the 10-15 minutes normally required for a ride, [the journey] to the remand centre takes, as a rule, three to eight hours.” 66. On 28 April 2001 the commander of the police convoy regiment replied to the applicant that an unidentified regiment officer who had violated the applicable regulations had been disciplined. 67. On 13 February 2001 the applicant unsuccessfully attempted to complain about the conditions of transportation to the administration of the remand prison. A similar complaint lodged with the Prosecutor General’s office on 13 August 2001 evoked the following response from the Moscow City Department of the Interior on 23 November 2001: “The delays in transportation were due to objective factors. Measures have been undertaken to avoid similar delays in the future”. 68. In August 2001 the applicant complained of degrading and inhuman conditions of transport to the trial judge. His statements were entered in the trial record and the judge promised to get in touch with the relevant authorities to find a way to improve the situation. 69. The applicant also mentioned the appalling conditions of his transport to and from the remand centre in his complaint of 5 December 2001 to the Lefortovskiy District Court (see paragraph 59 above). 70. On the days of court hearings the applicant was held in the convoy cells of the Moscow City Court. On more than a dozen occasions – on 7 and 21 September, 1, 15, 20 and 23 November, 5 and 19 December 2000, 11 and 29 January, 1 February, 5 and 21 March 2001 – the applicant was brought to the courthouse but no hearings were held, and he remained in the convoy cell for the entire day. 71. According to the Government, the convoy cells had standard dimensions of 1.95 m (width) by 1 m (depth) by 3.1 m (height) and the applicant was held there alone to prevent him from communicating with other detainees. The applicant submitted that the convoy cell measured one metre square and was nicknamed a “stone tube” («каменный стакан») because the floor and walls were covered with an abrasive concrete lining and the height was almost twice the width or depth. He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate. 72. The Government indicated that convoy cells were equipped with a bench fixed to the floor, mandatory ventilation, heating, lighting and a metal door with a peephole. In cold seasons the average internal temperature was 22o C. Cells were cleaned daily and disinfected weekly. The convoy premises had a toilet room, to which detainees had access at their discretion. The applicant submitted that the bench fixed to the floor could barely accommodate two persons; the third detainee had to remain standing. The cell was lit by a small bulb behind metal bars that provided insufficient light to read by. The floor and the bench were dirty and covered with cigarette butts, food waste and torn paper. The cell had no windows and the only opening was the peephole in the door. Heating and the mandatory ventilation were not available; the air was heavy with cigarette smoke from prisoners smoking in the cell and police officers smoking outside. A visit to the toilet was possible two or three times a day at the warden’s order; from within the cell it was impossible to call the warden. The applicant never received any food (hot meal or a dry ration) in the convoy cell. 73. The applicant had no family visits from 3 July 1998 to 9 April 1999. 74. On 25 January 1999 the applicant’s wife asked the investigator for permission to see her husband. Her request was refused on 10 February 1999 with reference to the nature of the applicant’s case and the gravity of the charge against him. The investigator considered a visit “inopportune”. 75. On 22 February 1999 the applicant asked the investigator to allow his wife to visit him. Four days later his request was refused, as the visit was deemed to be “inopportune at that moment”. 76. On 10 March 1999 the applicant’s wife complained about the investigator’s decision to the Prosecutor General’s office. By a letter of 30 March 1999, the Chief Military Prosecutor’s office responded that by law the investigator had full discretion in the matter of family visits and that he had acted within his competence. 77. On 18 March 1999 the applicant wrote a complaint to the Chief Military Prosecutor’s office. He indicated, in particular, that he had not seen his family for more than eight months and that the investigator had offered to permit him a family visit in exchange for withdrawal of a judicial complaint concerning the unlawfulness of his detention. On 2 April 1999 the prosecutor’s office responded that the FSB Investigations Department had been asked “to settle the issue” of family visits. 78. On 5 April 1999 the applicant applied for permission for his wife and daughter to visit him. Permission was granted to his daughter only and on 9 April 1999 she paid him a visit. 79. On 11 May 1999 the applicant asked for permission to see his wife. On 24 May 1999 his wife was allowed to see him. 80. In the subsequent period the applicant’s family was allowed to visit him no more often than twice a month, each visit lasting up to one hour. During the visits the applicant was separated from his relatives by a glass partition and talked to them through an interphone. A warden was present. 81. The applicant had no family visits from 3 March to 5 September 2000. 82. On 25 July 2001 the applicant’s daughter asked to see her father. She was refused because on 9 June 2001 she had already come to see him with her mother, which counted as two visits, whilst the law only provided for two visits by relatives a month. 83. On 26 July 2001 the applicant’s wife complained about the refusal to the Moscow City Court and the Prosecutor General’s office alleging, inter alia, a violation of Article 8 of the Convention. A week later she was granted permission to visit the applicant. 84. Between 7 December 2001 and 10 January 2002 no permits for family visits were issued. 85. Throughout the proceedings the applicant’s lawyers were permitted to visit him on the basis of permits that were valid for one visit only. Such permits were issued by investigators from the Federal Security Service at the pre-trial investigation stage or by a judge during the trial. 86. On 26 April and 4 May 2000 Ms Moskalenko, one of the applicant’s lawyers, applied to the Supreme Court of the Russian Federation for an unrestricted permit to visit the applicant. In both cases the registry clerk gave her a printed permit valid for “[one] visit”. However, yielding to Ms Moskalenko’s demands, on both occasions the clerk made handwritten corrections, changing the singular to the plural. 87. On 26 April 2000 the staff of the Lefortovo remand centre treated the Supreme Court’s document as a single-use permit because it had been corrected by hand, whereas it originally referred to a single visit. 88. On 5 May 2000 Ms Moskalenko attempted to file a written request to the director of the Lefortovo prison for an unrestricted permit to visit the applicant. The facility staff refused to accept the request and told her that she could not see the director. 89. Subsequently a deputy director of the Lefortovo prison visited the acting director of legal services office no. 10, where Ms Moskalenko worked, and told her that Ms Moskalenko had forged the permit to visit the applicant; he threatened Ms Moskalenko with criminal prosecution. Ms Moskalenko denied all those allegations. 90. On 1 June 2000 the Supreme Court issued Ms Moskalenko with a printed permit valid for “[several] visits” to the applicant. According to the Government, on 23 May 2001 Ms Moskalenko was refused permission to visit the applicant as she did not provide a mandate by her legal services office for the defence of his interests. 91. On 21 August, 12 September and 17 October 2001 Ms Kostromina, one of the applicant’s lawyers, unsuccessfully applied to the trial court for a multiple-use permit to visit the applicant. 92. On 25 October 2001 the Constitutional Court held that section 16 § 15 of the Custody Act, which allowed the authorities to require that a visit of a detainee by his advocate be authorised by the investigator or trial court, was incompatible with the constitutional right to legal assistance in criminal cases, in that it made the exercise of the right to defence conditional on a discretionary decision by the authority in charge of the case (Ruling no. 14P). 93. On 10 January 2002, after the conviction had become final, Ms Kostromina received an unrestricted permit to visit the applicant. 94. During the pre-trial investigation the bill of indictment was kept in the special department of the remand centre. The applicant could access it with the written consent of the administration. His lawyers obtained access to the bill of indictment after the beginning of the trial, at the special registry of the Moscow City Court. 95. Any exchange of documents between the applicant and his lawyers was only possible through the remand centre administration and with its written consent. The administration perused the documents before passing them on. 96. During the trial the applicant could make notes only in special notebooks that were deposited with the indictment at the special registry of the City Court. The same requirements applied to the applicant’s lawyers, who were directed to keep all case-related files, notes and copies of complaints at the special registry. 97. According to the applicant, he was chained by his hand to a table or chair when studying the case file on the premises of the Moscow City Court after the court session on a given day was over. He had to assume an uncomfortable posture and after a while his chained hand went numb. Moreover, when he was chained by his right hand, he could not use a pen and make notes. The time afforded for studying the case file was granted at the discretion of wardens. The Government submitted that the applicant had only been handcuffed on his way to and from the hearing. 98. On 29 October 2001 the applicant lodged a complaint about the inadequate conditions for preparation of the defence with the Moscow City Court. The complaint remained unanswered. 99. The Criminal Code of the Russian Soviet Federalist Socialist Republic of 27 October 1960 (in force until 31 December 1996) provided as follows: “(a) Treason, being an intentional act of a USSR citizen undermining the sovereignty, territorial integrity, national security or defence of the USSR, in particular, desertion to the enemy, espionage, communication of a State or military secret to a foreign state,... shall be punishable by ten to fifteen years’ imprisonment and confiscation of property or by the death penalty and confiscation of property...” “Communication of State or military secrets, as well as their collection or storage with a view to communicating them to a foreign state, a foreign organisation or their agents, and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the interests of the USSR, committed by a foreign national or a stateless person, shall be punishable by seven to fifteen years’ imprisonment and confiscation of property or by the death penalty and confiscation of property.” 100. The Criminal Code of the Russian Federation of 13 June 1996 (in force from 1 January 1997) provides as follows: “High treason, that is, espionage, disclosure of State secrets or assistance otherwise provided to a foreign state, a foreign organisation or their representatives for ... subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by twelve to twenty years’ imprisonment and confiscation of property...” “Communication of State secrets, as well as their collection, theft or storage with a view to communicating them to a foreign state, a foreign organisation or their representatives, and also communication or collection of other information at the request of a foreign intelligence service for the purpose of using them to harm the external security of the Russian Federation, committed by a foreign national or a stateless person, shall be punishable by ten to twenty years’ imprisonment.” 101. The Constitution of 12 December 1993 provides: “3. Laws must be officially published. Unpublished laws are not to be applied. No legal acts interfering with the rights, freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available”. “4. 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 in a federal law.” 102. On 21 September 1993 the State Secrets Act (Law no. 5485-1) was enacted. Section 5 provided as follows: “The following information may be classified as a State secret: ... (2) information in the field of the economy, science and engineering... (3) information concerning foreign policy and trade: [information] about the foreign policy... of the Russian Federation in respect of which its premature disclosure may harm [the State’s] interests;...” 103. Section 9 described the procedure for classification of information as State secrets. Authority to classify information was delegated to the heads of State agencies. The Act did not contain a list of such officials, which was to be approved by the President. The President was also to approve a List of information classified as State secrets, which was to be officially published. 104. On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of a list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President’s approval a draft decree containing the list of classified information. 105. On 30 November 1995 the President approved Decree no. 1203 “On the list of information classified as State secrets”. Paragraphs 23-30 of the list provided for classification of information concerning foreign policy and trade and designated the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry for Foreign Economic Relations, the External Intelligence Service and other agencies as bodies authorised to classify such information. 106. On 20 December 1995 the Constitutional Court examined the compatibility of the State Secrets Act with the Constitution and found as follows: “4... The State may classify as State secrets information in the field of defence, economic and other activities, disclosure of which may undermine national defence and the security of the State. In this connection Article 29 § 4 of the Constitution provides that the list of information constituting State secrets is to be adopted in the form of a federal law. The State may also determine forms and measures for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State. However, by virtue of the above-mentioned constitutional provision, criminal liability for disclosure of State secrets to a foreign state is only justified on condition that the list of information constituting State secrets is established in an officially published and universally accessible federal law. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including a conviction by a court, may be grounded on an unpublished legal act. The requirements of Article 29 § 4 of the Constitution are fulfilled by the State Secrets Act of 21 July 1993 which defines the concept of State secrets and indicates the information classifiable as State secrets. Accordingly, establishing criminal liability for disclosure of State or military secret to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Constitution.” 107. On 6 October 1997 a federal law (no. 131-FZ) amending the State Secrets Act was enacted. Section 5 of the State Secrets Act was changed to read as follows: “State secrets shall include: ... (3) information in the field of foreign policy and trade...” The amended section 5 listed categories of information constituting State secret. 108. On 17 April 2000 the Supreme Court, having considered the prosecutor’s appeal against the acquittal of Mr Nikitin on charges under Articles 275 and 283 § 1 of the Criminal Code (case no. 78-000-29), upheld the acquittal in the following terms: “Having acquitted Mr Nikitin for the lack of constituting elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no legal definition of information constituting State secrets... Pursuant to Article 29 § 4 of the Russian Constitution... the list of information constituting State secrets was to be defined in a federal law. Such a list was first determined in the federal law ‘On the introduction of changes and amendments to the State Secrets Act’ of 6 October 1997. Taking into account that during the period when Mr Nikitin committed his acts [in 1995], there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of offences under Articles 275 and 283 of the Criminal Code only refers to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets... The State Secrets Act [in its 1993 version] could not have been applied to Mr Nikitin as it did not contain a list of information constituting State secrets, since section 5 of that Act only referred to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal law. As section 5 of the State Secrets Act and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of the appeal to the effect that the difference between these provisions is merely semantic...” 109. Section 21 of the State Secrets Act and section 2 of the Law “On additional safeguards for the social protection of judges and administrative staff of the courts of the Russian Federation” stipulate that judges with security clearance are eligible for additional financial benefits. The scale and amount of these benefits depend on the level of security clearance. Authority to set the specific amounts of such benefits is delegated to the Government and other executive bodies, such as the Ministry of Justice. 110. The RSFSR Code of Criminal Procedure provided: “Every case must be examined by one and the same composition. If one of the judges is no longer able (лишен возможности) to take part in the proceedings he must be replaced by another judge, and the court proceedings must restart from the beginning, except in cases described in Article 242.” “If a case requires a long time for its examination, a substitute lay judge may be appointed. The substitute lay judge is present in the courtroom from the beginning of the proceedings and may step in in case of withdrawal of a lay judge. If the substitute lay judge who has stepped in does not ask for the proceedings to start anew, the proceedings may continue.” 111. The Courts Organisation Act (RSFSR Law of 8 July 1981) establishes that a court President may appoint judges as the presiding judges and distribute duties between judges (sections 26 (1) and 37 (4) and (11)). The Act stipulates that lay judges have the same rights as professional judges in the administration of justice (section 11). 112. The Status of Judges Act (Law no. 3132-I of 26 June 1992) provides: “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.” 113. The Constitution establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”). 114. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. 115. After arrest a suspect could be placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction. 116. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that day the defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file. 117. The Custody Act (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) provides as follows: “The Ministry of Justice, the Ministry of the Interior, the Federal Security Service, the Ministry of Defence shall adopt, upon approval of the Prosecutor General, the Internal Rules for Remand Centres, for the purpose of ensuring order in remand centres. The Internal Rules establish the procedure for: ... (7) receiving and dispatching telegrams, letters and money transfers by suspects and defendants; ... (15) organising meetings between suspects and defendants and the persons listed in section 18 of the present Act...” “Suspects and defendants have the right: ... (5) to meet with relatives and other persons listed in section 18; (6) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests... ... (8) to maintain correspondence and to use writing utensils.” “From the moment of arrest, suspects and defendants may be visited by their legal representative in privacy. Visits are not limited in frequency or duration. Visits may be granted: if the legal representative is an advocate – upon presentation of a mandate issued by the legal services office (ордер юридической консультации)... and an identity document. ... Subject to written consent from the official or authority in charge of the criminal case, a suspect or defendant may have up to two meetings per month with relatives and other persons, each visit to last for up to three hours...” “Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams... Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case ...”