FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62936/00 
by Valentin MOISEYEV 
against Russia

The European Court of Human Rights (First Section), sitting on 9 December 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 1 November 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Valentin Ivanovich Moiseyev, is a Russian national, who was born in 1946 and lives in Moscow. He is represented before the Court by Mmes K. Moskalenko and K. Kostromina of the International Protection Centre, lawyers practising in Moscow, and by Mr W. Peukert, a lawyer practising in Strasbourg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. The applicant's arrest and indictment

On 3 July 1998 Mr C., a South Korean diplomatic officer, was apprehended by the Federal Security Service of the Russian Federation (Федеральная служба безопасности Российской Федерации, “the FSB”) while receiving certain materials from the applicant who was then a 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 he left Russia.

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 detention centre.

On 3 August 1998 the Ministry of Foreign Affairs dismissed the applicant for serious breaches of the Russian legislation on the civil service.

On 4 July 1998 the investigators of the FSB Investigations Department (Следственное управление ФСБ РФ) interrogated the applicant as a suspect in a high treason case. According to the applicant, the investigators intimidated him to obtain a confession, threatening to bring charges against his daughter and son and lock them in the adjacent cell.

On 6 July 1998 a deputy Prosecutor General authorised the applicant's detention on remand. The applicant's detention was subsequently extended on several occasions.

On 8 July 1998 the investigator requested legal services office no. 13 (юридическая консультация № 13) to appoint a defence lawyer for the applicant. The legal office's director designated Mr Konoval.

On 9 July 1998 Mr Konoval arrived at the FSB Investigations Department and offered his services to the applicant.

On 13 July 1998 the applicant was charged with high treason in the presence of Mr Konoval. He was accused of having disclosed classified information to a South Korean intelligence agent.

On 15 July 1998 the applicant retained Mr Gervis as his defence counsel.

On 22 and 23 July, 16 September and 12 November 1998 the investigator ordered seizure of the applicant's car and car box, 5,447 US dollars and a computer from his home, as security in respect of possible forfeiture of the applicant's property following the conviction.

On 14 January, 12 March and 20 May 1999 the applicant attempted to challenge the orders authorising his continued detention on remand.

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.

On 10 June 1999 the pre-trial investigation was finished and the applicant was granted access to the case-file.

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 access the indictment at the special department (спецчасть) of the detention facility.

2. First conviction and its quashing

On 16 December 1999 the Criminal Division of the Moscow City Court found the applicant guilty as charged, sentenced him to twelve years' imprisonment and ordered forfeiture of the seized property.

On 15 June 2000 and other dates the applicant and his lawyers appealed against the conviction.

On 25 July 2000 the Criminal Division of 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... transmitted information and documents containing State secrets to the South Korean intelligence. The [first-instance] court only gave a general list of information and documents..., without specifying which information and documents and when [the applicant] had transmitted. As the offences imputed to [the applicant] are continuous in time and span over the period from 1992-1993 to July 1998, during which period the Russian laws changed, the determination of these issues is of crucial importance for the case.

Pursuant to Article 29 § 3 of the Constitution... the list of information constituting State secrets was to be defined in a federal law. Such list was first established in the federal law “On introduction of changes and amendments to the Russian Federation Law 'On State secrets'” 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 the time when [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 the list of State secrets and compatible with the requirements of the Constitution was in force.

It follows from the case-file that... experts of the Ministry of Foreign Affairs prepared their report [on the classified nature of information transmitted by the applicant] on the basis of the law on State secrets of 21 July 1993, the President decree of 30 November 1995 and the Government resolution of 18 September 1992, and the expert of the Main Intelligence Department of the General Headquarters of the Russian Army worked on the basis of the federal law 'On security' of 5 March 1992, the law on State secrets of 21 July 1993 and the President decree of 30 November 1995.

However, it has to be taken into account that the law on State secrets of 21 July 1993 on which the above experts relied contained no list of information constituting State secrets. Section 5 of the law (text of 21 July 1993) only referred to the information that could be classified as State secrets. The conclusions of these reports... have to be 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 transmitted by [the applicant] could have been considered as State secrets in accordance with the requirements of then effective laws.”

3. Second conviction

(a) Hearings under Judge Gubanova

On 5 September 2000 the Moscow City Court began hearing the applicant's case. Presiding Judge Gubanova and two lay assessors sat on the bench.

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 dangerousness of the offence and there were therefore no grounds to release the applicant.

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 dangerousness of the offence alone was a sufficient ground to remand him in custody.

On 15 September 2000 the applicant appealed against the decision of 11 September 2000 to the Supreme Court of the Russian Federation. According to the applicant, his appeal was never examined. He alleges, however, that the letter of Judge Galiullin of the Supreme Court to Judge Yegorova, president of the Moscow City Court, of 14 March 2001 indicated that “there had been no grounds to lodge an appeal against that decision of the court” (a copy of the document has not been made available to the Court).

(b) Hearings with Judge Koval

On 29 November 2000, at the stage of closing arguments, Judge Korzhikov, acting president of the Moscow City Court, ordered a change in the court's composition, citing the illness of Judge Gubanova. On the same day Judge Koval and two new lay assessors were assigned to the case.

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 appointment of new lay assessors as no reasons for the replacement of lay assessors had been given. Judge Koval dismissed the challenge in general terms.

The applicant appealed to the Supreme Court of the Russian Federation. On 14 March 2001 the Supreme Court dismissed the appeal. It found that Judge Gubanova had indeed been ill between 15 November and 13 December 2000, as well as between 18 December 2000 and 18 January 2001, and the decision of 29 November 2000 had therefore been lawful and justified. The court did not address the appointment of new lay assessors.

On 1 December 2000 the applicant applied again for release, claiming his innocence. The Moscow 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. According to him, the merits of the appeal were never considered.

On 10 April 2001 the proceedings were stayed until 13 June 2001 pending translation of some documents from Korean into Russian. The court rejected the applicant's proposal to appoint a civilian translator for this assignment and picked of its own motion the translator who had worked in the past for the Military and Diplomatic Department of the “Novosti” state information agency. The applicant challenged the appointment of the translator and the decision on adjournment of the proceedings which had the effect of extending the applicant's detention on remand; the trial court dismissed the challenge.

On 6 June 2001 the Supreme Court of the Russian Federation dismissed the appeal concerning the adjournment of the proceedings as unsubstantiated.

(c) Hearing under Judge Medvedev

On 10 July 2001, following a three-month pause in the hearings, the entire bench was replaced and the case was assigned to Judge Medvedev and two new lay assessors. No reasons for the replacement were given.

The applicant unsuccessfully challenged the substitution of the bench.

On 16 July 2001 the applicant appealed against the rejection of his challenge to the Supreme Court of the Russian Federation. The Supreme Court dismissed the appeal on 26 September 2001 as unsubstantiated.

(d) Hearings under Judge Komarova

i. Replacement of the presiding judge and lay assessors

On 20 July 2001 Judge Medvedev and both lay assessors were replaced with Judge Komarova and two new lay assessors. No grounds were indicated.

The applicant challenged the new bench; his challenge was dismissed on the same day.

His appeal to the Supreme Court of 24 July 2001 was examined and rejected on 26 September 2001.

ii. New replacement of lay assessors

On 31 July 2001 both lay assessors were replaced with new ones once again, without citing any reason for the change.

The applicant challenged the new change, but to no avail. His appeal against the rejection was considered and dismissed by the Supreme Court on 26 September 2001.

iii. Further applications for release

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.

On 16 and 24 July and in early August 2001 the applicant filed appeals against these decisions with the Supreme Court.

On 26 September 2001 the Supreme Court of the Russian Federation examined all three appeals and upheld the decisions of the city court.

iv. The applicant's conviction

On 14 August 2001 the Moscow City Court convicted the applicant of high treason under Article 275 of the Criminal Code of the Russian Federation.

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 the South Korea's Agency for National Security Planning (“KCIA”) in return for regular pay. 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 transmitted to the KCIA a considerable number of documents. In particular, in August and November 1994, in May and September 1995, on 18 March, 20 June and in September 1996 and in the autumn of 1997 the applicant had handed over classified information constituting State secrets in the field of military co-operation between Russia and the North Korea. In 1994-1998 the applicant also transmitted copies of official documents that did not contain State secrets. Furthermore, in 1997 the applicant procured and made available to Mr C. copies of treaties and protocols on co-operation between Russian and the North Korean, as per the list compiled by Mr C. The court established that the KCIA had paid the applicant no less than fourteen thousand US dollars in remuneration.

The court supported its findings by reference to, 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. In respect of some witnesses only the first letter of their last name was given.

The witness “K.G.B.” stated in his pre-trial deposition that virtually all documents concerning bilateral relationships of Russia 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 the 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 the experts in Korean issues. Their depositions were read out in the court and the 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 the issues which they had not been supposed to be aware of.

The court further noted that, according to the information of 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 regularly received confidential information to which the applicant had access and that the applicant maintained private contacts with Mr C. for remuneration. The 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 known it himself.

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 work of the Moscow KCIA residents in 1997” and the applicant's “personal resident file”, wherefrom it followed that the applicant had been recruited by the KCIA during his stay in the South Korea and enlisted as a functioning agent of that service. The applicant contested the accuracy of the translation, disputing, in particular, the translation of the Korean word “공작원” as “operative agent”. Having sought the opinion of the witness “M.” who mastered the Korean language and who indicated that the dictionary translated the word both as an “employee” and as a “person performing the assignment of an organisation for remuneration”, the court determined that the translation was correct because a person performing assignments of an foreign intelligence service for remuneration was in fact an “operative agent” of that service.

The court relied on the conclusions by unidentified experts in order to establish 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 [it has been] scientifically proven. According to experts' opinions, the information reveals the substance of the Russian 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 defendant's and his lawyer's arguments about the lack of competence on the part of 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 stage of pre-trial investigation had taken part in the court hearing and they supplied [the court] with their written conclusions and clarifications...”

In so far as the applicant alleged that he had been forced to incriminate himself, the court found as follows:

“It follows from the case-file that during the pre-trial investigation [the applicant] repeatedly gave evidence about the committed offence in the presence of various lawyers; on several occasions the rights of a suspect and defendant were explained to him; however, neither he nor his lawyers made any complaints about unlawful methods of investigation. Moreover, already during the pre-trial investigation [the applicant] changed his deposition in the presence of the same lawyer, which goes to show that he was under no pressure to give false evidence.”

The court questioned the investigator P. and his supervisor O. who denied having exercised any pressure on the applicant and stated that the Code of Criminal Procedure and the Russian Constitution had been put at the applicant's disposal before the interrogation.

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 before the amendment of the law on State secrets of 6 October 1997:

“Pursuant to section 2 of the law on State secrets 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 in compliance with the Russian Constitution. Since the information constituting State secrets cannot be explicitly enumerated in the law, the approach was chosen, according to which the list has to be understood as an aggregate of relatively generic categories of information described in section 5 of the new law [i.e. of 6 October 1997].

Hence, there is merely an unimportant semantical difference between section 5 of the law on State secrets in its 1993 wording and that of 1997. By no means it implies that there were no legal instrument countering the encroachments upon the fundamentals of the constitutional structure and 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 the 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 the use detrimental to the external security of the Russian Federation...”

Having regard to the applicant's clean criminal record, age, state of health, lengthy detention of 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 provided in the relevant sanction, and notably 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 the already seized property.

On 26 December 2001 and other dates the applicant and his three lawyers appealed against the conviction to the Supreme Court of the Russian Federation. They alleged violations of the applicant's rights 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.

On 9 January 2002 the Criminal Division of the Supreme Court of the Russian Federation, presided over by Judge Galiullin, upheld the conviction of 14 August 2001. 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 criminal liability for disclosure of State secrets.

4. The applicant's detention on remand

(a) The conditions of the applicant's detention

From 4 July 1998 to 25 January 2002 the applicant was held in the “Lefortovo” detention centre (СИЗО «Лефортово») run by the Federal Security Service of the Russian Federation.

i. General conditions

The Government submit that the applicant was held in a two-person cell measuring 8.2 sq. m. The cell was equipped with heating, mandatory ventilation, opening window, 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, personal hygiene items, as well as books and magazines from the library. He could exercise outside for one hour a day.

The applicant submits that the standard cell of 8.2 sq. m was designed for three inmates as it contained three bunk beds fixed to the concrete floor and walls. In fact, he shared the cell with two other detainees in February and March 2000 and then from 19 September 2000 to 15 January 2001. As regards the furniture, the cell contained two small tables and an open shelf which the detainees mockingly called “a TV set” because all items on the shelf were on display. Contrary to the Government's assertion, there was no fridge or TV set.

As regards hygienic standards, the applicant submits that the lavatory in the corner of the cell had no flush system and the 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 wardens observing them through the 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 showers once a week and he received 50 g of laundry soap for washing.

According to the applicant, the cell was dimly lit with two bulbs of 40-60 watts each 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 walls were three metres high and the opening to the sky was protected with metal bars and netting.

Finally, the applicant submits that the food was meagre and of poor quality. No fresh vegetables, fruit, dairy products, beef or pork were ever served. He could only receive food from his wife twice a month and up to 15 kg each time. He also bought food from the facility shop.

ii. Medical conditions

The Government submit that the applicant was provided with adequate medical assistance. During the period of his detention he was examined more than 40 times in the medical department of the facility and received treatment for osteochondrosis, vegeto-vascular dystonia, allergic dermatitis, pharyngitis and other diseases. Medical examinations and consultations were carried out by competent doctors who performed x-rays of the applicant's thorax, stomach and knee joint and an electrocardiogram. The applicant received supportive drug therapy. A doctor also prescribed him dietary food that comprised additional 20 g of butter, 250 g of milk, 22 g of kissel* per day, as well as additional servings of bread and sugar.

The applicant submits that on his placement in the pre-trial detention centre “Lefortovo” on 4 July 1998 he was practically fit, weighed 75 kg and had no major diseases, apart from chronic gastritis and haemorrhoids. As a result of detention, he lost 15 kg in weight. Starting from July 1998 he suffered from vegeto-vascular dystonia, osteochondrosis, dyshidrosis of palms, hygroma of a knee joint, furunculosis and haemorrhoids. In October 1999 the applicant's gastritis evolved into an acute gastroduodinitis but no systemic treatment was given and the medications had to be provided by his wife. In September 2001 a team of doctors, including a gastroenterologist, examined the applicant and took blood and urine samples.

iii. Complaints to various authorities

On 6 July 2000 the applicant's wife complained to the Prosecutor General and the Minister of Justice about the applicant's precarious state of health necessitating urgent medical measures. It appears that her complaint received no response.

On 16 July and 9 August 2001 the applicant's wife requested the Prosecutor General to allow an examination of his medical condition by independent medical experts. On 14 September 2001 a prosecutor of the department for supervision of lawfulness of execution of criminal punishments rejected the request as “there were no grounds justifying intervention of the Prosecutor General's office”.

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 and the lack of privacy in the cell. The applicant alleges that on the same day he was called upon by the head of the remand prison and senior medical officer with a view to explaining them the reasons for lodging the above complaint. The head of the prison had a printed copy of the applicant's originally hand-written complaint, although the complaint had never been addressed to the prison administration.

On 17 December 2001 the Lefortovskiy District Court invited the applicant to specify the agency which he complained about and to pay the court fee, by 27 December 2001. The applicant only received this decision 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.

(b) The conditions of the applicant's transport between the detention facility and of his confinement at the courthouse

i. Conditions of transport to and from the courthouse

The Government submit that the applicant was transported in special prison vans equipped for the transport of detainees in accordance with applicable standards. A typical car measured 3.8 m (length) by 2.35 m (width); its passenger compartment had two general cells, designed for 12 detainees each, and one soundproof solitary-confinement cell. Hard benches were installed in all cells. Cells were heated with a special device that delivered heat from the car cooling system. For ventilation, there was a peephole in the entrance door and emergency hatches in cells. The lighting in the cells was on during the entire stay of detainees inside the van. The passenger compartment was cleaned and disinfected on a daily basis. The travel time from the Lefortovo facility to the Moscow City Court and back did not exceed 30 minutes.

The applicant submits that for attendance at court hearings he was usually taken out of the detention centre early in the morning and he was not brought back until ten to fifteen hours later. Whilst being transported, the applicant and occasionally up to eighteen other detainees were kept in a small closed metal rear of a prison van. The passenger compartment of the van, in addition to detainees' cells, comprised a 1.5-metre-wide lobby for two police officers. The heater and lighting only functioned when the engine was running. Natural flow of air through emergency hatches was insufficient. Moreover, the hatches were located in the wardens' lobby and they opened and closed hatches at their whim. The floor of the cells 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. The road from the Moscow City Court to the Lefortovo facility took much longer than 30 minutes because the van called on its way into either the “Matrosskaya Tishina” or “Butyrka” facility that 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 gives the following figures: on 26 December 2000 the travel time from the court to the facility 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).

ii. Conditions of confinement in the Moscow City Court's premises

The Government submit that convoy cells of the Moscow City Court have standard dimensions of 1.95 m (width) by 1 m (depth) by 3.1 m (height). Cells are equipped with a bench fixed to the floor, mandatory ventilation, heating, lighting and a metal door with a peephole in it. In cold seasons the average temperature inside is 22o C. Cells are cleaned daily and disinfected weekly. The convoy premises have a toilet room, to which detainees have access at their discretion.

The applicant submits that before the hearing, between court sessions or after the hearing while waiting for other detainees, he was confined for hours to a small unventilated cell of the courthouse called “stone hole” («каменный стакан») measuring approximately one square metre, together with one or two other defendants, some of them with tuberculosis. The walls of the “stone hole” were covered with sharp-edged reinforced concrete lining («бетонная шуба»). The cell had one bench fixed to the concrete floor that could barely accommodate two persons. The third person had to remain standing. The cell was lit with 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 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) while in the convoy cell.

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.

iii. Complaints to various authorities

The applicant gave the following account of the conditions of his transport in a complaint of 25 January 2001 (or 25 December 2000) addressed to the Prosecutor General's office:

“On 22 December 2000 [we] left from the premises of the Moscow City Court around 5 p.m., and I was brought back to the detention centre of the FSB (Lefortovo) at 1.15 a.m. on the following day, i.e., 8 hours later. During the entire period I was kept in an unheated van [used] for transport of detainees, the outside temperature being approximately -10o C, without anything to eat or drink and without access to a toilet. Each section of the van contained up to 18 persons: they had to stand or to sit on each other's lap. Following this 'trip' I showed the symptoms of a flu, I had an acute condition of my gastroduodenitis, [suffered from] headache and other symptoms resulting from a lengthy sitting on cold benches in the frost. This situation was in no way exceptional: on 19 December, for example, we started from the courthouse of the Moscow City Court approximately at 9.30 p.m., while the court hearing ended at about 5 p.m. We arrived to the detention centre at about 11 p.m. ... Similar facts also occurred thereafter: instead of 10-15 minutes normally required for a ride, [transportation] to the detention centre takes, as a rule, three to eight hours.”

On 28 April 2001 the commander of the police convoy regiment replied to the applicant that the unidentified regiment officer who had violated applicable regulations had been disciplined.

On 13 February 2001 the applicant unsuccessfully attempted to complain about the conditions of the transport to the administration of the detention facility. A similar complaint lodged with the Prosecutor General's office on 13 August 2001 evoked the following response written from the Moscow City Department of the Interior on 23 November 2001:

“The delays in transportation were due to objective causes. Measures have been undertaken to avoid similar delays in the future”.

In August 2001 the applicant complained about degrading and inhuman conditions of transport to the trial judge. The 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.

The applicant also mentioned appalling conditions of his transport to and from the detention facility in his complaint to the Lefortovskiy District Court of 5 December 2001 (see above).

(c) Restrictions on family visits

i. During the pre-trial investigation

The applicant had no family visits from 3 July 1998 to 9 April 1999.

On 25 January 1999 the applicant's wife asked the investigator P. 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 “inappropriate”.

On 22 February 1999 the applicant asked the same investigator to allow his wife to visit him. On 26 February 1999 his request was refused as the visit was deemed to be “inappropriate at that moment”.

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 in that case he had acted within his competence.

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 him to permit a family visit in exchange of his abandoning 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.

On 5 April 1999 the applicant applied for permission for his wife and daughter to visit him. The permission was granted to his daughter only and on 9 April 1999 she paid him a visit.

On 11 May 1999 the applicant asked for permission to see his wife. On 24 May 1999 his wife was allowed to see him.

ii. In subsequent periods

The applicant had no family visits from 3 March to 5 September 2000.

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 visit him together with her mother and that counted as two visits, whilst the law only provided for two visits by relatives a month.

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.

Between 7 December 2001 and 10 January 2002 no permits for family visits were issued.

(d) Restrictions on communication with lawyers and preparation of defence

i. Restrictions on communication with lawyers

Throughout the proceedings the applicant's lawyers were permitted to visit him on the basis of permits valid for one visit only. At the stage of pre-trial investigation a permit was issued by investigators of the Federal Security Service in charge of the applicant's case. During the trial permission was granted by the trial judge.

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 “a visit”. However, yielding to Ms Moskalenko's demands, each time the clerk made handwritten corrections, changing singular to plural.

On 26 April 2000 the staff of the Lefortovo detention facility treated the Supreme Court's document as a permit valid for one use because it contained handwritten corrections and because it originally referred to a single visit.

On 5 May 2000 Ms Moskalenko attempted to file a written request to the director of the Lefortovo facility for an unrestricted permit to visit the applicant. The facility staff refused to take her request and told her that she could not see the facility director.

On an unspecified date a deputy director of the Lefortovo facility visited the acting director of legal services office no. 10 where Ms Moskalenko worked and orally alleged that Ms Moskalenko had forged the permit to visit the applicant, threatening criminal prosecution against her. Ms Moskalenko denied all allegations.

On 1 June 2000 the Supreme Court issued Ms Moskalenko with a printed permit valid for “visits” to the applicant.

On 21 August, 12 September and 17 October 2001 Ms Kostromina, one of the applicant's lawyers, applied to the trial court with a view to obtaining a “multiple-use” permit to visit the applicant. Her requests were rejected. Such an unrestricted permit was only granted on 10 January 2002, after the conviction had become final.

ii. Restrictions on access to the case-file and notes

According to the applicant, throughout the trial his lawyers were restricted in the use made of their notes taken during the previous hearings and they were required to store them in a special court facility. Moreover, when he studied the case-file in the premises of the Moscow City Court after the court session on that day was over, he was chained by his hand to a table or chair. As a result, he had to assume a very uncomfortable posture and his chained hand went numb after a while. Moreover, when he was chained by his right hand, he could not use a pen and make notes. The time afforded for studying of the case-file was granted at the discretion of wardens.

On 29 October 2001 the applicant lodged a complaint about inadequate conditions of preparation of defence with the Moscow City Court. The complaint remained unanswered.

On 26 and 29 December 2001 and 9 January 2002 the applicant's lawyers complained about the inadequate conditions of examination of the case-file and restricted access to the bill of indictment in their appeals against the conviction.

iii. Other impediments

On 25 September 2000 the FSB staff installed a “high-frequency encoding device” on the computer of the court registrar.

On 3 May 2001, in response to the applicant's inquiry about the function of the device, the deputy director of the FSB informed him that the device had been installed in order to preserve the confidentiality of information stored in the court registrar's computer.

(e) Preparation of the application to this Court

On 8 November 2000 the applicant signed a power of attorney for the International Protection Centre for his representation before the Court. He requested the facility administration to certify his signature and hand it over to his wife.

Once the administration certified it, the document was sent to the Moscow City Court which – on 14 November 2000 – returned it as “sent to a wrong address”.

On 19 December 2000 the applicant's wife applied to the Moscow City Court for permission to receive the power of attorney. On the same day Judge Koval signed her refusal without giving any explanations.

On 9 January and 28 February 2001 the applicant's wife complained to the president of the Moscow City Court who transferred her complaint for decision to the same Judge Koval. On 24 January 2001 Judge Koval responded to her that the power of attorney could not be given to her “because there was no case concerning Valentin Moiseyev in the European Court of Human Rights”.

On 12 and 15 February 2001 the applicant's wife complained about Judge Koval's decision to the Moscow city prosecutor's office and the Moscow Judges Qualifications Board.

On 10 April 2001 the applicant's wife received the document in question from Judge Koval.

5. Statements regarding the applicant's case

On 10 July 1998 the Nezavisimaya Gazeta daily newspaper published an article about the applicant's arrest. Its relevant extract read as follows:

“... as [our newspaper] found out from a well-informed South Korean source, not only the deputy head of the First Asian Department of the Ministry of Foreign Affairs Valentin Moiseyev, who had recently been arrested by the FSB, but also several other Russian diplomats received payments from the KCIA on a regular basis...”

On 11 July 1998 the same newspaper published an article containing the following statement:

“...a representative of the South Korean intelligence service apologised to the FSB... for a recent spy incident, when the official of the KCIA... had been apprehended during an undercover meeting with the deputy head of the First Asian Department of the Ministry of Foreign Affairs Valentin Moiseyev...”

On 22 September 1998 the Izvestiya daily newspaper announced that:

“After a high-ranking official of the Ministry of Foreign Affairs of Russia Valentin Moiseyev was busted and exposed as a spy for South Korea ...”.

In June 1999 the Russian publishing house “Geleos” released a book by Mr Elizarov Counter-intelligence: the FSB against leading intelligence services of the world. The book stated that Mr A. Zdanovich, the then spokesman for the FSB, was an advisor to the author, and the relevant extract read:

“... The FSB strike-force also apprehended the deputy head of the First Department of Asia of the Ministry of Foreign Affairs Valentin Moiseyev. During the five years he regularly supplied the South Korean intelligence with confidential information ... While searching his flat, the intelligence officers found the remuneration of several thousand dollars, which he had received from Koreans for accomplishing secret assignments...”

On 9 July 1999 one of major Russian daily newspapers Komsomolskaya Pravda quoted Mr Putin, the then head the Federal Security Service and the Security Council of the Russian Federation, as saying:

“... We do not do anything for the sake of political situation. We only operate on the basis of the facts, so to speak. By the way, the case of Mr Moiseyev is an exemplary one. And it is of no importance whether he worked for the South Korean or North Korean intelligence service...”

On 2 August 1999 the Ekho Moskvy radio station broadcast an interview with Mr Zdanovich:

IM (the journalist): “... The spouse of Moiseyev claims that [her husband] was taken to Lefortovo from his flat and that he was not apprehended in the street.”

AZ (Alexandr Zdanovich): “Naturally... it looks like his wife exploits weak memory of the people who might have forgotten that we deliberately broadcast on TV the video tape showing the applicant's arrest. So this statement about his having been taken to Lefortovo from his flat is false. The whole thing happened in the street, at a given place, in a given time; the time is recorded on the tape, which was used by the investigation ...”

On 25 December 2001 the applicant brought a complaint to the prosecution in connection with the above interview, requesting to check the authenticity of the mentioned videotape and maintaining that the interview had violated his presumption of innocence. On 15 January 2002 the prosecution transferred the complaint to the Supreme Court of the Russian Federation. It appears that the complaint remained unanswered.

6. Annulment of registration and administrative supervision

In January 2002, following the applicant's conviction, a local police station annulled his residence registration (регистрация по месту жительства) at his flat in Moscow.

On 31 December 2002 the applicant's sentence expired and he was released. He submits that in order to restore the residence registration he had to submit to three years' police supervision as a former offender.

The court proceedings brought by the applicant regarding the alleged unlawfulness of these measures are now pending before domestic courts.

B. Relevant domestic law

Liability for disclosure of State secrets

For a summary of relevant provisions of the Russian law on State secrets see Nikitin v. Russia (dec.), no. 50178/99, 13 November 2003.

Judges with special security clearance

Section 21 of the law on State secrets and section 2 of the Law “On additional safeguards of the social protection of judges and administrative staff of the courts of the Russian Federation” stipulate that the judges having security clearance are eligible for additional financial benefits. The scope of the benefits depends on the level of security clearance. The authority to fix specific amounts is delegated to the executive power.

Detention on remand and time-limits for trial

For a summary of relevant provisions of the Russian law on pre-trial detention and time-limits for trial see Panchenko v. Russia (dec.), no. 45100/98, 16 March 2004.

Mutual legal assistance between Russia and the South Korea

In accordance with federal law no. 41-FZ of 16 April 2001 “On ratification of the Agreement between the Russian Federation and the Republic of Korea on mutual legal assistance in criminal cases”, the Agreement came into force on 10 August 2001.

C. Relevant Council of Europe's documents

The Parliamentary Assembly's Opinion no. 193 (1996) on Russia's request for membership of the Council of Europe read, in its relevant part, as follows:

“10. The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into as spelt out in paragraph 7, and intends:

... xvii.  to revise the law on federal security services in order to bring it into line with Council of Europe principles and standards within one year from the time of accession: in particular, the right of the Federal Security Service (FSB) to possess and run pre-trial detention centres should be withdrawn...”

COMPLAINTS

1. Under Article 3 of the Convention the applicant complains about inhuman and degrading conditions of detention on remand, transport to and from the courthouse and confinement in the “stone hole” at the courthouse. He complains about inadequate medical assistance in detention, about the authorities' refusal to have his medical condition examined by a group of independent medical experts. He claims that officers of the secret services recorded him on video in the prison cell and used a high-frequency encoding device at the courtroom hazardous to his well-being. He submits that the interrogators blackmailed him threatening to prosecute his family, that the investigation of his criminal case was supervised by a subjectively biased military prosecutor, and that the pre-trial detention centre was run by the Russian secret service rather than the Ministry of Justice.

2. The applicant complains under Article 5 § 1 (c) of the Convention that his arrest in July 1998 was not justified because the investigation did not have sufficient reasons to believe that he could abscond.

3. The applicant complains under Article 5 §§ 2 and 3 of the Convention that he was interrogated as a suspect before the nature of the suspicion had been explained to him and that he had not been informed about the charge against him until 13 July 1998 when he was formally charged.

4. The applicant complains under Article 5 § 3 of the Convention that he was not brought before the prosecutor who authorised his detention.

5. The applicant claims that the excessive length of his detention on remand and the domestic courts' failure to review his applications for release speedily were incompatible with Article 5 §§ 3 and 4 of the Convention. He submits that his appeals against judicial decisions upholding his continued detention on remand were examined outside the time-limits set out in the domestic law and that some of them were only considered after his conviction had become final. Under this head the applicant also complains that the authorities refused his request to be released on licence and that he was not able to appeal against that decision to a court.

6. Under Article 6 § 1 of the Convention the applicant complains about irregularities in the course of the criminal proceedings against him. Firstly, he alleges a violation of the right to a fair hearing owing to “obvious inequality of arms” and admission of inadmissible evidence. Secondly, the court hearings were conducted in camera, although there was no need to exclude the public from the hearings when no classified information was examined. Thirdly, the length of the criminal proceedings was excessive. Fourthly, the trial bench comprised so-called “authorised” judges having security clearance and the military prosecutor was institutionally biased. The bench alleged included former FSB employees doubling as lay assessors. Finally, the trial court was not “established by law” because he should have been tried by a jury as required by Article 47 of the Russian Constitution.

7. Under Article 6 § 2 of the Convention the applicant complains that mass media and various State officials impaired his presumption of innocence by declaring him guilty before the conviction was final. Under this head the applicant also complains that he was dismissed from his position in the Ministry of Foreign Affairs on 3 August 1998.

8. The applicant complains under Article 6 § 3 (a) of the Convention that the authorities failed to inform him promptly of the nature and cause of accusation following the arrest on 3 July 1998.

9. The applicant complains under Article 6 § 3 (b) of the Convention about the lack of adequate facilities for the preparation of his defence. He indicates that his access to the bill of indictment was severely restricted; that he was only able to read the case-file with fettered hands; that his ability to prepare his defence was curtailed due to general conditions of his detention and transport from the pre-trial detention centre to the courthouse.

10. The applicant alleges under Article 6 § 3 (c) of the Convention that between 8 and 15 July 1998 the investigation imposed on him a dishonest and partial lawyer who put pressure on him to confess. Furthermore, throughout the trial his communication with his lawyers was possible on the basis of permits valid for one visit only and censorship of his correspondence breached confidentiality of his lawyer-client communication. Moreover, neither he nor his lawyers had proper access to their notes taken during the trial.

11. The applicant complains under Article 6 § 3 (d) of the Convention that he was not able to examine witnesses against him and obtain the attendance of witnesses on his behalf.

12. Under Article 7 of the Convention the applicant complains that the law in his case was applied retrospectively because at the time of the commission of offences there had been no list of classified information established by law. The applicant also alleges that the expert study which established the classified nature of the information was unlawful because it was based on unpublished legal acts.

13. Invoking Article 8 of the Convention, the applicant claims that the night search of his apartment on 3 July 1998 was not in accordance with the law and arbitrary. Wiretapping and surveillance of his private life from 1992 to 1994 during his stay in Korea were unlawful and violated his right to respect for private life. The detention facility administration censored his correspondence and he was not able to see his family. In respect of the events following his release, he complains that the police cancelled his residence registration in Moscow and made him subject to three years' special police supervision.

14. Finally, the applicant complains that from 8 November 2000 to 10 April 2001 the court withheld permission to forward his power of attorney to his wife, for lodging an application with the Court.

THE LAW

I. ARTICLE 3 OF THE CONVENTION

The applicant complained under Article 3 of the Convention that the conditions of detention in the Lefortovo facility, conditions of transport between the detention facility and the courthouse, conditions of his confinement in the Moscow City Court and the conduct of investigators and facility officers had been in breach of Article 3 which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Conditions of the applicant's detention in the Lefortovo facility

The applicant complained that the conditions of his detention in the Lefortovo facility had been inhuman and degrading. He also alleged that the medical assistance at the facility had been inadequate.

Submissions by the parties

The Government submit that an inquiry carried out by the Prosecutor General's office did not establish any violations of the applicant's rights under Article 3 of the Convention as regards the conditions of detention in Lefortovo. They also indicate that, according to the information of the Federal Security Service of the Russian Federation, the applicant did not complain about the conditions of detention or any unlawful actions on the part of the facility administration.

The applicant accepts that the conditions of detention in Lefortovo were slightly better than in other detention centres, but still they fell short of “the standards of humanity”. He submits that the cell area per detainee was insufficient, that the toilet offered no privacy, that the lighting was dull, and that he had to get food and personal hygiene items from the facility shop or from his wife. He further alleges that no medical consultation with a specialist doctor was available, that he never had a preventive medical examination for his age-related and latent diseases and that other examinations were formal and superficial. The applicant also complains that the subordination of the Lefortovo detention centre to the Federal Security Service is contrary to the rule of law and to the principle of separation of the penitentiary system from investigative authorities, as the head of the Lefortovo detention centre was also the head of the FSB Investigations Department. As regards the exhaustion requirement, the applicant indicates that his wife and his lawyers repeatedly complained about the lack of adequate medical assistance to the courts and supervising prosecutors.

The Court's assessment

As regards the exhaustion of domestic remedies, the Court reiterates that the only remedies which must be tried under Article 35 § 1 of the Convention are those that relate to the breaches alleged and which at the same time are available and adequate. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66; Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V). The burden of proof is on the Government to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI).

In the present case the Government have not indicated any specific remedy which the applicant allegedly failed to exhaust. Nor have the Government demonstrated what redress could have been afforded to the applicant by the domestic authorities, taking into account that the problems arising from the conditions of his pre-trial detention were apparently of a structural nature and did not only concern his personal situation (cf. Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001). The Court therefore finds that this complaint cannot be rejected for failure to exhaust domestic remedies.

The Court considers, in the light of the parties' submissions, that this part of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Conditions of the applicant's transport to and from the courthouse

The applicant complained that he had been transported in a prison van to and from the Moscow City Court in inhuman and degrading conditions.

Submissions by the parties

The Government submit that the applicant was always transported alone, in the solitary confinement cell of the prison van on the basis of a written request of the facility administration in order to prevent him from communicating with other detainees (a copy of the request has not been provided to the Court). The applicant was provided with a dry ration for the entire duration of transport. According to the Government, the conditions of the applicant's transport were compatible with Article 3 of the Convention. In any event, he never complained about these conditions to the Ministry of the Interior of the Russian Federation.

The applicant indicates that he was transported to the courthouse more than 150 times. The applicant challenges the Government's description of the conditions of transport as factually inaccurate: in his view, the Government described the conditions as they should have been in accordance with all applicable regulations rather than as they actually were. Contrary to the Government's assertion, he was usually placed in a general cell with up to 18 other detainees who stood or sat on one another's lap. Even when he was confined in the tiny solitary cell, he had to share it with another person and they took turns sitting on each other's lap. He was never transported alone and he could not be isolated from others because the van was so overcrowded. As a result, each detainee, including himself, only had 0.15 to 0.26 sq. m of the floor space. The applicant was never provided with any food or given access to the toilet during the transport. The ventilation was insufficient and it was stiflingly hot in summer. In winter there was no heating while the engine was not running, and the applicant was kept for hours in the chillingly cold van at assembly points. The applicant refers to the Court's findings in the Barberà, Messegué and Jabardo v. Spain case (judgment of 6 December 1988, Series A no. 146, § 70).

The Court's assessment

As regards the exhaustion of the domestic remedies, the Court notes the Government's submission to the effect that the applicant should have complained about unsatisfactory conditions of transport to the Ministry of Justice. However, they omitted to indicate what redress he could have been afforded as a result of such complaint. In any event, the Court notes that, having repeatedly filed complaints about the conditions of transport with the prosecutor's office, the administration of the detention facility and the trial judge, the applicant made the Russian authorities sufficiently aware of the existing problems and gave them an opportunity to examine the issues raised and, if appropriate, to remedy the situation. The Court therefore finds that this complaint cannot be rejected for failure to exhaust domestic remedies.

The Court considers, in the light of the parties' submissions, that this part of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Conditions of the applicant's confinement at the courthouse

The applicant complained that he had been confined to a “stone hole” at the convoy premises of the Moscow City Court in breach of Article 3.

Submissions by the parties

The Government submit that the applicant was held alone in a standard convoy cell of the Moscow City Court in order to prevent him from communicating with other defendants. Apart from standard convoy cells, there were no other cells or “stone holes” in the convoy premises of the court. In the Government's view, there was no violation of Article 3 as regards the conditions of the applicant's confinement.

The applicant confirms that the term “stone hole” («каменный стакан») was the vernacular for the convoy cells at the courthouse, so nicknamed because their floor and walls were covered with concrete and their height was almost twice as much as their width or depth. The applicant challenges the Government's description of the confinement conditions as factually inaccurate. He was never alone in the convoy cell and occasionally he had to share it with a consumptive inmate. The cell was dirty, poorly lit, excessively hot and with no ventilation. He did not receive any food and he could not answer the needs of nature. On many occasions he spent up to 15 hours in the convoy cell, without having ever been summoned to a hearing. He indicates that these conditions were in no way extraordinary but rather typical for all Moscow courthouses.

The Court's assessment

The Court considers, in the light of the parties' submissions, that this part of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Other complaints under Article 3 of the Convention

Finally, the applicant alleged that the intimidating behaviour of the investigators, the use of a high-frequency device in the courtroom, the use of a video recorder to film him in the cell, and the supervision of the investigation by a military prosecutor amounted to inhuman and degrading treatment on the part of the authorities.

The Court reiterates that the absolute prohibition of degrading or inhuman treatment enshrined in Article 3 applies when a “minimum level of severity is attained” (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII). While the Court sees no reason to doubt the applicant's contention that the circumstances complained about were a source of significant distress for him, it considers that they would not cause the applicant suffering or humiliation of such intensity as to constitute “inhuman or degrading” treatment within the meaning of Article 3.

It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. ARTICLE 5 OF THE CONVENTION

The applicant complained under Article 5 §§ 1 (c), 2 and 3 of the Convention that his arrest in July 1998 and placement in custody had not been “lawful” because he had not been informed of the suspicion against him and because the prosecutor had authorised the detention in his absence. Invoking Article 5 §§ 3 and 4 of the Convention, he complained about the unreasonably long period of detention on remand and the domestic courts' failure to examine “speedily” his applications for release. Under the same provisions he also complained that the authorities had refused him release on licence. The relevant parts of Article 5 read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...”

A. Arrest and detention in July 1998

The applicant complained that his arrest and detention in July 1998 had not been “in accordance with a procedure prescribed by law” as required by Article 5 § 1 (c) and also in breach of paragraphs 2 and 3 of that Article.

Submissions by the parties

The Government submit that on 6 July 1998 a deputy Prosecutor General authorised the applicant's placement in custody. A copy of the decision was served on the applicant on the same day and he also received an explanation of the procedure for lodging an appeal against it. The applicant never lodged such an appeal. Subsequently, the applicant's detention on remand was lawfully extended up to 12 and 13 months.

The applicant maintains his claims as regards the unlawfulness of his arrest and placement in custody in July 1998. As regards the exhaustion requirement, the applicant submits that his lawyers raised these issues in their appeals of 15 June 2000 and 26 December 2001 against the convictions made by the first-instance court.

The Court's assessment

Insofar as the applicant complains under Article 5 §§ 1 (c), 2 and 3 about the circumstances surrounding his arrest and placement in custody in July 1998, the Court recalls that under Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. Normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.

The Court notes that the then effective Code of Criminal Procedure provided for a procedure by which arrest and detention of a person could be challenged to a court. The judge, by a reasoned decision, could either dismiss the challenge or quash the arrest warrant and order the person's release. The applicant does not contest that the procedure for lodging such an appeal was explained to him. However, he has not made use of this avenue and he failed therefore to exhaust domestic remedies. This conclusion is undisturbed even though substantially similar complaints were subsequently raised in the applicant's lawyers' appeals against his conviction lodged with the Supreme Court of the Russian Federation. The Court finds that the purpose of these proceedings was to rule on the applicant's guilt or innocence and the scope of review exercised by the Supreme Court was limited to the merits of the criminal charge against him. In these proceedings the Supreme Court had no competence to examine, or to afford redress for, alleged breaches of the Convention provisions unrelated to the determination of the criminal charge against the applicant, and these issues were accordingly treated as irrelevant and not addressed in the Supreme Court's judgment.

It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Length of detention on remand

The applicant alleged that he had been denied the right to trial within a reasonable time or to release pending trial in breach of Article 5 § 3.

Submissions by the parties

The Government maintain that the length of the applicant's detention on remand was in compliance with the RSFSR Code of Criminal Procedure.

The applicant submits that, in authorising subsequent extensions of his continued detention on remand, the domestic authorities generically referred to the gravity of the offence he was charged with and his potential to abscond or interfere with the establishment of the truth, without pointing to any factors capable of showing that the risks relied upon actually existed. It was not taken into account that he had strong social links, a permanent residence in Moscow, a stable family relationship and no criminal record and that his internal and diplomatic passports and all his savings had been seized. The applicant considers that the grounds invoked were not sufficient to justify holding him in custody for more than three years. What is more, the domestic authorities failed to display “special diligence” in the conduct of the proceedings.

The Court's assessment

The Court notes at the outset that the applicant was placed in custody on 3 July 1998 and his conviction was pronounced by the Moscow City Court on 14 August 2001. The Court further recalls that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI; Barfuss v. the Czech Republic (dec.), no. 35848/97, 7 September 1999). Accordingly, the applicant's detention from 16 December 1999, the date of his original first-instance conviction, to 25 July 2000, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5 § 3. The Court consequently finds that the period to be taken into consideration consisted of two separate terms, the first lasting from 3 July 1998 to 16 December 1999 and the second from 25 July 2000 to 14 August 2001, and amounted to two years, six months and three days in total.

The Court considers, in the light of the parties' submissions, that the complaint about the length of detention on remand raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Examination of the applicant's requests for release

The applicant complained under Article 5 § 4 that his appeals against the city court's decisions refusing his requests for release had not been considered “speedily” by the Supreme Court, if at all.

Submissions by the parties

The Government indicate that on 14 January 1999 the applicant's lawyer applied to the court for the applicant's release. On the following day the application was received by the Simonovskiy District Court of Moscow which returned it to the FSB Investigations Department because district courts had no facilities for processing classified information. On 22 January 1999 the appeal was forwarded to the Moscow City Court which considered it six days later. All subsequent applications were considered within the time-limit established in the domestic law.

The Government further note that the applicant and his lawyers applied to the Moscow City Court for his release on two (unspecified) dates. On 1 February and 4 June 1999 their applications were refused because the applicant was charged with an especially grave criminal offence and because he had a real opportunity to abscond or obstruct justice.

The applicant maintains his complaints. He indicates, in particular, that the merits of his appeals against the city court's decisions of 15 September and 1 December 2000 and of 16 April 2001 were not considered by the Supreme Court, and his appeals against city court's decisions of July 2001 were only examined by the Supreme Court on 26 September 2001, i.e. more than six weeks after his conviction had been pronounced.

The Court's assessment

(i) The Court notes that it can deal with this complaint only insofar as it concerns the proceedings that took place after 1 May 2000. As regards all earlier proceedings, the application was lodged more than six months after the final decisions in those proceedings had been made or after the events complained of had occurred (cf. Ilijkov v. Bulgaria, no. 33977/96, Commission decision of 20 October 1997), and this part of the complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(ii) Insofar as the applicant's complaint under Article 5 § 4 concerns his applications for release of 15 September and 1 December 2000 and 16 April 2001, as well as three applications lodged in July 2001, the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Request for release on licence

Finally, the applicant complained that the domestic authorities had refused his request for conditional release.

The Court recalls that the Convention does not confer, as such, the right to release on licence or require that parole decisions be taken by or subject to review by a court. A penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision is justified at the outset by the original conviction and appeal proceedings (see, as a recent authority, Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. ARTICLE 6 OF THE CONVENTION

The applicant raised a number of complaints under Article 6 of the Convention relating to the criminal proceedings against him. The relevant parts of Article 6 of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly... and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

A. Independence and impartiality of the court

The applicant complained that the trial court was not independent and impartial because the bench had comprised judges with special security clearance performed by the same agency that acted for the prosecution, i.e. the Federal Security Service. Furthermore, the prosecutor had been a military serviceman and not a civilian (public) prosecutor and the lay assessors had allegedly been former FSB employees. The applicant indicated that the bench had been replaced on many occasions without any reasons. He alleged that Judge Gubanova had been removed from the trial because she had been prepared to acquit him of the charges. In fact, she had not been ill at all and she had been back to work only a week later.

Submissions by the parties

(a) Special requirements for professional judges and lay assessors

The Government submit that the domestic law does not impose any special requirements on the composition of the bench in criminal cases involving classified information. Pursuant to section 21-1 of the law on State secrets, judges sitting in criminal cases involving classified information have access to such information without special clearance. They are required, however, to sign an undertaking not to disclose classified information and they are informed of potential liability in case of disclosure. The same undertaking has to be signed by lay assessors who sit in the case. The presiding judge drew lay assessors who would sit in the particular case by lot. The Government conclude that the trial court in the applicant's case was formed in accordance with the ordinary procedure and it cannot therefore be considered partial or not sufficiently objective.

The applicant submits that the security clearance of persons having access to information of special importance and top secret information is carried out by the Federal Security Service in co-operation with investigative agencies (Government Regulation no. 1050 of 28 October 1995). He takes note of the Government's admission that the judges (both professional and lay) having no security clearance could sit in criminal cases involving classified information upon signing an undertaking not to disclose it. However, his case-file only contained undertakings signed by lay assessors, but not those of the judge(s). He infers therefrom that the judges must have had permanent security clearance authorised by the Federal Security Service and that the bench in his case comprised a so-called “authorised” judge(s) instead of having been formed “in accordance with the ordinary procedure”, as the Government allege. Furthermore, he indicates that judges who have security clearance are entitled by law to financial benefits such as a salary increase by 10 to 25 percent, depending on the degree of security clearance.

(b) Changes in the composition of the bench

The Government submit that Judge Gubanova who had started hearing the case on 5 September 2000 was replaced after two hearings had been adjourned owing to her illness. On 29 November 2000 Judge Koval was assigned to the case as Judge Gubanova had been taken for in-patient treatment. According to available medical certificates, Judge Gubanova was ailing from 15 November 2000 to 18 January 2001. The Government state that they are not in a position to make comments about subsequent changes in the composition of the bench because the trial record does not indicate grounds for the changes.

The applicant submits that during the second determination of the charge the trial bench was changed on six occasions, including four replacements of presiding judges and two replacements of lay assessors (under presiding Judges Gubanova and Komarova). As regards Judge Gubanova, the applicant submits that she presided over 28 court sessions between 12 September and 13 November 2000. After all witnesses had been heard and all evidence had been examined and the court was ready to hear the defendant's concluding remarks and retreat for deliberations, Judge Gubanova was removed from the trial under the pretext of her illness. However, on 7 and 8 December 2000 the applicant's lawyers met her in the courthouse and talked to her; she appeared to be in perfect health. Furthermore, on 19 December 2000 she signed the trial record which fact also undermines the version of her persistent inability to perform her duties. The applicant alleges that Judge Gubanova was removed without any legal ground, pursuant to an (oral) instruction of the president of the Moscow City Court to Judge Koval made on 24 November 2000.

The applicant further submits that the trial court under Judge Koval held 22 sessions between 29 November 2000 and 10 April 2001. On the latter date the proceedings were adjourned until 13 June 2001. However, Judge Koval never came back to the trial because the case was reassigned on an unknown date and without any apparent reasons to Judge Medvedev. At the same time Judge Koval was sitting in another trial in the adjacent courtroom. The trial under Judge Medvedev only lasted for one day and was then adjourned for an indefinite time. Finally, on 20 July 2001 Judge Komarova stepped in to replace Judge Medvedev, but on 31 July 2001 the hearings had to be started de novo due to the replacement of a lay assessor.

The applicant submits that the Russian law lacks rules governing distribution of cases among judges. Selection and replacement of judges is a discretionary power of the president of the court and he or she is under no legal obligation to give grounds for substitutions and replacements. On the other hand, judges are fully dependent on the president as regards their career advancement and fringe benefits and they are reluctant to contradict his or her wishes. In the applicant's case, changes in the composition of the bench always came unannounced and no reasons were given. In the applicant's view, these arbitrary changes were motivated by the authorities' aspiration to obtain the conviction from an “obedient” bench and the trial court therefore lacked impartiality and independence.

The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Length of criminal proceedings

The applicant complained about the excessive length of the criminal proceedings against him.

Submissions by the parties

The Government submit that there were no periods of inactivity attributable to the judicial authorities. The Moscow City Court undertook measures to ensure thorough and comprehensive examination of the case and all adjournments were objectively justified. The applicant often lodged identical requests, such as challenges to the presiding judge and to the entire bench, challenges to the prosecutor, requests for appointment of public defenders, for taking of additional evidence, etc. The examination of his requests and motions was time-consuming. A certain period of time was also necessary to examine the applicant's comments to the trial record and to perform the exchange of statements of appeal between the parties. The Government contend that there was no intentional procrastination on the part of the trial court in the applicant's case.

The applicant disagrees. He submits that, under the domestic law, the pre-trial investigation was not to last longer than six months unless there were exceptional circumstances. Although no such circumstances were invoked in the orders extending the time-limits for pre-trial investigation, it lasted from 3 July 1998 to 2 August 1999, i.e. for one year and 29 days. The first hearing only took place on 11 October 1999, i.e. 48 days after the court had fixed it for 7 September 1999, and there was no hearing on 7 September 1999 because the judge went on “regular leave”. On 25 April 2000 the appeal proceedings were adjourned for one and a half months at the request of Ms Moskalenko, the applicant's lawyer. Still it took the domestic courts almost seven months to examine the first appeal. In the case of the second appeal the file was sent from the city court to the Supreme Court almost four months after the conviction had been pronounced and the examination of the second appeal lasted five months.

The applicant contends that arbitrary changes of the bench were, to a significant extent, responsible for delays because each substitution of the presiding judge or a lay assessor required an examination de novo. Relying on the Court's findings in Ilijkov v. Bulgaria (no. 33977/96, § 116, 26 July 2001), he notes that the delay caused by the substitution of a lay assessor on 31 July 2001 could have been avoided, had the court appointed a substitute lay assessor on 20 July 2001, as his defence had proposed.

The applicant indicates that the case was not complex because the last bench only needed nine court sessions held over a period of two weeks in order to make the judgment. As regards his challenges and requests, he refers to the Court's opinion that “people charged with criminal offences cannot be criticised for asking judicial officers... to investigate particular matters” (Reinhardt and Slimane-Kaïd v. France, judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, § 99). The applicant also submits that on 10 April 2001 he objected to an adjournment of the proceedings until 13 June 2001 for translation of documents from Korean as, in his opinion, such period was excessive for the translation of mere 50 pages.

The Court's assessment

The Court notes that the criminal proceedings against the applicant lasted from 3 July 1998 to 9 January 2002, i.e. for a total of three years, six months and six days. It considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

C. Lack of public hearing

The applicant complained that the trial in his case had not been public.

The Court recalls that Article 6 § 1 of the Convention provides for a possibility to exclude the press and public from the trial, in particular, “in the interests of... national security”. The Russian law contained a similar provision – Article 18 of the RSFSR Code of Criminal Procedure provided for public hearings in all cases “unless the interests of the protection of State secrets required otherwise”.

The Court finds, and it has not been contested by the parties, that the key issue of the trial was the determination of questions whether the applicant had transmitted certain information to an agent of a foreign power and whether the information at issue had contained State secrets. In these circumstances, the Court considers that the exclusion of the press and public was necessary for the prevention of further disclosure of sensitive information and the holding of the proceedings in camera was justified.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Trial by jury

The applicant complained that he was not tried by a jury, although such possibility was provided for in the domestic law – in particular, in Article 47 of the Russian Constitution – for cases such as his.

The Court reiterates that, even if in certain Contracting States trial by jury is an important element in ensuring fairness in the system of criminal justice, it is not an essential aspect of a fair hearing in the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention (see Callaghan and Others v. UK, no. 14739/89, Commission decision of 9 May 1989, Decisions and Reports (DR) 60, p. 296) The right to a jury trial cannot therefore be based solely on the provisions of the Convention or on the Convention organs' case-law.

As to the applicant's assertion that the right to a jury trial was guaranteed by the national legislation, the Court notes that Article 47 § 2 of the Russian Constitution does indeed give everyone charged with a criminal offence a right to a jury trial on the conditions stipulated by the federal law. However, at the material time the relevant parts of Article 47 had not yet entered fully into force and the pre-existing trial system applied (see Klimentyev v. Russia (dec.), no. 46503/99, 17 September 2002). It was therefore impossible to derive this right from the national legislation, either.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

E. Presumption of innocence

The applicant complained that the publications cited above had impaired his presumption of innocence as State officials had declared him guilty before the trial was completed. In this connection, he also complained about the decision on his dismissal from the Ministry of Foreign Affairs.

The Court notes, at the outset, that the scope of this complaint raised in the applicant's appeal against his conviction was substantially narrower than the scope of his complaint to the Court. In particular, in the appeal he did not mention Mr Putin's interview to the Komsomolskaya Pravda newspaper on which he relied heavily in his submissions to the Court. Even assuming, to the applicant's benefit, that he has exhausted domestic remedies, the complaint is, in any event, inadmissible for the following reasons.

The Court recalls at the outset that Article 6 § 2 prohibits the premature expression by the tribunal itself of the opinion that the person charged with the criminal offence is guilty before he has been so proved according to law, but it also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 41). The Court further observes that there is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person's guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject-matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large. Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000).

As regards the publications of 10 and 11 July 1998 in the Nevazisimaya Gazeta newspaper, their wording suggests that they were based on information received from unidentified South Korean sources. Furthermore, the second publication related the circumstances of the applicant's arrest as they had been perceived by the staff of the South Korean intelligence service. The statement published in the Izvestiya newspaper on 22 September 1998 emanated from the journalist himself. The Court observes that none of the above publications referred to any statements that could have been attributed to Russian public officials.

Insofar as the applicant complained about the book written by Mr Elizarov and published in June 1999, the Court observes that its author was a journalist and not a public official. Even though the preface to the book indicated that the FSB spokesperson had acted as an adviser, it is impossible to determine to what extent the impugned statements reflected the official view of the Federal Security Service or whether they were the view of the author himself. In any event, it is hardly conceivable that the book at issue, a quintessential example of light reading, could have had any perceptible impact on the trial judges.

It is true that Mr Putin made a passing remark about the applicant's case in his interview published on 9 July 1999. Although it could indeed be interpreted as an allegation that the applicant had worked for a foreign intelligence service, the statement appears to have been deliberately left open-ended in anticipation of the outcome of the pending judicial proceedings. The Court considers that there was nothing to suggest that Mr Putin prejudged the assessment of facts by the judicial authorities.

As regards the interview of 2 August 1999, the Court notes that it only concerned a dispute about the exact place where the applicant had been arrested and there were no statements that could be construed as a declaration of the applicant's guilt.

Finally, insofar as the applicant complained about the prejudice allegedly resulting from the dismissal order of the Ministry of Foreign Affairs, the Court recalls that dismissal for suspicion of criminal offences by a State employer does not involve the determination of a criminal charge and is not against the principle of the presumption of innocence, the matter relating to the employment and contractual sphere and not to the context of actual criminal proceedings (Isaacs v. the United Kingdom (dec.), no. 22393/93, 1 December 1993).

Having regard to the above considerations, the Court cannot conclude that the impugned publications could have caused any irreparable harm to the applicant's defence or in any other way prejudiced his chances of receiving a fair trial.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

F. Information on the accusation

The applicant complained under Article 6 § 3 (a) that in July 1998 he was not informed of the nature and cause of the accusation against him within the time-limits set out in the domestic law.

The Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole. In criminal matters the provision of full, detailed information concerning the charges against a defendant is an essential prerequisite for ensuring that the proceedings are fair. In this respect it is to be observed that Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him. Sub-paragraphs (a) and (b) of Article 6 § 3 are connected and the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused's right to prepare his defence (Pélissier and Sassi v. France [GC], no. 25444/94, § 51, ECHR 1999-II).

The Court observes that the applicant was formally charged with high treason on 13 July 1998. It has not been persuasively argued that the charge lacked sufficiently precise information related to the basic elements of the accusation against the applicant, namely the dates, places and context of his acts, or failed to invoke the relevant substantive provisions of the Criminal Code. Nor can it be said that the applicant was not in a position to understand the charges put forward against him. As regards the “promptness” requirement, the Court considers that the domestic time-limits cannot play a decisive part in the determination of compliance with it. What is important here is whether the required information has been furnished promptly enough so as to afford the applicant sufficient time to prepare his defence, the right enshrined in Article 6 § 3 (b). The Court notes this information on the accusation was brought to the applicant's attention within ten days of his arrest and at least one year before the opening of the trial. It deems that this time was sufficient to satisfy the requirements of Article 6 § 3 (a).

It follows that, insofar as the present complaint is distinct from the complaint under Article 6 § 3 (b) below, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

G. Preparation of the defence

The applicant complained under Article 6 § 3 (b) and (c) that he lacked adequate facilities for the preparation of his defence because he had not been given a copy of the indictment and had only been able to access it at the investigator's discretion, and because he had been handcuffed while reading the case-file at the Moscow City Court and had not been able to take notes when his right hand had been chained. He claimed that the appalling conditions of his detention, transport to the courthouse and confinement at the Moscow City Court had seriously impaired his ability to concentrate on the preparation of his defence. The applicant alleged that between 8 and 15 July 1998 he had been put under pressure to confess by a dishonest lawyer imposed by the investigator and that throughout the proceedings his lawyers had been required to obtain special permits to visit him and that an exchange of documents had only been possible through the facility administration. Finally, he applicant complained that neither he nor his lawyer had been able to access their trial notes stored at the courthouse.

Submissions by the parties

(a) Access to the bill of indictment

The Government submit that the bill of indictment was served on the applicant on 25 August 1999 and he signed for its receipt. The applicant could have access to the bill during the court sessions and at the facility. However, his request that he be given a copy of the bill to take with him to his cell was refused because the indictment contained classified information.

The applicant does not contest that he was permitted to read the bill of indictment. However, he claims that he never had it at his disposal. The bill was stored in the special department of the detention facility as a top secret document and the applicant had access to it upon written consent of the facility administration. He was also permitted to take notes using a special top secret notebook which was stored together with the bill. His lawyers had access to the bill of indictment only during court sessions.

(b) Legal representation

The Government submit that the applicant's defence was entrusted to four lawyers of his own choosing. These were Messrs Yu. Gervis and A. Yablokov and Mmes K. Moskalenko and K. Kostromina. They could visit the applicant in the detention facility without any restrictions on the frequency or duration of visits. There is no information showing that the Moscow City Court prevented the applicant from communicating with his lawyers because it did not impose any restrictions on the number of visits and granted permission to visit every time it was requested, except on one occasion: on 23 May 2001 Ms Moskalenko was refused permission as she did not provide the legal services office's authorisation (ордер) for the defence of the applicant's interests.

The applicant submits that he had no adequate legal assistance until 15 July 1998 when he retained Mr Gervis as his lawyer. He alleges that Mr Konoval (appointed as his defence counsel on 8 July 1998) was a classmate of the investigator from the Military Academy and that he induced the applicant to plead guilty and incriminate himself. Moreover, Mr Konoval was by no means a “free” counsel because the applicant's wife was asked to pay for his services, which she never did.

The applicant contends that during pre-trial investigation his lawyers were required to obtain consent of the FSB, i.e. the prosecuting authority, for each visit. The administration of the Lefortovo facility refused to recognise the validity of “multiple-use” permits obtained by Ms Moskalenko on 26 April and 4 May 2000 from the Supreme Court and threatened to prosecute her for forgery of documents. During the trial the judge also issued permits valid for one visit only. The judge refused three applications by Ms Kostromina for an unrestricted permit that was only granted on 10 January 2002, i.e. after the conviction had become final. The applicant indicates that he could only receive documents from his lawyers and pass his own documents to them upon the written consent of the Lefortovo facility administration. He notes that the Special Report of the Commissioner on Human Rights in the Russian Federation “On Implementation by Russia of its Obligations Undertaken when Joining the Council of Europe” condemned the practice of granting special permits for each meeting with a person detained in the Lefortovo facility controlled by the Federal Security Service as incompatible with the Russian law “On detention of persons accused or suspected of committing offences” (Moscow, 2002, pp. 19-20).

(c) Exchange of documents and correspondence

The Government submit that the applicant's complaints to prosecutors, courts and other State bodies were not subject to censorship and were immediately forwarded – by the facility administration – to the authority concerned. However, the applicant's correspondence with lawyers was subject to mandatory censorship by the facility administration, pursuant to section 20 of the law “On detention of persons accused or suspected of committing offences”.

The applicant reiterates that any exchange of documents between him and his lawyers was only possible through the facility administration and upon its written consent. The administration perused the documents before passing them on.

(d) Use of handcuffs and conditions for the preparation of the defence

The Government claim that the applicant was only handcuffed while he was led from the convoy premises of the Moscow City Court into the court room where he was put behind metal bars. During the court session the handcuffs were taken off.

The applicant maintains that the conditions of his transport to the courthouse and his confinement at the convoy premises were exhausting and affected his physical and mental faculties. The constant strain, accumulating fatigue, malnutrition and lack of sleep considerably diminished his ability to defend himself in an efficient manner. While in the court session, he was held in a metal cage with thick metals bars and a lock on the door, guarded by two armed wardens. He refers in this connection to the Fair Trial Manual by the Amnesty International: “Particular attention should be paid that no attributes of guilt are borne by the accused during trial... Such attributes could include holding the accused in a cell within the courtroom” (London, 1998, p. 88). Moreover, after the session he could only read the file in a contorted posture because he was chained to a table or chair by his hand. He could not take notes when chained by his right hand.

(e) Access to the case-file and trial notes

The Government make no comments on this aspect of the complaint.

The applicant claims that he was refused access to the originals of certain documents in the Korean language, while the case-file only contained their barely readable copies. His lawyers were required to store all case-related files, trial notes and copies of complaints at the special division of the Moscow City Court under the pretext that these documents were “top secret”. They did not have unrestricted access to these materials.

The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

H. Questioning of witnesses

The applicant complained under Article 6 § 3 (d) that the domestic courts had refused to obtain attendance and examination of additional witnesses, translators and experts.

Submissions by the parties

The Government submit that the applicant and his lawyers took part in court sessions and that they could put questions to witnesses. They further indicate that certain (unspecified) witnesses listed in the annex to the indictment were not summoned to the court owing to “objective reasons (long trips abroad, worsening health etc.)”. Their depositions taken at the stage of preliminary investigation were read out in accordance with Article 286 of the RSFSR Code of Criminal Procedure. The court also questioned additional (unspecified) witnesses at the applicant's request.

The applicant contends that the following witnesses were not called and examined before the court: Mr L.M., Mr Ir., Mr (or Ms)* Ma., Mr Ka., Mr (or Ms) N., Mr (or Ms) P., Ms T., Ms N.M., Mr (or Ms) Ye., Mr Ko., Mr C., Mr Al. and unnamed experts “from two expert teams”. Of those, he claims that he asked for the examination of Mr (or Ms) P., Ms T., Mr C., Mr Al. and the unnamed experts.

The applicant alleges that he filed several requests for examination of Mr C., the KCIA agent. His first request was refused on the ground that there was no agreement on mutual legal assistance between Russia and the Republic of Korea. After his defence produced the Russian law on ratification of that agreement, the court dismissed the new request as unsubstantiated. According to the applicant, the video recording of an examination of Mr C. by an FSB investigator appended to the case-file proved his innocence because Mr C. denied that he had received documents from the applicant or paid him money.

As regards the experts, the applicant concedes that during the pre-trial investigation Mr G., a specialist in Korean issues, was included in the expert panel at his request. However, during the second trial the court rejected his demand to carry out a new expert study into the classified nature of the transmitted information and to summon Mr G. for examination.

The applicant submits that the court failed to interview Mr Ko. and Mr (or Ms) Ye., the applicant's former co-workers in the Russian Embassy in Seoul who could have refuted “defamatory statements about his life and conduct in Seoul”, Mr L.M., the applicant's hierarchical superior, who had been questioned before several benches but not before the final one, as well as Mr (or Ms) P. and Ms T. who had been present during the search at the applicant's flat on 3 July 1998. The court did not call Mr Al. who had translated the intelligence information concerning the applicant from Korean and no documents showing his professional competence were produced to the court.

The applicant contends that the court did not examine Mr Ka. who was on a business trip in London and Mr Ir., citing his poor health. Elsewhere the applicant claims that it was Mr (or Ms) Ma. who was not questioned because of his (or her) trip abroad. He complains the court relied on the depositions by these witnesses given during the pre-trial investigation to establish that the applicant should have been aware of the fact that Mr C. had worked for the South Korean intelligence agency.

The Court's assessment

(a) The Court notes at the outset that the applicant's observations are inconsistent and unclear. In particular, he has not specified in respect of each witness whether he or she was a witness for the prosecution or for the defence and whether such witness did not appear at trial at all or merely before the final bench. The Court's analysis has been further complicated because of the applicant's consistent failure to indicate first and father's names of witnesses, whilst the judgments refer to them by their initials only and their last names indicated by the applicant are not sufficient for unequivocal identification. Accordingly, the Court will have to proceed from the available information and make certain assumptions.

The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which defendants seek to adduce. Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses. As regards witnesses on behalf of the applicant, it is accordingly not sufficient for him to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V). Only exceptional circumstances can prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, § 89). As regards witnesses for the prosecution, the Court has accepted on a number of occasions (see, among other authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194-A, § 34; Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, § 47) that it may prove necessary in certain circumstances to refer to depositions made during the investigative stage. However, where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Lucà v. Italy, no. 33354/96, § 40, ECHR 2001-II).

As the applicant placed Mr C. among the persons whom the trial court had refused to call to the witness stand, the Court will assume that Mr C. was a defence witness. The Court finds that the Russian courts cannot be held responsible for Mr C.'s failure to appear since they concluded that this was not possible because Mr C. was a South Korean national who had been declared persona non grata in Russia for activities incompatible with his diplomatic status and at the material time he was out of the jurisdiction of Russian courts. It recalls that impossibilium nulla est obligatio; it is clear that the applicant, in insisting on calling Mr C., was making a demand which it was materially impossible to satisfy (cf. Ubach Mortes v. Andorra (dec.), no. 46523/99, 4 May 2000). It is true that the agreement on mutual legal assistance between Russia and Korea had been signed in 1999, but it did not come into force until 10 August 2001, i.e. four days before the judgment was made. The Court therefore considers that the domestic courts' refusal to obtain attendance of Mr C. did not, in the circumstances of the case, violate the rights of the defence or deprive the applicant of a fair trial.

As regards the questioning of experts, the Court observes that the applicant's submissions are vague and lack crucial details such the number of experts on the panel(s) that performed the analysis of documents and their names. The applicant has conceded, however, that he was able to nominate at least one expert of his own choosing – apparently Mr G. – to the panel. It has not been argued that the applicant had not been in a position to put additional questions to the expert panel in accordance with the procedure established in the domestic law (Article 185 § 3 of the then Code of Criminal Procedure). It appears that Mr G. took part in the analysis and signed the expert report which was produced to the trial court. Accordingly, the Court does not find it established that the subsequent refusal of the trial court to call Mr G. as a witness prejudiced the defence rights or rendered the proceedings unfair (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, § 46). In any event, the Court recalls that the right to a fair trial does not require that a national court should appoint, at the request of the defence, further experts when the opinion of the court-appointed expert supports the prosecution case (ibid.).

As far as it can be ascertained from the applicant's vacuous comments, Mr L.M., Ms N.M., Mr Ko. and Mr (or Ms) Ye. were also witnesses on his behalf whose attendance he requested. The Court notes that, apart from an unsubstantiated assertion that those witnesses could have “refuted defamatory statements” by the prosecution and proved his innocence, the applicant did not explain in sufficiently precise terms what would have been the usefulness of examining them in the circumstances of the case. It follows that there were no exceptional circumstances warranting the conclusion that the domestic courts' refusal to hear these witnesses was incompatible with Article 6.

The applicant also complained about the courts' refusal to obtain the attendance of Mr Al. whom the trial court had assigned to translate the documents from Korean and whose translation the applicant considered insufficiently accurate, at least in part. The applicant did not explain what could have been the benefit of Mr Al.'s examination. In this connection the Court notes that the applicant, a fluent Korean speaker himself, was not prevented from contesting the accuracy of the translation and expanding on his objections. It also transpires from the judgment that the trial court did not turn a deaf ear to his arguments and took oral evidence from the witness “M.” who also mastered the Korean language and elucidated the meaning of the contentious point of the translation. The Court further observes the applicant's allegation about the court's failure to verify Mr Al.'s credentials is self-contradictory because elsewhere in his submissions he claimed that he had objected to Mr Al.'s nomination precisely because of his past employment history with the Military and Diplomatic Department of the “Novosti” state information agency.

The Court will next examine the part of the complaint which appears to relate to witnesses for the prosecution.

It follows from the judgment that a witness identified as “K.G.B.” stated at the pre-trial investigation that most documents prepared within the Ministry of Foreign Affairs contained sensitive information and were not to be communicated to foreign states. It further appears that witnesses identified as “M.A.I.” and “I.A.T.” confirmed to the investigators that the applicant had had access to documents which had been of interest for South Koreans and that he should have been aware of Mr C.'s link to the South Korean intelligence service. The domestic courts did not examine these persons because “K.G.B.” (Mr Ka.) and “M.A.I.” (Mr or Ms Ma.) were abroad and “I.A.T.” (Mr Ir.) was unwell.

The Court notes that the evidence produced by these witnesses was circumstantial. It also takes into account that the depositions by Mr (Ms) Ma. and Mr Ir. appear to have been corroborated by their colleague “T.G.D.” who was called on to testify before the trial court and whom the applicant had an opportunity to cross-examine. In any event, it cannot be said that the applicant's conviction was based on their statements to a decisive or significant extent. Furthermore, the Court finds no appearance of negligence on the part of the domestic authorities in their attempts to ensure the attendance of these persons before the trial court (cf. Artner v. Austria, judgment of 28 August 1992, Series A no. 242-A, § 21). Under these circumstances the Court considers that the failure to obtain attendance of the above persons did not prejudice the applicant's right to a fair trial.

It follows that this complaint in the part concerning all of the above witnesses is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) Insofar as the applicant complained about the domestic courts' failure to examine other witnesses, including Mr P., Ms T. and Mr (or Ms) N., the Court notes that the complaint concerning these witnesses was for the first time raised in the applicant's reply of 27 February 2004 to the Government's observations on the admissibility and merits of the application. In the relevant part of his application form of 1 November 2000 with supplements of 7 February 2002, on the basis of which the application was communicated to the respondent Government, these witnesses were not identified by their name or otherwise. However, the final judgment in the applicant's case was delivered on 9 January 2002, i.e. more than six months before the complaint concerning these witnesses was made.

It follows that this part of the complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see A. v. Finland (dec.), no. 44998/98, 8 January 2004).

I. Other issues under Article 6

Lastly, the Court has examined the remainder of the applicant's complaints under Article 6 as submitted by him.

However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. ARTICLE 7 OF THE CONVENTION

The applicant complained under Article 7 of the Convention that his conviction had been based on unforeseeable and retrospective application of the law because at the time when he had committed imputed offences there had been no statutory list of State secrets. The relevant part of Article 7 reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed...

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Submissions by the parties

The Government submit that the offence imputed to the applicant was correctly characterised under Article 275 of the Criminal Code of the Russian Federation (“the new CC”) as the applicant had committed offences between early 1994 and 3 November 1998, i.e. even after the Criminal Code of the Russian Federation entered into force on 1 January 1997. They further indicate that the domestic courts correctly applied the new, more lenient Criminal Code that provided – in case of high treason – for longer prison terms but not for capital punishment.

The applicant disagrees. He claims that the prosecution failed to prove that he had had direct intent to undermine the security of the Russian Federation. He alleges that Article 275 of the new CC was applied retrospectively because the new CC only entered into force on 1 January 1997, while he had not been charged under Article 64 of the old Criminal Code. Moreover, the punishment under Article 275 was more severe than that under Article 64 because the terms of imprisonment were longer.

The applicant further contends that Article 275 does not clearly define the terms “espionage” and “collecting... of other information” and therefore its application was not foreseeable. Also, until 6 October 1997 the Russian law on State secrets did not contain the list of information constituting State secrets. Such list was only ratified in the Government resolution of 18 September 1992 and the President decree of 21 July 1993, neither of which had the quality of “law” in the meaning of Article 29 § 4 of the Russian Constitution. Accordingly, between 12 December 1993 when the Constitution was adopted and 6 October 1997 when the law on State secrets was amended there existed a legal lacuna and no information could be legitimately classified as State secret. The applicant relies on the case-law on the Russian Constitutional Court and on the Supreme Court's decision of 17 April 2000 acquitting former naval officer Nikitin of espionage for Norway (see Nikitin v. Russia, no. 50178/99, judgment of 20 July 2004, § 16). The applicant claims that in his case the expert panel determined the classified nature of the transmitted information on the basis of unpublished orders of the Ministry of Defence and Ministry of Foreign Affairs. Moreover, as regards the list of the Ministry of Foreign Affaires approved on 5 August 1996, the experts applied it retrospectively to determine the classified nature of five documents that had come into existence before the list.

The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

V. ARTICLE 8 OF THE CONVENTION

The applicant complained under Article 8 of the Convention about his supervision in 1992-1994, about a night search on 3 July 1998, about restrictions on family visits and correspondence in the Lefortovo facility and about the annulment of his residence registration. Article 8 reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Search of 3 July 1998

The applicant complained under Article 8 about the allegedly unlawful night search at his home on 3 July 1998 and seizure of personal effects.

The Court will first examine whether the applicant exhausted domestic remedies in respect of this complaint. It notes that Articles 218 and 220 of the then Code of Criminal Procedure – as interpreted by the Constitutional Court of the Russian Federation on 23 March 1999 – provided for a judicial avenue for claims concerning, in particular, alleged interference with the aggrieved person's constitutional right to respect for his or her home. The applicant was represented by three professional lawyers with extensive litigation experience in criminal matters who should have been aware of that venue of appeal. However, they have not made use of it. It is true that the applicant's lawyers subsequently mentioned the alleged unlawfulness of the search and seizure in their appeals against the conviction lodged with the Supreme Court of the Russian Federation. In this connection, the Court reiterates – as it has already noted above – that the scope of review exercised by the appeal court was limited to the matters pertinent to the determination of the criminal charge against the applicant. The issues relating to the lawfulness of the search and seizure could have been relevant for the determination of admissibility of the evidence obtained through the search and assessment of the fairness of the trial as a whole. However, in these proceedings the Supreme Court had no competence to examine, or to afford redress for, alleged breaches of the applicant's right to respect for his home.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Surveillance in 1992-1994

The applicant complained under Article 8 of the Convention about wiretapping and surveillance of his private life during his stay in South Korea between 1992 and 1994.

The Court notes that these events took place before 5 May 1998 which is the date of ratification of the Convention by the Russian Federation.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

C. Restrictions on family visits and correspondence

The applicant complained under Article 8 of the Convention about severe and unlawful restrictions on his correspondence and visits by his family members while in detention.

Submissions by the parties

The Government submit that during the pre-trial investigation the investigators “reasonably restricted” visits by the applicant's relatives, pursuant to section 18 of the law “On detention of persons accused or suspected of committing offences”. In the subsequent periods the applicant's relatives could visit him “on a regular basis”.

The applicant claims that he was not permitted any family visits for the first nine months and six days following his arrest on 3 July 1998. In the subsequent periods visits were limited in number and time: he was permitted two visits a month lasting one hour only, each time he was separated from his wife or daughter by bars and a glass partition and he could talk to them on an interphone in the presence of a warden. Furthermore, in accordance with the established administrative practice of the Supreme Court, he was not permitted any family visits from 3 March to 5 September 2000 and from 7 December 2001 to 10 January 2002, while the appeals against the conviction were examined.

The applicant further alleges that his incoming and outgoing correspondence was censored. Moreover, he was permitted to keep incoming letters for 24 hours only. In addition, the facility administration restricted the number of photos that his relatives could pass on to him and he was not allowed to keep more than two photos in the cell.

The applicant considers that the restrictions imposed were not predicated on any domestic law and, in any event, they were disproportionate.

The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D. Annulment of residence registration

The applicant complained under Article 8 of the Convention about the police department's decision to cancel his residence registration.

Even assuming that the contested decision amounted to an interference with the applicant's rights under Article 8 of the Convention, the Court observes that the judicial proceedings concerning that decision are pending. The applicant has therefore ample opportunities to raise his grievances in these proceedings.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

VI. ARTICLE 34 OF THE CONVENTION

The applicant alleged a hindrance to his right of individual application enshrined in Article 34 of the Convention in that the Moscow City Court had withheld permission to forward his power of attorney for lodging the application with this Court. Article 34 reads as follows:

“The Court may receive applications from any person... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

Submissions by the parties

The Government concede that on 24 January 2001 the applicant's wife was refused permission to receive a power of attorney from the applicant. However, her similar request of 10 April 2001 was granted on the same day and she countersigned for the receipt of the document. In the Government's view, it was open to the applicant to send his application to this Court directly through the facility administration, whilst it was not the function of Russian courts to receive or hand over powers of attorney from defendants to third parties.

The applicant submits that it took the applicant's wife five months to receive his power of attorney from the Moscow City Court. He condemns the Government's assertion that he could have sent the application through the facility administration as “humiliating” and “outright disrespect of the Convention”, without elaborating any further.

The Court's assessment

The Court notes at the outset that, whilst the effective exercise of the right of individual petition under Article 34 of the Convention may indeed require professional legal assistance for drafting of an application, this is certainly not the case with the preparation of a power of attorney. The standard form used by the Court is a simple one-page document and the applicant, a highly educated individual, should have been able to fill in correctly himself, without his lawyers' advice. Even though he wrote “International Protection Centre” instead of the name of his representative as the form suggested, the validity of the power of attorney was not contested by the respondent Government. At the applicant's request the document was certified by the facility administration, although neither the Convention nor the Rules of Court require any form of certification of that document.

As regards the subsequent events, the Court notes that the applicant omitted to explain why he had asked the facility administration to have the power of attorney delivered to his wife who was neither a professional lawyer nor the person designated in the document. It does not appear that he was prevented from sending it to this Court or from having it delivered to his lawyers or – for that matter – that he attempted to do so. Furthermore, the Court observes that the applicant's submissions contain at least two other powers of attorney: one issued to the applicant's wife on 12 May 2000 (certified by the facility administration) valid for, in particular, “representation of [the applicant's] interests before all judicial bodies” and another one, prepared on the Court's standard form, issued to Mr Peukert on 7 January 2001. It was not explained why these powers of attorney were not deemed sufficient to complete the applicant's application to this Court.

It follows that the allegation of hindrance is not made out and no further examination of it is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning:

(a) the conditions of his detention in the Lefortovo facility, transport to and from the courthouse, and confinement at the courthouse;

(b) the length of his detention on remand;

(c) availability and speediness of judicial review of his applications for release as regards the proceedings in 2000 and 2001;

(d) fairness of the trial and the alleged lack of independence and impartiality of the trial court;

(e) the length of the criminal proceedings;

(f) the restrictions on communication with lawyers and on access to the indictment, case-file and trial notes;

(g) foreseeability and retrospectivity of application of regulations on State secrets;

(h) the restrictions on the applicant's correspondence and family visits in the Lefortovo detention facility;

Decides not to pursue the allegation of hindrance under Article 34;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

* Kissel is a sauce-like sweet drink, usually made with one or more red fruits (berries or plums).


* The applicant often failed to indicate whether the witness was male or female. Assumptions are made only in the cases where the witness had a typical Russian gender-sensitive last name.


MOISEYEV v. RUSSIA - COMMUNICATED CASE


MOISEYEV v. RUSSIA - COMMUNICATED CASE