The decision of the ECHR of December 01, 2020 in the case "Danilov v. the Russian Federation (Danilov v. Russia)" (aplication No. 88/05).
In 2005, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to the Russian Federation.
In the case, an aplication was successfully considered about the lack of sufficient procedural guarantees for the participation in the trial of jurors who have access to information related to state secrets and who work in the same investigative body that conducted the investigation of the applicant's case. The case involved a violation of the requirements of paragraph 1, subparagraph " d " of paragraph 3 of article 6, article 38 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, a well-known physicist, was accused of high treason in the form of disclosing secret information related to space exploration to a foreign State. The applicant unsuccessfully filed complaints, inter alia, related to the bias of some jurors who had access to information constituting a State secret, as well as the applicant's own lack of opportunity to question the experts who prepared the conclusions used as evidence by the prosecution.
(a) With regard to compliance with article 6, paragraph 1, of the Convention: the impartiality of jurors who had access to information constituting a State secret. The applicant's complaints concerning the jurors who had access to information constituting a State secret did not contain allegations of subjective bias of the jurors and, therefore, should have been considered according to the rule of objective impartiality.
The applicant and the authorities of the Russian Federation disagreed on the assessment of the probability that four of the 12 selected jurors (one third) who had access to information relating to State secrets could have been chosen at random. The European Court considered it doubtful that such a significant part of the population of the Russian Federation, to the extent that the jury may represent residents of the country, could have access and, as a result, access to information related to state secrets.
The applicant's complaint that his case was considered by persons who had access to information relating to State secrets did not concern the absence of a general prohibition in the legislation on the performance of jury duties by these persons, but rather the participation of these assessors in the applicant's specific case. Since the applicant was charged with high treason for disclosing information constituting a state secret, his case was investigated by the FSB of Russia. Persons who have access to information constituting a state secret, which is necessary for holding certain positions, had to pass a certain check carried out by the FSB of Russia. In addition, the FSB of Russia constantly monitors persons who have access to information related to state secrets and their compliance with the obligation not to disclose it. Having access to information that constitutes a state secret does not automatically mean that there is no impartiality. However, taking into account the fact that the applicant was charged by the FSB of Russia with high treason in the form of disclosure of information constituting a state secret, the applicant's fears that the jurors who had access to information constituting a state secret could at least to some extent be influenced by biased conclusions appear to be sufficiently justified for them to be carefully considered by the relevant court.
However, the applicant's objections regarding the examination of his case by jurors who have access to information constituting a state secret were rejected in general terms, without taking into account the nature and subject of the trial, solely on formal grounds (namely, due to the fact that the legislation of the Russian Federation did not contain provisions that the presence of a person with access to information relating to a state secret prevents this person from performing the duties of a juror). Thus, the courts of the Russian Federation did not take sufficient measures to ensure that the court in the applicant's case was an impartial court within the meaning of article 6 of the Convention, and did not provide sufficient guarantees to eliminate any doubts in this regard.
As a result, the applicant's doubts about the impartiality of the composition of the court in his criminal case were objectively justified, taking into account the participation in his case of jurors who had access to information related to state secrets, and these doubts were not eliminated by any procedural guarantees.
The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention (adopted unanimously).
(b) Regarding compliance with article 6, paragraph 3, paragraph 1 and subparagraph (d) of the Convention: cross-examination of experts. The term " witness "within the meaning of subparagraph" d " of paragraph 3 of article 6 of the Convention has an independent meaning and also includes expert witnesses. However, the role of an expert should be distinguished from the role of a witness who informs the court of his personal perception of a particular event. In this regard, when considering whether the personal presence of an expert in court was mandatory, the European Court is primarily guided by the principle enshrined in the concept of "fair trial" under Article 6, paragraph 1, of the Convention, and, in particular, by the guarantees of the principles of "adversarial process" and "equality of the parties". Thus, some of the approaches of the European Court to the personalities of "witnesses" in accordance with subparagraph "d" of paragraph 3 of Article 6 of the Convention are undoubtedly relevant for the study of expert testimony and can be applied, mutatis mutandis, with due attention to the differences in the statuses and roles of the mentioned witnesses (see the Decision of the European Court in the case "Avagyan v. Armenia" (Avagyan v. Armenia) of November 22, 2018, complaint No. 1837/02, the Decision of the European Court in the case "Khodorkovsky and Lebedev v. the Russian Federation (No. 2)" (Khodorkovsky and Lebedev v. Russia) (N 2) of January 14, 2020, complaints N 51111/07 and 42757/07 (See: Russian Chronicle of the European Court of Justice. 2020. N 4)).
In the present case, 10 experts prepared eight expert opinions at the request of the prosecution during the preliminary investigation, and these conclusions were first referred to by the prosecution when drawing up the indictment, and then by the court when passing a verdict in the case.
The expert opinions concerned not only technical issues, but also whether the relevant information was information constituting a state secret. The Court of the second instance noted that the nature of the information (if it related to a State secret) was one of the two key elements of the crime "high treason by disclosing information constituting a state secret", of which the applicant was accused. In addition, the court of second instance decided that this issue was legal in nature and, therefore, was not subject to a jury decision. In addition, according to the legislation of the Russian Federation, the grounds for qualifying information as information constituting a state secret could only be formulated by experts. Thus, the expert opinions were of fundamental importance for the case in which the applicant was found guilty of high treason by disclosing information constituting a State secret.
Although the applicant was notified that expert opinions were requested and he had the opportunity to get acquainted with them, he could not ask the experts additional questions, propose alternative candidates for experts or participate in expert studies and accompany them with his comments, as guaranteed by the applicable norms of the legislation of the Russian Federation. The applicant was also deprived of other opportunities to meet with the mentioned expert witnesses and challenge their reliability and their conclusions made during the preliminary investigation.
In such circumstances, the court of first instance had to carefully consider the defense's request to interrogate the mentioned experts at the court session. Instead, the presiding judge decided that there was no need to hear the testimony of experts at the court session, since their written conclusions were sufficiently clear and the judge did not need additional explanations or information from the experts. Even if there were no obvious contradictions in the expert opinions, the examination of experts in court could reveal a possible conflict of interests, the lack of sufficient materials at the disposal of experts or shortcomings in the research methods used (see the Decision of the European Court in the case "Khodorkovsky and Lebedev v. Russia" (Khodorkovsky and Lebedev v. Russia) of July 25, 2013, complaints N 11082/06 and 13772/05 (See: Russian Chronicle of the European Court. 2015. N 1)).
The applicant's doubts about the reliability of the experts and the reliability of their conclusions were not without grounds. On three occasions, the court of first instance returned the applicant's case for further investigation or elimination of violations due to unresolved issues related to expert opinions and their use for drawing up an indictment in the applicant's case. In addition, the experts did not have relevant or sufficient qualifications in the relevant field of physics. In conclusion, the applicant tried several times to draw the attention of the courts of the Russian Federation to alternative opinions of leading scientists, which confirmed the applicant's position that the information disclosed by him did not belong to a state secret.
At the same time, there were no valid reasons why the experts were not given the opportunity to give evidence in court, at least in private, and to allow the applicant to interrogate these witnesses.
As a result, the refusal to allow the applicant to interrogate expert witnesses, whose conclusions were subsequently used against him, could significantly affect the applicant's right to a fair trial, in particular, the guarantees of "adversarial process" and "equality of the parties".
The case involved a violation of the requirements of subparagraph " d " of paragraph 3 of article 6 of the Convention (adopted unanimously).
The European Court also found a violation of Article 38 of the Convention in connection with the failure of the authorities of the Russian Federation to provide the documents requested by them.
In the application of article 41 of the Convention. The European Court awarded the applicant 21,000 euros in compensation for non-pecuniary damage.