Постановление Европейского суда по правам человека от 22.10.2009 "Дело "Пасько (Pasko) против Российской Федерации" [рус., англ.]

ticle 10 of the Convention. Having regard to its findings under this latter provision, the Court considers that it is unnecessary to examine those complaints separately.

FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been no violation of Article 10 of the Convention;
2. Holds unanimously that the applicant's complaints under Article 7 of the Convention raise no separate issue.

Done in English, and notified in writing on 22 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Giorgio Malinverni is annexed to this judgment.

C.L.R.

S.N.

DISSENTING OPINION OF JUDGE MALINVERNI

1. Unlike the majority, I am of the opinion that there has been a violation of Article 10 in respect of the period between 11 September and 8 October 1997. The Court should have strictly interpreted the requirement of Article 29 § 4 of the Russian Constitution and held that in the absence of a federal statute complying with that requirement, there was no proper basis in domestic law for the applicant's conviction.
2. The reasons why I have serious doubts that the State Secrets Act in its original version, taken alone, could be regarded as a legal basis for the applicant's conviction are the following.
3. Firstly, the Supreme Court of Russia, in its decisions on appeal in the cases of Nikitin and Moiseyev of 17 April and 25 July 2000 respectively, noted that the requirements of Article 29 § 4 of the Russian Constitution had been met only after the amendments of 6 October 1997 were made to the State Secrets Act (see paragraphs 46 and 47). Moreover, the fact that on 30 October 1995 the Russian President enacted Decree No. 1203 on the List of Information classified as State Secrets suggests that the Russian authorities acknowledged the existence of a legal lacuna in this field.
4. As regards Presidential Decree No. 1203, it is true that this document, officially published and publicly available, established the list of information classified as State secrets. Nevertheless, I am not convinced that the relevant constitutional requirements were met by the enactment of this legal instrument, given that Article 29 § 4 of the Russian Constitution clearly referred to "a federal statute" - a legal act adopted by the national parliament as the result of a legislative process - rather than any enactments of lower rank such as presidential or governmental decrees. The fact that the necessary amendments were eventually made to the State Secrets Act to bring it into conformity with Article 29 § 4 of the Russian Constitution indicates, in my view, that the Russian authorities did not themselves consider that the relevant requirements of the Russian Constitution had been met by the adoption of a presidential decree.
5. In the light of the above considerations I am unable to conclude that the State Secrets Act in its original version and the presidential decree of 30 November 1995 could be regarded as a sufficient legal basis for the alleged interference with the applicant's rights under Article 10 of the Convention with regard to the period between 11 September and 8 October 1997.

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