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

ituting State secrets is to be enacted in the form of a federal statute. The State may also determine the means and methods for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State.
However, by virtue of the above Constitutional provision, criminal liability for disclosure of State secrets to a foreign State is justified only on condition that the list of information constituting State secrets is established in an officially published and publicly accessible federal statute. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including conviction by a court, may be grounded on an unpublished legal instrument.
The requirement of Article 29 § 4 of the Russian Constitution is implemented in the State Secrets Act of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets.
Accordingly, establishing criminal liability for disclosure of State or military secrets to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Russian Constitution."
45. On 29 December 1999 the St Petersburg City Court acquitted Mr Nikitin, a former naval officer, of charges under Articles 275 (High treason) and 283 § 1 (Divulging of information constituting State secrets) of the Russian Criminal Code (case No. 78-000-29). Mr Nikitin was accused, in particular, of having collected in August 1995, and having transferred in September 1995, information constituting State secrets. The court held as follows:
"... By virtue of the constitutional provisions, a list of information constituting State secrets was to be defined by a federal statute...
There was no such statute at the time that Mr Nikitin committed the alleged offences; Decree No. 1203 of the President of the Russian Federation of 30 November 1995 was the only legal instrument which began regulating legal relations in the field of the protection of State secrets.
...
The State Secrets Act of the Russian Federation of 21 July 1993, which was subsequently subjected to considerable amendments, constitutes the federal statute mentioned in Article 29 § 4 of the Russian Constitution.
...
However, the Russian Constitution prescribes the definition of the list of information constituting State secrets by a federal statute. This requirement of the Constitution was only complied with in full when the State Secrets Act was amended in November 1997 to include in section 5 the list of information constituting State secrets instead of the list of information which could be classified as State secrets, which was mentioned in the [original version] of the Law.
By virtue of section 9 (4) of the Act, the list of information constituting State secrets must be approved by the President.... By virtue of section 9 (4) of the Act in its version of 21 July 1993 and as amended on 6 October 1997 [the list] will be published and may be revised as and when needed.
...
An analysis of section 5 of the Act (irrespective of its different versions) indicates that [the Act] itself does not establish any degree of secrecy; in other words it does not classify any information, since it is in accordance with a special procedure provided for in section 9 of the Act that information can be classified as secret...
This also means that, in its original version, section 5 of the Act cannot serve as the sole basis for charging [a person] with espionage or disclosure of State secrets. It must be supplemented with other legal instruments.
It is [in particular] Decree No. 1203 of the Russian President of 1995 which [was] used in the present case as [a legal instrument] in addition to section 5 [of the State Secrets Act]...
The materials of the case reveal that Mr Nikitin ended his activity... in Sept



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