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

ember 1995.
The Presidential Decree of 30 November 1995 had not yet entered into force...
Accordingly, section 5 of the Act (in the version that existed at the time when the defendant committed the acts imputed to him) cannot be used as a basis for bringing formal charges without supplementary legal instruments which would have formed a proper legal basis for an accusation... such legal instruments can be applied on condition that they were officially published and entered into force prior to the commission of the acts imputed to Mr Nikitin.
... In view of the above, the court finds that any citizen of the Russian Federation... does not (did not) have any real possibility of determining whether information constitutes a State secret unless such information is included in the list of information constituting a State secret defined by a federal statute or approved by a decree of the Russian President...
...
The new version of the State Secrets Act... of 6 October 1997 brought the Act into compliance with the requirements of the Constitution, and consequently, only then did it become possible to apply section 5 of the State Secrets Act independently, that is, without referring to the List of Information classified as State Secrets enacted by decree of the Russian President on 30 November 1995.
Accordingly, in the period from 12 December 1993 until 30 November 1995 there was no statutory definition of information constituting State secrets, and therefore classifying any information as secret during the period under consideration... was arbitrary and not based on law."
46. On 17 April 2000 the Supreme Court of Russia upheld Mr Nikitin's acquittal in the following terms:
"Having acquitted Mr Nikitin for the lack of constitutive elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no statutory definition of information constituting State secrets, with the result that the qualification of Mr Nikitin's acts by the investigating bodies had not been based on law.
...
By virtue of Article 29 § 4 of the Russian Constitution, which was enacted on 12 December 1993 and was in force during the period when Mr Nikitin committed the alleged offences, the list of information constituting State secrets was to be defined in a federal statute. Such a list was first defined in the federal law introducing changes and amendments to the State Secrets Act of the Russian Federation of 6 October 1997.
Taking into account that during the period when Mr Nikitin committed the alleged acts, there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed... cannot be said to have contained State secrets... As the actus reus of the offences under Articles 275 and 283 of the Criminal Code refers only to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets...
...
... The [State Secrets] Act [in its 1993 version] could not have been applied to Mr Nikitin as it did not contain the list of information constituting State secrets, since section 5 of that Law referred only to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal statute. As section 5 of the State Secrets Act of 21 July 1993 and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of [the prosecuting party] to the effect that the difference between these provisions is merely semantic..."
47. On 25 July 2000 the Supreme Court of Russia quashed on appeal, and remitted for a fresh examination to a trial court, the sentence



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