of Mr Moiseyev, a former employee of the Russian Ministry of Foreign Affairs, who had been charged with offences under Article 275 of the Russian Criminal Code. 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... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court only gave a general list of information and documents..., without specifying which information and documents [the applicant] had communicated, and when. As the offences imputed to [the applicant] were continuous and spanned the period from 1992 - 1993 to July 1998, during which time the Russian laws evolved, the determination of these issues is of crucial importance for the case.
Pursuant to Article 29 § 4 of the Constitution... the list of information constituting State secrets was to be defined in a federal statute. Such a list was first established in the federal law of 6 October 1997 introducing changes and amendments to the State Secrets Act of the Russian Federation. 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 the 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."
THE LAW
Alleged violation of Articles 7 and 10 of the Convention
48. The applicant complained under Article 7 of the Convention that the domestic courts had retrospectively applied and extensively construed the State Secrets Act in his case. He further complained under Article 10 of the Convention of a violation of his freedom of expression. The applicant claimed that he had been subjected to an overly broad and politically motivated criminal persecution as a reprisal for his critical publications. In particular, he had never transferred any information containing State secrets to Mr T.O., a Japanese journalist. Nevertheless, he had been convicted for his alleged intention to transfer his handwritten notes, which had been found to contain State secrets, to Mr T.O., the only basis for such a finding being the fact that he had previously legitimately communicated information to the Japanese journalist on several occasions. The applicant further complained that in so far as his handwritten notes had been found to have contained the actual names of military formations and units and the activities of radio electronic warfare units, this information had been publicly accessible from a number of public sources, including internet sites, and that he had been unable to foresee that this information had constituted State secrets, as this finding had been based on the unpublished - and therefore inaccessible - Decree No. 055 of the Ministry of Defence. The respective Convention provisions, in their relevant parts, provide:
Article 7
"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."
Article 10
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interfer
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