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

society" in order to attain those aims.

1. Whether the interference was lawful

67. The Court reiterates that the expression "prescribed by law", within the meaning of Article 10 § 2 of the Convention, requires first of all that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must be able to foresee the consequences of his or her actions, and that it should be sufficiently precise.
(a) Basis in national law
68. As regards the first aspect, the Court observes that the Russian Constitution of 12 December 1993 in its Article 29 § 4 states that "the list of information constituting State secrets shall be defined by a federal statute". Until 9 October 1997, section 5 of the State Secrets Act, which predated the Russian Constitution by a few months, only referred to a list of information that "may be" classified as State secrets, following the relevant procedure. Authority to classify information was conferred on the heads of State agencies, and the power to approve such a list was delegated to the President. The latter enacted the relevant decree on 30 November 1995. On 6 October 1997 section 5 of the State Secrets Act was amended so as to incorporate the list of information constituting State secrets, and the amendment was published and entered into force on 9 October 1997 (see paragraphs 38 - 43 above).
69. Against this background, the applicant suggested that two consecutive periods should be distinguished: the period between 11 September 1997 (the date on which the applicant collected the information in question) and 8 October 1997; and between 9 October 1997 (the date on which the amendments to the State Secrets Act became operative) and 20 November 1997, the date on which the applicant was arrested. The Government and the domestic courts, on the contrary, considered this distinction immaterial because the criminal offence of which the applicant was convicted was classified as "continuous perpetration" that is punishable under the law in force at the time that the applicant was intercepted by the authorities. However, their principal argument was that in any event the applicant's conduct constituted a criminal offence even before 9 October 1997. The Court will therefore begin by examining the legal basis for the applicant's conviction in these two periods.
(i) 11 September - 8 October 1997
70. In so far as the first period is concerned, the parties disagreed as to whether the applicant's conviction for the offence imputed to him had a formal basis in national law, or whether the applicant's actions were punishable under the Russian law then in force. The applicant contended that there had been no such basis during the relevant period as the State Secrets Act contained only a list of information that "may be" - rather than "shall be" - classified as State secrets, whereas the enactment of that list in Presidential Decree No. 1203 of 30 November 1995 was in contravention of Article 29 § 4 of the Russian Constitution, which clearly required such list to be defined by a federal statute. The Government insisted that the State Secrets Act of 21 July 1993, together with Presidential Decree No. 1203 of 30 November 1995, formed a sufficient legal basis for the applicant's conviction for the imputed offence during the relevant period, given that both documents had been duly published and were accessible to him.
71. The Court observes that under Article 29 § 4 of the Russian Constitution the list of information classified as secret was to be defined by a federal statute. The said constitutional provision presupposed that in the absence of such a statute there was no legal basis for the criminal prosecution of a person for disclosure of State secrets. However, the State Se



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