Lack of impartiality of the court when in a trial for revealing state secrets 1/3 of the jurors were related to secret services!

JUDGMENT

Danilov v. Russia 01.12.2020 (app. no. 88/05)

see here

SUMMARY

Jurors, principle of impartiality and the right to examine witnesses.

A famous physicist was found guilty of treason for revealing state secrets. The applicant complained of jury bias and that his restrictions on the examination of witnesses meant that he did not have access to a fair trial.

The ECtHR found that bias issues were identified in the composition of the jury as 4 of the 12 jurors carried “state security clearance”. The national court should therefore have considered this issue in detail. The failure of the courts to do so violated the ECHR.

In addition, the Court found that the applicant had not been given the right to examine the experts who had drawn up reports against him on the nature of the information which he had disclosed. This failure of the national courts resulted in the applicant’s trial not being governed by the appropriate guarantees of “equality of arms” and “adversarial proceedings”.

Violation of Article 6 §§ 1 and 3 (d) (right to a fair trial and right to examine witnesses) of the ECHR.

Russia’s inability to comply with Article 38 (obligation to provide the necessary facilities for the examination of the case) due to the refusal to provide the documents requested by the ECtHR.

The ECtHR awarded an amount of 21,100 euros for non-pecuniary damage.

PROVISIONS

Article 6

Article 38

PRINCIPAL FACTS

The applicant, Valentin Vladimirovich Danilov, is a Russian national who was born in 1948 and lives
in Novosibirsk (Russia).

The applicant is a renowned physicist and at the relevant time was head of the Thermophysics
Centre at Krasnoyarsk State Technical University. In 2000 the FSB opened an investigation in respect
of him, ultimately bringing charges of high treason. He was accused of divulging State secrets in the
course of a collaboration with Chinese academics.

Over four sets of proceedings the applicant consistently denied that the information given had been
a State secret. In the fourth set of proceedings he was found guilty by the Krasnoyarsk Regional
Court on 24 November 2004 following a jury trial.

The applicant appealed against the judgment of 24 November 2004, contesting, in particular, the
quality and conclusions of the expert reports, his inability to challenge those experts in court, and
the impartiality of the jurors (four of whom had had State security clearance) and judge in the earlier
trial, and the Regional Court’s refusal to examine witnesses for the defence. The applicant also
challenged the objectivity of the presiding judge. The Supreme Court rejected the challenge. It then
dismissed the appeal, upheld the conviction and sentenced the applicant to 13 years’ imprisonment.

Relying on Articles 6 (right to a fair trial), 7 (no punishment without law), and Article 10 (freedom of
expression) of the Convention, the applicant complained that the judge and jury in his criminal case
had been biased, that he had not had a fair trial, and that his actions had not amounted to treason
as the information had been available from open sources.

THE DECISION OF THE COURT…

Article 38 (obligation to provide necessary facilities for the examination of the case)

The Court had given the Government notice of the present application on 2 February 2007 and
asked for copies of all the relevant documents in the case to be provided. It had repeated the
request, stating that the Government could redact the documents as necessary. The Government
had refused to provide the documents from the criminal case file on both occasions. The Court
noted that it had previously found unsatisfactory the respondent Government’s explanation that
there was no legal procedure for giving information classified as a State secret to an international
organisation.

The Court found that owing to this failure the State had not met the requirements of the
Convention.

Article 6 (right to a fair trial/right to obtain attendance and examination of witnesses)

The Court reiterated that “justice must not only be done, it must also be seen to be done”. In
particular, fears around jury impartiality had to be objectively justified, and should be examined if
so.

Four of the 12 jurors had had State security clearance. The applicant argued that this would have
been impossible on random selection; the Government disagreed. The Court doubted that such a
jury could have been representative. The Court noted, furthermore, that the applicant’s argument
concerned people with security clearance sitting on the jury in his case specifically, given that it had
concerned charges of treason and had been investigated by the FSB, who also monitored people
with security clearances. The Court found that although security clearance did not imply partiality,
the appearance in this case was such so as to have warranted an examination by the judge. The
judge in the case had dismissed the applicant’s objections on formal grounds.

The authorities had failed to safeguard against objectively justified concerns regarding the
impartiality of the jury, in violation of Article 6 § 1 of the Convention.

Regarding examination of witnesses, the applicant had asked to cross-examine the ten experts who
had prepared the key reports ultimately leading to his conviction, and to call 17 experts in his
defence. Those requests had been denied.

The Court reiterated that a fair trial implies being able to confront and have examined witnesses
before the deciding judge. The Court was satisfied that the applicant had correctly stated his wish to
do so before the domestic courts. The failure to allow cross-examination had greatly affected his
rights, in particular to question the bases of the reports. That failure had led to the applicant’s trial
lacking “equality of arms” safeguards and proper “adversarial proceedings”.

There had therefore been a breach of his Convention rights.

Other articles

The Court did not consider it necessary to examine separately the applicant’s complaints under
Articles 7 and 10, as the central issue – whether the applicant had disclosed State secrets – related
to whether the applicant had been able to challenge the experts’ conclusions regarding the nature of
the information in the case, which the Court had already found that the domestic authorities had
denied him the right to do.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 21,100 euros in respect of non-pecuniary
damage.