255
19.5.2004

 

Press release issued by the Registrar

 

CHAMBER JUDGMENT IN THE CASE OF GUSINSKIY v. RUSSIA

 

The European Court of Human Rights has today notified in writing a judgment[1] in the case of Gusinskiy v. Russia (application no. 70276/01).

 

The Court held unanimously that there had been:

·        a violation of Article 5 (right to liberty and security) of the European Convention on Human Rights;

·        a violation of Article 18 (limitation on use of restrictions on rights) of the Convention in conjunction with Article 5;

 

Under Article 41 (just satisfaction) of the Convention, the Court found that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It awarded him 88,000 euros (EUR) for costs and expenses.

(The judgment is available only in English.)

 

1.  Principal facts

 

The applicant, Vladimir Aleksandrovich Gusinskiy, is a Russian and Israeli national, who was born in 1952. He was at the material time the Chairman of the Board and majority shareholder of ZAO Media Most, which included NTV, a popular Russian television channel.

 

On 13 June 2000 Mr Gusinskiy was arrested on suspicion of fraud. It was alleged that, by  establishing various commercial entities (including Media Most), he had fraudulently transferred broadcasting functions from Russian Video, a State-owned company, to OOO Russian Video, a private company, effectively stripping Russian Video of the 11^th TV Channel, with an estimated value of 10 million US dollars. On 16 June, having been charged with fraud, Mr Gusinskiy was released from detention in exchange for an undertaking that he would not leave the country.

 

During the Mr Gusinskiy’s detention, the Acting Minister for Press and Mass Communications had offered to drop the criminal charges against the applicant if he would sell Media Most to Gazprom (a State-controlled company holding the natural gas monopoly, which was in dispute with Media Most about the latter’s debts in its favour) at a price to be determined by Gazprom. Following the signing of such an agreement in July 2000, the criminal proceedings were discontinued. Once the restraining order not to leave the country was lifted in August 2000, the applicant went to Spain. Subsequently Media Most refused to honour the “July Agreement” claiming that it had been entered into under duress.

 

In September 2000 further charges were brought against the applicant concerning the fraudulent obtaining of loans by Media Most. In December 2000 he was arrested in Spain pursuant to an international arrest warrant, but was later released on bail and placed under house arrest in his villa in Sotogrande. On 4 April 2001 the Audencia Nacional rejected the extradition request submitted by the Russian authorities.

 

2.  Procedure and composition of the Court

 

The application was lodged on 9 January 2001 and declared partly admissible on 22 May 2003.

 

Judgment was given by a Chamber of 7 judges, composed as follows:

 

Christos Rozakis (Greek), President,
Peer Lorenzen (Danish),
Françoise Tulkens (Belgian),
Snejana Botoucharova (Bulgarian),
Anatoli Kovler (Russian),
Vladimiro Zagrebelsky (Italian),
Khanlar Hajiyev (Azerbaijani), judges,

and also Søren Nielsen, Section Registrar.

 

3.  Summary of the judgment[2]

 

Complaints

 

Mr Gusinskiy complained that his detention had been unlawful and arbitrary in breach of Article 5 of the Convention. In particular there had been no reasonable suspicion that he had committed an offence, his detention had not complied with the domestic procedure and he should have benefited from an amnesty giving him immunity and protecting him against imprisonment since he had received the award of the Friendship of the Peoples Order. He alleged, in general, that, by detaining him, the authorities had in fact intended to force him to sell his media business on unfavourable terms and conditions.

 

Decision of the Court

 

Article 5 of the Convention

 

The Court found that, with regard to the requirement of “reasonable suspicion” in Article 5 § 1 (c), the evidence gathered by the investigating authorities could have satisfied the objective observer that the applicant might have committed the offence.

 

As to whether the detention had been effected “in accordance with a procedure prescribed by law” (Article 5 § 1), the Court recalled that this meant not only compliance with national law but also that that law should attain a certain quality; in particular it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness. Under the Russian Code of Criminal Procedure detention prior to the bringing of charges (as in the applicant’s case) was permitted “in exceptional circumstances”. The parties agreed that this expression was not explained in the Criminal Code and the Government did not submit any past instances of cases in which such “exceptional circumstances” had been found to exist. The rule had therefore not been shown to meet the quality of law requirement in Article 5 § 1.

 

There had also been a breach of national law in that by virtue of the Amnesty Act the investigating officer should have stopped the proceedings against the applicant once he learned that he held the Friendship of the Peoples Order.

 

There had accordingly been a breach of Article 5 of the Convention.

 

Article 18 of the Convention in conjunction with Article 5

 

In relation to the applicant’s complaint that the true purpose of his detention had been to force him to sell his media business to Gazprom on unfavourable terms, the Court noted that Article 18 of the Convention did not have an autonomous role and could only be applied in conjunction with other Articles of the Convention. Moreover the possibility of a violation of Article 18 could only arise where the right or freedom protected was subject to restrictions permitted under the Convention.

 

Having found that the applicant’s liberty had been restricted, the Court had to ascertain whether he had been detained for any other purpose than that provided for in 5 § 1 (c) and therefore also in breach of Article 18.

 

It was not disputed that the “July agreement” linked the termination of the criminal investigation directed against the applicant to the sale of his media organisation to Gazprom, a company controlled by the State. In the Court’s opinion, it was not the purpose of such public-law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies. In the circumstances of the case the Court could not but find that the restriction on the applicant’s liberty permitted under Article 5 § 1 (c) had been applied not only for the purpose of bringing the applicant before the competent legal authority on reasonable suspicion of having committed an offence, but also for alien reasons.

 

There had therefore been a violation of Article 18 in conjunction with Article 5 of the Convention.

 

 

***

 

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

 

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
                            Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.