Information Note on the Court’s case-law 64

May 2004

Gusinskiy v. Russia - 70276/01

Judgment 19.5.2004 [Section I]

Article 5

Article 5-1

Lawful arrest or detention

Detention of media tycoon who was exempt from prosecution under national law: violation

Facts : The applicant, who is the former Chairman of a private media holding company, was interviewed by the General Prosecutor's Office (GPO) in relation to a fraudulent transfer of a broadcasting licence. The applicant was arrested and imprisoned between 13-16 June 2000 on suspicion of having committed a crime of fraud. His lawyers complained that the arrest was unlawful as the applicant was subject to an amne sty against imprisonment as a result of having been awarded the Friendship of Peoples Order, and that there were no exceptional circumstances to justify the detention before the laying of charges. The charges of fraud against the applicant were brought by the GPO on 16 June 2000, prior to the applicant's release from custody. Whilst the applicant was in prison, the Acting Minister for Press and Mass Communication offered to drop the charges against the applicant if he sold his media holding company to a Sta te-controlled monopoly. The agreement was signed on 20 July 2000 but the company subsequently refused to honour it, claiming it had been entered into under duress. In the meantime, the applicant had left Russia to go to Spain. New charges of having fraudul ently obtained loans were subsequently re-instigated by the GPO against the applicant and an international arrest warrant was issued against him. The applicant was arrested in Spain on 11 December 2000 and imprisoned the following day (he was released and confined to house arrest on 22 December 2000). Following proceedings in the Spanish courts, the Russian authorities' request for extradition was rejected. Further proceedings in the Russian courts concerning the lawfulness of the applicant's detention resu lted in a finding that the wording of the GPO's initial detention order of 13 June 2000 had not been strained or hypothetical.

Law : Article 5 § 1 – The applicant's detention was based on a “reasonable suspicion” that he had committed a fraudulent transfer of a broadcasting licence. The investigating authorities had evaluated that substantial economic damage had resulted to a State-owned TV company. Thus, the evidence which had been gathered could “satisfy an objective observer” that the applicant might have committed such an offence. However, the applicant's detention had not been conducted “in accordance with a procedure prescribed by law”. This expression implies that the national law authorising deprivation of liberty must be sufficiently accessible and p recise, to avoid all risk of arbitrariness. Although the Code of Criminal Procedure permitted measures of restraint in “exceptional circumstances”, such as remanding the applicant in custody before being charged, the Government had not submitted any instan ces of cases which had been considered to disclose “exceptional circumstances” in the past. Thus, it had not been shown that the rule on the basis of which a person could be deprived of his liberty met the “quality of law” requirement of Article 5. Moreove r, the “lawfulness” of a detention requires conformity with national law. Under the Amnesty Act, proceedings against the applicant should have been stopped as he was a holder of the Friendship of the Peoples Order. By 13 June 2000 the authorities had known or could reasonably have been expected to know about the applicant's award. It would be irrational to interpret the Amnesty Act as permitting detention on remand whilst establishing that criminal proceedings were to be stopped. Thus, there had been a brea ch of national law and, accordingly, a violation of Article 5 § 1.

Article 18 (in conjunction with Article 5) – The restriction of the applicant's liberty was permitted under Article 5 § 1 (c) for the purpose of bringing him before a competent legal author ity on reasonable suspicion of having committed an offence. However, the fact that the applicant had been offered a commercial agreement whilst in prison, in exchange for the dropping of charges against him, suggested that his prosecution had been used to intimidate him. In such circumstances, the restriction of his liberty had been applied not only for the purposes provided for in Article 5 § 1 (c), but also for alien reasons. Accordingly, there had been a violation of Article 18 in conjunction with Articl e 5.

Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. The Court made an award for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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