GUSINSKIY v. RUSSIA - 70276/01 [2004] ECHR 205 (19 May 2004)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

1. The case originated in an application (no. 70276/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian and Israeli national, Mr Vladimir Aleksandrovich Gusinskiy (“the applicant”), on 9 January 2001.

2. The applicant was represented by CMS Cameron McKenna, lawyers practising in London. The Russian Government (“the Government”) were represented by Mr P. A. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that his detention on remand was unlawful and arbitrary.

4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5. By a decision of 22 May 2003, the Court declared the application partly admissible.

6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

9. The applicant is a former Chairman of the Board of and majority shareholder in ZAO Media Most, a private Russian media holding company, which comprised NTV, a popular television channel.

10. On 2 November 1999 the applicant was interviewed by Mr Nikolayev, senior special cases investigator at the General Prosecutor's Office (the “GPO”). It appeared from the transcript of this interview that this interview concerned an investigation into a State-owned enterprise known as FGP RGK “Russian Video” (“Russian Video”) in respect of the transfer of a broadcasting licence to a limited liability company, OOO “Russian Video–11th Channel” (“OOO Russian Video”), in violation of various provisions of the Civil Code.

11. After the interview a witness statement was completed and signed by both the applicant and Mr Nikolayev. The applicant was allowed to review the notes made of the interview and to add his own comments. The investigating officer noted on the statement that the applicant had been awarded the Friendship of the Peoples Order.

12. In 2000 Media Most was involved in a bitter dispute with OAO Gazprom, a natural gas monopoly controlled by the State, over Media Most's debts to Gazprom.

13. After Gazprom had discontinued the negotiations on the debts, Media Most's offices in Moscow were searched by special force units from the GPO and the Federal Security Service. A number of documents and other materials were seized as evidence for an investigation into alleged infringements of privacy by Media Most's security staff.

14. On 15 March 2000 Mr Nikolayev opened a criminal investigation against the applicant (criminal case no. 18/191012-98) in respect of allegations of fraud. This case was combined with a criminal investigation in case no. 18/221012-98 against R., an executive of Russian Video, which concerned allegations of embezzlement. The allegations in both cases related to the business relations between Russian Video and OOO Russian Video and in particular to Media Most's inclusion into OOO Russian Video and an increase in the latter's authorised capital, which resulted in a redistribution of each shareholder's stake.

15. On 11 June 2000 the applicant was summoned to attend the GPO's offices at 5 p.m. on 13 June 2000 to be questioned as a witness in relation to another criminal case. When the summons was issued by the GPO the applicant was out of the country, but he nevertheless made arrangements to return to Russia. On arrival at the GPO's offices on 13 June 2000, the applicant was arrested and imprisoned in the Butyrka prison pursuant to an order issued on 13 June 2000 by Mr Nikolayev.

16. The order stated that, pursuant to Articles 90-92 and 96 of the Code of Criminal Procedure (“CCrP”), Mr Nikolayev considered that the crime of fraud, of which the applicant was suspected, constituted a grave public threat and was punishable by imprisonment alone, and that the applicant might interfere in establishing the truth in relation to the case and attempt to evade investigation and trial.

17. The applicant remained in custody until 16 June, during which time he was interrogated twice: on 14 and 16 June.

18. The interrogation of 14 June took place in the presence of the applicant's lawyers. It was explained to the applicant before the interview that he was suspected of committing large-scale fraud under Article 159 § 3 (b) of the Criminal Code. More specifically, the charges were based on an allegation that in 1996–97, through the establishment of various commercial entities (including Media Most), broadcasting functions were fraudulently transferred from Russian Video, a State-owned company, to OOO Russian Video, a private company, thereby depriving Russian Video of the 11th TV Channel, which was valued at 10 million US dollars (“USD”). It was alleged that in 1997 the applicant, in concert with R., began using the 11th TV Channel for his own purposes, without payment to the State.

19. The applicant declined to comment in detail on the investigation, other than to state that he found it to demonstrate an ignorance of Russian law and a “political contract” against him.

20. In the record of the interview Mr Nikolayev noted that the applicant had been awarded the Friendship of the Peoples Order.

21. On 15 June 2000 the applicant's lawyers lodged a petition with Mr Nikolayev, complaining that the applicant's arrest was unlawful in that it did not comply with Article 90 of the CCrP, that the applicant was entitled to benefit from an amnesty against imprisonment on account of the award of the Friendship of Peoples Order and the Amnesty Act passed on 26 May 2000, and that the suspicions against the applicant were inconsistent, absurd and false.

22. In addition, the applicant's lawyers lodged a complaint with the Tverskoy District Court of Moscow under Article 220 § 1 of the CCrP claiming that the applicant's imprisonment was unlawful and requesting his immediate release. The grounds for the complaint were that the arrest order was issued in violation of Articles 90, 92 and 96 of the CCrP since there were no exceptional circumstances to justify the applicant's detention before the charges had been laid, nor any grounds for imprisonment on the basis of the charges brought. The arrest order appeared to have been politically motivated and imprisonment was unnecessary and constituted an excessive restraint. Furthermore, there were no grounds to suspect that the applicant intended to hide from the investigation or any reason to believe that he would interfere with the investigation. Finally, the applicant was subject to an amnesty from punishment and preliminary imprisonment due to having been awarded the Friendship of the Peoples Order.

23. On 16 June 2000 Mr Nikolayev charged the applicant with fraud under Article 159 § 3 (b) of the Criminal Code. On the same day the applicant was interrogated in the presence of his lawyers. The applicant refused to sign the record of the interrogation because he did not understand the charges laid. The applicant noted on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them. The applicant again declared that the investigation was being used by the authorities to discredit him and demanded his immediate release.

24. On the same day, 16 June, Mr Nikolayev ordered the applicant's release from custody in exchange for an undertaking not to leave the country. The applicant was released at 10 p.m. on 16 June 2000.

25. After the applicant's release, Mr Nikolayev issued summonses for the applicant to appear for further questioning on 22 June and 3, 11 and 19 July 2000. The applicant attended for questioning but refused to answer the questions that were put to him.

26. The applicant asked Mr Nikolayev on a number of occasions to permit him to leave the country for personal and business reasons. Mr Nikolayev refused without giving any detailed reasons.

27. During the applicant's imprisonment between 13 and 16 June 2000, the Acting Minister for Press and Mass Communications, Mr Lesin, offered to drop the criminal charges against the applicant in connection with the Russian Video case if the applicant sold Media Most to Gazprom, at a price to be determined by Gazprom.

28. While the applicant was in prison, Gazprom asked him to sign an agreement in return for which the applicant was told that all criminal charges against him would be dropped. The agreement between Gazprom and the applicant was signed on 20 July 2000 (the “July Agreement”). It included a provision in Annex 6 calling, inter alia, for a cessation of the applicant's criminal prosecution in relation to Russian Video and for an undertaking regarding his security. This provision read as follows:

“The Parties realise that successful implementation of the Agreement is possible only when individuals and legal entities acquire and exercise their civil rights of their own free will and in their own interests, without compulsion by any other party to act in any particular way. In the current situation, this implies that certain interrelated conditions must be met, namely:

- termination of the criminal prosecution against Mr Vladimir Aleksandrovich Gusinskiy in connection with the criminal case initiated against him on 13 June 2000, his re-classification as a witness in the said case and suspension of the precautionary measure prohibiting him from leaving [the country]. Should this condition not be met, the Parties are relieved of performance of their obligations hereunder;

- provision to Mr Vladimir Aleksandrovich Gusinskiy and other shareholders (stockholders) and executives of the [Media Most subsidiaries] of guarantees regarding their security and protection of their rights and freedoms, including the right to travel freely, to choose their place of stay and residence, to leave the Russian Federation freely and to return to the Russian Federation without hindrance;

- renunciation of any steps, including public statements or dissemination of information by the Organisations, their shareholders and executives, which would damage the foundations of the constitutional regime and violate the integrity of the Russian Federation, undermine the security of the State, incite to social, racial, national and religious discord or lead to the discrediting of the state institutions of the Russian Federation.”

30. Following the signing of the “July Agreement”, the criminal prosecution against the applicant in connection with Russian Video was stopped by a stay of prosecution and an order cancelling the precautionary measure, issued by Mr Nikolayev on 26 July 2000. The order read as follows:

“Analysis of the evidence confirms the illegal nature of [the applicant's] doings. However, the actions of the head of ZAO Media Most, V.A. Gusinskiy, contain elements of substantive law as well as elements relating to criminal-law norms. In view of the specific nature of the act committed, it is impossible to attribute it to separate legal spheres.

In the course of the investigation V.A. Gusinskiy understood the unlawfulness of acquiring the right to another's property and in this connection he provided reimbursement for the damage he had caused by assigning his share in the statutory capital of OOO “Russian Video–11th Channel” to the State. In addition, he significantly compensated for the harm caused to the interests of the State by voluntarily transferring ZAO Media Most shares to a legal entity controlled by the State.

The steps taken by the accused are extenuating circumstances and attest to his sincere repentance which, in conjunction with other positive characterising details and the absence of a previous criminal record, enables a decision to be taken to exempt V.A. Gusinskiy from criminal prosecution.”

31. At the same time, the precautionary measure forbidding the applicant to leave the country was lifted. On the same day the applicant left Russia and on 21 August 2000 he went to his villa in Sotogrande, Spain.

32. Following the applicant's departure from the country, Media Most refused to honour the “July Agreement”, claiming that it had been entered into under duress.

33. On 20 June 2000 the Tverskoy District Court closed the proceedings initiated following the applicant's complaint about the unlawfulness of his detention. The court found that the complaint could not be examined since the order of imprisonment had by this time been cancelled, and since only those actually detained could appeal against detention.

34. On appeal, this decision was upheld by the Moscow City Court on 11 July 2000.

35. On 27 September 2000 Mr Nikolayev initiated a further criminal investigation against the applicant. The new charge was brought under Article 159 § 3 (b) of the Criminal Code and concerned the fraudulent obtaining of loans by Media Most. The applicant was not provided with a copy of the order initiating the proceedings. However, according to the information gathered by the applicant's lawyers, the criminal investigation was instituted on the basis of an application filed by Gazprom with the GPO on 19 September 2000. Gazprom asked the GPO to investigate the spending of funds obtained by Media Most and, in particular, whether the use of the loans complied with the activities permitted by Media Most's charter, whether the funds were used for their intended purpose and whether the management of Media Most had violated any law in relation to the loans. Gazprom, a State-owned company, was involved as a guarantor of the loans.

36. On 1 November 2000 Mr Nikolayev issued a further summons for the applicant to attend the GPO on 13 November, to be presented with charges and for interrogation. The applicant did not attend.

37. As the applicant did not attend the GPO, on 13 November 2000 Mr Nikolayev amended the order for the applicant's prosecution. He re-instigated the charges for fraud under Article 159 § 3 of the Criminal Code, this time in connection with another incident, and imposed the precautionary measure of detention. The order was passed to the Russian National Interpol Bureau. The charges alleged that the applicant had fraudulently obtained loans.

38. The applicant was arrested in Spain on 11 December 2000 pursuant to an international arrest warrant and imprisoned in that country on 12 December 2000. On 22 December 2000 the applicant was released from prison on bail of USD 5.5 million and placed under house arrest in his villa in Sotogrande.

39. Following an application by the applicant's lawyers, the Tverskoy District Court of Moscow ruled on 26 December 2000 that the initiation of the Media Most loan investigation had been unlawful because the evidence gathered by the investigating authorities had disclosed no elements of fraud sufficient to institute criminal proceedings.

40. On 5 January 2001 the Moscow City Court set aside the judgment of 26 December 2000 on the ground that no court appeal lay against investigating authorities' decisions to institute criminal proceedings.

41. Following proceedings in the Spanish courts, on 4 April 2001 a judgment was given in the applicant's favour rejecting the request by the Russian authorities for the applicant's extradition from Spain. Declining the extradition request the National Court (Audiencia Nacional) stated:

“[I]t is possible to observe in the documents furnished by [the applicant]... certain noteworthy and peculiar circumstances - which are unusual in the sphere of judicial claims for fraud - which, although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose, [illegible] the Court cannot but consider [the applicant's] argument as not completely without foundation as far as the facts and interferences are considered and as not inconceivable and not discountable on the basis of logical criteria and experience.

1. The agreement of 20 July 2000 ... of sale by [the applicant] to Gazprom-Media of a parcel of shares... [Annex 6] - a supplementary agreement which is not common in relationships between sellers and purchasers of securities - concludes with two signatures, one of which is the habitual signature of the representative of Gazprom-Media ... which appears in the body of the contract and in other annexes and another signature which at first sight does not coincide with [the applicant's] normal signature—in the agreement, annexes and stamps in this extradition procedure. [The applicant] claims that this is the signature of a member of the Russian Government.

2. ...Six days after the date of the agreement, [the applicant], who stood accused in the proceedings [concerning Russian Video] and had undertaken not to leave the country, was exempted from liability in the said proceedings and the measure restricting his freedom was lifted...

3. [The applicant's] statements at the extradition hearing with regard to the pressure and coercion suffered, which he gives as the reasons prompting him to sign the agreement of 20 July 2000...

These peculiarities of the case must inevitably have legal significance for the judicial ruling on this extradition request since the fact that the Court has perceived them ... obliges it, for reasons of legal security and effective judicial protection ... to stretch to the extreme the judgment of double incrimination, analysing the grounds for the accusation in view of the need to provide due legal protection...”

42. On 19 June 2002 Judge Merkushov, a Deputy President of the Supreme Court, lodged an application for supervisory review of the decisions of the Tverskoy District Court of 20 June 2000 and the Moscow City Court of 11 July 2000. The judge maintained that it was the lawfulness of detention rather than detention itself which should have been the subject of the judicial review. He requested the Presidium of the Moscow City Court to remit the case for a fresh examination by the Tverskoy District Court.

43. On 18 July 2002 the Presidium of the Moscow City Court granted the application.

44. On 26 September 2002 the Tverskoy District Court examined the substance of the complaint in respect of detention. At the hearing, the representative of the GPO (the defendant), argued that at the time of the applicant's arrest he could have interfered with the course of justice because he had been the head of Media Most and, accordingly, had unlimited possibilities to influence witnesses and had access to written evidence. Furthermore, as the applicant had dual citizenship and a travel passport, he could have escaped abroad. With regard to the applicant's allegation that he had been entitled to an amnesty, the prosecutor noted that documentary proof that the applicant had indeed held the award in question had been submitted only on 15 June 2000, i.e. after the arrest, and the applicant had been released on the following day. The Tverskoy District Court accepted the GPO's arguments. It found that, in the light of the explanations provided by the GPO's representative, the wording of the detention order of 13 June 2000 could not be regarded as strained and hypothetical. As to the award, the court found that the criminal procedure law contained no restriction on the application of precautionary measures to a person subject to an act of amnesty.

“A criminal prosecution may not be started, or, if already started, shall be stopped if...

4) an act of amnesty has been passed which relieves [the person concerned] from punishment...”

“If there are sufficient reasons to believe that the accused will flee from the investigation or court, will interfere with the establishment of the truth in the case or will engage in criminal activities...one of the following precautionary measures may be imposed: an order not to leave the place of residence, a personal undertaking or an undertaking from a non-governmental organisation, taking into custody...”

“In exceptional circumstances, a precautionary measure may be imposed on a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days of the precautionary measure being imposed. If no charges are brought within the period specified, the precautionary measure is to be revoked.”

Article 91. Circumstances to be considered when imposing a precautionary measure

“When considering the need to impose a precautionary measure and which precautionary measure is to be imposed... the circumstances to be taken into account must be... the gravity of the charges brought and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances.”

“A precautionary measure is to be imposed by a ruling rendered by an inquiry officer, investigator, prosecutor, or by a reasoned finding delivered by a court, which must specify the offence of which the person is suspected or accused and the grounds for imposing the precautionary measure. The person concerned must be informed of the ruling or decision and, simultaneously, of the procedure for bringing a complaint against the decision to impose such a measure.

A copy of the ruling or decision must be immediately provided to the person on whom a precautionary measure has been imposed.”

“Taking into custody is to be imposed as a precautionary measure ... for offences punishable by imprisonment of more than one year. In exceptional circumstances, this precautionary measure may also be applied to offences punishable by imprisonment of less than one year...”

45. Article 159 § 3 (b) of the Criminal Code of 1996 provides, insofar as relevant:

“Fraud, i.e. theft or acquisition of another's property by misrepresentation or abuse of trust ... [committed on] a large scale ... shall be punishable by five to ten years' imprisonment with or without expropriation.”

46. On 26 May 2000 the State Duma adopted a Decree “On an Amnesty in Commemoration of the 55th Anniversary of the Victory in the Great Patriotic War of 1941–45” (the “Amnesty Act”). It entered into force on 27 May 2000. The Amnesty Act provided as follows:

“2. [Convicted persons] shall be discharged from serving a prison sentence, irrespective of its length:...

(b) [if they have been] awarded orders or medals of the USSR or Russian Federation;...

8. Criminal proceedings pending before investigating authorities and courts which concern offences committed before the entry into force of the present Act shall be terminated in respect of:...

47. On 26 May the State Duma also adopted an Instruction on the Application of the Amnesty Act. The Instruction provided as follows:

(b) investigating authorities in respect of persons suspected or accused of crimes, if these authorities are conducting proceedings in respect of the said crimes;...

3. The decision on the application of the Amnesty Act shall be taken individually in respect of each person. If the information on the person is insufficient, the decision on the application of the amnesty may be postponed until additional documents are received...”

48. The applicant complained under Article 5 of the Convention that his detention was imposed in the absence of a reasonable suspicion that he had committed an offence, did not comply with the domestic procedure and was ordered without regard to the provisions of the Amnesty Act. Insofar as relevant, Article 5 reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”

49. The applicant alleged that both criminal cases against him were instituted without any legal basis.

50. The Government contested this allegation. They maintained that the applicant's detention on 13 June 2000 had been motivated by a reasonable suspicion that he had committed large-scale fraud, punishable under Article 159 § 3 (b) of the CCrP.

51. The applicant contended that he had no case to answer. With regard to the Russian Video investigation, he submitted that his behaviour did not fall under the legal definitions of fraud and complicity. With regard to the Media Most loan investigation, he submitted that the GPO had in fact tried artificially to criminalise credit relations between two legal persons.

52. The applicant claims that neither the Russian Video nor the Media Most loan investigations were based on a “reasonable suspicion”.

The Court recalls first that in proclaiming the “right to liberty”, Article 5 § 1 is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person (see Engel v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 58).

Since the Russian authorities did not physically detain the applicant in connection with the Media Most loan case, the applicant cannot claim to be a victim of a breach of Article 5 in that respect. The Court will therefore limit its examination of the existence of a “reasonable suspicion” in the Russian Video case.

53. The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see the Brogan and Others v. the United Kingdom judgment of 29 November 1989, Series A no. 145-B, § 53). Neither is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or discontinuing suspicions which provide the grounds for detention (see the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, § 55). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, § 32).

54. The Court points out that it has on one occasion found a violation of Article 5 § 1 (c) where a person was detained on charges of misappropriation of State funds even though his actions – granting funds in assistance and loans to developing countries – could in no way imply criminal liability for decisions of this nature (see the Lukanov v. Bulgaria judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, §§ 42–46).

55. The present application is, however, different. In the Russian Video case, the investigating authorities suspected the applicant of having fraudulently deprived a State-owned company of the right to broadcast TV signals through a number of sham transactions. The authorities evaluated the damage caused to the State at USD 10 million and qualified the applicant's actions as a criminal offence under Article 159 § 3 (b) of the CCrP.

The Court considers that the evidence gathered by the investigating authorities could “satisfy an objective observer” that the applicant might have committed the offence.

56. The applicant further alleged that his detention was not “lawful” because the domestic procedure had not been observed. In particular, there had been no “exceptional circumstances”, as required by Article 90 of the CCrP, to justify his detention before charges were laid. Furthermore, contrary to the requirements of Article 89 of the CCrP, there had been no evidence to show that he would flee the investigation or interfere with the establishment of the truth if he remained at large.

The applicant also complained that his detention was not “lawful” because by virtue of the Amnesty Act he was exempt from criminal prosecution.

58. First, with regard to compliance with the domestic procedure, they accepted that Article 90 of the CCrP did not include a list of “exceptional circumstances” in which detention was possible before charges were brought. However, such circumstances were to be determined individually in each particular case.

The Government asserted that the applicant had been suspected of a serious crime - large-scale concerted fraud. The crime constituted a grave public threat and was punishable only by imprisonment. The investigative authorities had therefore decided to take the applicant into custody. Article 96 of the CCrP, as in force at the material time, permitted detention on the ground of the seriousness of the offence alone.

Besides, the investigating officer had suspected that the applicant might abscond. The suspicion had been caused by the applicant's being aware that, on charges of a similar offence in a different criminal case, another person, R., had been arrested on account of his involvement in criminal activities in respect of Russian Video. The applicant had also been aware of the gravity of the crime of which he was suspected and of the possibility of his preventative arrest. The fear that the applicant might go into hiding had later proved to be justified.

59. Secondly, with regard to the amnesty, the Government submitted that under section 8 of the Amnesty Act all criminal proceedings against persons awarded medals and orders of the USSR or Russia were to be halted regardless of the gravity of the charges.

On 28 June 2000 the Amnesty Act was amended in such a way that the offence imputed to the applicant under Article 159 § 3 (b) of the CCrP was no longer included in the list of the offences to which the amnesty applied.

In any event, the criminal laws did not prohibit the detention of persons who were entitled to benefit from the amnesty.

The Government also asserted that at the time of the arrest the investigating authorities were unaware that the applicant had been awarded the Friendship of the Peoples Order. The investigating authorities first learned of this at the time of the applicant's release on 16 June 2000. Under the law, once the investigating officer learned of the award he should have stopped the criminal proceedings if the applicant agreed. However, since the case file contained no information on whether the applicant had agreed to termination of the proceedings, the investigating authorities continued the proceedings in the ordinary way.

60. With regard to compliance with the domestic procedure, the applicant agreed with the Government that neither Article 90 of the CCrP nor any other provision defined clearly what the term “exceptional circumstances” meant.

He argued further that the suspicion that he might flee from the investigation had been unfounded. The charge brought against him had had nothing in common with the charges brought against R., who had been taken into custody on charges of tax evasion almost two years before the applicant's arrest. It had been absurd to suspect that the applicant might flee from the investigation because of R.'s arrest.

Until the very moment of his arrest, the GPO's activities had neither directly nor indirectly suggested that the applicant was suspected of a grave offence and therefore might be taken into custody. On 2 November 1999 the applicant had been questioned as a witness in the criminal case against R., and the questions he was asked provided no grounds to presume that he was suspected of committing offences and so might be arrested. Furthermore, the interview had shown that the applicant had been fully prepared and willing to help in supplying any information that the investigating officer might require. The applicant's overall behaviour prior to his arrest could not have provided a basis for suspecting that he might flee from the investigation and the court. Although the applicant could have stayed abroad, he had always immediately returned to Moscow if that had been required.

61. With regard to the amnesty, the applicant disagreed with the Government's interpretation of the Amnesty Act. In his view, it was illogical that a person who was subject to an amnesty in respect of charges would not be subject to an amnesty in respect of an arrest relating to that charge.

The applicant argued that the Government's reference to the amendment to the Amnesty Act of 28 June 2000 was irrelevant as it occurred after the applicant's arrest. It would be absurd to suggest that this amendment had retrospectively rendered the applicant's arrest lawful.

The applicant claimed that the investigating authorities were aware at the time of his arrest that he had been awarded the Friendship of the People Order. Mr Nikolayev had himself recorded this fact in the interview records of 2 November 1999 and 14 June 2000.

62. The Court recalls first that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and establishes the obligation to conform to the substantive and procedural rules of national law. However, it also requires that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.

In establishing that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. Like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention.

Quality in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see, mutatis mutandis, the Amuur v. France judgment of 25 June 1996, Reports 1996-III, § 50).

63. In the present case, the applicant was remanded in custody before being charged. Such detention was an exception to the general rule laid down in Article 89 of the CCrP, according to which precautionary measures were to be applied after charges had been laid. This exception was permitted by Article 90 of the CCrP in “exceptional circumstances”. The parties agree that the CCrP did not elaborate on the meaning of this expression.

The Government have not submitted any instances – whether confirmed by court decisions or not – of cases which have been considered to disclose “exceptional circumstances” in the past.

64. It has not been shown that this rule – on the basis of which a person could be deprived of his liberty –, met the “quality of law” requirement of Article 5.

65. In the light of the above finding, it is not necessary to consider whether the applicant's situation met the substantive requirements of the law.

66. With regard to the amnesty, the Court reiterates that the “lawfulness” of detention essentially means conformity with national law (see the Amuur judgment cited above, § 50). It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, for example, the Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, § 41).

67. The Government accepted that by virtue of the Amnesty Act the investigating officer should have stopped the proceedings against the applicant once he learned that the applicant held the Friendship of the Peoples Order. Although the Government claimed that the investigating officer first learned about that fact on 16 June 2000, they did not deny that the same investigating officer had himself entered the information about the award in the interview records of 12 November 1999 and 14 June 2000. The Court therefore finds that by 13 June 2000 the authorities did know, or could have been reasonably expected to know, that the criminal proceedings against the applicant should be stopped.

68. The Court agrees with the applicant that it would be irrational to interpret the Amnesty Act as permitting detention on remand in respect of persons against whom all criminal proceedings must be stopped. There has, therefore, been a breach of the national law.

II. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 5

70. The applicant also complained that his detention represented an abuse of power. He claimed that by detaining him the authorities intended to force him to sell his media business to Gazprom on unfavourable terms and conditions. The Court will consider this complaint under Article 18 of the Convention which provides:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

71. The Government denied this allegation. They maintained that the applicant had not submitted any evidence to show that if he had not sold his business under the “July Agreement” he would not have been released.

72. The applicant submitted that the facts of the case spoke for themselves. He reiterated that the authorities were motivated by a wish to effectively silence his media and, in particular, its criticisms of the Russian leadership. The applicant drew attention to the fact that when Media Most did not comply with the “July Agreement”, on the ground that it had been signed under duress, the GPO initiated the Media Most loan investigation.

73. The Court recalls that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may, however, be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone. It further follows from the terms of Article 18 that a violation can only arise where the right or freedom concerned is subject to restrictions permitted under the Convention (see Kamma v. the Netherlands, no. 4771/71, Commission's report of 14 July 1974, (DR) 1, p. 4; Oates v. Poland (dec.), no. 35036/97, 11 May 2000).

74. The Court has found above in §§ 52–55 that the applicant's liberty was restricted “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”. However, when considering the allegation under Article 18 of the Convention the Court must ascertain whether the detention was also, and hence contrary to Article 18, applied for any other purpose than that provided for in Article 5 § 1 (c).

75. The Government did not dispute that the “July Agreement”, namely Annex 6 to it, linked the termination of the Russian Video investigation with the sale of the applicant's media to Gazprom, a company controlled by the State. The Government did not dispute either that Annex 6 was signed by the Acting Minister for Press and Mass Communications. Lastly, the Government did not deny that one of the reasons for which Mr Nikolayev closed the proceedings against the applicant on 26 July 2000 was that the applicant had compensated for the harm caused by the alleged fraud by transferring Media Most shares to a company controlled by the State.

76. In the Court's opinion, it is not the purpose of such public-law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies. The fact that Gazprom asked the applicant to sign the “July Agreement” when he was in prison, that a State Minister endorsed such an agreement with his signature and that a State investigating officer later implemented that agreement by dropping the charges strongly suggest that the applicant's prosecution was used to intimidate him.

77. In such circumstances the Court cannot but find that the restriction of the applicant's liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons.

78. There has, accordingly been a violation of Article 18 in conjunction with Article 5 of the Convention.

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

80. The applicant claimed pecuniary damage of 1,755,923.07 euros (EUR) for costs incurred by him in attempting, in Russia and abroad, to protect his rights, which were breached by his arrest and imprisonment on 13 June 2000 and during the subsequent criminal prosecution. This amount covered the services of Russian, UK, Spanish and US lawyers in connection with the applicant's case, including the extradition proceedings, and with the case of T., an employee of the applicant's who also suffered from the Russian authorities' actions.

81. The applicant further claimed EUR 0.87 as a nominal amount in respect of non-pecuniary damage such as distress and anxiety during his imprisonment.

82. The Government submitted that the services of the foreign law firms bore no direct relationship to the applicant's detention between 13 and 16 June 2000 and could not therefore be reimbursed.

83. The Court cannot deduce from the applicant's submissions that all the items of expenditure relate to the substance of his complaints under the Convention or can be attributed to the process of exhaustion of domestic remedies in that regard. In any event, this item may be more appropriately considered under the heading “Costs and expenses” below.

84. Turning to non-pecuniary loss, the Court notes that the applicant has claimed damages which are merely nominal. In these circumstances, the Court concludes that the finding of a violation constitutes in itself sufficient just satisfaction.

85. The applicant claimed EUR 446,017.70 in respect of the fees of the counsel who had assisted him and T. in seeking redress through the Russian legal system and before the Court.

86. The Government considered that the claim was excessive. They submitted that the reimbursement of the costs should not exceed the Court's legal aid rates. Furthermore, insofar as the claims concerned T., they were irrelevant to the present application.

87. Having regard to the subject-matter under the Convention and the procedure adopted before the Court in this case, the Court finds that the amount claimed by the applicant cannot be regarded as either necessarily incurred or reasonable as to quantum (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). The costs which directly relate to the application and were borne by the applicant personally total EUR 88,000.

88. Making an assessment on a reasonable basis, the Court awards EUR 88,000 for costs and expenses incurred by the applicant's legal representatives.

89. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

2. Holds that there has been a violation of Article 18 of the Convention in conjunction with Article 5;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 88,000 (eighty-eight thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 19 May 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> GUSINSKIY v. RUSSIA - 70276/01 [2004] ECHR 205 (19 May 2004) URL: http://www.bailii.org/eu/cases/ECHR/2004/205.html Cite as: (2005) 41 EHRR 17, [2004] ECHR 205