CASE OF GUSINSKIY v. RUSSIA
Violation of Art. 5;Violation of Art. 18+5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Christos Rozakis
7. The applicant was born in 1952. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 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 owned 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 it concerned an investigation into a State-owned company known as FGP RGK Russian Video (“Russian Video”) in respect of the transfer of a broadcasting licence to a limited liability company, OOO Russian Video11th 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 check the notes made of the interview and to add his own comments. The investigating officer noted down 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 units from the GPO and the Federal Security Service. A number of documents and other materials were seized as evidence in the framework of an investigation into alleged infringements of privacy by Media Most's security staff. 14. On 15 March 2000 Mr Nikolayev opened a criminal investigation in respect of the applicant (criminal case no. 18/191012-98) concerning allegations of fraud. This case was joined to a criminal investigation (case no. 18/221012-98) in respect of R., an executive of Russian Video, which concerned allegations of embezzlement. In both cases the allegations related to the business relations between Russian Video and OOO Russian Video and, in particular, 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 on 13 June 2000 at 5 p.m. to be questioned as a witness in relation to another criminal case. At the time of the summons by the GPO, the applicant was out of the country, but he nevertheless made arrangements to return to Russia. On arrival at the GPO on 13 June 2000, he was arrested and imprisoned in Butyrka Prison pursuant to an order issued on 13 June 2000 by Mr Nikolayev. 16. The order stated that, on the basis of Articles 90 to 92 and 96 of the Code of Criminal Procedure (“the CCP”), Mr Nikolayev considered that the crime of fraud, of which the applicant was suspected, constituted a serious public threat punishable by imprisonment alone, and that the applicant might obstruct the establishment of the truth in the case and attempt to elude the 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 on 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 within the meaning of 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 Channel, which was valued at 10 million United States dollars (USD). It was alleged that in 1997 the applicant, in concert with R., began using the 11th 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 that it demonstrated an ignorance of Russian law and that a “political contract” had been taken out against him. 20. Mr Nikolayev noted down in the record of the interview 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 CCP, that he was entitled to benefit from an amnesty exempting him from imprisonment on account of the award of the Friendship of the Peoples Order and the Amnesty Act of 26 May 2000, and that the suspicions against him were inconsistent, absurd and false. 22. In addition, the applicant's lawyers lodged a complaint with the Tverskoy District Court in Moscow under Article 220 § 1 of the CCP, claiming that the applicant's detention was unlawful and requesting his immediate release. They argued that the arrest order had been issued in violation of Articles 90, 92 and 96 of the CCP, since there were no exceptional circumstances justifying the applicant's detention before the charges had been laid or 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 elude the investigation or any reason to believe that he would obstruct it. Finally, the applicant was subject to an amnesty exempting him 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. He noted down on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them. He 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 allow him to leave the country for personal and business reasons. Mr Nikolayev refused without giving detailed reasons. 27. During the applicant's detention 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 the termination 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 if the individuals and legal entities concerned 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 reclassification 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 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 all 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.” 29. Annex 6 was signed by the parties and endorsed by Mr Lesin's signature. 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, Mr Gusinskiy, contain elements belonging to substantive law as well as elements relating to criminal-law provisions. 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, Mr Gusinskiy understood the unlawfulness of acquiring the right to another's property and, in this connection, he has provided reimbursement for the damage he caused by assigning his share in the statutory capital of OOO Russian Video-11th Channel to the State. In addition, he has 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 Mr 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 detention order had by that time been cancelled, and 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 in respect of 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 opened 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, to find out whether the use of the loans were in line 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-controlled 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 informed of the charges against him and interrogated. 37. As the applicant did not attend the GPO, 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 transmitted 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 in 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 not disclosed sufficient elements of fraud 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 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 refusing the request by the Russian authorities for the applicant's extradition from Spain. In refusing the extradition request, the Spanish 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 and which, although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose, compel the Court to consider [the applicant's] argument as not completely without foundation as far as the facts and interferences are concerned and as not inconceivable or 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 ... 4. The judgment of the Tverskoy District Court of 26 December 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 obstructed the course of justice because he had been the head of Media Most and, accordingly, had unlimited opportunities 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, that is to say, 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 law on criminal procedure contained no restriction on the application of precautionary measures to a person subject to an amnesty. “A criminal prosecution may not be started, or, if already started, shall be stopped if ... (4) an amnesty law has been passed which relieves [the person concerned] from punishment ...” “If there are sufficient reasons to believe that the accused will elude the investigation or evade justice, obstruct the establishment of the truth in the case or 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 that period, the precautionary measure shall be lifted.” “When considering the need to impose a precautionary measure and the nature of the precautionary measure to be imposed ..., the factors to be taken into account are ... the seriousness of the charges brought and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances.” “A precautionary measure shall be imposed by means of an order issued by an inquiry officer, investigator, prosecutor, or a reasoned decision 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 order or decision and, simultaneously, of the procedure for bringing a complaint against the decision to impose such a measure. A person on whom a precautionary measure has been imposed shall be provided immediately with a copy of the order or decision.” “Taking into custody shall 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. The relevant parts of Article 159 § 3 (b) of the Criminal Code of 1996 provide: “Fraud, namely, 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 declared an “amnesty in commemoration of the 55th anniversary of the victory in the Great Patriotic War of 1941-45”. The corresponding text (“the Amnesty Act”) came into force on 27 May 2000. It provided as follows: “... 2. [Convicted persons] shall be exempted 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: ... (b) the persons indicated in [section 2 (b)] of the present Act; ...” 47. On 26 May the State Duma also adopted an instruction on the application of the Amnesty Act. The instruction provided as follows: “1. The [Amnesty Act] shall be implemented by: ... (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 ...”