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. Last Updated: 07/27/2016

Legal Loophole Holds Gusinsky




Prosecutors have used a loophole in the law to keep Vladimir Gusinsky behind bars without filing charges against him, legal experts said Thursday.


And through a loophole in another law, the media magnate could walk free at any time if he was willing to take advantage of it.


Investigators from the General Prosecutor's Office detained Gusinsky on Tuesday saying they suspected he was involved in "gross embezzlement" of state property.


Gusinsky has remained in the notorious Butyrskaya Prison even though investigator Valery Nikolayev, who is in charge of the case, has not presented formal charges against him. Gusinsky's lawyers said Nikolayev intended to present the charges Friday afternoon, Interfax reported.


His lawyers Thursday appealed the arrest to the city's Tverskoi court, which is to hear the case Tuesday.


However, even if the court sides with the General Prosecutor's Office, Gusinsky could go free under an amnesty passed by the State Duma last month.


The amnesty, which came into being May 30, provides for the release of prisoners who hold state or military honors even if they are suspected of or have been convicted of grave crimes. The Prosecutor General's Office has urged parliament to remove the loophole, and some lawmakers have said it was a mistake.


Prosecutors said they believe Gusinsky defrauded the state out of $10 million when acquiring shares in 1997 of Russkoye Video, a television production company in St. Petersburg that had just been privatized. If proved in court, this would qualify as a grave crime.


Gusinsky also has an "Order of Friendship," which makes him eligible for the amnesty, according to his lawyers and the Prosecutor General's Office.


But under the law, Gusinsky would have to officially request amnesty and this could prove too "morally difficult," according to Moscow-based lawyer Gulmira Orazaliyeva. He would risk being seen by the general public as guilty of a crime and trying to escape punishment, she said. The Prosecutor General's Office also said it did not expect Gusinsky to tarnish his reputation by asking for amnesty, Interfax reported.


Orazaliyeva, who worked at the prosecutor's office before leaving in 1993 to become a criminal lawyer, said Gusinsky would not have been detained in the first place if the Criminal Procedures Code had been written with more care.


Article 90 of the code says an investigator can detain a suspect for 10 days without charging him "in extraordinary cases," but it doesn't spell out what those are.


"Unfortunately, this article gives the investigator a wide range for interpretation, leaving the suspect at his mercy," Orazaliyeva said.


Former Prosecutor General Yury Skuratov said Article 90 is usually applied when a crime has just happened and the investigator has strong evidence against the suspect but needs a few days to fully formulate charges.


But this is clearly not the case with Gusinsky, who is suspected of having committed a crime in 1998, Skuratov said in a telephone interview Thursday. He said the past year and a half should have given investigators enough time to formulate charges against Gusinsky before detaining him.


The code also requires the investigator to take into account whether the suspect has tried to obstruct the investigation, flee or continue his criminal activities, which Skuratov said doesn't seem to be the case with Gusinsky.


Adopted in Soviet days, the Criminal Procedures Code has been repeatedly amended but still contains outdated regulations, such as a general call for "strengthening of socialist law enforcement."


Orazaliyeva questioned the ethics of investigator Nikolayev in what she called a "nonsense case" and said he was taking advantage of the code to abuse his powers.


The legal experts said investigators also breached professional ethics by summoning Gusinsky to the Prosecutor General's Office for questioning on one matter only to detain him in connection with a different case.


"He was deceived. ? Legally it is acceptable, but not morally," Skuratov said of his former colleagues' actions.


Skuratov sought, however, to shift the blame to the Kremlin. "I know that they came under very strong pressure from the Kremlin" to open a case against Gusinsky, he said.


Skuratov's successor, Vladimir Ustinov, has refused to comment on the case. President Vladimir Putin maintains that the prosecutor's office operates independently and he cannot influence the investigation.