The International League Against Arbitrary Detention urges the Government of the Russian Federation to take all necessary measures to implement the United Nations Working Group on Arbitrary Detention Opinion No. 11/2024 concerning Evan Gershkovich, asking the Government of the Russian Federation to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Evan Gershkovich (Russian Federation): Opinion 11/2024.
DETAINED WITHOUT ANY LEGAL BASIS
Evan Gershkovich, an American national born in 1991, is a journalist who worked with multiple news networks. He had been reporting on the Russian Federation for nearly six years, covering events of vital public importance. Prior to his arrest, Mr. Gershkovich was working as a foreign correspondent for the Wall Street Journal, focusing notably on the armed-conflict between the Russian Federation and Ukraine.
On 29 March 2023, Mr. Gershkovich was arrested by the Federal Security Service of the Russian Federation shortly after he arrived at Yekaterinburg. According to the Federal Security Service, his arrest and detention were based on his purported violation of article 276 of the country's Criminal Code, alleging espionage activities "at the behest of the American side". According to the source, the authorities have provided no factual or legal substantiation for these charges. He was then transferred to Moscow where he was detained in Lefortovo Prison.
Mr. Gershkovich was informed of these charges on 30 March 2023. Since then, and at the time of the source's communication to the Working Group, his pre-trial detention had been extended twice by the Russian authorities. If convicted under article 276, Mr. Gershkovich faces between 10 and 20 years of imprisonment in a penal colony of the Russian Federation.
Although the Government of the Russian Federation was given the opportunity to respond to these allegations, it chose not to.
First and foremost, the espionage charges were used against Mr. Gershkovich as a way to penalise his journalistic work, especially considering the lack of substantive evidence proving these charges. The source by the way emphasised that this case should be regarded within the broader context of crackdown in the country against journalist and dissenting opinions, especially in relation to the armed-conflict in Ukraine. Among others, this crackdown was materialised by the expansion of the article 276 of the Criminal Code in July 2022 in order to include virtually any sensitive but truthful information regarding this armed-conflict. Considering the above, the Working Group expressed its concern as to the use of the above-mentioned provision to punish those engaging in legitimate journalistic work, and found that this is what happened in the case of Mr. Gershkovich.
Besides, Mr. Gershkovich was held in pre-trial detention since his arrest on 29 March 2022. At the time of the source's communication, it had thus been over 250 days during which Mr. Gershkovich was being detained. Considering this, the Working Group reminded that, under article 9(3) of the Covenant, pre-trial detentions should be exceptional and only last for the shortest time possible. Thus, the Working Group found this article had been violated in the case of Mr. Gershkovich.
All in all, the Working Group considered that there was no legal basis justifying the arrest and detention of Mr. Gershkovich, thus rendering them arbitrary under category I.
VIOLATION OF HIS RIGHT TO FREEDOM OF EXPRESSION
As above-said, Mr. Gershkovich was arrested in connection with his legitimate work as a journalist. Differently said, his detention arose from the exercise of his right to freedom of expression, which is protected under article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights.
While freedom of expression may be restricted if it is necessary to protect national security or public order, the Government did not demonstrate that the arrest of Mr. Gershkovich was necessary and proportionate. Therefore, the Working Group found that Mr. Gershkovich's detention was arbitrary under Category II, as it resulted from the exercise of his right to freedom of expression, and thus in violation with the above-mentioned provisions.
VIOLATION OF HIS RIGHT TO A FAIR TRIAL
To continue, the Russian Federation violated Mr. Gershkovich’s right to a fair trial on multiple fronts. From the time of his arrest, Mr. Gershkovich’s case was shrouded in secrecy, both substantively and procedurally. His judicial proceedings were conducted behind closed doors, with limited access to the hearings, and with factual or legal justifications for the decisions made being withheld. As such, the Working Group found that Mr. Gershkovich’s right to a public hearing, guaranteed under article 14(1) of the Covenant and article 10 of the Universal Declaration of Human Rights, had been violated.
The source alleged that the legal proceedings undertaken against Mr. Gershkovich were heavily influenced by the executive branch and the Federal Security Service. Considering this alongside the lack of response from the Government, the Working Group considered that Mr. Gershkovich's right to be heard by a competent, independent and impartial tribunal, protected by article 14(1) of the Covenant and article 10 of the Universal Declaration of Human Rights, had also been violated.
Furthermore, public declarations of Mr. Gershkovich's supposed guilt were made by government officials. In addition, during court appearances, Mr. Gershkovich was treated in a way (e.g., being confined in a cage) that contributed to present him as a significant security risk. Considering this, the Working Group found that the Government of the Russian Federation violated Mr. Gershkovich's right to be presumed innocent until proven guilty, as enshrined in article 14(2) of the Covenant and article 11(1) of the Universal Declaration of Human Rights.
Mr. Gershkovich was also prevented from engaging counsel of his choosing for his arraignment on 30 March 2023, and instead required to proceed against his wishes with a Russian court-appointed counsel. Later, he was allowed to choose his Russian counsel, but neither of them were allowed to disclose information about the case to his United States counsel, which prevented his legal team from advising him properly. Therefore, the Working Group established that the Russian Federation violated Mr. Gershkovich's right to counsel, guaranteed by article 14(3) of the Covenant.
Last, though a visit between Mr. Gershkovich and the United States ambassador was initially allowed, further attempts to secure consular access for Mr. Gershkovich were largely unsuccessful. The Working Group reminded the importance of consular assistance for foreign detaines, and found that in this case, Mr. Gershkovich’s rights to consular assistance were restricted without sufficient reason being given. The Working Group concluded that this had aggravated the other fair trial violations against him.
As a result, the Working Group considered that the multiple violations of his right to a fair trial and due process, including his rights to consular assistance, had rendered his detention arbitrary under Category III.
DETAINED BASED ON HIS AMERICAN NATIONALITY
The Working Group considered that Mr. Gershkovich’s nationality was a factor in his detention and that his detention was thereby discriminatory. This violated his rights to equality before the law and to equal protection of the law, protected under article 7 of the Universal Declaration of Human Rights and article 26 of the Covenant. The discriminatory treatment contributed to the deprivation of Mr. Gershkovich's other rights, and thus contravened article 2(1) of the Covenant, as reflected in article 2 of the Universal Declaration of Human Rights.
The Working Group therefore found that the detention of Mr. Gershkovich was arbitrary under Category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the UN Working Group on Arbitrary Detention considered that the detention of Evan Gershkovich was arbitrary and fell under Categories I, II, III and V because his deprivation of liberty was in contravention of articles 2, 7, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14, 19 and 26 of the Covenant.
The Working Group recommended that the Government of the Russian Federation take the steps necessary to remedy the situation of Evan Gershkovich without delay and bring it into conformity with the relevant international norms. The Working Group found that the appropriate remedy would be to release Evan Gershkovich immediately and accord him an enforceable right to compensation and other reparations, under international law.
The Working Group urged the Government of the Russian Federation to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Evan Gershkovich and to take appropriate measures against those responsible for the violation of his rights. Moreover, the Working Group requested the Government of the Russian Federation to bring its laws, and especially the section 276 of its Criminal Code, into conformity with international human rights law.
Comments