Re Gorbachev

• Jurisdiction: Malaysia
• Judge: Wickham
• Judgment Date: 30 March 2011
• Court: Magistrates Court (Malaysia)
• Date: 30 March 2011

England, City of Westminster Magistrates' Court.

(Wickham, Deputy Senior District Judge)

Re Gorbachev1

Diplomatic relations Immunity from jurisdiction Criminal jurisdictionWhether former Head of State entitled to immunityImmunity for members of Special Missions Customary international law Convention on Special Missions, 1969, Article 31

State immunity Head of State immunity Criminal proceedings Whether former Head of State entitled to immunity Allegations of conduct amounting to torture Criminal Justice Act 1988, Section 134Whether elements of offence alleged made out by conduct alleged State immunity ratione materiae Duty of States to notify other interested States of intention to claim immunity

Relationship of international law and municipal law Exercise of extraterritorial jurisdiction Required nexus for private prosecution Criminal responsibility for acts of torture Criminal Justice Act 1988 The law of England

Summary:2The facts:In March 2011, Mr Gorbachev, the former Head of the Soviet Union and Commander-in-Chief of its armed forces, visited the United Kingdom to attend a fundraising event and meet with the Prime Minister. During his visit the applicant, Mr Bukovsky, made an ex parte application to the Court for the issue of a warrant for Mr Gorbachev's arrest. The applicant alleged that, while he had been Head of State, Mr Gorbachev had ordered troops to disperse peaceful demonstrations in Tbilisi, Georgia, and in Vilnius, Lithuania, in 1989 and 1991 respectively, and also ordered an attack on Baku, Azerbaijan in 1990, all of which resulted in deaths. The applicant further alleged that this conduct amounted to torture contrary to Section 134 of the Criminal Justice Act 1988.3

Held:The application was refused. Mr Gorbachev was immune from prosecution.

(1) The elements of the offence alleged were not made out by the conduct alleged in the application. Since the Court was being asked to exercise extraterritorial jurisdiction over conduct allegedly undertaken in a foreign State by a non-United Kingdom national, against non-United Kingdom nationals, there was no obligation under international law to allow a private prosecution (paras. 23 and 7).

(2) As a member of a Special Mission, Mr Gorbachev was entitled to immunity under customary international law and under Article 31 of the Convention on Special Missions, 1969, which declared that the representatives of the sending State and its diplomatic staff enjoyed immunity from the criminal jurisdiction of the receiving State (para. 4).4

(3) State immunity ratione materiae, the continuing immunity that applied to a person because his conduct was undertaken on behalf of the State, might also have applied to the conduct alleged in the application (para. 5).

(4) A State seeking to...