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Image: The case of Sergei Magnitsky’s death 
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The case of Sergei Magnitsky’s death

In February 2011, the Helsinki Foundation for Human Rights appealed to the Polish government in reference to a case of Siergiei Magnitsky, a Russian lawyer who died in a Moscow detention facility as a result of having been held in conditions, which could be justifiably called torturous. The Helsinki Foundation for Human Rights appealed to impose appropriate visa and financial sanctions on Russian officials responsible for his death.

Tuesday, 22 February 2011

Sergei Magnitsky was a Russian lawyer specialising in tax law who worked as a counsel for the Russian investment fund Hermitage Capital Management. Sergei Magnitsky was arrested on 28 November 2008 on tax evasion charges filed as part of the investigation launched against Hermitage Capital Management. Many observers believe that a document which formed the basis of the arrest warrant had been fabricated.

His arrest followed the unveiling by Sergei Magnitsky of one of the largest corruption scandals in Russia which implicated top-ranking Russian officials. On 5 June and 7 October 2008 S. Magnitsky voluntary testified in court accusing officials of defrauding the Russian treasury of $ 230 million. S. Magnitsky was arrested by the very officials who, according to his testimony, were implicated in the embezzlement.

On 16 November 2009 Sergei Magnitsky died in a Moscow detention facility as a result of having been held in harsh conditions and denied an appropriate medical care. He had been held in pretrial detention for almost a year before his death.[1] 

The Public Oversight Commission ("POC"), an independent Russian organisation which published a report  featuring the conditions in which Sergei Magnitsky [2] had been detained, disclosed that he had been transferred between three different detention centres and among several cells in these detention centres.

Sergei Magnitsky was initially placed in the investigatory detention centre "Matrosskaya Tishina", where he was diagnosed with acute pancreatitis and provided with proper medical care. However, a week before a scheduled specialist examination and surgery Sergei Magnitsky was transferred to Moscow "Butyrka" Prison where he was held in conditions severely impairing his health. Also, he was deprived of appropriate medical care.

Sergei Magnitsky and his defence counsels submitted a number of complaints against intolerable prison conditions which were left unanswered by the prison authorities. The total number of complaints reached 450.[3] The deteriorating state of Mr Magnistky's health led to his death on 16 November 2009 during his per-trial detention. S. Magnitsky was never put on trial.

Despite the launch of the official preparatory proceedings conducted by the Russian prosecutor's office to inquire into the death of Sergei Magnitsky, so far no one has been held liable. According to the media reports, not a year passed since Magnitsky's death when some of Russian officials suspected of detaining Sergei Magnitsky, denying him medical care and participating in the embezzlement of state funds were honoured with rewards and state decorations.[4]  

According to the findings of POC and Moscow Helsinki Group [5], Sergei Magnitsky was subjected to both physical and mental pressure and the conditions of his detainment could be justifiably called torturous. The conditions which brought about Sergei Magnitsky's death cannot be examined separately from the course of his pretrial detention. It is also emphasised that the officers investigating the case were fully aware of and approved the severe conditions in which he was detained. The purpose of the inhumane treatment to which Magnitsky was subjected was to make him withdraw his testimony and plead guilty to false charges pressed against him.

The case has not only aroused much controversy among human rights defenders in Russia but also triggered a large-scale international campaign aimed at establishing the cause of Sergei Magnitsky's death. For instance, on 16 November 2010, i.e. on the anniversary of Mr Magnitsky's death, a documentary entitled "Justice for Sergei" (a narrative of S. Magnitsky's detention and death)[6]  was shown before seven parliaments around the world, including the European Parliament, Parliaments of Great Britain, Germany, Estonia, Canada and the US Congress.

Moreover, on 16 December 2010 the European Parliament adopted the Resolution on Annual Report on Human Rights in the World 2009 and the European Union's policy on the matter (2010.2202(INI))[7].  The European Parliament appealed to the Russian judicial bodies to press ahead with the investigation of the death of S. Magnitsky. Further, the EP deplored that "this case is still an outstanding example of the serious shortcomings within the country’s judicial system." IThe Parliament also pointed out that: "while human rights defenders are often subject to a harsh treatment and trials that ignore the Russian Federation’s Code of Criminal Procedure (...), those guilty of aggressions against and even murder of human rights defenders, independent journalists and lawyers still too often enjoy impunity."

Wherefore and in the absence of any positive moves from the Russian authorities, the European Parliament requested the Council to cooperate and investigate the case of Sergei Magnitsky and to insist that the Russian authorities bring those responsible to justice. It is vital that the European Parliament called upon the Council to impose an EU entry ban for Russian officials which may be responsible for Mr Magnitsky's death. Moreover, the European Parliament encouraged the remaining EU law enforcement agencies to cooperate in freezing bank accounts and other assets of the said Russian officials in all EU Member States.

The application of such measures is currently under debate in the United States, United Kingdom or Canada. Recently, a bill of the Justice for Sergei Magnitsky Act of 2010, dated 29 September 2010, drafted by senators Cardin and McCain, has come to the US Senate. [8] The bill stipulates imposing a visa ban against individuals who are allegedly responsible for detention, systematic abuse of Sergei Magnitsky and his death (sec. 5 of the bill).

This ban is to be extended to other individuals suspected of being involved in the corruption scandal exposed by Mr Magnitsky as well as persons who in any way contributed to the acts described above. In addition, the US entry ban is also to apply to spouses, children and parents of such individuals. The bill provides for the application of financial measures aiming at freezing and prohibiting all transactions and investments in the United States against the listed individuals (s. 6 of the bill).

The bill stipulates publishing a list of persons to which the said bans are to apply (s. 4 of the bill). However, it should be noted that the bill provides an opportunity for hearing those individuals before they are placed on the list, enabling them to explain their involvement in the case of S. Magnistky' s detention and death and the corruption scandal. Consequently, one may be released from the above sanctions (s. 4 (c) of the bill). This mechanism is of vital importance, particularly in the light of the fact that the proceedings of the Russian authorities are still pending.

Whereas, under section 9 of the bill the Act is to cease to be effective as soon as the US Congress is presented with the information that Russian authorities have conducted a thorough, impartial and free of political influence investigation into both the death of S. Magnitsky and the embezzlement of state funds and the responsible individuals have been brought to justice. In addition, visa and financial sanctions will be lifted if the Russian government takes appropriate steps to bring criminal justice system and penal system of the Russian Federation into compliance with international legal standards, substantially strengthens statutory protections for whistle blowers and recognises the contribution of Sergei Magnitsky to the fight against corruption in Russia.

In the context of the case at issue, it is essential that Senator Cardin has already compiled a list of sixty individuals who are allegedly liable for detention and death of S. Magnitsky and are implicated in the corruption scandal. On the list there are, among others, employees of the [Russian] Ministry of Internal Affairs, Prosecutor's Office as well as federal prison service authority and federal tax office. [9]

The Canadian Parliament's Subcommittee on International Human Rights has issued a unanimously adopted resolution of 30 November 2010 [10] in which it called on the Government of Canada to impose similar visa and financial sanctions. Likewise, the resolution condemned illegal detention, torturing and causing S. Magnitsky's death in a pretrial detention centre. Similarly the impunity of Russian officials responsible for these abuses and involved in one of the biggest corruption scandals in Russia was harshly criticized.

Further, the British MPs called on the British government to declare sixty individuals responsible for Mr Magnitsky's death guilty of economic terrorism and impose visa bans on them. [11]  Also, on 16 December 2010 the Polish Sejm Committee for Justice and Human Rights took a stance on this matter. [12]  The Committee pointed out that, even now, circumstances of this event are still unresolved. In consequence, the Committee raised concerns about the protracted nature of the proceedings conducted by the Russian authorities and the condition of human rights observance in Russia. Further the Committee expressed hopes that circumstances of Mr Magnitsky's death will be fully resolved in accordance with the standards of a democratic state ruled by law.

It should be stressed that according to press reports the Prime Minister, in his letter to Ryszard Kalisz, Chairman of the Sejm Committee for Justice and Human Rights, indicated the possibility of imposing visa sanctions on the Russian officials provided that a list of individuals implicated in S. Magnitsky's death is compiled by international bodies. Moreover, the press reported of the Prime Minister's assurance that Poland will bring up the issue of S. Magnitsky's death during the session of the EU-Russia Permanent Partnership Council. [13]

In the opinion of the Helsinki Foundation for Human Rights corruption among top-ranking officials has very serious implications. It undermines people's trust in democratic institutions, the rule of law and principles of human rights protection. If a state breaches the binding international obligations, the international community should not remain indifferent. In other words, it is because of the gravity of human rights violations which occurred in S. Magnitsky's case that this issue cannot be treated only as an internal affair of Russia. Indeed, it is the common knowledge that Russian officials were implicated in the embezzlement of state funds, as well as detention and death of S. Magnitsky, a lawyer who discovered one of the biggest corruption scandals in Russia. Further, an initial list of such officials has been compiled.

 

1 Mr Magnitsky's case was discussed in detail in, for instance, the Report of the US State Department "2009 Human Rights Report: Russia" (http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136054.htm), a report of the independent Russian organisation Public Oversight Commission for Human Rights Observance in Moscow Detention Centers "Review of the Conditions of the Detention of Sergei Magnitsky in the Pre-trial Detention Centers of the City of Moscow" (http://www.robertamsterdam.com/Public%20Oversight%20Commission%20Report%20on%20Magnitsky.pdf). Similarly, it was investigated by the Commission on Security and Cooperation in Europe, an independent US government agency,(http://csce.gov/index.cfm FuseAction=ContentRecords.ViewDetail&ContentRecord_id=896&ContentType=P&ContentRecordType=P). Further, the case was documented in the film "Justice for Sergei" (http://www.justiceforsergei.com/video.php?id=1) and widely covered in media, e.g. in the BBC article "Row over Russia lawyer jail death" (http://news.bbc.co.uk/2/hi/europe/8367143.stm), or an article on the New York Times, "After Russian Death, Inquiry Doors Open and Shut"

2 See footnote 1.

3 Cf. the report of the Public Oversight Commission and the Russian Untouchables website available at: http://russian-untouchables.com/eng/torture-and-death-ii/

4 “A year on, Magnitsky’s probe stalls”, The Moscow News, 15 November 2010, an article available at: http://www.themoscownews.com/politics/20101115/188205658.html

5 The English summary of the letter dated 26 March 2010 sent by Lyudmila Mikhailovna Aleksyeva of Moscow Helsinki Group (a Russian human rights organisation) to Alexander Ivanovich Bastrykin of the Russian Prosecutor's Office can be found at: http://www.rightsinrussia.info/home/hro-org-in-english-1/torture/magnitsky

6 See footnote 1.

7 The EP Annual Report on Human Rights in the World 2009 and the European Union's policy on the matter (2010/2202 INI)) of 16 December 2010 is available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2010-0489&language=PL&ring=A7-2010-0339.

8 The US bill "Justice for Sergei Magnitsky Act of 2010" of 29 September 2010 is available at: http://www.gpo.gov/fdsys/pkg/BILLS-111s3881is/pdf/BILLS-111s3881is.pdf.

9 A list of individuals compiled by Senator Cardin is available at: http://www.csce.gov/index.cfm?Fuseaction=Files.Download&FileStore_id=1744.

10 The Resolution on S. Magnitsky's case adopted by the Canadian Parliament's Subcommittee on International Human Rights is available at: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4848292&Language=E&Mode=1&Parl=40&Ses=3.

11 The transcript of the debate in the House of Lords is available at: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110119/debtext/110119-0004.htm#11011978000001

12 The opinion of the Sejm Committee for Justice and Human Rights on the death of the lawyer S. Magnitsky expressed on 16 December 2010 is available at: http://orka.sejm.gov.pl/opinie6.nsf/nazwa/spc_sta254/$file/spc_sta254.pdf.

13 "Will Poland hit Russia with sanctions?" ["Polska uderzy w Rosję sankcjami?"], TVN24, 4 October 2010, the article is available at http://www.tvn24.pl/1,1676315,druk.html.

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