Russia Prepares First-in-History Posthumous Prosecution in the Case of Sergei Magnitsky

February 7, 2012

Investigator Boris Kibis from the Russian Interior Ministry’s Investigative Department announced that the Interior Ministry had “finished its preliminary investigation” and intends to prosecute Sergei Magnitsky posthumously and William Browder in absentia in the Russian courts. This case will make Russian legal history as the first case ever of a posthumous prosecution since Russian judicial regulation was first articulated in writing five centuries ago, in 1497.

“Even in Stalin’s time, the authorities did not prosecute people who were dead. The Interior Ministry is so desperate to justify its repression of Sergei Magnitsky that government officials are running roughshod over all legal precedent, practice and morality,” said a Hermitage Capital spokesperson.

The bizarre posthumous proceedings against Magnitsky and against Browder in absentia are based on the same allegations of tax underpayment that had been used by the Interior Ministry to falsely arrest Sergei Magnitsky in November 2008 after he had exposed law enforcement officials’ role in the theft of $230 million of government funds. In July 2011, the Russian President’s Human Rights Council found those proceedings had been fabricated and grossly violated the European Human Rights Convention.

Investigator Kibis who is in charge of the posthumous prosecution is the same investigator who dismissed the findings of the Russian President’s Human Rights Council immediately after they were published as irrelevant and inadmissible and who found no violations in actions of his law enforcement colleagues on the case.

Russian authorities offered the Magnitsky’s family to end his posthumous prosecution if the relatives give up their calls for justice and cease efforts to bring to trial those who had falsely arrested and killed Magnitsky in custody two years ago. This was communicated formally to Sergei Magnitsky’s mother, widow and to Hermitage Capital lawyers last Friday.

In a letter dated 3 February 2012, addressed to Magnitsky’s mother, Mrs Natalia Magnitskaya, Investigator Boris Kibis wrote:

“I repeat to you that if the relatives do not have an interest that justifies a further continuation of the case, including the desire to protect the honour and dignity of the deceased [Magnitsky], this case proceeding may be ceased by the investigator.”

In addition to the unprecedented step of a posthumous prosecution, the prosecution in absentia of William Browder, a British citizen, is also extremely unusual. Popular during Stalin purges, prosecutions in absentia in recent history have been rare. In case of foreigners, Russian law requires the case file to be handed to the foreign country’s authorities. The Russian Interior Ministry has refused to hand the case over to the British authorities fearing the exposure of its falsification. The Russian authorities have also refused to address the complaint about the falsification of the case materials filed by Sergei Magnitsky with the Russian court three days before he was killed in custody.

“Any objective person looking at this case file would see in an instant the entire case is built upon fabricated evidence and trumped up charges with no legal basis,” said a Hermitage Capital spokesperson.

Since the false arrest and death of Sergei Magnitsky in Russian police custody, William Browder has been running an international campaign to get justice and end the impunity of the Russian officials who killed Magnitsky. Mr Browder has called upon Western parliaments and governments to introduce visa sanctions and freeze the assets of Russian officials responsible for Magnitsky’s death. In December 2010, the European Parliament passed a resolution calling for travel bans and financial sanctions against the Russian officials in this case. Last July, the US State Department introduced travel bans on Russian officials associated with Magnitsky’s death. Nine other European parliaments are in various stages of similar resolutions against the Russian officials involved.

“If the Russian Interior Ministry thinks that running a show trail against me and Sergei will stop our campaign for justice, they are dead wrong. We, along with many people around the world, will continue calling for sanctions outside of Russia and once the current regime falls, for tribunals inside Russia to achieve justice for Sergei Magnitsky. No amount of pressure or harassment will stop that,” said William Browder, CEO of Hermitage Capital.

The persecution of Hermitage executives and lawyers began after Hermitage exposed Russian Interior Ministry officers Artyom Kuznetsov and Pavel Karpov as perpetrators of the massive fraud and the theft of Hermitage Fund’s Russian companies in a December 2007 criminal complaint. After the thefts, Kuznetsov’s family has become $3 million richer (http://www.youtube.com/watch?v=4ZB3YoAvEro) and Karpov’s family $1.3 million richer (http://www.youtube.com/watch?v=1TWhlPqVddc). The Russian authorities, however, have rejected numerous applications to investigate the illicit wealth of these officers and their families.

Prosecutions in absentia were abolished by the Russian State Duma after the high profile trials of Russian KGB agents Oleg Kalugin and Alexander Litvinenko in 2002 when the new Criminal Procedural Code was introduced. However, the practice was resurrected in 2006 in response to a proposal from the Russian Federal Security Service for the purposes of “fighting terrorist and extremist activity”. Since then, prosecutions in absentia have been used in political cases including: the 29 November 2007 prosecution of Boris Berezovsky; the 1 August 2008 prosecution of Leonid Nevzlin; the 18 July 2011 prosecution of Antonio Valdes-Garcia and the 23 August 2011 prosecution of Pavel Zabelin of Yukos. According to public records, there have been 19 in absentia cases in Russia since 2006, when the law was changed to formally allow them and only two cases against foreign citizens.

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