Council of Europe’s Human Rights Commissioner Condemns the Unlawfulness of the Posthumous Trial of Sergei Magnitsky

November 13, 2013

The Council of Europe’s Human Rights Commissioner, Nils Muižnieks, condemned the unlawfulness of the posthumous trial of whistle-blowing lawyer Sergei Magnitsky.

In a report released yesterday, the Commissioner noted that the Magnitsky trial held in Russia contravened the European Convention on Human Rights. The Commissioner said it is also contrary to the Russian Constitution.

“As regards the issue of posthumous trials, one of which took place in Moscow in the summer of 2013 where a deceased person – Sergei Magnitsky – was apparently found guilty of tax evasion, a recent judgment of the European Court of Human Rights should be highlighted. In a case where a domestic court found an accused person guilty after his death, the Court found a violation of Article 6,” says the report by Human Rights Commissioner Nils Muižnieks.

Explaining his position, Commissioner Muižnieks highlighted a recent decision of the European Court of Human Rights which found a violation of Article 6 of the European Human Rights Convention in case of a posthumous guilty verdict. This is because the person cannot testify at his trial after his death, which breaches the fundamental principle of justice, on which the European court is based.

“Referring to its established case-law according to which there is a denial of justice where a person convicted in absentia is unable subsequently to obtain from a court a fresh determination of the merits of the charge, the Court concluded that there was no doubt that this principle applied a fortiori when a person was convicted not in his absence but after his death,” says the Report.

In his report, the Commissioner further says that the posthumous trial of Sergei Magnitsky by the Russian authorities this summer was contrary to the Russian Constitutional Court ruling, which does not allow prosecutors to continue to prosecute people after their death, and only allows rehabilitation proceedings.

“In July 2011, the Constitutional Court of the Russian Federation ruled that posthumous trials are
only allowed with a view to rehabilitating a person who was accused or convicted of a particular crime at the request of his family,” says the Report.

Commissioner Muižnieks also expressed his regret over the lack of results of the official investigation in Russia into Magnitsky’s in-custody death and the impunity of those associated with it:

“The Commissioner regrets that the official investigation into the causes of death of Sergei Magnitsky has neither led to the identification and bringing to account of individuals responsible…”

“The arrest and death in a pre-trial detention centre of Sergei Magnitsky, a lawyer for a UK-based investment advisory firm Hermitage Capital Management, charged with tax evasion and fraud, attracted public and international attention to various systemic deficiencies in the way the justice system operates, including with regard to poor detention conditions and access to medical treatment while in custody,” says the new report from the Council of Europe.

Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2384731&SecMode=1&DocId=2074254&Usage=2

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