Tribute to Sergey Magnitsky

Sergey Mag­nit­sky was our Russ­ian lawyer and friend who died at the age of 37 under excru­ci­at­ing cir­cum­stances in a Moscow pre-trial deten­tion cen­ter on Novem­ber 16, 2009. He died as a result of inhu­man treat­ment, cru­elty and tor­ture at the hands of cor­rupt Russ­ian police offi­cers. The story of what hap­pened to Sergey Mag­nit­sky is so medieval that it is hard to imag­ine that it could have taken place in today’s world. The story is also one of extra­or­di­nary brav­ery and hero­ism that should be an exam­ple to us all.

Sergey worked for the American-owned law firm, Fire­stone Dun­can, and was one of the exter­nal lawyers for the Her­mitage Fund in Moscow. He wasn’t involved in pol­i­tics, he wasn’t an oli­garch and he wasn’t a human rights activist. He was just a highly com­pe­tent pro­fes­sional – the kind of per­son whom you could call up as the work­day was fin­ish­ing at 7pm with a legal ques­tion and he would can­cel his din­ner plans and stay in the office until mid­night to fig­ure out the answer. He was what many peo­ple would describe as the good face of mod­ern Rus­sia: a smart and hon­est man work­ing hard to bet­ter him­self and to make a good life for his family.

The tragedy of Sergey Mag­nit­sky began on June 4, 2007. On that day, 50 police offi­cers from the Moscow Inte­rior Min­istry raided Her­mitage and Fire­stone Duncan’s offices under the guise of a tax inves­ti­ga­tion into a Her­mitage client com­pany. There was no appar­ent rea­son for the police inves­ti­ga­tion as that com­pany was reg­u­larly audited by the tax author­i­ties, and they always found that the taxes were paid cor­rectly, in full and on time. Dur­ing the raid, police offi­cers took away the cor­po­rate seals, char­ters and arti­cles of asso­ci­a­tion of all of the Her­mitage Fund’s invest­ment com­pa­nies – none of which were listed in their search war­rant. Sev­eral months after the raids the police were still refus­ing to return the seized items, and we were won­der­ing about the true moti­va­tion for their raid and why the police were so des­per­ate to get their hands on all the orig­i­nal statu­tory doc­u­ments of the Her­mitage Fund’s Russ­ian companies.

In mid-October 2007, the moti­va­tion for the raids became clear. We got a tele­phone call from a bailiff at the St. Peters­burg Arbi­tra­tion Court inquir­ing about a judg­ment against one of the Fund’s Russ­ian com­pa­nies. That was strange, because the com­pany had never been to court and nei­ther the Fund’s trustee, HSBC, nor we knew any­thing about any law­suits or judg­ments in St. Petersburg.

The first thing we did was call Sergey. If there was some­thing legally com­pli­cated going on in Rus­sia, he was the per­son who knew how to get to the bot­tom of it. He calmed us down and said it was likely to be some type of mis­take. He said he would make some inquiries and fig­ure out what was going on.

After research­ing the sit­u­a­tion, Sergey came back to us with shock­ing news. He checked with the St.Petersburg court and then went to the reg­is­tered address of our com­pa­nies and dis­cov­ered that our com­pa­nies had indeed been sued by some shell com­pa­nies we had never heard of or done busi­ness with. The law­suits were based on forged and back­dated con­tracts. He also dis­cov­ered that the Fund’s com­pa­nies had been rep­re­sented by lawyers that the Fund had never hired, and who pro­ceeded to plead guilty in court. Fur­ther inquiries showed that the law­suits against the Her­mitage Fund com­pa­nies were filed by a per­son using a stolen iden­tity on the basis of a lost passport.

Despite all of these incon­sis­ten­cies, the St. Peters­burg court awarded the plain­tiff shell com­pa­nies hun­dreds of mil­lions of dol­lars in dam­ages against the Her­mitage Fund’s Russ­ian com­pa­nies. Most shock­ingly, when Sergey ana­lyzed the forg­eries used in court, he was able to prove that they could have only been cre­ated with the doc­u­ments seized from our offices by the Moscow Inte­rior Min­istry on June 4th while these doc­u­ments had remained in their custody.

The news went from bad to worse. Sergey­went to the Moscow com­pany reg­is­tra­tion office, where he dis­cov­ered that our three Russ­ian com­pa­nies had been fraud­u­lently re-registered from the name of the Her­mitage Fund’s trustee, HSBC, into the name of a com­pany owned by a man con­victed of manslaugh­ter. Again, Sergey deter­mined that the only way that the own­er­ship could have been changed was with the orig­i­nal cor­po­rate mate­ri­als seized by the police.

On the back of Sergey’s dis­cov­er­ies, on Decem­ber 3 and 10, 2007, HSBC and Her­mitage filed six 255-page com­plaints out­lin­ing all the details of the frauds and the names of the police offi­cers involved. The com­plaints were filed with the heads of the three main law enforce­ment agen­cies in Rus­sia. How­ever, instead of inves­ti­gat­ing the frauds against us, the law enforce­ment agen­cies passed the com­plaints right back to the spe­cific police offi­cers named as con­spir­a­tors in the com­plaints. Those offi­cers then per­son­ally ini­ti­ated new retal­ia­tory crim­i­nal cases against employ­ees at Hermitage.

At this point, Sergey was becom­ing vis­i­bly angry that the Inte­rior Min­istry offi­cials could be so bla­tantly cor­rupt. Sergey wasn’t a dis­pas­sion­ate lawyer like many we have encoun­tered in the past. He was our advo­cate in the truest sense of the word. It was very com­fort­ing that a pro­fes­sional as tal­ented as Sergey was putting in so much effort and pas­sion into pro­tect­ing us. Although we were still unsure what the cor­rupt offi­cers had in store for us, we felt a sense of calm hav­ing Sergey by our side.

By the sum­mer of 2008 it still wasn’t clear why the police would have been so keen to steal our three invest­ment com­pa­nies, cre­ate fake judg­ments and fab­ri­cate crim­i­nal cases against us. If the inten­tion was to steal the fund assets in Rus­sia, they had failed because, by the moment our com­pa­nies were stolen, the assets had been safely moved by the Fund’s trustee out­side the coun­try. To help us find the answer, Sergey method­i­cally fol­lowed up all the loose ends hop­ing to make sense of the per­se­cu­tion against us. He sent out more than 50 let­ters to dif­fer­ent tax author­i­ties and reg­is­tra­tion offices request­ing infor­ma­tion on our stolen com­pa­nies. Almost nobody replied, but on June 5th, Sergey received a let­ter from the Khimki (a sub­urb of Moscow) tax author­i­ties, which broke the case wide open. Accord­ing to the let­ter, our stolen com­pa­nies had been re-registered in Khimki, after which time they had opened bank accounts at two obscure Russ­ian banks.

Once we learned about the banks, every­thing started to make sense. Sergey found the Russ­ian cen­tral bank web­site where all aggre­gate bank deposit infor­ma­tion is stored, and it showed an enor­mous spike in deposits at these two obscure banks right after the accounts for our stolen com­pa­nies were opened. The spike in deposits was exactly equal to the taxes that the Her­mitage Fund com­pa­nies had paid in 2006. At that moment, we finally under­stood the rea­son why our com­pa­nies had been stolen. The peo­ple who stole our com­pa­nies did so to fraud­u­lently obtain $230 mil­lion that the Her­mitage Fund com­pa­nies had paid in taxes in 2006 by claim­ing the sham court judg­ments had wiped out their his­toric prof­its. The refund of “over­paid taxes” – the largest in Russ­ian his­tory – had been granted by the Moscow tax author­i­ties in two days with no ques­tions asked, and the entire amount was wired to the new bank accounts opened by the per­pe­tra­tors. The date of the wire trans­fer (Decem­ber 26, 2007) showed that it was car­ried out after and in total dis­re­gard of the com­plaints from HSBC and Her­mitage to the Russ­ian author­i­ties that had alerted them to the details of the ongo­ing frauds three weeks ear­lier. Had those com­plaints been acted upon by the Russ­ian law enforce­ment author­i­ties, the theft of $230 mil­lion from the gov­ern­ment sim­ply could not have taken place.

At this point Sergey was indig­nant. It wasn’t just about his client, it was now also about his coun­try. The police offi­cers who were sup­posed to be fight­ing crime were inti­mately involved in one of the biggest crimes ever per­pe­trated against the Russ­ian peo­ple. Sergey didn’t start out as an anti­cor­rup­tion cru­sader, but when cor­rup­tion stared him in the face, he felt he had a duty to fight it. In July 2008, Sergey helped us pre­pare a detailed crim­i­nal com­plaint about the stolen tax money, which was filed with seven dif­fer­ent Russ­ian gov­ern­ment agen­cies. We also shared the infor­ma­tion with the press, and Sergey briefed some Moscow-based press cor­re­spon­dents on the details of the tax rebate fraud and the com­plic­ity of Russ­ian offi­cials in it.

We had hoped that the details in our com­plaints would be shock­ing enough to force the Russ­ian author­i­ties to inves­ti­gate the fraud and to pun­ish the cor­rupt offi­cials. Instead, the Inte­rior Min­istry offi­cers who were involved in the fraud reacted by open­ing crim­i­nal cases tar­get­ing the lawyers who rep­re­sented HSBC and the Her­mitage Fund. These lawyers tried to resist by fil­ing com­plaints with the Russ­ian author­i­ties detail­ing the breach by police offi­cers of the oblig­a­tion to pro­tect lawyers from harass­ment and intim­i­da­tion, but that had no effect. In response, the intim­i­da­tion only wors­ened. Finally, six of our lawyers from four dif­fer­ent law firms were forced to either leave the coun­try or to go into hiding.

The one lawyer who didn’t leave Rus­sia was Sergey. In spite of the clear actions by the police tar­get­ing all of our lawyers, he was sure that he was safe because he had never done any­thing wrong or ille­gal. He believed that the law of Rus­sia would pro­tect him. When Jami­son Fire­stone, the head of the law firm Sergey worked for, encour­aged him to leave Rus­sia like the other lawyers, Sergey replied, “You watch too many movies, this isn’t the 1930’s.”

His belief in jus­tice was so strong that he went on to do some­thing many peo­ple would be pet­ri­fied to do. On Octo­ber 7, 2008, he went to the offices of the Russ­ian State Inves­tiga­tive Com­mit­tee (the Russ­ian equiv­a­lent of the FBI) and tes­ti­fied against two offi­cers of the Inte­rior Min­istry, Lt. Colonel Artem Kuznetsov and Major Pavel Kar­pov, for their involve­ment in the theft of the Her­mitage Fund com­pa­nies and the theft of $230 mil­lion from the Russ­ian bud­get. It was an enor­mously brave move, and we feared for him that day. Amaz­ingly, Sergey was the only per­son who wasn’t wor­ried. It was a big relief when he emerged from the Inves­tiga­tive Com­mit­tee at the end of the day unscathed.

In ret­ro­spect, our relief was mis­guided. On Novem­ber 24, 2008, just over a month after tes­ti­fy­ing against Kuznetsov and Kar­pov, three offi­cers who directly reported to Kuznetsov went to Sergey’s apart­ment at 8am while he was prepar­ing his chil­dren for school and arrested him. He was charged with being the direc­tor of two Her­mitage Fund com­pa­nies that allegedly under­paid taxes in 2001. He was arrested in spite of the facts that the com­pa­nies had clean audits, the statute of lim­i­ta­tions expired in 2004 and Sergey was nei­ther a direc­tor nor had any other role at these two com­pa­nies in 2001 so he couldn’t have had any legal respon­si­bil­ity for taxes, under­paid or not. How­ever, the law didn’t mat­ter because the inves­ti­ga­tors had other plans for Sergey.

We were truly shocked by his arrest. Although there were signs that some­thing like this could hap­pen, Sergey’s self-confidence gave us a sense that our fears were overblown. Up until this point, our prob­lems with cor­rup­tion in Rus­sia had all been abstract – on bank state­ments, share reg­istries and bal­ance sheets. We had never expe­ri­enced a real human cost before. No mat­ter how many unpleas­ant sit­u­a­tions one might have encoun­tered in a busi­ness career, noth­ing pre­pares you for hav­ing some­one you know taken hostage.

Our first con­cern was how a highly edu­cated lawyer, like Sergey, was going to fare among other pris­on­ers. It is not dif­fi­cult to imag­ine the ter­ri­ble things that go on behind prison walls, and it was extremely wor­ry­ing to imag­ine Sergey among bur­glars, rapists and mur­der­ers. For­tu­nately, on this front the reports from his lawyers who vis­ited him gave us some com­fort. Although his back­ground made him quite con­spic­u­ous among other pris­on­ers, his char­ac­ter allowed for him to gain the respect of other pris­on­ers almost imme­di­ately. Because he was a lawyer, he helped other pris­on­ers who didn’t have access to legal assis­tance to pre­pare their appeals, and for that he was appre­ci­ated and pro­tected. Although the con­di­tions of prison were harsh, we took some com­fort that he was well treated by the other prisoners.

Ini­tially, he was sent to Pre-Trial Deten­tion Cen­ter No. 5 in Moscow, but within months he was trans­ferred to a tem­po­rary deten­tion facil­ity with much harsher con­di­tions, and then he was moved seven times between four more deten­tion cen­ters until he was moved to Matrosskaya Tishina prison.
Decem­ber 14, 2009 Page 4
Each move was pro­gres­sively worse, and we started to get word that he was being kept in very harsh con­di­tions. We heard about him being kept with eight other inmates in prison cells that only had four beds so they had to sleep in shifts. We heard about how the prison author­i­ties never turned the lights off at night so even if he got a bed, it was almost impos­si­ble to sleep. Most dis­turb­ing of all, we got news that he was start­ing to lose weight pre­cip­i­tously. Since his arrest, he had lost 40 pounds.

On July 1, 2009, at Matrosskaya Tishina, Sergey was diag­nosed with pan­cre­ati­tis and gall­stones. He was told that he should be mon­i­tored closely, and that he would need a repeat exam­i­na­tion and surgery within a month. As he was prepar­ing for a follow-up visit to the med­ical cen­ter, on July 25, 2009, he was abruptly trans­ferred to Butyrka prison, a max­i­mum secu­rity prison known to be one of the tough­est in Rus­sia. Sergey was put in an eight square meter cell with three other pris­on­ers. The cell had no toi­let – just a hole in the floor – and rats ran freely at night.

At Butyrka, Sergey’s con­di­tion dete­ri­o­rated sharply, and he devel­oped excru­ci­at­ing stom­ach pains. He repeat­edly asked the prison author­i­ties, pros­e­cu­tors, inves­ti­ga­tors and the courts for med­ical atten­tion, and he was repeat­edly denied it by all of them. At one point the pain became so bad that he couldn’t even lie down. His cell­mate banged on the door for hours scream­ing for a doc­tor. When one finally arrived, he refused to do any­thing for Sergey, telling him he should have obtained med­ical treat­ment
before his arrest.

It was extremely frus­trat­ing because there was very lit­tle we could do to help him. We tried to do any­thing we could think of. We tes­ti­fied in front of the US Con­gress about Sergey; we asked the US State Depart­ment and the UK For­eign Office to bring his case up with the Russ­ian For­eign Min­istry; we reached out to the pro­fes­sional asso­ci­a­tions; and we con­stantly pro­vided infor­ma­tion to jour­nal­ists to write about his sit­u­a­tion. Every­one was sym­pa­thetic and did what they could. In the sum­mer of 2009, the Inter­na­tional Bar Asso­ci­a­tion and the UK Law Soci­ety wrote to Pres­i­dent Medvedev protest­ing the ille­gal deten­tion of Sergey­Mag­nit­sky and per­se­cu­tion of other Her­mitage Fund lawyers. On Sep­tem­ber 30, 2009, the Par­lia­men­tary Assem­bly of the Coun­cil of Europe con­demned the attacks on the Her­mitage Fund lawyers, and par­tic­u­larly Sergey, but none of that had any influ­ence on what went on inside of Rus­sia. While we were lob­by­ing from the out­side, the cor­rupt offi­cers were putting more and more pres­sure on Sergey from the inside.

The cor­rupt offi­cials whom Sergey had tes­ti­fied against had a very spe­cific plan for him. They wanted to put enough pres­sure on Sergey so he would with­draw his tes­ti­mony against them and make false state­ments against him­self and his client, the Her­mitage Fund. Most cyn­i­cally, they specif­i­cally wanted him to take respon­si­bil­ity for the theft of $230 mil­lion that they had stolen from the state. After mov­ing him through seven deten­tion cen­ters and an incal­cu­la­ble num­ber of cells, they pre­sented him with their plan. They told him, “If you sign the fol­low­ing state­ments, then you will be freed.” In spite of the hard­ships he was sub­jected to, he rejected their pro­posal. As a lawyer and some­one who believed in jus­tice, there was no way he would be pres­sured into per­jur­ing him­self. Instead, he wrote new com­plaints in which he described the pres­sure he was sub­jected to and how offi­cers know­ing his inno­cence were pro­duc­ing false evi­dence. He explained how the tax charges against him were a smoke­screen to cover up their own involve­ment in the large-scale fraud against the Russ­ian people.

On Sep­tem­ber 11, 2009, Sergey wrote to the investigator:

My crim­i­nal per­se­cu­tion has been ordered, to serve as a ret­ri­bu­tion … It is impos­si­ble to jus­tify the charges brought against me, as I assert again that I did not com­mit any offenses, and the doc­u­ments col­lected by the inves­ti­ga­tors only prove my inno­cence … If this case is ever heard in court, these experts will sim­ply be unable to jus­tify their con­clu­sions dur­ing cross-examination by the defense… Real­iz­ing the inva­lid­ity of their claims, the inves­ti­ga­tors have arranged for phys­i­cal and psy­cho­log­i­cal pres­sure to be exerted upon me in order to sup­press my will and to force me to make accu­sa­tions against myself and other per­sons … in exchange for a sus­pended sen­tence and free­dom. Every time I reject these propo­si­tions by the inves­ti­ga­tors push­ing me to com­mit such a base act, the con­di­tions of my deten­tion become worse and worse … The admin­is­tra­tion of deten­tion cen­ters has assisted the inves­ti­ga­tors to orga­nize my per­se­cu­tion by cre­at­ing intol­er­a­ble con­di­tions for me in their facilities.”

The more he com­plained, the more the pres­sure increased. He was moved to cells where sewage would bub­ble up from the “toi­let” and cover the floor and cells with no glass in the win­dows to pro­tect the inmates from the bit­ter Russ­ian weather. The prison author­i­ties con­trived to deny him any oppor­tu­nity to shower, or access to hot water. Worst of all they denied him any vis­its from his wife or mother, or even the pos­si­bil­ity to speak to his two young chil­dren on the tele­phone for the 11 months he was in deten­tion, which must have been truly heart­break­ing for a man so com­mit­ted to his family.

Through­out this ordeal, Sergey stood true to his beliefs and prin­ci­ples no mat­ter what new suf­fer­ing was devised for him. His belief in those prin­ci­ples was so strong, and Sergey knew them to be so unde­ni­ably cor­rect, that uphold­ing them became his pri­mary aim no mat­ter the phys­i­cal and psy­cho­log­i­cal tor­ture he was forced to endure.

Despite all this and more, he was never bro­ken. Dur­ing his 358 days in deten­tion, Sergey and his lawyers filed over 450 com­plaints doc­u­ment­ing in detail all of the breaches of Russ­ian law, vio­la­tions of his human rights, the repeated denials of med­ical treat­ment and the ever-worsening deten­tion con­di­tions. He wrote on behalf of him­self and on behalf of other detainees. He filed a com­plaint with the Con­sti­tu­tional Court to make changes in Russ­ian crim­i­nal pro­ce­dure to pre­vent some of the abuses he and other inmates were fac­ing that lim­ited their access to coun­sel and deprived them of the fun­da­men­tal right to defend them­selves. Few peo­ple could have man­aged such a prodi­gious effort while being sub­jected to such phys­i­cal tor­ment. Sergey didn’t have access to an office, library or a com­puter. He man­aged to do all this with­out even a table to write on. Each time Sergey filed a com­plaint, it was rejected or sim­ply ignored, but each defeat just served to make him more indig­nant and deter­mined. He was always the con­sum­mate pro­fes­sional. There was never any emo­tion in his com­plaints, even after all the tor­ture he endured. They were crisp and exact.

The cor­rupt offi­cers tried to break him, but they found him stronger than they could have ever imag­ined. They prob­a­bly never had a hostage who didn’t break under this type of pres­sure before. Ulti­mately, he reached the one-year dead­line for pre-trial deten­tion under Russ­ian law, and the inves­ti­ga­tors had to put him on trial or release him. They were plan­ning a big show trial for him where they were hop­ing for his false con­fes­sions to be the pri­mary evi­dence of the trial. Instead they had no evi­dence of his wrong­do­ing, and more wor­ry­ing for them, he was con­tin­u­ing to make very spe­cific, pub­lic and incrim­i­nat­ing state­ments about police involve­ment in the theft of $230 mil­lion from the Russ­ian gov­ern­ment. He had become a very incon­ve­nient hostage.

In the end, Sergey died sud­denly on Novem­ber 16, 2009, at the age of 37. At first, the prison said the cause of his death was a rup­ture to his abdom­i­nal mem­brane, but later that day they revised their story, say­ing he had died of a heart attack. We do not know the exact cir­cum­stances of his death, and the prison author­i­ties refused his family’s request to con­duct an inde­pen­dent autopsy. His diaries are reported to be miss­ing. What is clear is that the abuses he suf­fered dur­ing his final year were what ulti­mately caused his death. Before his arrest and deten­tion, Sergey was a healthy 36-year-old in the prime of life. After a year in pre-trial deten­tion he was dead.

One can never judge the true char­ac­ter of a per­son until they are faced with extreme adver­sity. Most peo­ple, if faced with a far lesser chal­lenge than Sergey, would have given in, and it would have been under­stand­able if he had as well. But for Sergey, his integrity and honor were more impor­tant than any phys­i­cal pain he was suf­fer­ing. His resolve never fal­tered no mat­ter how insur­mount­able the obsta­cle might have seemed. He did what to most peo­ple seems impos­si­ble: he bat­tled as a lone indi­vid­ual against the power of an entire state. Sergey was an ordi­nary man who became an extra­or­di­nary hero. If we all could only show a frac­tion of the brav­ery and for­ti­tude Sergey did, the world would be a much bet­ter place. Sergey, his heroic fight, and the ideals he stood for must never be forgotten.

God bless Sergey and his family.

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