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.