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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