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
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