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 4^th 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 5^th, 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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