European Court Complaint Challenges Russia over Death of Anti-Corruption Whistle-Blower

NEW YORK—The mother of Sergei Magnitsky, the Russian anti-corruption whistle-blower who died in detention in November 2009, is taking the search for justice for her son’s death to the European Court of Human Rights in Strasbourg.

A detailed complaint, filed with the court yesterday on behalf of Natalia Magnitskaya by the Open Society Justice Initiative, argues that Russian law enforcement authorities manipulated the criminal justice process to silence her son, after he exposed a $230m tax fraud involving officials of Russia’s powerful Interior Ministry.

When he refused to withdraw his allegations, Magnitsky was placed in inhuman conditions of detention, denied life-saving medical treatment and, in the final moments of his life, subjected to physical violence.

“Sergei Magnitsky was wrongly detained and tortured because he unearthed evidence of grand theft at senior levels of the Russian government, then refused to back down,” said James A. Goldston, executive director of the Open Society Justice Initiative and the lead lawyer on the case.

“Though Mr. Magnitsky’s courage was unusual, his fate is not. His case shines a spotlight on the corruption and abuse which pervade Russia’s justice system.”

The complaint argues that Magnitsky’s death at the age of 37 was the result of deliberate abuse while he was in detention, which included persistently denying him medical treatment for a life-threatening illness, and a beating by guards just before he died. At the time of his death, Magnitsky had been held in pretrial detention for 358 days, while supposedly under investigation by the same Moscow Interior Ministry officers he had originally accused of corruption.

Magnitsky, a married man with two young children, was head of the tax practice at the Moscow offices of Firestone Duncan, a U.S.-owned law and accounting firm, whose clients included the Russian subsidiaries of the Hermitage Fund, founded by William Browder.

In June 2007, when Hermitage was the largest foreign investment firm in Russia, its offices were raided by Interior Ministry officials who seized documents that subsequently allowed the fraudulent take-over of three Hermitage subsidiaries.

In December of that year, and in record time, the new owners of the stolen Hermitage subsidiaries were granted a 5.4 billion ruble ($230m) tax refund on taxes that had been paid when they were under Hermitage’s control.  Magnitsky testified in October, 2008 that Interior Ministry officers were involved in the fraudulent refund claim. The following month he was arrested, marking the start of a campaign of persecution by senior law enforcement officials including the officers he accused.

Magnitsky was moved between five different detention centers while in custody, and filed some fifty complaints about poor conditions. In June 2009, more than six months after his arrest, he was diagnosed with pancreatitis that required further diagnosis and surgery. The following day a senior Interior Ministry official arranged for his removal to a different detention center, notorious for its poor conditions and lack of even rudimentary medical facilities. Over the following months, his health deteriorated markedly until his death in November.

The complaint provides a familiar account of the grim state of many Russian pre-trial detention centers, where thousands of people await court appearances in often overcrowded and unsanitary conditions, with regularly inadequate access to medical care.

But, citing his own detailed complaints and his diaries, it also argues that in Magnitsky’s case these conditions amounted to torture and ill-treatment aimed at forcing a false confession or a retraction of his politically explosive allegations of wrong-doing.

Pavel Chikov, head of AGORA, a Russian regional human rights association, said that the complaint highlights the common but illegal practice in Russian pretrial custody of using the denial of medical treatment of other basic services as a means to put pressure on detainees: 

“If someone is ill and needs medical help, specific medicines and medical specialists are used as currency against the detainee. The guard will hope for a bribe, and the police or the investigator – for a confession, testimony, or information. A refusal to ‘cooperate’ may guarantee a denial of medical requests, as well as minimally-decent conditions of detention.”  

The complaint  also notes that, shortly before Magnitksy died, other Hermitage employees received threats to the effect that “any man can be killed;” and that his body showed numerous physical injuries which, like his death, have never been satisfactorily explained. To the contrary, from the moment of Magnitsky’s death, official explanations have been riddled by inconsistencies.

The complaint asks the court to find that the Russian Federation has violated six articles of the European Convention of Human Rights: Article 2 (denial of right to life); Article 3 (torture); Article 5 (unlawful detention); Article 10 (retaliation against whistle-blowers); and Article 13 (failure to provide an effective remedy).

The Open Society Justice Initiative promotes human rights and builds legal capacity around the world. Its work includes strategic litigation and advocacy aimed at reducing, and promoting alternatives to, the arbitrary and excessive use of pretrial detention.