Organized Crime and Coruption Project

Russian prosecutors are preparing to try Russian whistleblower Sergei Magnitsky for fraud even though the lawyer died in detention two years ago.  Media is calling it the first ever trial after a suspect has died.  Russian authorities have resubmitted the case of Magnitskywhose death in prison at the hands of Russian authorities brought renewed attention to Russia’s record on human rights.

The accused was a lawyer for Hermitage Capital Management, which maintains that Magnitsky blew the whistle on the biggest tax fraud in Russian history, a single illegal refund of US$230 million.

Russian Interior Ministry Investigator Boris Kibis told Hermitage Capital Management that the ministry had “finished its preliminary investigation” and is ready to submit the case against Magnitsky posthumously and CEO William Browder in absentia, the London-based asset management firm said in a press release last week.

“This posthumous prosecution has taken the concept of legal nihilism to a whole new level. What the Russians are doing could only be described as legal barbarism,” Browder told OCCRP (in an e-mail).  “Even the two most evil men of the 20th century, Hitler and Stalin, didn't prosecute people after they were dead.”

Prior to his imprisonment, Magnitsky accused a number of top level Russian officials of tax fraud and embezzlement, saying they stole Hermitage’s corporate identity, then falsified Hermitage Capital’s tax returns in order to steal a US$230 million refund that was approved in one day.  After Magnitsky went to the authorities with his accusations, he was accused of fraud himself and locked up until his death.  An investigative committee determined the cause of death was ‘negligence.’  Two low level prison officials were fired last year but no one has been charged with the lawyer’s death.

The case was shelved following Magnitsky’s November 2009 death of heart failure.  His family also put pressure on Russian authorities to investigate his death, saying it was a direct result of beatings and denial of medical care by prison authorities.

Russian President Dimitry Medvedev’s Human Rights Council found in July 2011 that the posthumous proceedings against Magnitsky violate the European Human Rights Convention, and in January, the Moscow Bar Association told the Russian Interior Ministry that appointing a lawyer to represent a deceased person is against the law.

But the case was re-opened last August.  Authorities said that it would give the lawyer’s family and friends a chance to clear his name, but the family said they had not sought that.

Kibis, the state investigator, wrote in a letter to Magnitsky’s mother, Natalia Magnitskaya, that the case could be dropped if his relatives and friends stop demanding that someone be accountable for Magnitsky’s death, according to the letter obtained by Hermitage.

Browder said he would not stop pushing to clear Magnitsky’s name, even if that meant a continuation of the trial.

“If the Russian Interior Ministry thinks that running a show trail[sic] 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,” he said in a statement.

Prosecutions in absentia, common during Soviet times, were abolished by the Russian State Duma after the high profile trials of two KGB agents in 2002.  But the law was resurrected in 2006 at the behest of the Federal Security Service, known as the FSB.