Magnitsky v. Russia
Deliberate denial of medical care led to the painful death in custody of a whistle-blower.
Sergei Magnitsky uncovered a fraud through which more than $230 million was allegedly stolen from the Russian Treasury, spirited out of the country, and laundered through a network of criminals and officials. When he publicly accused officials of being involved in the fraud, those same policemen opened a spurious investigation against him. The investigators ensured he remained in detention for the next 12 months, keeping him in terrible conditions, denying all requests to see his family, and refusing him essential medical treatment.
In June 2009 he was diagnosed with pancreatitis, but was moved to a prison where he could not be treated. When his illness became acute, the authorities delayed treating him, and he went into septic shock. A psychiatric emergency team that would have easily diagnosed his condition was prevented from seeing him for two hours. Instead, he was beaten, locked in a cell, and denied any medical treatment. When the experts were allowed in, he was already dead.
The victim. Sergei Magnitsky was married with two small children. He was the head of the tax practice at the Moscow office of the law firm Firestone Duncan. His clients included Russian subsidiaries of the Hermitage Fund, at the time the largest foreign investment fund in Russia.
The Raid. On 4 June 2007, officers from the Ministry of Interior Affairs (MVD) raided the Moscow offices of Firestone Duncan and Hermitage. The officers seized large numbers of corporate documents and company seals.
The Fraud. In late 2007, Mr. Magnitsky and his colleagues discovered that corporate documents and company seals seized in the June raid had been used by a criminal gang to arrange a fraudulent tax refund, known as a “corporate raid.” In July 2007, the gang had used the documents to gain control of three Hermitage subsidiary companies, and brought fake legal actions to create financial liabilities of 30 billion roubles (approximately $1 billion), wiping out the companies’ tax bill for 2006. In December 2007, the gang reclaimed 5.4 billion roubles (approximately $230 million) in tax paid to the Russian government by the three subsidiaries. Two tax offices in Moscow approved the refund and paid it out in less than three days. Subsequent investigations across Europe and the Middle East discovered that the policemen and tax inspectors alleged to be involved in the fraud obtained assets far in excess of their official salaries, flying around the world in corporate jets and purchasing luxury apartments.
Allegations by Hermitage. When Hermitage discovered that their companies had been stolen, they presented formal complaints to the authorities, detailing the apparent fraud and the roles of individual police officers in it. Three weeks later, the MVD re-opened an old complaint against Hermitage relating to a tax bill in 2001 that had been closed in 2005 after the authorities concluded there was nothing untoward. In June 2008, Sergei Magnitsky gave evidence, naming individual policemen for their roles in roles in seizing the corporate documents used to facilitate the fraud.
Conflict of Interest. Not until November 2008 did the MVD formally appoint an investigative team to investigate the allegations made by Mr. Magnitsky, far too late to prevent the stolen funds from leaving Russia. The investigative team included policemen who had been named by Mr. Magnitsky as being behind the very fraud they were now supposed to investigate. Six days later, members of the same investigative team were also asked to investigate the allegations against Mr. Magnitsky. Within days, they issued a summons for him to appear as a witness, and then went to his house to bring him in for questioning. On 24 November 2008 he was arrested. At the time of his arrest, Mr. Magnitsky was in sound medical health.
Detention. For the next 12 months the investigative team helped ensure that Mr. Magnitsky was kept in custody, relying on spurious grounds to justify his detention, and ignoring the facts that warranted his release. Mr. Magnitsky maintained his innocence, and during interrogation and in written complaints accused members of the investigative team of detaining him to try to force a false confession out of him and in retribution for uncovering the fraud.
Conditions of detention. The investigative team had substantial influence over both the duration and conditions of Mr. Magnitsky’s detention. In 12 months he was moved between detention centres six times, and between cells at least 20 times, including at night. On several occasions when he made complaints, Mr. Magnitsky was moved to a cell with worse conditions, as the investigators sought to put pressure on him. Mr. Magnitsky was allowed only one visit from his wife and mother, and only after almost a year in detention without having seen them or any other relatives.
Diagnosed with Pancreatitis. On 1 July 2009, an ultrasound examination at Matrosskaya Tishina prison revealed that he had gallstones and pancreatitis. His pancreas was twice its usual size, and was to be operated on in one month. However, the day after this illness was diagnosed, the investigative team ordered him to be transferred to Butyrka prison, which unlike Matrosskaya Tishina did not have either the ultrasound equipment or the surgical facilities needed to treat Mr. Magnitsky.
Denial of Medical Care and Poor Conditions. In Butyrka, despite his medical diagnosis, Mr. Magnitsky was not properly examined by a doctor until 7 October, 2009 – more than three months after the initial diagnosis. He was denied the medicines prescribed for him. When he complained, Mr. Magnitsky was moved to cells with worse conditions, ending up in overcrowded cells with no windows, where the sewage overflowed.
Deterioration and transfer. On Friday 13 November, Mr. Magnitsky experienced acute pains in the area of his pancreas and liver, and vomiting. He was not seen by a doctor until 9 a.m. on Monday 16 November. The doctor found that the pancreatitis was aggravated, and that he had to be sent urgently to the medical unit of Matrosskaya Tishina prison. Despite this urgency, he did not arrive there until approximately 6:30 p.m.
Death in Custody. On arrival at Matrosskaya Tishina he was seen by Dr. Alexandra Gaus, who confirmed the diagnosis of acute pancreatitis, describing his status as “moderately severe.” According to her testimony, Mr. Magnitsky’s condition suddenly deteriorated. He was highly agitated, saying, “they will kill me here. I am innocent under this case, why did they bring me here?” Dr. Gaus diagnosed Mr. Magnitsky as suffering from “acute psychosis”. She called a team of eight prison guards to assist as well as an emergency psychiatric team. The guards handcuffed Mr. Magnitsky and placed him in a cell, where he was left for nearly two hours without medical attention. The record indicates that, for unexplained reasons, the guards used a rubber truncheon on him.
The independent emergency psychiatrist and his assistant later testified that they arrived at the prison at 8 p.m., but that they were kept waiting at the gate for more than an hour, with no explanation. They eventually entered Cell No.4 at about 9:20 p.m. to find Mr. Magnitsky’s body, concluding that he had been dead for at least 15 minutes. The medical record and numerous prison staff insist that Mr. Magnitsky was still alive and breathing when the emergency psychiatric team arrived, and only lost consciousness as they examined him. The official autopsy found that numerous physical injuries were inflicted upon Mr. Magnitsky immediately before his death, for which no explanation has been given. A preliminary death certificate issued that day suggested that he may have sustained a “closed cranio-cerebral injury”, although the document was later modified to remove those words.
Physicians for Human Rights. In October 2012, Physicians for Human Rights prepared an expert report based on a review of the medical evidence. The report concluded that from the ultrasound examination it was clear that Mr. Magnitsky was suffering from pancreatitis, which could have been easily resolved by surgical removal of his gallbladder. The report notes that “Pancreatitis, whether acute or chronic, typically produces severe, to excruciating, unrelenting abdominal pain and frequently bouts of vomiting…. Left untreated death can occur.” The report found that the “repeated medical neglect and outright disregard for the well‐being of Mr. Magnitsky was undoubtedly a significant factor leading to his death”. PHR also concluded that in the last hours of his life, Mr. Magnitsky was suffering from septic shock, a condition that was treatable, and which would have been easily recognised by trained psychiatrists, such as the emergency team that was kept waiting outside the prison gates. The report concluded that “the decision by the authorities at Matrosskaya Tishina prison to restrain him and keep him in a cell for two hours without treating him sealed his fate and resulted in death.”
Trial and Acquittal of Dr. Kratov. On 20 December 2011, Dr. Dmitri Kratov was issued with final charges for negligence in the care of Mr. Magnitsky. The trial of Dr. Kratov commenced on 13 September 2012 before the Tverskoy District Court in Moscow. Towards the end of the trial, President Putin spoke at a press conference and reportedly stated “Magnitsky died. Died not from torture. He was not tortured. He died from a heart failure.” Four days later the prosecutor asked the judge to find Dr. Kratov not guilty. On 28 December 2012, the Tverskoy District Court acquitted Dr. Kratov of all charges against him. The verdict was upheld on 16 May 2013.
Posthumous Conviction of Mr. Magnitsky. The posthumous trial of Mr. Magnitsky began on 4 March 2013 also at the Tverskoy District Court. On 11 July 2013, he was found guilty. No sentence was passed.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative represented Sergei Magnitsky’s mother Natalia Magnitskaya in her claim before the European Court of Human Rights.
The application to the European Court of Human Rights argued that the death of Sergei Magnitsky violated numerous provisions of the European Convention on Human Rights.
- Unlawful killing. The Russian authorities deliberately killed Sergei Magnitsky, by refusing to provide him with medical treatment and by assaulting him. Given the failure of the authorities to provide a plausible explanation for his death, the Court should make a finding that he was unlawfully killed in breach of Article 2 (right to life).
- Torture. The Russian authorities intentionally subjected Sergei Magnitsky to ill-treatment during the nearly 12 months that he was detained prior to his death. The deliberate failure to treat his painful symptoms and the infliction of debilitating physical conditions causing physical and mental suffering in an attempt to obtain a false confession or a retraction amounts to torture, contrary to Article 3 of the Convention.
- Unlawful Detention. The detention of Sergei Magnitsky was not for any lawful purpose but in order to obtain a false confession from him, to force him to retract his allegations, and to cover up official corruption. There was insufficient evidence upon which to detain him. The hearings at which his detention was considered failed to meet the standards required by Article 5 (right to liberty).
- Failure to Investigate. The investigation into the death of Mr. Magnitsky was not prompt, impartial, effective, or public. Nor was it capable of bringing about the identification and prosecution of either the material perpetrators or the intellectual authors of his death.
- Whistle-blower Protection. The prosecution of Mr. Magnitsky for the purpose of silencing his revelation of a 5.4 billion rouble fraud against the Russian treasury violates the protection given to whistle-blowers by Article 10 (freedom of expression).
- Posthumous Prosecution. The continuation of criminal proceedings against Mr. Magnitsky after his death violates the presumption of innocence and the right to a fair trial protected in Article 6.
- The Persecution of Mrs. Magnitskaya. The repeated and deliberate obstruction of all attempts by Natalia Magnitskaya to establish the truth as to her son’s death, through false statements, excessive secrecy, and the refusal to conduct simple investigative actions or to allow any independent review, as well as the unique and unlawful posthumous prosecution of her son, for which she was summonsed in his stead by the same investigators who persecuted him, amounts to treatment contrary to Article 3 (ill-treatment).
The Court found unanimously that the authorities had deprived Sergei Magnitsky of important medical care and had failed to comply with their duty to protect his life.
Furthermore, they had not carried out an effective criminal investigation into alleged medical negligence as the cause of death. The Court also found that Mr Magnitskiy had been held in conditions of severe overcrowding, and concluded that he had suffered ill-treatment that had not been the subject of any effective investigation. The Court further observed that a fundamental rule of criminal law was that criminal liability did not survive the person who committed the criminal act, a rule which guaranteed the presumption of innocence.
As a result, there had been:
a violation of the substantive and procedural limbs of Article 2 (right to life) of the European Convention on Human Rights, and,
a violation of Article 3 (prohibition of ill-treatment) owing to the conditions of Mr Magnitskiy’s detention, and,
a violation of Article 3 owing to Mr Magnitskiy’s ill-treatment by prison guards and the lack of an effective investigation into that issue, and,
a violation of Article 5 § 3 (right to liberty and security) owing to the length of his detention, and,
a violation of Article 6 §§ 1 and 2 (right to a fair trial and presumption of innocence) owing to the posthumous proceedings and his conviction.
The Court rejected a complaint under Article 5 § 1 about Mr Magnitskiy’s arrest and detention as illfounded.
The Court ordered the payment of €34,000 in non-pecuniary damages to both Natalia Magnitskaya, and to Natalia Zharikova, Magnitsky's wife, who had taken over the initial application he himself filed before his death regarding his pretrial detention.
European Court of Human Rights issues unanimous ruling against Russia.
The Justice Initiative shares important factual developments in the applicants’ cases before the European Court and requests the Court to move to judgment.
The Government of Russia submits its comments on the applicants’ claims for just satisfaction and their further observations.
The Justice Initiative files its reply to the Government’s observations on the application, together with claims for just satisfaction.
The Government of Russia files its observations in reply to the complaints.
The European Court invites the Government of Russia to submit observations on admissibility and merits of the complaints.
The Justice Initiative submits additional evidence to the European Court of Human Rights.
Parliamentary Assembly of the Council of Europe issues report on the case of Sergei Magnitsky.
President of Section I grants priority status to the application.
Posthumous trial of Mr. Magnitsky concludes with his conviction.
Dr. Dmitry Kratov found not guilty of all charges connected with Mr. Magnitsky’s death.
Application filed with the European Court of Human Rights.
Prosecutor General’s Office announces decision to re-open criminal investigation against Mr. Magnitsky.
Criminal Investigation against Mr. Magnitsky closed.
Sergei Magnitsky is transferred back to Matrosskaya Tishina prison, where he dies at approximately 9 pm.
Ultrasound examination discloses pancreatitis. The following day he is ordered to be transferred to Butyrka prison, where he cannot be treated.
Sergei Magnitsky arrested.
Investigative team appointed to look into the allegations made by Sergei Magnitsky and Hermitage.
Tax refund of $230 million paid out.
Hermitage alerts the authorities to the fraud; no action is taken.
Police raid Hermitage and Firestone Duncan, seizing corporate documents and seals.
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