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Resolution 1966 (2014) Final version
Refusing impunity for the killers of Sergei Magnitsky
1. The Parliamentary Assembly reiterates
its strong support for the fight against impunity and against corruption
as a threat to the rule of law, in line with its Resolution 1675 (2009) and Recommendation 1876 (2009),
and Resolution 1943 (2013) and Recommendation 2019 (2013),
and for the protection of whistle-blowers expressed in Resolution 1729 (2010) and Recommendation 1916 (2010).
2. It is appalled by the fact that Sergei Magnitsky, a tax and
accountancy expert with a Moscow-based law firm, died in pretrial
detention in Moscow on 16 November 2009 and that none of the people
responsible for his death have yet been punished.
3. Mr Magnitsky had carried out investigations on behalf of a
client on a massive fraud against the Russian fiscal authorities.
The suspects he identified had effectively obtained the reimbursement
of taxes paid by his client’s companies, which had been fraudulently
re-registered in the names of known criminals.
4. The complaints were addressed to senior representatives of
Russian law-enforcement bodies, but they were sent for investigation
to the same Interior Ministry officials who had been accused of
complicity. Mr Magnitsky had been placed in pretrial detention,
in increasingly harsh conditions, for alleged tax evasion committed
in 2001 together with his then client William Browder. After six
months in detention, Mr Magnitsky was diagnosed with pancreatitis.
Shortly before his scheduled treatment, he was transferred to another
prison without adequate medical facilities.
5. After almost a year in detention, on 16 November 2009, Mr
Magnitsky, whose state of health had further deteriorated, was transferred
back to a detention centre equipped with relevant medical facilities.
Following his arrival, he was beaten with rubber batons and died
the same evening. Civilian emergency doctors called in by prison
officials were kept waiting for more than an hour, after which they
found Mr Magnitsky’s lifeless body on the floor of a holding cell.
6. The precise time and causes of Mr Magnitsky’s death are still
unclear. Contradictory testimony and official records have not yet
been fully investigated.
7. Two prison officials were indicted for negligence. The proceedings
against one of them were terminated on 2 April 2012 due to the statute
of limitations. The other was acquitted in line with the prosecutor’s
request on 28 December 2012. None of the people present at the time
of Mr Magnitsky’s death, or accused by his family of having orchestrated
the pressures he had complained about, was ever indicted.
8. The trial of Mr Magnitsky, who is now accused of having participated
himself in the fraud he had denounced and in alleged tax evasion
by his client, is being pursued posthumously, despite numerous protests from
his widow and his mother. Russian law allows posthumous trials only
exceptionally, at the request of the family, for rehabilitation
purposes.
9. The lawyers who acted on behalf of the true owners of the
fraudulently re-registered companies, in order to help them regain
control, are now being prosecuted for acting on false power of attorney,
as they had not obtained their powers from the false owners of the
companies.
10. The Russian Public Oversight Committee, mandated by the State
to inspect all places of detention in the Russian Federation, carried
out an investigation into the circumstances of Mr Magnitsky’s ill-treatment
and death in detention. It pointed out numerous inconsistencies,
omissions and contradictions in the official records concerning
the case.
11. The Presidential Council on Human Rights, on the basis of
the Public Oversight Committee’s findings, thoroughly evaluated
the case of Mr Magnitsky and urged the competent Russian authorities
to hold to account those responsible for his death.
12. Mr Magnitsky’s former client, William Browder, who is now
wanted by the Russian authorities for tax fraud, is leading a worldwide
campaign in favour of visa bans and account freezes against people
allegedly sharing in the responsibility of Mr Magnitsky’s death
and the ensuing cover-up. Following the adoption of the “Magnitsky
Act” in the United States of America, he is campaigning for similar
sanctions in Europe.
13. As a reaction to the Magnitsky Act, the Russian State Duma
adopted a law envisaging similar measures against United States
officials involved in human rights violations. The law also prohibits
the adoption of Russian orphans by American families, and senior
government representatives have publicly commended the officials
covered by sanctions under the Magnitsky Act for their actions.
14. In view of the above, the Assembly urges the competent Russian
authorities:
14.1. to fully investigate
the circumstances and background surrounding Mr Magnitsky’s death
and the possible criminal responsibility of all officials involved,
in particular:
14.1.1. the contradictory testimony by prison
officials and other witnesses concerning the events following Mr
Magnitsky’s arrival at the Matrosskaya Tishina pretrial detention
centre on 16 November 2009;
14.1.2. the existence of two different versions of the “death
report” of 16 November 2009 signed by Dr Gaus and others;
14.1.3. the reasons why Mr Magnitsky was moved to Butyrka prison
one week before the second ultrasound and surgery scheduled at Matrosskaya
Tishina prison;
14.1.4. the assignation of a mere hygiene specialist to provide
medical care for Mr Magnitsky, who had previously been diagnosed
with serious diseases, in particular pancreatitis;
14.1.5. the prescription and administration, to Mr Magnitsky,
of the drug Diclofenac, which is suspected of, inter alia, aggravating pancreatitis
in certain circumstances;
14.1.6. the unavailability of CCTV footage of the arrival of Mr
Magnitsky at Matrosskaya Tishina prison on the day of his death,
in view of testimony according to which investigators had taken away
the recordings;
14.1.7. the incompleteness of the legally required ledger of complaints
made during a critical period at Butyrka prison, in view of testimony
that the extracts of the ledger presented during the proceedings
appeared to have been rewritten on a single occasion;
14.1.8. the personal relations existing between persons suspected
of participating in the criminal conspiracy denounced by Mr Magnitsky,
including certain officials and former officials of the Ministry
of the Interior and of the tax offices implicated in the fraudulent
tax reimbursement, the owner of the bank used in the laundering
of the proceeds, and lawyers involved in the fictitious law suits,
including instances of joint travel to Dubai, Cyprus and London;
14.1.9. the origin of the extreme wealth displayed by certain
retired Interior Ministry and tax department officials;
14.1.10. the fraudulent law suits before the arbitration courts
in St Petersburg, Moscow and Kazan recognising the fictitious debts
that purportedly annulled the profits of the fraudulently re-registered
companies in preparation for the tax reimbursement fraud denounced
by Mr Magnitsky;
14.1.11. the procedure followed by the two tax offices involved
in the fraud denounced by Mr Magnitsky in approving reimbursements
amounting to the equivalent of US$230 million, within twenty-four
hours of the application, in particular whether the required background
checks with the Interior Ministry had taken place, given that the
Interior Ministry had previously received detailed information prepared
by Mr Magnitsky on the fraudulent re-registration of the companies asking
for the reimbursement;
14.2. to fully co-operate with the competent authorities of
all countries, including Cyprus, Estonia, Finland, Latvia, Lithuania,
the Republic of Moldova and Switzerland, which have opened criminal investigations
into money laundering in light of information received on suspect
transfers of funds that can be traced back to the fraud denounced
by Mr Magnitsky, or to similar crimes committed beforehand or afterwards;
14.3. to hold to account for their acts and omissions all those
who share in the responsibility for Mr Magnitsky’s death, in particular
those who ordered his frequent moves between prisons and cells, with
ever-deteriorating conditions of detention, failure to provide necessary
medical treatment, and, just before his death at Matrosskaya Tishina
prison, the beatings and the manner in which Mr Magnitsky was left
alone in a cell in an apparently critical condition;
14.4. to close the posthumous trial against Mr Magnitsky and
cease putting pressure on his mother and his widow to participate
in these proceedings;
14.5. to cease the persecution of other lawyers acting for the
true owners of the fraudulently re-registered companies.
15. The Assembly commends the Russian Federation for having set
up the robustly mandated and independent Public Oversight Committee,
which can serve as a model for many other member States of the Council
of Europe. In order to further strengthen this valuable prison oversight
instrument, the resources at its disposal should be increased and
access by detainees facilitated for preventive purposes.
16. It calls on the competent Russian authorities to persist in
fighting corruption at all levels by:
16.1. improving co-ordination between bodies possessing relevant
information, such as the Central Bank, and others who are empowered
to carry out criminal investigations and to prosecute perpetrators;
16.2. further promoting transparency in business relations,
especially by improving public access to corporate information (beneficiary
ownership, directors, balance sheets and court and tax records)
and by obliging all banks to inform the Central Bank of all transfers
of funds over and above a certain threshold;
16.3. promoting modern public service ethics based on transparency
(including recruitments and promotions), fair pay and zero tolerance
for extortion, bribe taking and influence peddling.
17. The Assembly invites all other member States of the Council
of Europe to consider ways and means of encouraging the Russian
authorities to hold to account those responsible for the death of
Mr Magnitsky and to fully investigate the crime he had denounced,
in the interest of the Russian Federation and of all its hard-working
and tax-paying citizens.
18. The Assembly resolves to follow closely the implementation
of the above proposals. It recalls its Resolution 1597 (2008) and Recommendation 1824 (2008) on
United Nations Security Council and European Union blacklists. It
further resolves that if, within a reasonable period of time, the
competent authorities have failed to make any or any adequate response
to this resolution, the Assembly should recommend to member States
of the Council of Europe to follow as a last resort the example
of the United States in adopting targeted sanctions against individuals
(visa bans and freezing of accounts), having first given those named
individuals the opportunity to make appropriate representations
in their defence.