Prosecuting the Dead: Part III

JURIST Contributing Editor David Crane of Syracuse University College of Law says the actions of Vladimir Putin's regime against the life and legacy of deceased Russian lawyer Sergei Magnitsky threaten international progress in basic human rights and have attracted the ire of the US Congress, the European Union and individual nations around the world...

Recently I have written two items for JURIST related to the case of Sergei Magnitsky, a Russian lawyer who was tortured to death in prison between 2008 and 2009 for revealing a $250 million tax fraud scheme perpetrated by the Russian government in 2005. His death has triggered worldwide condemnation and censure by various governments along with the European Parliament. Even the US Congress has taken up the banner of condemnation by introducing the Sergei Magnitsky Rule of Law Accountability Act, a bi-partisan effort that looks for passage this year, hopefully prior to the general election in November.

My first comment addressed the Russian government's plans to prosecute Magnitsky on trumped-up charges even though he is dead. They are prosecuting a dead man. Though not unprecedented over the past 1000 years, it is simply not done in modern criminal practice. My second comment dealt with the "acquittal" of one of the doctors who was complicit in the torture.

The regime of Vladimir Putin, so concerned about the actions by the US Congress (and the rest of the world) seeking justice for Sergei Magnitsky, has made it one of its top foreign policy objectives to quash this international protest, including the legislation pending in Congress. The recent debacle of a Russian Federation legislator coming to the US to "lobby" Congress against adopting the Magnitsky Act underscores the desperation of Putin and his henchmen. (As an aside, the legislator is barred from entering Canada due to his association with the Russian Mafia.)

So, here we are scratching our heads, so to speak, in amazement at the most recent actions of the Russian government trying to bury the Magnitsky controversy. To quote William Browder, Magnitsky's former employer (taken from email correspondence):

Apparently, the Russian authorities are so concerned about getting on the Magnitsky sanctions list, that all new prosecutors in the scandalous posthumous case against Sergei are having their names classified by the Russian government. In repeated attempts by Sergei's mother to get the names, she has been rebuffed and told the names are secret and confidential. She is now suing the prosecutor's office to have the names made public. While it would be helpful that the Russian government release the names, the fact that they are afraid to, just shows how effective this new legislation is.
The Russian government still intends to prosecute a dead man, for all the whole world to see in near-defiance of the rule of law. It certainly is an "in your face" move.

Alas, Russia is sliding down a slippery slope into a criminal abyss. The Magnitsky case only amplifies the distortion of the concept of freedom and democracy by the Putin regime. Dissent at all levels is being quashed and legislation is being passed by a complacent Duma limiting freedom of expression and assembly. Thugs working in the Russian security services operate with impunity outside of the law — arresting, even killing, those who step forward in opposition.

Russia, as a member state of the UN, operates largely outside the norms of civilized society. Armed with "veto power" in the UN Security Council, and hence "protected from sanction," Russia slides through recent history, a dangerous snake operating in the shadows and a lethal threat to the strides the international community has made in basic human rights. The ghost of Joseph Stalin, one of the mega-murderers of the twentieth century, lurks once again in the hallways of the Kremlin. He would approve of the actions of Putin and his henchmen.

Leaders in Congress, working together across the aisles, have largely rejected the pressure put on them by the Russians. Even a reluctant Obama administration is coming around realizing that something must be done. The legislation pending in Congress is a signal, even a marker, that the US will step forward and do the right thing when the rule of law is challenged in such a blatant and absurd manner as Russia attempts to destroy the reputation and honor of a lone, deceased lawyer. Let's push the red "re-start" button again — this time for the rule of law.


David Crane is a Professor of Practice at Syracuse University College of Law. He teaches international criminal law, international humanitarian law and national security law. He was the founding Chief Prosecutor of the Special Court for Sierra Leone from 2001-2005. Crane served over 30 years in the US federal government, holding numerous key managerial positions and also serving as the Waldemar A. Solf Professor of International Law at the US Army Judge Advocate General's School.

Suggested citation: David Crane, Prosecuting the Dead: Part III, JURIST - Forum, July 29, 2012, http://jurist.org/forum/2012/07/david-crane-magnitsky-iii.php.



This article was prepared for publication by David Mulock, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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