Over the past year I have been writing about the first prosecution of a dead man during the modern era. Recall in past editorials for JURIST, I pointed out that prosecuting the dead is rare in history. On February 18 we will see the opening of a spectacle beyond understanding and logic, the prosecution of Sergei Magnitsky by Russia for alleged crimes. Magnitsky was tortured to death by that same Russian government in 2009. The Russians are prosecuting a dead man.
By way of background, Magnitsky, while a lawyer working for Hermitage Capital Management, exposed a massive tax fraud scheme centered around the Putin government amounting to over two hundred and thirty million dollars. For this he was detained and died in prison at the hands of his jailors before any real judicial proceedings could begin.
Since that time the Russian government has sought to sweep under the rug this sordid incident. Despite their attempts and through the efforts of Magnitsky's former employer, William Browder among others, international pressure has exposed not only what happened to this young lawyer, but also a cynical Russian regime's true attitude toward the rule of law and for basic human rights.
Russia is governed by the mob. Russian President Vladimir Putin and former President Dmitry Medvedev, now prime minister (the two switch jobs to stay in power) are complicit in massive corruption. The rule of the gun governs Russia, not the rule of the law. This augers poorly for the future of a democratic Russia, as the country is slowly slip-sliding away into potential anarchy.
Though initially slow in organizing its opposition, the international community has taken a stand and acted. Laws have been passed that ban travel for perpetrators of this torture and cover-up, as well as funds seized as part of the tax fraud monies deposited in foreign banks. The world has pointed a finger at Russia and has shouted "shame!" The US has not been shy in pushing Russia in a direction of an open and fair accounting of the death of Magnitsky. US President Barack Obama signed into law on December 14, 2012 the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act which provides travel bans to the US for, and allows the seizure of assets belonging to, those alleged to have tortured and killed Magnitsky. The law is a clear statement of policy and a signal to Russia that it is moving in the wrong direction related to human rights and the rule of law.
Russia will not back down and admit wrong doing in the Magnitsky matter. It apparently will prosecute this dead man despite the fact that it makes no sense and is unprecedented. As his former employer recently stated, "this is the most cynical legal procedure in a thousand years". The trial appears to be finally set and the world will watch in amazement and horror. I wonder what Magnitsky's sentence will be...
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 IV, JURIST - Forum, Feb. 5, 2013, http://jurist.org/forum/2013/02/david-crane-magnitsky-iv.php
This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org