Russia: historic Magnitsky trial brings corruption and rule of law into focus

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By Ruth Green

Russia is set to make history as the country’s first modern-day posthumous trial gets underway in Moscow’s Tverskoi District Court.

The case, involving deceased defendant Russian lawyer Sergei Magnitsky, who died in pre-trial detention in a Moscow prison cell in 2009, has attracted worldwide media attention and brought the issue of corruption in Russia and problems with the country’s judicial and penitentiary systems all firmly under the international spotlight.

Another quirk of the trial will see the other defendant, Bill Browder, the founder of investment fund Hermitage Capital and Magnitsky’s client at the time of his arrest, examined in absentia, making him one of the few foreigners ever to stand trial in absentia in Russia.

 

Deceased defendant Russian lawyer Sergei Magnitsky

After several months of delayed proceedings, a judge ruled on 4 March that the trial should go ahead despite the tense political backdrop between Russia and the US. Browder, who has been instrumental in leading an international campaign to investigate Magnitsky’s death and bring those guilty to account (Russian lawyer’s death in pre-trial detention – one year on), succeeded in bringing his campaign to the US last year and in December President Barack Obama signed into law the Sergei Magnitsky Law of Accountability Act. Russia reacted strongly to the news by enforcing a ban on Americans from adopting Russian citizens.

In spite of the huge amount of international attention that the case has attracted, a recent study by the All-Russian Center for the Study of Public Opinion (VTsIOM) suggests that the Russian public are not as aware of the Magnitsky case as might be expected, notes Alexander Nadmitov, managing partner of Nadmitov Ivanov & Partners. ‘According to the poll, on 15–16 December 2012, 35 per cent of Russians knew nothing about Sergei Magnitsky,’ he says. ‘53 per cent had only heard of his surname and knew nothing else about Sergei Magnitsky, six per cent said that he died in the preliminary detention jail, two per cent said that he was a fighter against corruption who exposed financial fraud, one per cent of respondents had heard about him in the connection with the Magnitsky List, two per cent said that he was a lawyer and an advocate of a foreign company and one per cent said that he was a public politician.’

Although the ordeal may have caused a relatively small stir among the Russian public, undoubtedly the court case will prove an important milestone in the local legal market. The preliminary hearing for the trial was initially postponed on 28 January after Magnitsky’s family and lawyers refused to take part, but on 18 February it was revealed that the state had appointed two lawyers to represent Magnitsky and Browder.

 


 

  ‘The posthumous trial is sadly only the more visible example of the current reality of Russia which is that there's no rule of law and the law is twisted, tweaked and mended as needed and required by the ruling elite’

Jana Kobzova
Policy fellow, European Council on Foreign Relations


The two lawyers in question, Nikolai Gerasimov for Magnitsky and Kirill Goncharov for Browder, respectively, practise at Law Office No5, which is located in the same district as the trial is taking place. The appointments have been made in spite of an urgent plea in January by Magnitsky’s mother Natalya Magnitskaya, to the chairman of the Moscow Bar Association Henri Reznik to ask its members not to take part in the trial.

However, as Nadmitov explains, under Russian law lawyers can be appointed to a trial at the court’s discretion. ‘While I don’t know the circumstances of a criminal case against Sergei Magnitsky and Bill Browder, nor am I acquainted with the case materials, as regards procedural matters, under Articles 49-51 of Russia’s Criminal Procedure Code, investigators or the court have a right to appoint lawyers for defendants in certain circumstances,’ he says. Moreover, according to the rules of the Moscow Bar Association, any lawyers appointed to the case face disbarment if they refuse to take part in the trial.

Meanwhile, Jana Kobzova, a policy fellow and wider Europe programme coordinator at the European Council on Foreign Relations, sees the Magnitsky trial as just the latest indication that rule of law is severely lacking in Russia. ‘The posthumous trial is sadly only the more visible example of the current reality of Russia which is that there's no rule of law and the law is twisted, tweaked and mended as needed and required by the ruling elite,’ she says. ‘Strangely, the more absurd the trial is, the more they'll press ahead with it.’

Bill Browder

While Kobzova is hesitant to draw parallels with the Magnitsky trial and Stalin’s show trials, the general purpose behind the trial is all too similar, she says. ‘It's of course not comparable at all, but as Ivan Krastev argues when one looks back in history, the show trials in the 1930s in Russia took place not to fool people into believing that the defendants admit their mistakes and wrongs, but to show to everyone that the state has capacity to break down each individual and force them into admitting things they never did, despite everyone knowing that what they confessed doing they've never actually done.’

Last December 2012, in the only court case related to Magnitsky that has taken place to date,  a Russian court cleared prison doctor Dmitry Kratov of negligence while Magnitksy was in his care. As for the verdict for Magnitsky’s own trial, it doesn’t bode well when you consider that the conviction rate for criminal trials in Russia is over 99 per cent.