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Trials of the Dead

by CHRISTOPHER BRAUCHLI

“When the reading was over, he uttered in a voice full of sorrow:  “Goodness, how sad is our Russia.”

— Nikolai Gogol, Four Letters Concerning Dead Souls

Here is the news you’ve all been waiting for. As is often the case with news, it consists of two parts-the bad and the good. The bad news is he was found guilty.  The good news is he won’t have to serve any time. That’s because he’s dead.  I refer to the recent conviction of Sergei Magnitsky.  Mr. Magnitsky is indebted to Olga Alexandrina for the fact that he even had a trial.

Olga was involved in a head-on collision in Moscow in which she was killed. The driver of the other car was a vice-president of Lukoil.  Civic activists and those who reportedly saw the accident said the executive’s Mercedes swerved into on coming traffic causing the accident.   Authorities, however,  pressed criminal charges against Olga saying she caused the accident. Olga’s father was outraged that she was criminally charged and demanded that she be tried even though dead. His demand was turned down because of paragraph 4 of Article 24 of the Criminal Procedural Code of the Russian Federation.  That paragraph says death of a criminal defendant brings criminal proceedings to an end unless “further investigation was necessary for the rehabilitation of the deceased.”. The father appealed the denial of his demand for a trial to the Russian Constitutional Court and in 2011 that court interpreted paragraph 4 to mean that the only time dead people can be tried for pre-mortem criminal activity is if the family requests a trial in order to rehabilitate the decedent.  With the ruling in hand, Olga’s father persuaded authorities to permit the trial to go forward. To no one’s great surprise at the trial’s conclusion Olga was found guilty.  Though herself guilty, Olga paved the way for Mr. Magnitsky to be tried.

Followers of such things may recall that Mr. Magnitsky was a Russian accountant and auditor who worked at the Moscow law firm of Firestone Duncan.  While employed there he was investigating an alleged $230 million tax fraud that implicated tax officials and police officers.  In November 2008, before completing his investigation, he was arrested on the pretense that he and a client had conspired together to commit tax fraud by falsifying tax returns and taking advantage of a tax break given those who employ the disabled.

Under Russian law it was permissible for him to be kept in confinement for up to one year following his arrest without being tried. He was not tried with in that period.  Eight days short of one year Mr. Magnitsky died without having been tried.  During his incarceration he had been placed in increasingly smaller spaces, denied medical care and denied contact with family members.  He suffered from untreated pancreitis and died because of acute heart failure and toxic shock.

The family was upset at Mr. Magnitsky’s treatment, blaming his death on the refusal of authorities to provide him with adequate medical treatment.  In addition, they were convinced that the only reason he had been imprisoned was because of trumped up charges designed to put an end to the fraud activities he was trying to uncover when arrested.  The Russian authorities were upset with the family’s reaction.  They did not appreciate the fact that the family said the reason Mr. Magnitsky died was because he was denied proper medical care.  More importantly, the family insisted that Mr. Magnitsky was not guilty of the crimes for which he had been arrested but not tried. The authorities did not like the fact that the family repeatedly conducted interviews in which they asserted that Mr. Magnitsky was innocent.  Under the Constitutional Court’s theory, however, the authorities could not do anything because under the constitutional court’s ruling, only the family could demand a criminal trial of someone who is dead.

Since the Magnitsky family strenuously objected to the trial of their dead family member, followers of matters constitutional in Russia may wonder how the prosecutor could conduct a five-month trial of a dead man.  The prosecutor provided the answer when at the beginning of the trial he said “the case was reopened to decide the issue of Magnitsky’s possible rehabilitation.” The prosecutor reasoned that even though the family had not demanded Mr. Magnitsky’s rehabilitation, their repeated interviews with the press during which they insisted that Mr. Magnitsky was not guilty of the crimes with which he and his client were charged was the same as demanding that the trial go forward so Mr. Magnitsky could be rehabilitated.  Rehabilitation if successful would not, of course, have resulted in Mr.Magnitsky’s resurrection.  It would only have resurrected his reputation.

At the conclusion of a five-month trial, the presiding judge, Igor Alisof  found Mr. Magnitsky guilty, spending 1 ½ hours reading his findings. He observed, however,  that because of Mr. Magnitsky’s “physical absence” during the proceedings, all further investigation into his conduct would come to a halt.  He also declined to impose jail time because of Mr. Magnitsky’s “physical absence.”  That proves that even in Russian courts the occasional defendant may find reason to be grateful for the mercy shown by the court, even if dead.

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