The Magnitsky Trial: Russia Places a Dead Man in the Dock

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Mikhail Voskresensky / REUTERS

Nataliya Magnitskaya, mother of Sergei Magnitsky, grieves over her son's body during his funeral at a cemetery in Moscow on Nov. 20, 2009

At Moscow’s Tverskoy District Court on Monday morning, there was a great deal of confusion among the journalists about what exactly was meant to happen in Courtroom No. 17. On the roster, a preliminary hearing was slated for the case of Sergei Magnitsky, who is accused of tax evasion. The court’s press secretary, Alexandra Berezina, explained that the defendant would learn, among other things, whether he would be granted bail or forced to await trial in prison. But like so much about Russia’s latest adventure in judicial folly, it was not clear how the issue of bail could matter. Magnitsky has been dead for more than two years. When this fact was pointed out to Berezina, she gave a look of exasperation. “I’m just telling you what would normally happen,” she snapped. And hardly anything is normal about this case.

For the first time in Russia’s history, a dead man has been placed in the dock, and it will not be easy for the court to parse all of the cryptic corollaries of that lurid fact. How, for instance, is the defense attorney supposed to consult with his client? A Ouija board? Some kind of voodoo mediation? And what about the issue of habeas corpus — literally, “show me the body” — the bedrock principle of common law that requires the accused to be brought before a judge? Are we to expect an exhumation? “It is a self-evident absurdity,” says William Browder, Magnitsky’s former employer and now his co-defendant in the case. “There’s no way in the world that a lawyer can represent him.” But with a trial as steeped as this one in Russian politics, nothing should seem too far-fetched.

(MORE: Why Has Moscow Passed a Bill to Ban U.S. Adoption of Russian Orphans?)

The saga that led to Magnitsky’s death — and subsequently his trial — began in 2009, when Browder hired the young tax attorney to keep the books of Hermitage Capital, Browder’s investment fund in Moscow. While digging into some of the fund’s corporate documents, which Russian police had seized during a raid, Magnitsky uncovered the largest known tax fraud in Russian history. A gang of detectives, tax inspectors and other bureaucrats had allegedly used the fund’s corporate seals and documents to file for a tax refund worth $230 million. Following the paper trail, Magnitsky found that this refund — also the largest in Russian history — had been rubber-stamped at a Moscow tax office in just one day. After that, the money vanished into various offshore accounts. Magnitsky immediately blew the whistle, even offering to give testimony against the officials in court, including agents of the FSB secret police, which Vladimir Putin led before becoming Russia’s President in 2000.

But instead of investigating his claims, which were backed by a paper trail, police placed Magnitsky under arrest and charged him with tax fraud. In his prison cell, he kept a diary documenting life in pretrial detention — with rats, hunger, flooded and freezing cells — and without the medical treatment he needed. Transferred repeatedly from cell to cell, Magnitsky developed acute pancreatitis, which doctors refused to treat. In November 2009, Magnitsky died in excruciating pain at Moscow’s Butyrka prison. According to the Kremlin’s own human-rights council, which later investigated the case, he was also badly beaten shortly before he died.

To this day, all of the officials Magnitsky incriminated, as well as those involved in his alleged torture and death, remain free. Nearly all of them have either kept their jobs or been promoted. So Browder, his former boss, began to seek justice in Western capitals, a campaign TIME reported on here. The greatest success of that effort was the U.S. Magnitsky Act, which passed with a huge bipartisan majority in both the House of Representatives and the Senate last year. It prohibits corrupt Russian officials from holding U.S. visas, bank accounts or property, and it starts with the group implicated in Magnitsky’s death.

(MORE: One (Rich) American vs. Moscow: The Quest of William Browder)

Those sanctions clearly hit a nerve in Moscow. Although President Putin has sought to force Russian officials to declare their assets and bring them onshore, many of them still own condominiums and villas in the West — Miami and London being favorite destinations. Their children study in Western schools and their millions are held in Western bank accounts. So the Magnitsky Act’s attempt to revoke these privileges has brought a furious response. As of Jan. 1, Russia banned U.S. citizens from adopting Russian children, sacrificing the fates of many Russian orphans for the sake of a diplomatic flip of the bird. Numerous U.S. officials have also been placed on a Russian travel blacklist, with Republican Congressman Chris Smith, one of the original sponsors of the Magnitsky Act, becoming the latest last week to be denied a Russian visa.

Over the weekend, the Kremlin also staged a massive anti-American march through Moscow, reviving another relic of the Cold War. Its official purpose was “to protect Russian children from American lawlessness.” In the days before it was held, Putin’s political party, United Russia, sent out a letter to private companies asking that they bring “at least 50” of their employees to the march, according to, a Russian news website that received a leaked copy of the letter. If they failed to comply, “problems will start with our business,” the entrepreneur who leaked the letter told At the beginning of the march on Saturday, organizers were handing out flags and placards at random to the people who showed up. Asked what organization he represented, one marcher with a Union of Gardeners flag looked up at it and said, “Hell, I don’t know. They just gave me this to hold.” Around the columns of protesters, men with bullhorns jogged back and forth, shouting slogans like, “Down with American child killers!”

Two days later, on March 4, the Tverskoy court finally held the preliminary hearing in Magnitsky’s posthumous trial. The hearing had been postponed twice, because the court was unable to find lawyers willing to defend a dead man. The lawyer who finally agreed was Nikolai Gerasimov, who refused to speak to the press on Monday after the closed-door hearing. When it adjourned, he pulled a black hat with earflaps down over his eyes and rushed passed the journalists before ducking into another courtroom. “Please understand,” said Kirill Goncharov, the lawyer appointed to represent Browder, who is being tried in absentia. “I did not want this case.” Asked by TIME why he did not refuse to serve, Goncharov said, “I would have been disbarred.”

In international legal practice, posthumous trials have been held when the family of the accused want to clear his name. But Magnitsky’s relatives have boycotted the trial, pleading with the Moscow Bar Association not to allow any lawyers to represent him. Any attorney who takes part in the case “will serve as an unwitting accomplice to this crime,” Natalia Magnitskaya, the mother of the accused, wrote in a letter to the bar association in January. The trial’s purpose, she wrote, is to “posthumously defame the honest name of my son.”

That also seems to be the purpose of a documentary film airing March 6 on the state-backed NTV network, which is known for running attacks against opponents of the state. Titled “Browder’s List,” the documentary claims that Browder benefited from Magnitsky’s death while stealing millions from government companies. In a classic example of coordination between the state and its propaganda channels, police told reporters on March 5, the day before the program airs, that Browder had caused the state more than $70 million in damages by illegally acquiring shares in Gazprom, the state gas company, more than a decade ago. They pledged to charge him for that as well.

Speaking by phone from London, Browder calls these accusations another diversionary tactic. “This has become the Watergate of Russia,” he says. “The cover-up is now as great as the crime.” In the coming months, he plans to push European countries to pass their own versions of the Magnitsky Act, barring officials implicated in the lawyer’s death from traveling to the E.U. But that will not stop the prosecution against Magnitsky from plowing ahead. The first hearing in the case is scheduled for March 11, and considering that Russia’s conviction rate hovers around 99%, it is almost sure to end in a guilty verdict. So much for resting in peace.