On November 16, 2009, lawyer Sergei Magnitsky died while awaiting trial in a Moscow prison. Exactly how he died is unclear, but it seems that he suffered a toxic shock reaction following internal organ rupture. On the day he was to die, Magnitsky had a visibly swollen stomach and was vomiting at three-hourly intervals. The sum total of the medical attention Magnitsky received that day appears to have been a series of psychiatric assessments, and the prescription of a single painkiller.
Magnitsky was officially being held on charges of “tax evasion”, in respect to low-tax investment vehicles he had helped set up for Hermitage Capital Management in the 1990s. Friends and colleagues refute these charges as fabricated and inconsistent. They claim the real reason why he was being held was two-fold: as human pawnage for his client, Hermitage Capital boss Bill Browder, with whom prosecutors were picking the bigger fight; and because Magnitsky had decided to name corrupt Interior Ministry (MVD) officers, who he alleged had used stolen Hermitage companies to defraud the Russian government of $230 million in VAT.
One figure determined to put this side of the story across is Magnitsky’s former employer, Jamison Firestone. An American lawyer originally from Los Angeles, Firestone was one of the pioneers of the swashbuckling era of post-Soviet Russia, jointly setting up his own legal practice in Moscow while still in his mid-twenties. Today, he is based in London, having fled Russia over fears he too was to be targeted over what he describes as “bogus” tax charges. In a two-part interview, openDemocracy associate editor Oliver Carroll spoke to him about the implications of the Magnitsky affair: what it meant for President Medvedev, what it means for Russians, and what it will mean for the law enforcement officers he says were responsible for Magnitsky’s death.
Part II. For part I click here
OC: What do you think was going through the minds of the people who at various stages saw Magnitsky in the last days and hours?
JF: Which people are you referring to?
OC: The prison doctors, the prison warden ...
JF: The medical professionals didn't see him. You see, prisons generally leave prisoners on their own: they throw them wherever, leave them on their own, really don't give a hoot about them. In general, however, prisoners will get medical care sooner or later. When Sergei was being held in Matrosskaya Tishina detention centre, he was actually getting medical care. He was scheduled for an ultrasound scan and an operation. But what prison officials do is help out their friends the state investigators. If the investigators say move him into a cell with no heating ... if they say move him into a cell with sewage on the floor, don't answer the medical requests, don't send him a doctor, move him from the prison where he is scheduled to have an operation to the one where he can't have that operation, they just follow the command.
What do I think they thought? I think they thought nothing. And what do I think Major Silchenko thought? I think he thought: "I've got this problem guy who just won't shut up. I've told him he needs to shut up about the officers, and just say that Browder did something wrong, and he'll be out. But he's not going to shut up. I've sent the convicted criminal back to prison and this guy just has to shut up. Sooner or later he will. Maybe he will just die".
OC: So your thoughts are was that this was ordered from the start? That when people did not administer the proper medical care, when they sent in the psychiatric doctors instead of proper doctors, they were simply following orders?
JF: There were no mistakes here. There was a witness. He was problematical. And don't just take my word for this, by the way: an independent watchdog concluded the same thing — that this was an intentional death, that Sergei was murdered to conceal corruption. The watchdog specifically identified Major Silchenko, and said that he lied to them as to the reasons why Magnitsky was moved to Butyrka where there were no medical facilities. He was less than candid because he was given a job to protect his friends, to make sure his Interior Ministry buddies didn't go to prison. And he fulfilled his job very well. The witness is dead.
OC: Nobody panicked?
JF: You mean, do I think the officers panicked? I think they panicked for a little while and now feel they have it under control. I don't think it is going to remain under control much longer, however.
OC: I suppose the bigger question is whether you see this as symptomatic of the overall situation in the criminal justice system?
JF: It's the whole system. The example of Yana Yakovleva shows this very well. Here you have a businesswoman thrown into prison because she ran a chemical factory. How so? Well, one day, people in anti-narcotics control came to visit her, to ask her to make some compound necessary for producing heroin. Which apparently they wanted to sell to their heroin producing partners. She refused, so she ended up in prison. Damned if you do, damned if you don't.
There are three hundred thousand people sitting in Russian prisons who went there for garbage tax evasion accusations or other cooked up crimes. They aren't even white collar criminals. The majority of these people are not criminals at all. So yes, this is endemic to the system. The criminal justice system, as I was trying to tell you, is the number one way of settling business disputes today. You use it to attack people and take their stuff.
OC: Sergei's death had a huge impact on the world stage, but there was a reaction, too, inside Russia. An unusual reaction, which seemed to take officials by surprise. Were you surprised by that reaction?
JF: I was surprised and really gladdened by it. When Sergei died, I think we all thought -including the people who killed him - that he's just going to be another one on the list. I mean you had Markelov, the attorney, gunned down in the street. You had Politkovskaya, the journalist, killed by her front door. So we thought that it is going to be one day's news and that's it. But Sergei did this crazy thing, and kept this journal. The journal was so dispassionate and so matter-of-fact: it was a lawyer writing it. It wasn't just someone saying "this is really bad". He really showed that the brutality of the Soviet system is alive and well and people understood.
OC: And were, in many cases, shocked ...
JF: Yes, I think people were really shocked to find out that 1937 is alive and well. That this is what happens to innocent people.
I can tell you what the good and the bad is. The good is that Medvedev's personally involved. The good is that twenty prison officials were fired. The good is that Medvedev has said that he is going to reform the prison system one day in the future, so that it is no longer a system of work-camps. And what is very good is that laws that have been enacted since then to limit the police's ability to fabricate tax crimes and put businessmen in prison.
The bad is that Medvedev and Putin are still talking about the "unfortunate death by neglect of the lawyer Magnitsky ... and I guess if he was in there he must have been guilty of something". What we don't have right now is a complete expose of the officers involved. Now, the ordinary Russian understands that the system is broken and that the officers are probably guilty as hell. We'll be proving that in the next few months. We will be absolutely showing you that these officers were guilty as hell.
OC: What is your strategy of doing that?
JF: You're going to have to watch that one. Let us just say that by the close of the summer, I am convinced that everybody is going to know just how guilty these officers were: how they intentionally arrested and killed an innocent man in order to hide a crime.
Sergei Magnitsky in Firestone Duncan's Moscow office. Picture: Jamison Firestone
OC: You mentioned that Medvedev is now on the case, which is undoubtedly true. But there is still a question of how much weight his intervention holds, especially in terms of new procedures. The main legal reform that came out of the Magnitsky affair, for example, was the provision of bail in cases of economic crime. However, if you look at its application, you'll see few cases of bail are actually being granted today...
JF: You know... I think you're asking the wrong question. He's the lawfully elected president of the Russian Federation. Technically people have to listen to him. If they're not listening to him, he can fire him. The question really is: when are people going to start demanding mass-dismissals of corrupt cops?
I agree the system needs major reform. And that Medvedev is going to have to do that in order to make any of these laws worthwhile. But everything starts with the law. Without passing new laws, you can't do anything. Once you have the laws passed, then you can begin to put pressure on people to follow them. You can fire department heads and ministers and so on. But it starts with the law.
OC: Do you see any changes in the way Russians are relating to the law today? To politics even?
JF: I don't see a change in the way people are relating to politics. But I do see a change in the way they are relating to law. More precisely, I see a change in the way they are relating to law enforcement. To steal a line from Andrei Loshak's "Kafka's Castle", Russians have come to understand that law enforcement is now organised crime. Law enforcement is now the single most important threat to the lives of the ordinary Russian. Russians don't fear the Mafia any more. They fear law enforcement. And they don't fear it because they've done anything wrong. They fear people taking away their property and their assets. They fear that if they run into a bad situation, they will have no recourse. They fear that if someone beats them up outside a bar, or they have a car accident and the other guy is at fault, the other guy will pay law enforcement to "solve his little problem". There is no respect for anyone in uniform. And nor should there be at this point.
The law enforcers have lost the people's trust. People are angry with their behaviour: from the car accident on Leninsky Prospekt, to the police who used people as live shields in a high-speed chase, to the murder of Magnitsky. You do see the flickers of a response. You see people getting out of their cars and filming drivers with the migalkas [blue flashing lights] that they shouldn't really be using. We're coming to a point where if the government doesn't do something, people will go to war: not with their government, but with their law enforcement agencies.
Moscow motorist films driver misusing emergency flashing lights
OC: You had a very personal experience of the law enforcement officers...
JF: Yes, my story is similarly outrageous. When these guys raided my office, they didn't just take the Hermitage companies. They took documents and seals for every investment company that had dealt with Russian shares and had paid large amounts of tax in the past. After all, using companies to get false tax refunds was their business. One of these companies was a company where I am general director, and was responsible for paying 21 million dollars in tax in 2007. Anyway, I start yelling about Magnitsky and guess what? I find out someone is claiming a fraudulent tax refund of 21 million dollars in relation to that company, and on my behalf.
Obviously, I immediately lodged an official complaint because the new tax declaration implied that I was trying to get a fraudulent tax refund. In other words, the exact same crime Sergei had accused the officers of committing. I complained, nothing was done.
Then Sergei died, and the gang tried once again. Five days following his death, I find out that the group have somehow managed to open up a bank account in my client's name. How they did that I do not know, but now it is clear they are serious: now it is "let's steal 21 million dollars and make it seem that Jamison did it". For me, the writing is on the wall. Sooner or later, the smiling face of Kuznetsov is going to be knocking on my door at 5am in the morning, saying: "Mr Firestone, we are arresting you for trying to steal 21 million dollars of government money". So rather than sit there and wait for that to happen, I'm now in London. From where I'll do my best to make sure Kuznetsov and Karpov go to prison.
OC: Do you have any knowledge of how these officers fit in to official structures? Presumably they have protectors in high places?
JF: Presumably they do. In order to get a refund like the ones we are talking about, you can't just ask for it. You have to be pretty high up in the tax office, waiting for it, and ready to refund the money. We know who the people are who signed off at the low level, and we can go through the chain of command and identify the senior offers, but we have no proof. By the way, there was an investigation into why these tax officers refunded the money: whether it was criminal or not. And that investigation was led by... you’ve got it: Silchenko: the same man responsible a) for sending Magnitsky to prison and b) letting Kuznetsov and Karpov off without investigation.
OC: How can the system remain so self-contained?
JF: Because it is self contained and the public has no recourse because the laws and institutions don’t work. Look, everyone in the system has their own game. Everybody is stealing. Everyone's got their bribes. Who knows how much official supervision they came under. I don't know how high it went in the Interior Ministry originally. But it is clear that more people became involved once Sergei began exposing what was happening.
I picture this criminal group as one that is trapped, having to throw more and more money at the problem, involving more and more officials. They stole at least half a billion dollars through Rennaisance and Hermitage companies It was all supposed to be quiet, but they got caught and it got complicated and they've got to keep shelling out money to bribe new people to keep it under control. I'm sure they wish it would all go away. Everybody wants to take last year’s money and forget about it. From their perspective it's bad to have to spend last year's money on this year’s problems.
But the system is very definitely self-contained. People complain but in the end someone spends money or uses pull to make sure no action is taken.
OC: What should Dmitry Medvedev be doing? Is his big idea of personnel renewal – "golden" lists of professionals for government posts – likely to have any effect on this system?
JF: Undoubtedly, these changes will have some effect. But what cleans the system out is empowering people. I remember being asked a similar question at a round table with (ex-finance minister) German Gref, US Secretary of Commerce Don Evans, Alexei Mordashev and a few other oligarchs. The question was what we should be doing to protect property rights in Russia. My answer was simple: give me a judge in Cherepovets that's willing to rule against Mordashev. And give me a traffic cop that will pull over, Minister Gref, and write him a fine. You give me some honest officials with that kind of self confidence and I will protect my own rights. You empower me, the people. You make it be known that when people go to court and file complaints against the police, they will be heard. You start prosecuting judges who people have caught taking bribes. You start putting corrupt officials in prison when they are caught. When people see that happening, they will fight and they will sort the system out themselves. A few honest officials and real laws that the public can use can go a long way.
Reform starts with public dissatisfaction, it moves on to laws and support from above but ultimately reform relies on public participation. Medvedev didn't get involved in the Magnitsky affair until people expressed their outrage. So if the people care, and let it be known they care, then these reforms can have some effect. If the people are going to sit at home, then it isn't going to work. This is a partnership between people and their elected leader. And it seems that the elected leader has been given some significant room to make changes in the area of law. I think people would be incredibly foolish to pass up the opportunity to use those laws to fight corruption. Now, I understand Russians aren't used to standing up for their rights. On the other hand, they have got used to private property very quickly. If you tell people tomorrow that you're going to nationalise their apartments and not let them travel, I guarantee you will have a new government tomorrow. Russians believe in protecting their property and their money, and they realise they're not well able to do that now. Let's hope that realisation and outrage become the beginning of something bigger.
OC: Political cultures can change.
JF: Political cultures can change, and it helps to have a friend at the top. Through all public appearances, Medvedev appears to be that friend at the top. I think you have to take him at his word. Whenever there is political change, people push at its boundaries. I think that people should be pushing this one as far as it can go.
OC: You're clearly entertaining a possibility of returning to Russia at some stage ...
JF: Absolutely. I'm not at war with the Russian government. As a matter of fact, I am very pro-Medvedev. I see positive things. I see positive law being enacted. Yes, as you pointed out yourself, it hasn't yet turned into procedure. But I see a lot of positive things there. And I love Russia. I love Russians. I don't have a political fight. If you look at the things I'm screaming about, it's the very same things that Medvedev is screaming about. I'm doing my bit to fight legal nihilism. But while Sergei’s killers are still in uniform it’s safer for me to fight them from abroad.
It's surely no surprise to anyone that there are dishonest cops in the system. It's not surprise, either, that there are dishonest prosecutors in the system. The duty of a good citizen is to stand up to that. Sergei died doing that. He didn't intend to die. If you read what he wrote, you'll see he was living in the most god-awful, horrible conditions. His health was failing, and he knew it. He was living in a way that I'm not sure I could tolerate living.
OC: He believed in the law
JF: He did.
OC: Was he right to do that?
JF: I hope so. The jury's still out on that one. The law let him down, there's no question about that. But the war for the rule of law is going to have casualties along the way. Sergei was one. I'm also a casualty of sorts. I don't really want to be living in a country away from my nearest and dearest. The real question in my mind is whether President Medvedev is going to stand behind those of us who fight corruption. It’s one thing to pass laws and tell the people to fight. It’s another to stand behind them when they try and use law to take on corrupt officials. If the President doesn’t stand behind us when we do this, there aren’t going to be a lot of people fighting this war on legal nihilism, and it will be over before it ever begins.
Again, I stress I don't see myself at war with the Russian government. It's their money that has been stolen, and whether they want it back or not is really their business. But I have a duty to stop the people who killed my friend and colleague, to stop the people who attacked my client and me, to stop the people who put other innocent people in prison. These people will continue to hurt and kill people. Mine is a little fight against a small group. But other people are taking part in similar battles. Yana Yakoveva is fighting lots of little fights against lots of small groups. Together, people like us can clean the system. Maybe the system will kill some of us before then, but we'd be shirking our responsibility if we didn't at least try.