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Russia and the Magnitsky Case: Europe Waits and Sees

The return of Vladimir Putin as Russia’s president in March 2012 has cast doubts in Europe over the country’s commitment to human rights and rule of law. Putin’s election was met with some of the largest opposition protests in recent history, with thousands of Russians participating in protest marches. The Kremlin’s response has been blunt: passage of restrictive Internet and media laws, increased fines for opposition rallies and the banning of foreign aid to Russian non-governmental organizations. Amidst the debate over how to respond to these crackdowns, the case of murdered lawyer Sergei Magnitsky has become a cause celebre among European and American human-rights activists and organizations seeking justice and

EuroWire is a joint publication of the Bertelsmann Foundation offices in Washington, DC and Brussels. It connects Capitol Hill to European

Union policy and politics, and contributes to a common trans-Atlantic political culture. EuroWire is an occasional publication that highlights issues,

legislation and policymakers relevant to the Congressional legislative cycle. This publication looks at the European Union from the point of view

of Capitol Hill staffers and offers timely operational analysis.

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accountability in Russia. To them, Magnitsky’s imprisonment and subsequent death after uncovering a $230 million tax fraud scheme by government officials has provided stark proof of the poor state of human rights in the country. The Kremlin’s pursuit of posthumous charges against Magnitsky has led these groups to petition European and American governments to take action.

EU member-state parliaments are seeking legislation similar to the US’s Sergei Magnitsky Rule of Law and Accountability Act of 2012, recently passed by Congress, to address the Magnitsky case and human rights in Russia. Since 2010, five such legislatures have passed

KEY POINTS

• Human-rights activists have rallied around the case of Sergei Magnitsky as a cause celebre for the current state of human rights and the rule of law in Russia.

• Five EU member states (and the European Parliament) have passed resolutions calling for sanctions on Russian officials involved in the case, but they are reluctant to pursue the matter further for fear of harming relations with Moscow.

• The passage of Magnitsky legislation in the US may determine whether similar legislation goes forward in Europe.

Murdered Russian lawyer Sergei Magnitsky

Inspiring People. Shaping the Future.

WASHINGTON, DC1101 New York Avenue, NWSuite 901Washington, DC 20005 USAContact: Tyson BarkerE-mail: tyson.barker@bertelsmann-

foundation.orgTel: (+1) 202.384.1993www.bertelsmann-foundation.org

BRUSSELSRésidence PalaceRue de la Loi 1551040 Brussels, BelgiumContact: Thomas FischerE-mail: thomas.fischer@bertelsmann-

stiftung.deTel: (+32 2) 280.2830www.bertelsmann-stiftung.de/brussels

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non-binding resolutions condemning Moscow for its handling of the investigation and have called on their respective governments to implement visa bans and asset freezes for individuals involved in the case (see below).

The EU itself has also sought to put pressure on Moscow to investigate the case properly. The European Parliament passed two resolutions in December 2010 and December 2011 deploring Magnitsky’s death and warning of punitive measures should Russian authorities fail to act. More recently, the posthumous charges against Magnitsky have spurred a proposal by the Parliament’s Committee on Foreign Affairs, introduced by MEP Kristiina Ojuland (ALDE Group-Estonia), urging the Council of the European Union to create its own “Magnitsky List” of relevant individuals to be subjected to visa and asset penalties. The Parliament overwhelming passed this measure in October 2012, but there remains a long road to implementation. While it is under no obligation to consider the motion by Parliament, the Council would act should a joint proposal be put forward by the European Commission and High Representative Catherine Ashton. If this were to happen, the proposal would move through the Council and be considered by member states’ foreign ministers, who would vote on the proposal through qualified majority

voting (QMV). Unanimity would not be required for approval.

The EU and member-state governments, however, have thus far been reluctant to act. No visa bans or asset freezes have been imposed. Dutch Foreign Minister Uri Rosenthal refused to push for sanctions despite a unanimous, albeit non-binding, resolution passed in 2011 by the Dutch House of Representatives. He instead pledged to raise the issue at the EU level. The lack of enthusiasm by Berlin, Paris and others to address the matter also casts doubts over any Council movement on the Parliament’s proposal, as these states carry substantial voting weight under QMV.

The EU leadership in Brussels has also trod carefully on the issue. High Representative Ashton has repeatedly stated that the bloc has voiced its concern about the case to Russian officials at all available opportunities, while EU Council President Herman Van Rompuy submitted a formal letter to President Dmitri Medvedev in April 2012. The note simply encouraged the president to pursue a proper investigation into Magnitsky’s death. Several considerations explain the hesitance of the EU and individual member states to move toward sanctions. First, EU officials and heads

of state are reluctant to be seen as interfering in the internal matters of another sovereign state. Second, visa restrictions introduced by one European state within the Schengen area would force the other 25 Schengen states to adopt similar rules. This would go against the grain of recent EU efforts to liberalize the visa regime with Russia. Finally, EU officials fear the repercussions of sanctions. In July 2012, Moscow’s EU ambassador, Vladimir Chizhov, declared that the introduction of sanctions would “poison relations” between the bloc and Russia. At a time when the EU has sought cooperation with the Kremlin on critical global issues, such as Iran’s nuclear activities and the Syria crisis, Brussels believes it can ill afford to create tension with its large eastern neighbor.

Europe will therefore look with keen interest to the US over the coming months to see if Washington implements the Magnitsky Rule of Law and Accountability Act of 2012. The Senate passed the measure on December 6, 2012; it now awaits a presidential signature. In the meantime, Congressional approval of the act may embolden Magnitsky advocates in Europe and encourage the EU and its member states to take a similar stand.

EU Member States: Slow to ActEU Member State Parliamentary Motions & Resolutions Has the Government

Issued Sanctions?

Italy

In March 2012, the Partito Democratico’s Matteo Mecacci introduced a parliamentary motion condemning Russia’s handling of the Magnitsky case. The motion, supported by five Italian political parties, called for visa and asset freezes of the 60 Russian officials believed involved in the case.

No

The Netherlands

In July 2011, the Dutch House of Representatives passed a unanimous resolution demanding that the government impose economic and visa sanctions on Russian officials involved in the Magnitsky case. The motion was supported by members of the opposition and the ruling party.

No

PolandIn December 2010, members of the Sejm’s Justice and Human Rights Committee voted unanimously to condemn the failures of the Russian investigation into Sergei Magnitsky’s death.

No

Sweden

In February 2012, 59 members of the Swedish parliament from seven of eight political parties, including members of Prime Minister Frederik Reinfeldt’s Moderate Party, signed a parliamentary petition urging Reinfeldt to support the imposition of EU-wide visa sanctions on Russian officials involved in the Magnitsky case. The motion, led by parliamentarians Mats Johansson, Olle Thorell and Kerstin Lundgren, argued that urgent action was needed given Russia’s membership in the Council of Europe and the World Trade Organization.

No

Inspiring People. Shaping the Future.

WASHINGTON, DC1101 New York Avenue, NWSuite 901Washington, DC 20005 USAContact: Tyson BarkerE-mail: tyson.barker@bertelsmann-

foundation.orgTel: (+1) 202.384.1993www.bertelsmann-foundation.org

BRUSSELSRésidence PalaceRue de la Loi 1551040 Brussels, BelgiumContact: Thomas FischerE-mail: thomas.fischer@bertelsmann-

stiftung.deTel: (+32 2) 280.2830www.bertelsmann-stiftung.de/brussels

©Copyright 2010, Bertelsmann Foundation. All rights reserved.

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3

EU Member State Parliamentary Motions & Resolutions Has the Government Issued Sanctions?

United Kingdom

In March 2012, Conservative MP Dominic Raab introduced a motion entitled “Human Rights Abuses and the Death of Sergei Magnitsky” into the House of Commons. It called on the government to impose visa sanctions and asset freezes on Russian officials involved in the case. The motion was co-sponsored by three former foreign ministers (Jack Straw, David Milliband and Sir Malcolm Rifkind) and was approved by 40 MPs.

No**On September 2, 2012, multiple

news sources reported that London had sent a “Magnitsky List” of

banned Russian officials to the British embassy in Moscow. However, the Russian foreign ministry issued a

statement two days later claiming it had not received any list.

The ministry also said that Foreign Minister William Hague had denied

sending such a list.

Who’s Who in the Magnitsky Debate

MEP Kristiina Ojuland (ALDE Group-Estonia)Kristiina Ojuland is a member of the European Parliament’s Committee on Foreign Affairs and of the EU-Russia Parliamentary Cooperation Committee. Ojuland has been an outspoken critic of Moscow’s handling of the Magnitsky investigation. Calling the death of Magnitsky “a well-documented and substantial case of disrespect for fundamental human rights in Russia…”, Ojuland has most recently drafted a report on behalf of the Committee on Foreign Affairs (2012/2142-INI) recommending that the European Council establish a “common EU list of officials responsible for the death of Sergei Magnitsky” and impose visa and asset restrictions at an EU-wide level.

Vladimir Chizhov (Russian ambassador to the EU)Vladimir Chizhov has repeatedly spoken out against the prospect of sanctions against Russian officials believed involved in the Magnitsky case. Chizhov has likened talk of sanctions to “resembling the Cold War” and has stated that it would “poison relations” between the EU and Russia. He has also suggested that Russia would likely impose counter-sanctions if such legislation were approved. Chizhov has noted that in response to the US’s Magnitsky bill the Duma would pass a “Guantanamo or Abu Ghraib” act barring certain US officials from Russia. Nonetheless, he insisted that disputes over the Magnitsky case would not affect ongoing EU-Russia visa-liberalization negotiations.

Herman Van Rompuy (President of the European Council)While the EU leadership often appears reluctant to move forward on any sanctions that could harm EU-Russia relations, Herman Van Rompuy has nonetheless sought to address European concerns on human rights in Russia and the Magnitsky case. In April 2012, Van Rompuy wrote a letter to then-Russian President Dmitri Medvedev urging him to ensure a proper and thorough investigation into Magnitsky’s death. Expressing concern over Magnitsky’s posthumous indictment, Van Rompuy stated that the case “has come to symbolize the state of the rule of law and judiciary in the Russian Federation for Russia’s friends and observers abroad.”