MAGNITSKIY AND ZHARIKOVA v. RUSSIA and 1 other application

Communicated on 28 November 2014

FIRST SECTION

Applications nos. 32631/09 and 53799/12
Sergey Leonidovich MAGNITSKIY and Natalya Valeryevna ZHARIKOVA against Russia
and Nataliya Nikolayevna MAGNITSKAYA against Russia
lodged on 11 June 2009 and 21 August 2012 respectively

STATEMENT OF FACTS

1. Application no. 32631/09 was lodged on 11 June 2009 by Mr Sergey Leonidovich Magnitskiy (the first applicant), a Russian national who was born on 8 April 1972. On 26 March 2010 Mr Magnitskiy’s wife, Ms Nataliya Valeryevna Zharikova (the second applicant), who is also a Russian national and was born on 11 April 1972, applied to the Court, informing it of Mr Magnitskiy’s death on 16 November 2009 and expressing her wish to maintain his complaints and to bring additional claims pertaining to his detention and the criminal proceedings against him. The two applicants were represented before the Court by Mr D. Kharitonov and Mrs E. Oreshnikova, lawyers practising in Moscow.

2. Application no. 53799/12 was lodged on 21 August 2012 by Ms Natalia Nikolayevna Magnitskiya (the third applicant), the mother of Mr Sergey Leonidovich Magnitskiy, the applicant in the first case. She is a Russian national who was born on 13 April 1952. Mrs Magnitskaya was represented by Mr J. Goldston and Mr R. Skilbeck, attorneys from the Open Society Justice Initiative.

The circumstances of the cases

3. The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Factual background

4. The first applicant, Mr Sergey Magnitskiy, was the head of the tax practice at the Moscow office of Firestone Duncan, a Moscow-based company providing legal, tax, accounting and audit services to foreign investors in Russia. Its clients included Russian subsidiaries of the Hermitage Fund (hereinafter Hermitage), at the time the largest foreign investment fund in Russia.

5. In 2006 three Russian subsidiaries of Hermitage, “Parfenion company”, “Rilend company”, and “Makhaon company” (hereinafter the three subsidiaries), generated substantial revenue and, as a result, paid an extremely large amount of tax ‒ 5.4 billion Russian roubles (approximately 230 million US dollars) ‒ to the Russian treasury. Firestone Duncan provided legal and accounting services to these three companies.

6. In the summer of 2006 Mr K., an officer from the tax crimes division of the Moscow City Department of the Interior Ministry sent a number of enquiries to Russian banking and financial institutions requesting detailed information about the status and movement of the three subsidiaries’ assets.

7. On 28 May 2007 the main investigation department of the Moscow City Department of the Interior Ministry opened a criminal case against the Director General of a company called “Kameya”, a client of Hermitage, alleging that he had committed tax evasion.

8. On 4 June 2007 officers from the main investigation department, including officer K., raided the Moscow offices of Firestone Duncan and those of Hermitage’s advisor, Hermitage Capital Management (hereinafter the HCM company). The search warrant had been issued on 1 June 2007 by Mr N., an investigator in the main investigation department. The search was conducted in the course of investigations into the activities of Kameya. However, officers seized large numbers of corporate documents and company seals unrelated to Kameya.

9. On 13 June 2007 major Ka. of the Investigative Committee of the Interior Ministry was appointed as the chief investigator of the Kameya case and so took custody of the documents and materials seized during the search on 4 June 2007.

10. Following the search of its offices, HCM lodged a complaint with the Moscow Prosecutor’s Office, challenging the lawfulness of the search, as well as the confiscation of documents. Major K.’s refusal to return any of the documents led to the filing of further complaints by Firestone Duncan.

11. On 16 October 2007 a number of letters arrived at the registered addresses of the three subsidiaries, indicating that a company called “Logos Plus” had lodged claims against them for billions of Russian roubles on the basis of a judgment issued by a commercial court on 30 July 2007 transferring ownership of the three subsidiaries. The applicants insisted that the subsidiaries had never had any relations with “Logos Plus”. Neither Hermitage nor the legal representatives of the three subsidiaries were aware of any pending legal actions. Mr Magnitskiy investigated the Russian Unified State Register of Legal Entities and discovered that, without Hermitage’s knowledge, the three subsidiaries had been registered to new owners pursuant to a judgment of 30 July 2007. The three companies were also re-registered for taxation purposes with Federal Tax Offices nos. 25 and 28 in Moscow.

12. The applicants stated that the three subsidiaries could only have been transferred to new ownership using the constituent documents, financial documentation, and seals of the three subsidiaries that had been seized during the search on 4 June 2007.

13. Following the discovery of these legal developments pertaining to the ownership of the three subsidiaries, lawyers acting on their behalf lodged a number of complaints with the relevant authorities, including the Chair of the Investigative Committee of the Prosecutor General’s office, the Prosecutor General, and the head of the Department of Internal Affairs of the Interior Ministry. These complaints detailed the alleged fraud that had been discovered by Mr Magnitskiy, lodged accusations against the police officers, in particular officer K. and major Ka. who had seized the corporate documents used to execute the fraud, alleged that the re-registration of the three subsidiaries to new owners and the commercial court proceedings against them had been unlawful, and requested that the authorities open a criminal investigation into the misappropriation of the three subsidiaries.

14. On 11 December 2007, the Prosecutor General’s office declined to open any such investigation and forwarded to the local Prosecutor’s Office in St. Petersburg the complaints concerning fraudulent court proceedings. On 17 January 2008 the St. Petersburg Prosecutor’s Office decided against opening a case on the grounds that no crime had been committed. Similar decisions were taken by other authorities to whom complaints had been made. The last such refusal was issued on 14 December 2007 by the Moscow Prosecutor’s office after the complaint had been sent to major Ka.

15. In December 2007, the newly-appointed officers of the three subsidiaries applied for a series of tax refunds, alleging that the three companies had made no profits in 2006, and thus that they owed no taxes and the taxes paid in 2006 must be refunded. Two applications, for a tax liability totaling over 1.7 billion Russian roubles (RUB) (over 47 million euros (EUR)) submitted to Federal Tax Office No. 25 were approved by four senior officers and signed off by the head of the office, Ms Kh. Five applications, for a total of over RUB 3.6 billion (over 100 million euros) submitted to Federal Tax Office No. 28 were approved on the same day by four senior officers and signed off by the head of Tax Office No. 28, Ms S. The tax refunds were granted despite the absence of confirmation that the court judgments to which the applications referred had become final.

16. The applicants argued that the aggregated tax refund of over RUB 5.4 billion (over 150 million euros) ‒ that is to say the same amount as the tax on profits paid by the three subsidiaries in 2006 ‒ was at the time the largest tax refund in Russian history.

17. On 26 December 2007, the sum of RUB 5.4 billion was transferred from the Russian Treasury to the subsidiaries’ new bank accounts (opened two weeks earlier) at Universal Savings Bank (USB) and Intercommerz bank. In the first quarter of 2008 the funds were distributed from the USB accounts into the accounts of third parties in various Moscow City banks. Shortly thereafter, USB initiated its voluntary liquidation. All its records were destroyed when, according to the Interior Ministry, a van supposedly carrying them had crashed and exploded.

18. In December 2007 and January 2008, lawyers acting on behalf of the three subsidiaries appealed against the judgments involving the “Logos Plus” claims. In January and February 2008 those judgments were successfully overturned. In addition, an appeal against the judgment of 30 July 2007 transferring the three subsidiaries to new owners was also upheld. However, challenges to the re-registration of the companies, to prevent their liquidation and to return control to the legal owners, were unsuccessful.

19. On 24 December 2007 the applicant had learned that the investigation into the alleged fraudulent transfer of the ownership of three subsidiaries was linked to the investigation of the activities of Kameya and was headed by major Ka. As part of that investigation, on 2 April 2008 officer K. summoned for interview the legal representatives of the original directors of the three subsidiaries.

20. On 5 February 2008 a special investigator from the Investigative Committee of the Prosecutor General’s office opened criminal investigation no. 374015 into the allegations made by Hermitage concerning the theft of the three subsidiaries.

21. In June 2008, Hermitage lawyers obtained the full details of the 5.4 billion rouble tax rebate carried out in December 2007. In response to a letter sent by Mr Magnitskiy, the tax authorities provided information about the three new bank accounts opened for the subsidiaries. Mr Magnitskiy also established that, immediately after the accounts had been opened in December 2007, there was an enormous spike in deposits into these new bank accounts, which was exactly equal to the tax bills that the three subsidiaries had paid in 2006. Based on that information, Mr Magnitskiy concluded that the subsidiaries had been stolen in order to embezzle the 5.4 billion roubles previously paid in taxes in 2006. As a consequence of that discovery, Hermitage and the legal representatives of the three subsidiaries lodged further complaints to the authorities, naming those responsible for the embezzlement.

22. On 5 June 2008, Mr Magnitskiy made statements pertaining to the change of ownership and tax refund by the three subsidiaries in an interview with the special investigator, including the alleged criminal misconduct and abuse of office by officer K. and major Ka. The interview was preceded by a meeting between the special investigator and officer K. Mr Magnitskiy, who objected to the presence of officer K. at his interview, was told that the latter was "providing operational support" to the investigation.

23. In July 2008 two further criminal complaints were sent to the Prosecutor General’s office and its Investigative Committee on behalf of the three subsidiaries. Mr Magnitskiy assisted in the preparation of those complaints.

24. On 21 July 2008 Hermitage lodged its first criminal complaint outlining the fraudulent act committed against the three subsidiaries and the role of Russian authorities in perpetrating and concealing it. It described Hermitage’s attempts to demand an investigation by the three government enforcement agencies, and pointed out that the eventual “investigation” of the fraud had been transferred to major Ka., even though he was implicated in the crimes. It also noted the role of officer K. in the fraud, sought his removal from the investigation and gave specific details of other individuals involved in the fraud such as the fictitious directors and the lawyers who represented the three subsidiaries after the transfer of ownership, and pointed to the lack of any activity in the investigation. Hermitage made these allegations public, and Mr Magnitskiy discussed the complaints with representatives of mass media.

25. On 20 August 2008, the Moscow offices of lawyers representing Hermitage and those of Firestone Duncan (Mr Magnitskiy’s employer) were searched by officers from the Economic Crimes Section of the Kazan Town Department of Internal Affairs and the Moscow City Department of the Ministry. On the same day lawyers from those offices received summonses requiring them to appear for questioning as witnesses in respect of the fraud.

26. On 10 October 2008, as a result of a report approved by officer K. in May 2008, the Investigative Committee instituted criminal proceedings against the lawyers for allegedly representing the three subsidiaries on the basis of powers of attorney they knew to be false in their legal actions to reverse the fraudulent arbitration court judgments against the three subsidiaries.

27. On 7 October 2008 Mr Magnitskiy was questioned by the special investigator for a second time in relation to the prosecution of the lawyers acting for the three Hermitage subsidiaries. He reaffirmed the facts and conclusions stated in his previous testimony of 5 June 2008.

28. On 6 November 2008 a Deputy Chief of the police Investigative Committee appointed a team of police officers to form a new investigative group in the ongoing investigation into the fraudulent tax refund. The team included officer K., and his two subordinates and officers Kr., T. and D. Six days later, on 12 November 2008, the second team was formed for the purposes of carrying forward the existing investigations into tax evasion. The order again appointed officer K. and his three subordinates to carry out the work of the group. The two groups were to be headed by senior investigator S.

2. Arrest and detention of Mr Magnitskiy

29. On 18 November 2008 the Tverskoy District Court in Moscow authorised a search of the flat where the first two applicants lived. The search warrant was issued in relation to investigations into tax evasion in 2006 and the authorised seizure of the seals and of business and financial documents relating to the Hermitage subsidiaries and other companies. The warrant stated that Mr Magnitskiy had assisted those companies in the preparation and filing of tax and accounting reports.

30. Five days later police officers searched the flat, after which Mr Magnitskiy was taken to appear before the Investigating Committee. He was arrested on suspicion of tax evasion and thereafter detained at a temporary holding facility (IVS no. 1) of the Moscow Police Department.

31. On 25 November 2008 Mr Magnitskiy was interviewed initially as a suspect, and then as an accused. He was then charged with two counts of aggravated tax evasion. The allegation was that Mr Magnitskiy had engaged in a conspiracy to fraudulently claim a 50% tax rebate for enterprises employing disabled persons.

32. Two days after his arrest, Mr Magnitskiy was brought to the Tverskoy District Court which authorised his remand in custody until 24 January 2009. The decision relied on reports from police and security service (FSB) officials alleging that the applicant had taken steps to influence witnesses, had attempted to interfere with the investigation, had booked a ticket on a plane flying from Moscow to Kiev, had started a procedure to obtain a visa from the UK Embassy and could not be found at his registered place of residence when an investigator had summoned him for questioning. The court’s reasoning was that the applicant was liable to reoffend, abscond and obstruct justice. On 15 December 2009, the Moscow City Court upheld the detention order.

33. Between November 2008 and November 2009 the Tverskoy District Court in Moscow reviewed Mr Magnitskiy’s pre-trial detention six times. Each decision was appealed, and each appeal was rejected. In particular, the extension order on 19 January 2009 relied on the same reasoning employed in the initial detention decision of 26 November 2008. This reasoning was repeated in subsequent detention decisions from 13 March, 15 June, 14 September, and 12 November 2009 and upheld by the appeal court. The court was not convinced by Mr Magnitskiy’s arguments that he had no intention to leave the country, that he had not tampered with witnesses and had not attempted to obstruct justice by any other means.

34. For instance, while addressing the arguments raised by Mr Magnitskiy at the hearing on 15 June 2009, the District Court ruled as follows:

“The Court will not examine the arguments of the accused party and the defence counsel concerning the circumstances previously taken into account during Mr Magnitskiy’s arrest ‒ which give rise to the fear that, if released, he will flee ‒ because these arguments have already been assessed by the first-instance and appeal courts, and the decision authorising Mr Magnitskiy’s remand in custody is in force at the present moment, having been upheld on appeal, and has not been revoked by anyone.

...

The court takes into account information about the personality of Mr Magnitskiy and his family situation, as well as other arguments raised by him and the defence counsel at the hearing. At the same time, as is apparent from the material in the case file presented to the court, Mr Magnitskiy is charged with two intentional criminal offences, each of them punishable by at least two years’ imprisonment; prior to his arrest [he] tampered with witnesses listed by the investigator in his request [for the extension of the detention] to force [the witnesses] to give incorrect statements; certain suspects in the case, whose relationship to Mr Magnitskiy the investigation has yet to ascertain, absconded; the court therefore finds that the circumstances which gave rise to the conclusion that the accused, if released, will flee the investigation and the court, or will prevent the timely completion of the criminal case..., still persist. There are no new circumstances which could serve as the grounds for amending the measure of restraint to which Mr Magnitskiy is subject.”

35. Following the hearing on 14 September 2009 the District Court once again cited the gravity of the charges, the first applicant’s alleged attempt to obtain a UK entry visa prior to his arrest, his attempt to book a flight to Kiev and his attempt to influence two witnesses, B. and Ts., as the grounds for his continued detention. At the same time, the court did not attribute evidentiary weight to a certificate issued by the British Embassy confirming that the applicant had not submitted any visa request, and also dismissed the first applicant’s arguments that his passport had been seized during the search of the apartment and that there was no evidence that he had attempted to book a plane ticket to Kiev. Finally, the District Court found manifestly ill-founded the lawyers’ argument that the applicant had been detained in extremely poor conditions which had negatively affected his health.

36. On 7 October 2009 the investigators served Mr Magnitsky with a bill of indictment. A week later he was interviewed and two days later was informed that the investigation was completed. On 20 October 2009 he started reading the material in the case file.

37. On 3 November 2009 the senior investigator asked the District Court to extend the first applicant’s detention until 26 November 2009, that is until the expiration of the maximum twelve-month detention period authorised by the Russian law. The first applicant lodged a counter-claim asking to be placed under house arrest.

38. Following the hearing on 12 November 2009 the Tverskoy District Court accepted the request for extension of the first applicant’s detention, using similar wording to that used on the previous occasions when his detention had been extended.

3. Conditions of the applicant’s detention

39. Over the course of his detention from 24 November 2008 to 16 November 2009, Mr Magnitsky was transferred between five detention facilities and moved between cells on at least 20 occasions. Details of the periods and places of his detention are set out in the table below.

Period

Facility

24 November to 2 December 2008

Police ward no. 1 (IVS no. 1) in Moscow

2 December 2008 to 21 February 2009

Cells:

cell no. 309 (2 to 31 December)

cell no. 206 (31 December onwards)

detention facility no. 5 in Moscow (SIZO no. 5)

21 February to 3 March 2009

IVS no. 1

3 March to 28 April 2009

Cells:

cell no. 417 (3 to 12 March)

cell no. 206 (12 to 15 March)

cell no. 503 (15 to 28 April)

facility no. 5

28 April to 25 July 2009

Cells:

cell no. 606 (28 to 29 April and from 2 to 30 June)

cell no. 602 (29 April to 2 June and from 30 June to 10 July)

cell no. 604 (10 to 17 July)

cell no. 508 (17 to 25 July)

detention facility no. 1 in Moscow (SIZO no. 1 “Matrosskaya Tishina”)

25 July to 16 November 2009

Cells:

cell no. 267 (25 July to 1 September)

cell no. 59 (1 to 8 September)

cell no. 35 (8 to 10 September)

cell no. 61 (10 September to 7 October)

medical unit of the facility:

cell no. 708 (7 to 30 October)

cell no. 714 (30 October to 13 November)

cell no. 305 and 714 (13 to 16 November)

detention facility no. 2 in Moscow (SIZO no. 2 “Butyrka”)

40. The first applicant provided the following description of the conditions of his detention in facility no. 5. It was severely overcrowded with the first applicant having usually shared a cell of no more than 30 sq. m. with 8 to 15 inmates. On certain occasions the first applicant was detained in cells where he did not have an individual place to sleep as the number of inmates exceeded the number of bunks. The cells were poorly lit and ventilated and were in a deplorable sanitary condition. A lavatory pan was separated from the remaining part of the cell merely by a meter-high partition not offering any privacy. Inmates were allowed to bathe for ten minutes once a week. The food was of extremely poor quality. On a number of occasions the first applicant found worms in the food. Once a day for 40‑60 minutes inmates were taken outside for a walk in a small prison yard which measured no more than 15 square meters. The first applicant also stated that he did not receive appropriate medical care in the facility. The medical attention was limited to provision of analgesics.

4. Medical Care: Diagnosis of Pancreatitis

41. As is evident from a copy of Mr Magnitskiy’s medical record, on 14 May 2009 he complained to a prison doctor about a severe back pain radiating as far as his chest and stomach. He also stressed that the pain was particularly sharp if he took a large breath. Having diagnosed the first applicant with osteochondrosis with a pain syndrome similar to that of intercostal neuralgia, the doctor prescribed him a spasmolytic and painkillers. The treatment was completed on 25 May 2009. A note recording that the first applicant’s condition had improved was entered in his medical history.

42. Following Mr Magnitskiy’s complaints about a searing back pain, on 1 July 2009 a physician in detention facility no. 1, Mr So., examined him, authorised an abdominal ultrasound scan and, having obtained the scan results, concluded that there were “echo signs of chronic pancreatitis, calculus cholecystitis”. The record of the ultrasound scan revealed that the doctor had noticed six “concrements” [stones] in his gall-bladder, and that his pancreas measured 31 centimeters in length.

43. The following day Mr Magnitskiy was prescribed treatment with “Baralgin” and Mezim. An examination by a surgeon, and a further ultrasound scan “in a month’s time”, were also scheduled.

44. On 2 July 2009 the senior investigator wrote to the head of detention facility no. 1 where the first applicant was staying at the time that it would be advisable to transfer him to detention facility no. 2. The applicants stressed that it was known to the authorities that detention facility no. 2 had neither an ultrasound machine nor the surgery facilities necessary to treat Mr Magnitsky.

45. On 13 July 2009, while Mr Magnitskiy was still in facility no. 1, a surgeon from the prison hospital, Mr G., examined him and gave a diagnosis of “cholelithiasis, chronic cholecystopancreatitis”, confirming the earlier diagnosis. The surgeon also recommended a “control ultrasound scan in one month” and “planned surgical treatment”. He prescribed Mr Magnitsky “No-Spa” and “Cerucal”.

46. The medical record states that Mr Magnitskiy was also examined on 18 July 2009 during the internal round, when he complained of pain in the epigastrium (upper abdomen). On examination, the abdomen was “moderately swollen” and there was “pain in the gallbladder projection areas and the anticardium [pit of the stomach]”.

47. On 25 July 2009, one week before the prescribed ultrasound scan, which was to be followed by surgery, Mr Magnitskiy was transferred to facility no. 2 which, according to the applicants, lacked the medical facilities needed to care for his medical condition and to administer the treatment including the ultrasound scan and surgery.

48. Upon arrival at facility no. 2 Mr Magnitskiy received no medical assistance, even though his medical records contained the diagnosis of pancreatitis and the request for surgery. On the day following his admission to facility no. 2 Mr Magnitskiy submitted a written request to the facility director, Mr Kom., for an appointment with a doctor. Two weeks later, still waiting for a response to his earlier request to see a doctor, Mr Magnitskiy made a written request for an appointment with the facility director, giving as the reason his progressively worsening health condition. The request was ignored. Two days later, on 11 August 2009, Mr Magnitskiy made a further written request to the facility director asking for an appointment with a doctor, noting that the time prescribed for his medical examination had passed. This request was also ignored.

49. For the first six weeks of his detention in facility no. 2, Mr Magnitskiy was not given any medicines, including those which had been prescribed for him in facility no. 1. On 14 August 2009 he submitted a request to have the medicines brought to him by his relatives. When the third applicant brought the medicines to facility no. 2 on 17 August 2009, they were given to another prisoner in error. The medicines she had brought were finally delivered to Mr Magnitsky on the day following Mrs Magnitskaya’s meeting with the chief of the facility’s medical unit, Dr D. K., on 4 September 2009.

50. On 19 August 2009 Mr Magnitskiy’s lawyers lodged formal complaints with the facility director and senior investigator, reminding them of the previous diagnosis and requesting an immediate ultrasound scan and a report on the treatment prescribed for their client. The senior investigator rejected this request on 2 September 2009, explaining that a refusal to carry out medical examinations may be appealed to a prosecutor or a court, but that the law did not impose on an investigator any duty to monitor the state of health of an inmate, and that it was for the accused to request medical help in a detention facility. No response from the facility director was received.

51. On 24 August 2009, a month after his transfer to facility no. 2, Mr Magnitskiy suffered an attack of a sharp pain that he identified as coming from the solar plexus region. By that time, Mr Magnitskiy was permanently suffering from a severe pain which even prevented him from lying down. In his prison diary, Mr Magnitsky described what happened on 24 August 2009:

“The disease has become so acute that I could no longer lie in bed. At approximately 16:00, my fellow inmate began kicking the door, demanding for me to be taken to a doctor. The warder promised to ask a doctor to come but he didn’t appear despite the recurrent demands of my cellmate. I was taken to a doctor five hours later. I informed the doctor about my illness and complained that during my confinement in facility no. 2 I had never been examined by a doctor. She was very displeased ... stating that I had already been given medical care [at facility no. 1] and asking: ‘Do you think that we are going to treat you every month?’ She advised me to get an appointment with a surgeon.”

52. On the following day Mr Magnitskiy wrote a detailed letter to his lawyer describing the episode, including how he had explained to the doctor that he had suffered similar attacks once every three to four months, but that they had recently been recurring repeatedly for four days in a row, and that the analgesics were not helping.

53. Mr Magnitskiy also complained to Dr D.K., the head of the facility medical unit, asking to be taken to see a surgeon to determine whether an ultrasound scan could be urgently performed and surgery could be scheduled. No response followed.

54. On 26 August 2009, as Dr D.K. was making a round of the cells, Mr Magnitskiy complained that he had not been given medical care. He was told “that no medical examination could be carried out in facility no. 2 since it didn’t have the required equipment”.

55. On 31 August 2009 Mr Magnitskiy was again able to speak to Dr D. K., insisting that he had been prescribed an ultrasound scan and that he required a surgery. He was promised that he would be able to have the planned surgery when he was released, as the facility was not obliged to provide him with it. On the same day Mr Magnitskiy lodged a written complaint with the Head of the Moscow Penitentiary Service.

56. On 2 September 2009, in response to the petition filed on 19 August 2009 by Mr Magnitskiy’s lawyers, the senior investigator issued an order summarily denying any ultrasound or other medical treatment to the first applicant on the basis that, as an investigator, he was under no obligation to request medical treatment on behalf of detainees.

57. Two days later Mr Magnitskiy again spoke with Dr D. K., who handed him medicines provided by his mother. The doctor said that he had submitted a written request asking for Mr Magnitskiy’s transfer to facility no. 1 to carry out a prescribed medical examination, but that it would take at least three weeks, due to “transport and security problems”.

58. On 11 September 2009 Mr Magnitskiy’s lawyers appealed to the Prosecutor General, asking for his intervention on behalf of their client, who had been denied a proper medical examination, adequate medical care, and scheduled surgery. The complaint was rejected on 9 October 2009 by an official from the Prosecutor General’s office. On 30 September 2009 the senior investigator once again denied Mr Magnitskiy’s request for an ultrasound scan.

59. On 7 October 2009 when the first applicant was transferred to the facility medical unit in view of his steadily worsening condition and for the purpose of carrying out “an examination and treatment”, the facility director and the head of the medical unit issued a certificate to Mr Magnitskiy’s lawyers indicating that he was medically fit to remain in detention.

60. According to the first applicant’s medical records, on admission to the medical unit Mr Magnitskiy’s abdomen was moderately painful during palpitation. This same was reported on 8, 12, 15 and 19 October 2009.

61. On 11 November 2009 the administration of facility no. 2 issued a further certificate to Mr Magnitskiy’s lawyers stating that the first applicant “was treated in a hospital, in the medical unit of [facility no. 2] and was diagnosed as [suffering from] gallstones and cholecystitis, pancreatitis in an acute stage.” The certificate stated that “the status of his health is satisfactory” and that “he [could] participate in court hearings and investigative actions. He is physically fit to be held in a detention facility”.

62. On 12 November 2009 during Mr Magnitskiy’s final court appearance, he and his lawyers applied to have their numerous complaints as to his conditions of detention and lack of medical care attached to the case file. The District Court refused, concluding that the court did not have competence to examine the conditions of detention of an accused party in detention hearings.

63. Following his return to the detention facility from the court hearing on the night of 12 November 2009, Mr Magnitskiy’s condition drastically deteriorated. He submitted a written complaint to Dr D. K., describing “intensification of an acute pain in the pancreatic gland area, as well as the appearance of a distressing pain in the liver accompanied by vomiting.” He again asked for an ultrasound scanning.

64. At approximately 10 p.m. on 13 November 2009 Mr Magnitskiy complained of extremely poor condition. A medical assistant transferred him for in-patient care with the following diagnosis: chronic cholecystitis, chronic pancreatitis in acute condition. He was “prescribed treatment similar to the previous one”. The prison doctor Ms L., the doctor attending him, was on leave at the time.

5. Death of Mr Magnitskiy. Versions of events

(a) Events before the death

65. When Dr L. came back to work on Monday, 16 November 2009, she examined Mr Magnitskiy at 9 a.m. An extract from the first applicant’s medical history states that his condition was “moderately severe” and that he had complained of “girdle pain in the epigastrium, in the right hypochondrium.” The conclusion was “aggravation of cholecystopancreathis” as a result of which Dr L. decided to urgently send the patient to the surgical unit of the prison hospital in facility no. 1. Dr L. also observed that Mr Magnitskiy had “a sharp pain in all the epigastrium sections during palpation". He was also reported to be vomiting "every three hours". An official request for emergency admission to the prison hospital on account of “acute pancreatitis?” and “calculous cholecystitis?” was made on 16 November by Dr D. K., the head of the medical unit of facility no. 2. Permission to transfer Mr Magnitskiy was granted the same day by the Head of the Moscow Penitentiary Service.

66. Although the decision to urgently send Mr Magnitskiy to the hospital in facility no. 1 was made at 9.30 a.m., according to officials from facility no. 2, an ambulance was not called to transport him until 2.29 p.m. and arrived there half an hour later. The emergency call chart indicates the call was received at 2.29 p.m. due to “acute pancreatitis.” Although the ambulance arrived at facility no. 2 at 2.57 p.m., its crew had to wait for an escort into the facility for 2 hours and 35 minutes. An escort team was formed to transfer Mr Magnitskiy to facility no. 1 on the orders of a senior prison official. Mr Magnitskiy left facility no. 2 at approximately 5.10 p.m. He arrived at facility no. 1 at approximately 6.30 p.m. that evening. The prison official who escorted Mr Magnitskiy later described him as walking “bent down” because he had “a strong pain in the stomach”. The same official recalled that Mr Magnitskiy was handcuffed for the duration of the journey. The handcuffs were only removed on arrival at facility no. 1, where Mr Magnitskiy was examined by a doctor at 6.30 p.m.

67. Upon Mr Magnitskiy’s admission to facility no. 1, he was examined by a doctor, Ms A.G., in the medical room of the facility reception section. She confirmed the diagnosis of “acute calculous cholecystitis, acute pancreatitis”, and described his status as “moderately severe”. Mr Magnitsky was recommended admission to the surgical department for in-patient treatment. Dr A.G. later described the events of that evening (a similar record was entered into the first applicant’s medical history). She was filling in the medical records while Mr Magnitskiy remained in a metal cage in the same room. She noticed that Mr Magnitskiy’s behavior “became inappropriate ... he raised his voice and was aggressive”. She moved to the room next door to complete her work, but heard him saying “now they will kill me here, I am innocent in this case, why did they bring me here”. She went back to the room where he was and saw him inside the caged area running around. She was joined by her colleague Dr N. Dr A. G. suspected phrenoplegia and ran to the headquarters to tell an officer on duty to call the reinforcement team. Eight guards arrived at about 7.30 p.m. She also phoned the emergency medical service to request a psychiatric first-aid team, then went back to the room where the patient was still in the cage, with handcuffs put on him by the guards. Another doctor, Mr Ma., joined them at that time. Dr A.G. gave orders to give the first applicant an injection in order to diminish the pain in his stomach. An entry in the medical record at 7 p.m. indicates that Mr Magnitskiy’s final diagnosis was “acute psychosis and delirium of persecution”

68. Guards present at the scene of the incident later testified that the handcuffs were removed approximately half an hour later when the first applicant had “calmed down and his behaviour [had become] appropriate”. Official documents (report on the use of handcuffs on 16 November 2009 and report on the use of a rubber truncheon on 16 November 2009) state that handcuffs were applied at 7.30 p.m. by officer Kuz. The same officer used a rubber truncheon on Mr Magnitskiy. The reports stated that “handcuffs were used due to the threat of the commission of an act of self-injury and suicide. The handcuffs were removed at 8 p.m”. Officer Kuz. drew up a report stating as follows:

“Mr Magnitskiy, without any reason, started expressing his intention to commit suicide or an act of self-mutilation, used obscene language in respect of representatives of the facility administration, refused to leave the cell ..., waved his hands around. [He] was warned about the application of special measures and handcuffs.”

69. After the handcuffs were removed, Mr Magnitskiy remained in the cage until the arrival of a psychiatric emergency team at approximately 9.20 p.m.

(b) Versions of events in statements by various officials and medical personnel

70. The subsequent versions of events put forward by detention facility officials, prison medical personnel and psychiatric team members concerning the circumstances of Mr Magnitskiy’s death differ.

71. In particular, members of the psychiatric emergency team subsequently testified to investigators that when they had been allowed to see the first applicant, after having been forced to wait for more than an hour in front of the detention facility building, he was already dead. They had found him, half-dressed, sitting on the floor in a cell with his back against the bunk, his arms spread, the left leg stretched out, and the right leg bent in the knee. There had been a large pool of urine under him. They had noticed pronounced traces from handcuffs on his wrists. The doctors concluded that the first applicant had already been dead at least for 15 to 30 minutes as his corpse was already in partial rigor.

72. The members of the psychiatric emergency team included the following information in their report: “the team arrived at the facility’s gates at 8.00 p.m. on 16 November 2009. [There was] restricted access to the premises. When we entered the medical unit of the facility at 9.20 p.m., officers informed [us] that the patient had died ... Diagnosis: the patient died before the arrival of the emergency team”.

73. Officer Mar. from facility no. 1 claimed that when the emergency psychiatric team entered, Mr Magnitskiy had still been alive but had been sweating and experiencing difficulty breathing. However, on another occasion he had testified that prior to the arrival of the psychiatric emergency team he had witnessed a medical assistant administering artificial lung ventilation to the first applicant using a bag-valve mask. Mr Magnitskiy had then been placed on a stretcher and taken to the intensive care ward upon the orders of Dr A.G. He had not met or seen the members of the psychiatric emergency team.

74. The prison’s medical record drawn up by the prison surgeon states that "at 9.15 p.m. [the first applicant] was examined again due to the worsening of his condition. During an examination performed by psychiatrists the patient lost consciousness. A prison medical assistant started resuscitation (closed-chest cardiac massage, artificial ventilation ...). According to this record, Mr Magnitskiy was then, at 9.20 p.m., transferred to a special medical ward in building No. 7 where for thirty minutes prison staff, including Dr A.G., continued their attempts to revive the first applicant using cardiopulmonary resuscitation (CPR), artificial ventilation of the lungs, and an adrenaline injection. Mr Magnitsky was declared dead at 9.50 p.m. that evening. The death confirmation statement (“A Confirmation of Death”) was signed by Dr A.G., medical assistant V., officer Mar. and two other prison officials, including captain Pl.

75. Captain Pl. was interrogated on 19 January 2010 and stated that around 9.00 p.m. on 16 November 2009 he had been warned that a detainee in a grave condition was being transferred to the resuscitation unit of the hospital. Around the same time he had received a call from officer Mar. who had told him to write a report on a detainee’s death. As soon as he had written the report, he had gone to the resuscitation unit and had signed the death confirmation statement (“A Confirmation of Death”).

76. Dr A.G. gave evidence that on 16 November 2009, at about 9.20 p.m., she had received a call and had been told that Magnitsky had felt sick. She had gone to the cell where she had found Mr Magnitsky lying on the floor. Officer Mar. had been beside him and the medical assistant was providing resuscitation. In another statement she stated that “the doctor on duty, N., had run in to perform resuscitation procedures”. In her statement of December 2009 she stated: “I tried to feel a pulse and found it only on the carotid artery, there was no pulse on radial arteries. I gave orders to immediately take the patient to the intensive care ward” which, as she estimated, took about five minutes. She stated that in the intensive care ward, together with the duty doctor, she attempted intensive care, through “closed-chest massage, artificial lung bag-valve-mask ventilation, administration of adrenaline and atropine ... the intensive care had no effect and at 21.50 the patient’s clinical death was pronounced. A death certificate was drawn up”. As part of the attempts to resuscitate Mr Magnitskiy, Dr A.G. had personally administered the injections of adrenaline and atropine to the root of his tongue, due the impossibility of finding peripheral veins.

(c) Documents concerning the cause of Mr Magnitskiy’s death

77. The “Confirmation of Death” certified Mr Magnitskiy’s death as having occurred at 9.50 p.m. on 16 November. It gave the following cause of death:

“toxic shock; acute cardiovascular insufficiency.

Diagnosis: chololithiasis (CLT). Acute calculous cholecystitis. Acute pancreatitis. Pancreonecrosis? Acute psychosis. Closed craniocerebral injury?”

78. The document then noted that “no signs of a violent death were found”. It was stamped and signed by a number of officials including Dr A.G., officer Mar. and captain Pl. A copy of the “Confirmation of Death” provided to Mr Magnitskiy’s family and lawyers shows that it was faxed from detention facility no. 1 on 17 November 2009 at 12.13 to a fax number registered for the Tverskoy District Court.

79. The third applicant, Mrs Magnitskaya, insisted that a copy of the “Confirmation of Death” which she had obtained from investigators appeared to be an identical copy of the first copy (as described above) but with two important differences. In particular, the document was not stamped and the reference to the closed craniocerebral injury was deleted.

80. On the morning of 17 November 2009 detention facility officials informed Mr Magnitskiy’s lawyers that their client had died of a rupture to abdominal membrane. Later that day, however, in an official statement issued by the Press Secretary of the Russian Interior Ministry Investigative Committee the cause of death was indicated as “a heart attack and toxic shock”.

81. On 17 November 2009 the lawyers filed a petition with the prosecution authorities requesting an independent autopsy to be carried out, which was refused. The following day Mrs Magnitskaya went to the morgue with her lawyer, having again requested that an independent medical expert take part in the autopsy and the medical examination, but they were told that the autopsy had been completed, that Mr Magnitskiy had died as a result of cardiac arrest, and that all the forensic experts were equally independent, so there was no need for an independent expert.

82. Death certificate no. 7637 was issued on 19 November 2009 and signed by the Head of the Civil Registrar. It indicated no cause of death.

83. Death medical certificate no. 217204 was issued on 19 November 2009 by a forensic medical expert of morgue no. 11 in Moscow, following the initial autopsy of Mr Magnitsky. It identified acute heart failure and cardiomyopathy as the cause of death.

84. Mr Magnitsky was buried on 20 November 2009, without undergoing any independent medical evaluation or an autopsy.

6. Investigation into Mr Magnitskiy’s death

(a) Complaints by relatives, lawyers and civil society activists

85. On 18 November 2009, two days after Mr Magnitskiy’s death, the head of the Moscow office of the Investigative Committee issued a public statement that there were no grounds for opening a criminal enquiry.

86. However, on the following day an investigator from the Investigative Committee’s office in the Preobrazhenskiy district of Moscow issued a report recommending a criminal investigation into the circumstances of Mr Magnitskiy’s death. The report stated:

“Taking into consideration the fact that an investigation may reveal evidence of a crime under Article 105 [homicide], and Article 111 § 4 [grave injury to health] of the Criminal Code, I deem it advisable to register the report in the Crime Report Registration Book (KRSP) and to conduct an investigation pursuant to Articles 144, 145 of the Criminal Code of the Russian Federation.”

87. Although an investigation was opened by the Moscow office of the Investigative Committee on 24 November 2009, it was not for the broad allegations of homicide, but for narrower offences of negligence limited to unidentified employees of the Moscow penal service.

88. In the days and weeks following Mr Manhskiy’s death, his family submitted numerous requests for a proper investigation into his death. Each of them was rejected. On 17 November 2009 Mr Magnitskiy’s lawyers submitted a request with the local district prosecutor’s office asking that they open an enquiry into his death and carry out an independent autopsy. There was no response to that request.

89. On 18 November 2009 Mr Magnitsky’s family filed their first petition with the head of the Investigative Committee, asking for a criminal investigation into Mr Magnitskiy’s death. The petition called for an investigation into the state officials responsible for Mr Magnitskiy’s arrest, detention, and lack of medical treatment. There was no reply to that petition.

90. Two days later, after discovering visible injuries on Mr Magnitskiy’s body during his burial, family members filed a second petition, this time with the investigator at the Preobrazhenksiy office of the Investigative Committee. The petition called for a criminal investigation into Mr Magnitskiy’s treatment in detention and his eventual death, and requested all documents relating to his medical condition and any assistance provided to him. On 25 November 2009 the family received the response to that request, informing the family that the preliminary investigation had ended and a criminal case had been opened

91. The family filed a further petition with the investigator, requesting their participation in the examination, asking that steps be taken to preserve evidence, and making specific suggestions as to what investigative actions should be undertaken and who should be questioned.

92. Numerous further requests for an independent investigation into the first applicant’s death were submitted to various Russian authorities by his family, lawyers and civil society activists.

93. Over the years following her son’s death, Mrs Magnitskaya lodged dozens of complaints with the investigating authorities asking for information about her son’s death. Among these were requests for access to his blood and tissue samples, which would be needed to conduct an independent forensic examination, and access to his personal file from the detention facilities. Mrs Magnitskaya’s requests were routinely and summarily denied. The refusal to release tissue samples was made on the grounds that no evidence had been presented for doubting the conclusions of state experts; blood samples would not be released because they were “preserved solely for the purposes of state investigation”; access to Mr Magnitskiy’s personal file was denied because it did not “concern the rights and freedoms of the deceased”. In May 2012, it was discovered that the samples in the possession of the authorities had been destroyed in December 2010.

(b) Criminal investigation into the death of Sergei Magnitsky (case no. 366795)

94. On 24 November 2009 the Preobrazhensky district office of the Investigative Committee opened a criminal investigation concerning the death of Sergei Magnitskiy against unknown officials from the Moscow penal service, limited to offences under Article 124 (2) of the Russian Criminal Code [negligently failing to render aid to a sick person resulting in death, punishable by up to three years’ imprisonment] and Article 293 (2) of the Code [neglect of duty resulting in the death of a person through negligence, punishable by up to five years’ imprisonment].

95. On 5 May 2010 the case was transferred to the Central Investigation Department of the Investigative Committee in order to facilitate the conduct of a preliminary investigation.

96. In February 2011 the investigators conducted an examination of the crime scene. Three months later they announced that the assessment of the case by the Prosecutor General’s office cleared the investigators who had dealt with the criminal case against Mr Magnitskiy of any wrongdoing. Requests from Mrs Magnitskaya for the disclosure of that assessment was denied on the grounds that it did not concern the rights of the victims.

97. On 4 July 2011 the Investigative Committee for the first time acknowledged that Mr Magnitskiy’s death in detention was due to the denial of adequate medical care. Specifically, the investigators announced the results of a new forensic examination, which found that “shortcomings in the provision of medical assistance to Mr Magnitskiy had a direct cause-and-effect relationship with his death” and had “deprived Mr Magnitsky of a benign outcome”. The Committee’s spokesperson stated that the investigators planned to bring criminal charges against the medical personnel responsible for treating Mr Magnitskiy in detention.

98. On 18 July 2011 the Investigative Committee instituted new proceedings against two doctors from detention facility no. 2 (the chief of the medical unit, Dr D. K., and Ms L., the doctor attending the first applicant). The case against Dr D.K. was founded on the charge of neglect of duty and that against Ms L. on the charge of negligent homicide owing to the improper discharge by a person of his or her professional duties. On the same day the cases against the two officials were joined to the case instituted against unknown officials from the Moscow penal service (case no. 366795).

99. On 26 September 2011 the investigators announced that they had charged Dr D.K. and Dr L. with criminal offences for their negligence in the care of Mr Magnitsky. Mrs Magnitskaya and her lawyers were served with a copy of forensic medical report no. 555/10 prepared by seven experts from the Ministry of Health, including from the Bakulev Cardio-vascular Surgery Scientific Centre, Sechenov Medical Academy, Russian Academy of Medical Science and Scientific Research Institute of General Resuscitation Science. As a result of a nine-month-long examination and assessment, the experts found that the cause of Mr Magnitskiy’s death was:

“secondary dysmetabolic cardiomyopathy against the background of diabetes and chronic active hepatitis aggravated by ventricular fibrillation with the development of acute cardiac failure, brain and lung edema with acute intra-alveolar and subarachnoid hemorrhage”.

100. The experts therefore concluded that diabetes and chronic active hepatitis had caused the development of secondary dysmetabolic cardiomyopathy. According to the same expert report, the chronic active hepatitis had developed no later than a month prior to Mr Magnitskiy’s death and secondary dysmetabolic cardiomyopathy had occurred no less than six months prior to his death. The experts also set out a long list of deficiencies in the provision of medical assistance to Mr Magnitskiy by the detention authorities since July 2009, as well as identifying a number of significant deficiencies in the quality of the medical treatment administered on 16 November 2009. Their conclusion was that requisite diagnostic procedures which the detention facilities’ medical personnel had failed to perform could have led to the timely discovery of Mr Magnitskiy’s illnesses, such as diabetes and hepatitis, and that, if adequate treatment had been provided, it could have stopped the progression of those illnesses and prevented Mr Magnitskiy’s death. The experts found a direct causal link between the first applicant’s death and the failure to provide him with adequate medical assistance.

101. The experts were also asked to assess the nature and cause of a number of injuries discovered on Mr Magnitskiy’s body during the autopsy. Those injuries included bruises on his arms and legs. The experts concluded that the injuries had been caused prior to the death and had resulted from at least five blows with a blunt object or from friction. The experts also confirmed that the blows could have been caused by a rubber truncheon.

102. On 28 October 2011 the Investigative Committee issued two separate decisions charging Dr D.K. with neglect of duty and Dr L. with negligent homicide. The investigators noted the doctors’ failure to take any action in respect of the first applicant’s persistent complaints about his deteriorating health from the moment of his admission to facility no. 2 until his transfer to facility no. 1, and also their failure to comply with the recommendations for Mr Magnitskiy’s diagnosis and treatment. They further stressed that Ms L. was aware that her education and professional qualifications did not satisfy the requirements of her post. She could have foreseen that her inadequate professional qualifications and skills would lead to grave or even irreversible consequences, such as the significant deterioration of Mr Magnitskiy’s health or even his death. However, she had rashly hoped to avoid those consequences. The investigators concluded that the doctors’ failure to perform diagnostic procedures and provide effective and timely medical care had caused Mr Magnitskiy’s death.

103. On 31 October 2011 the investigators separated the case against Drs D. K. and L. from the original investigation, under a new case no. 713112. At the end of December 2011 the final versions of the bills of indictment were served on the two accused doctors. On 23 December 2011 it was announced that the preliminary investigation was complete.

104. On 2 April 2012 the Investigative Committee issued a decision dismissing all charges against Dr L. on the basis that under the statute of limitations the time-limit had expired for the specific crimes with which she had been charged.

105. Following preliminary hearings in July 2012, the trial of Dr D.K. commenced on 13 September 2012 before the Tverskoy District Court in Moscow.

106. On 20 December 2012, while the trial was underway, at a press conference broadcast all over the world, the President of the Russian Federation, Vladimir Putin, pronounced a conclusion regarding the case, and stated that “Magnitsky died. He did not die through torture. He was not tortured. He died of heart failure”.

107. Four days later, as the trial neared its conclusion, the prosecutor conducting the trial against Dr D.K. ‒ who previously had been seeking conviction ‒ reversed tactics and asked the judge for an acquittal.

108. On 28 December 2012 the Tverskoy District Court acquitted Dr D.K. of all charges.

109. In March 2013 the investigator who had been appointed by the Investigative Committee in March 2012 to investigate the death of Mr Magnitskiy, closed the case for “lack of any crime”.

110. Following an appeal lodged by Mrs Magnitskaya against the acquittal of Dr D.K., the Moscow City Court upheld the acquittal on 16 May 2013.

(c) Medical evidence related to Mr Magnitskiy’s treatment in the detention facilities and his death

(i) Autopsy report (November-December 2009)

111. The first request for an autopsy was made by an investigator from the Eastern District office of the Investigative Committee in Moscow on 17 November 2009, the day following Mr Magnitskiy’s death, and before the criminal investigation had begun. It specified eight questions that the autopsy should resolve. A further request was made on 26 November 2009 by an investigator from the Investigative Committee’s office in the Preobrazhenskiy district of Moscow asking five specific questions. The official autopsy was carried out by a medical assessor of the Forensic Medical Examination Office at 10.10 a.m. on 17 November 2009. The medical assessor sent samples of Mr Magnitskiy’s brain, lung, heart, liver, pancreas, kidney, gaster and small intestine, and also a sample of his blood, for testing. No samples of his gallbladder were collected and sent for testing. Mrs Magnitskaya argued that this had been a highly unusual decision, given that her son had a documented history of gallstones and cholecystitis. Following the completion of these tests, the expert integrated all the findings into the final autopsy report, dated 31 December 2009.

112. In her examination of Mr Magnitskiy’s body, the medical assessor noted that the pancreas measured 20 cm by 5 cm by 5.5 cm. In completing her report, the medical assessor relied on a number of other reports, including:

- a toxicology report dated 21 November 2009 that found no presence of alcohol in the kidneys or in the blood;

- a report, dated 2 December 2009, of the histological examination of the five organ samples taken from Mr Magnitskiy’s body which, in so far as relevant, read as follows: “post-primary cardiomyopathy ... Chronic active long-lasting hepatitis. Lipomatosis of the pancreas”; and

- a report dated 24 December 2009 that found “no morphine or morphine derivatives” in the blood.

113. The autopsy report did not indicate whether the medical assessor had examined the medical records of M. Magnitskiy from the detention facilities, nor whether she had inspected the ultrasound of 1 July 2009 or the ECG which had been conducted in custody.

114. The final autopsy report concluded that Mr Magnitskiy had died 12 to 15 hours before his autopsy began at 10.10 a.m. on 17 November 2009. It diagnosed his cause of death as “congestive heart failure developed in consequence of secondary cardiomyopathy”. It also found that the first applicant had had associated diseases including calculous cholecystitis, fatty degeneration of the liver, lipomatosis of the pancreatic gland, and chronic persistent hepatitis. However, the report did not list the associated diseases among the causes of death.

115. Finally, the report included a description of external physical injuries on Mr Magnitskiy’s body:

- bruises on the left and right wrists inflicted “as a result of the squeezing and sliding action of a blunt hard object (objects) with a limited traumatising surface shortly before death”;

- bruises and two abrasions on the left hand, and a vertical ovular abrasion on the front surface of the left calf also inflicted shortly before death “as a result of the impact and sliding action of a blunt hard object (objects)”; and

- a bruise on the inner surface of the right ankle joint, that was inflicted “3 to 6 days prior to the moment of death”.

116. The medical assessor concluded that those injuries had “no cause-and-effect relationship with the death”. The report also notes that there was a puncture wound at the tongue root, that the “Act on the Death" issued by facility no. 1 indicated that it had been “inflicted by ... a medical needle”, and that, “being a necessary medical procedure, it [was] not subject to forensic medical assessment as to the severity of its harm to the patient’s health”.

117. Requests by Mr Magnitskiy’s family for an independent autopsy, or the presence of an independent expert at the official autopsy, were denied by the morgue and the investigative authorities on the grounds that the state autopsy was sufficiently independent.

118. When the authorities released Mr Magnitskiy’s body to his family on 20 November 2009, it was on the condition that it would be buried immediately. In an interview given to a Russian newspaper, Moskovsky Komsomolets in July 2012, Dr D.K. stated that he had been present during the autopsy on 17 November 2009. His presence was not, however, noted in the autopsy report.

(ii) First medical expert commission report and preliminary reports (May 2010)

119. On 1 February 2010 the senior investigator of the Moscow City Prosecutor’s Office invited a forensic medical expert commission to formulate an opinion concerning the cause of Mr Magnitskiy’s death. He asked them to answer eleven questions, including:

• what the cause of Mr Magnitskiy’s death had been;

• whether he had received qualified medical assistance in detention;

• whether there would have been an opportunity to save his life if he had been provided with qualified medical assistance;

• whether any failure to provide him with qualified medical assistance had contributed to his death;

• whether the diagnosed conditions had contributed to his death; and

• whether the autopsy had accurately identified the cause of Mr Magnitskiy’s death.

(α) preliminary reports

120. Eight Russian medical experts prepared reports (preliminary reports) for incorporation in the forensic medical expert commission report.

121. They included:

- a histological report on the tissue samples from Mr Magnitskiy (not including the gallbladder) which concluded, inter alia, that there were “signs of cardiomyopathy”, as well as “chronic persistent hepatitis of minimal activity” and “moderate fibrosis and lipomatosis of the pancreas”;

- a report dated 22 April 2010 which concluded that death had occurred between 8.30-9.00 p.m. on 16 November, before resuscitation measures were started. The report indicated that an ECG performed on 21 October 2009 had shown signs of the cardiomyopathy, but “the requisite treatment [had not been] administered”. The report also noted that “in its early stages, a dilated cardiomyopathy can progress clinically asymptomatically ... that can cause a sudden cardiac death in the event of any pressure (physical or emotional)”. It concluded that Mr Magnitskiy died “as a consequence of ... cardiomyopathy and a fatty liver hepatosis, chronic calculous cholecystitis and pancreatitis, as proved by the results of the post-mortem examination”;

- a report by a gastroenterologist dated 30 April 2010 concluded that Mr Magnitskiy had been “diagnosed correctly with cholelithiasis and chronic pancreatitis” based on “the clinical progression of the disease, the medical examination data (ultrasound investigation of abdominal cavity organs) and the results of the autopsy”. The expert further noted that Mr Magnitskiy’s complaints were indicative of an acute destructive pancreatitis (intensity of the pain, recurrent vomiting and toxic psychosis) and insisted that those symptoms were not similar to those of any other unidentified disease. The expert listed a variety of tests that should have been performed during the acute stages of cholelithiasis and pancreatitis, and found it “particularly significant” that the first applicant’s medical record contained no indication that even “most simple” tests, such as clinical blood or urine analyses, had been performed. The expert stressed that Mr Magnitskiy had not received in the intensive care unit of a specialised surgical hospital the “most effective treatment for cholelithiasis”, namely a planned cholecystectomy, which should have been performed as the generally accepted treatment for acute destructive pancreatitis.

122. The expert also stated that the evidential material presented gave no impression that Mr Magnitskiy had any serious heart problems, noting that cardiomyopathy could cause death as a result of an intensive overload, and that he, by all appearances, had not experienced any such signs. As to the cause of Mr Magnitskiy’s death, the expert found on the basis of the material presented that “the acute destructive pancreatitis, advanced as a consequence of the cholelithiasis, could have led Mr Magnitskiy’s death if left without a proper treatment for several days”. He further held that “[a]ccording to the anamnesis and the clinical picture of the disease, the patient’s death could have been the result of the destructive pancreathis being left untreated for several days, as the picture is not representative of cardiomyopathy. However, the results of the dissection contradict this point”. The expert paid particular attention to the fact that, according to the autopsy, Mr Magnitskiy’s pancreas was “about twice as large in size as it normally should be”, indicating “either acute pancreatitis or highly expressed chronic pancreatitis. Nevertheless, the results of the autopsy study contradict this diagnosis again”.

- a brief report dated 6 May 2010 was drawn up by a professor of anesthesiology and critical care medicine, who concluded that resuscitation measures, even if conducted to the full degree, have little effect in a case of cardiomyopathy, irrespective of its nature. However, the professor pointed out that he was unable to “conclusively assess” the quality of the attempt to resuscitate Mr Magnitskiy, since there was no proper information describing the resuscitation procedure (time when the patient’s heart had stopped, type of stoppage, number of persons involved in the procedure, etc.). Having noted the absence of proper information about the resuscitation measure, the expert also reiterated the statements made by doctors from the psychiatric emergency team and concluded that he had serious doubts as to the veracity of the official records drawn up in the detention facility, which described the resuscitation measures.

123. However, in contrast to the opinion of the gastroenterologist, the professor concluded that death had been caused by “acute heart failure induced by secondary dilated cardiomyopathy and aggravation of chronic cholecysto-pancreatitis”.

(β) First medical expert commission report

124. The first report produced by the medical expert commission on 12 May 2010 (“first medical commission report”) drew the following conclusions:

a) During his detention Mr Magnitskiy had had a regular heartbeat and blood pressure and an ECG test performed on 21 October 2009 “showed no signs of essential cardiac abnormalities”. However, Mr Magnitskiy’s complaints in May and October 2009 indicating a diagnosis of “osteochondrosis and cardiac pathology” meant it was “necessary to perform repeated electrocardiography, an ultrasound examination of the heart, and a biochemical examination of the blood to determine/exclude cardiac pathology, which had not been done”.

b) The report concluded that at the moment of his death, Mr Magnitsky had no aggravations of cholelithiasis or pancreatitis. It agreed, based on the autopsy report and related subsidiary tests, that his cause of death was cardiomyopathy.

c) As to the quality of the medical care while in detention, the Medical Commission noted that Mr Magnitskiy received “professional medical aid ... to an insufficient degree”, in particular given the doctors’ failure to prescribe or perform laboratory tests on blood and urine, and to perform an operation for the cholelithiasis. However, it also noted that faults in rendering medical aid to Mr Magnitskiy had no causal connection with the occurrence of his death. The report noted on the low quality of medical record-keeping by the medical specialists of the detention facilities and their low informational value.

d) The report also contained an excerpt from a statement by a doctor who had treated Mr Magnitskiy prior to his arrest and who had received information from his family as to his condition and treatment when he was in prison. The doctor stated that Mr Magnitskiy had described “typical symptoms of cholecystitis and pancreatitis” and concluded that the diagnosis was correct, but suggested more advanced drugs and a suitable diet. The doctor expressed particular concern that Mr Magnitskiy had been prescribed a drug which might have an adverse effect on his condition and cause acute pancreatitis.

(iii) First cardiology report (June 2010)

125. On 21 June 2010, a Committee of Cardiologists issued a more specific report concerning Mr Magnitskiy’s cardiomyopathy. Contrary to the First Medical Commission Report, the report issued by the committee in June 2010 stated that Mr Magnitskiy had had no symptoms of cardiomyopathy prior to his death, and that his ECG and X-ray showed no abnormal changes in his heart. The Committee noted that cardiomyopathy can be asymptomatic, that it can be treated but not cured, and that it is “next to impossible to take any steps or to administer complex drug therapy” where cardiomyopathy causes sudden cardiac death.

126. According to the third applicant, a subsidiary report prepared by one of the experts stated that Mr Magnitskiy’s symptoms had a “possible toxic genesis”, although that observation was not repeated in the report itself. The third applicant also insisted that in June 2010 a high-ranking prosecutor had issued a request to the investigation team to investigate the toxic elements found in the body of Mr Magnitskiy. However, the investigators declined to do so.

(iv) Second cardiology report (October 2010)

127. The second cardiology report issued in October 2010 in response to an investigator’s request stated that cardiomyopathy could manifest itself for the first time “with sudden death”. The report indicated that it was impossible to determine how long ago Mr Magnitskiy had contracted heart disease. It found that Mr Magnitskiy’s ECG did not show signs of cardiomyopathy, confirming the findings of the first medical commission report and of the first cardiology report, and that there was no relationship between cardiomyopathy and the other diseases Mr Magnitskiy had been diagnosed with.

(v) Psychological and psychiatric report (23 November 2010)

128. Four psychologists and psychiatrists produced a report (323/Z) on 23 November 2010, answering the investigator’s questions. The report concluded that until 7.00 p.m. on 16 November 2009 the first applicant had not suffered from any mental disorder. The experts further found that it was impossible to say whether Mr Magnitskiy had been in a state of temporary mental disorder on 16 November 2009 due to the inadequacy of the information available to them and the inconsistencies therein. The experts also found that during his confinement in facility no. 2, the first applicant had experienced intense and constant emotions which had resulted in frustration, as was particularly evident and manifested itself during the period between 13 and 16 November 2009 as “a combination of extreme oppression, disappointment, perplexity, resentful objection and indignation at the court and the investigative actions”.

(vi) Second medical commission report (June 2011)

129. On 15 June 2011 the Centre for Forensic Medical Examinations of the Ministry of Health Care and Social Development of the Russian Federation produced the second medical commission report (no. 555/10). They were asked to consider a number of issues, including resolution of the conflicting statements regarding the time of death.

130. In addition to the findings described above (see Part (b) Criminal investigation into the death of Sergei Magnitsky), the experts held that they could not identify specific individuals who were responsible for the shortcomings in Mr Magnitskiy’s medical care that led to his death, as this was “beyond the competence of the expert commission”. The experts were also unable to resolve the inconsistencies regarding the time of death.

(vii) Third medical commission report ( August 2011)

131. On 22 July 2011 the investigator requested further information on the basis of report no. 555/10, namely: which of the failures in custodial medical aid provided to Mr Magnitsky were “in a direct cause-and-effect relationship” with his death.

132. In response, the third medical commission produced report no. 255/11 on 17 August 2011. This report adopted the findings of report no. 555/10, and concluded that administering the medical tests and treatments identified in the previous report would have prevented the progression of Mr Magnitskiy’s diabetes and hepatitis, and thus the cardiomyopathy, and would have “avoid[ed]” his death. It also held that the shortcomings in the provision of medical aid on 16 November 2009 had not contributed to Mr Magnitskiy’s death because it was highly unlikely that someone with his condition could have been saved.

(viii) Opinion by Physicians for Human Rights (June 2011)

133. On 28 June 2011, at the request of Hermitage, Physicians for Human Rights (PHR) issued a report in which it reviewed available evidence relating to Mr Magnitskiy’s detention and death. PHR found that this evidence did not permit any conclusive determination of how Mr Magnitsky died, despite conclusions in other reports indicating that, for example, “[a]t the moment of his death, Mr Magnitskiy had no aggravations of cholelithiasis or pancreatitis” and that these conditions “are unrelated to the occurrence of death”.

134. The PHR report highlighted a number of problematic factors relating to Mr Magnitskiy’s death, including the fact that the testimony given by detention facility officials and doctors pertaining to the last two hours of Mr Magnitskiy’s life was inconsistent and contradictory and that the autopsy was inadequate and did not meet international standards.

135. As to Mr Magnitskiy’s physical condition, the report took note of a number of factors, including that:

a) Mr Magnitskiy “had no health problems or aggravations prior to his detention and was diagnosed with acute cholecystitis, pancreatitis and gallbladder disease for the first time while in detention in July 2009”.

b) Mr Magnitskiy “suffered prolonged severe pain”.

c) The autopsy showed injuries to the first applicant’s legs and arms (contusions and abrasions):

As to his custodial medical care, PHR concluded that the first applicant had “received inadequate medical attention and evaluations for the differential diagnoses of his ongoing symptoms. The neglect was calculated, deliberate and inhumane. He received inadequate medical evaluation and treatment throughout his detention and on the day of his death this continued. There were significant delays on obtaining medical evaluation and treatment by the prison authorities. ... This repeated medical neglect and outright disregard for the well-being of Mr Magnitskiy was undoubtedly a significant factor leading to his death”.

136. An addendum to the report provided by Dr Robert Bux, Forensic Pathologist, of Physicians for Human Rights (PHR) in October 2012 provided further explanation as to the treatment that Mr Magnitskiy received and the cause of his death.

137. With regard to the diagnosis of pancreatitis, Dr Bux states that while the usual size of a pancreas is 12 to 15 cm in length, from the ultrasound examination conducted on 1 July 2009, it is clear that Mr Magnitskiy’s pancreas was 31 cm in length, i.e. more than twice the usual size, and that he also had gallstones. Dr Bux concluded that:

“a diagnosis of pancreatitis and gallstones from ultrasound is very specific. Nothing will cause that kind of enlargement save pancreatitis ... [he excludes cancer]. The fact that it was present in July is very relevant and indicates that after the diagnosis was made he was never treated with definitive medical care, which would have necessitated the removal of his gallbladder. In this case, given his medical history and more importantly the diffuse enlargement of the pancreas with multiple gallstones evident on ultrasound, the diagnosis is quite obvious and easy to make. Any practising clinical physician would have been able to see this from the ultrasound examination and get the problem cured by surgically removing his gallbladder.”

138. Dr Bux then described the effect that untreated pancreatitis would have had on the first applicant:

"Pancreatitis, whether acute or chronic, typically produces severe, to excruciating, unrelenting abdominal pain and frequently bouts of vomiting. If the condition is not reversed, pancreatitis can result in tachycardia (a fast heart beat), fever, and low blood pressure. Left untreated, death can occur.

...

Left untreated, acute pancreatitis may continue to worsen or lead to chronic pancreatitis and can lead to infection, including peritonitis (an infection of the abdominal cavity), septic shock (hypotension which can lead to cardiovascular collapse), and ultimately death.

Septic shock can result from pancreatitis and/or peritonitis may be associated with metabolic derangements ... and can lead to unusual behavior, confusion, lethargy, coma, and death. Trained psychiatrists are able to identity whether someone is acting strangely due to a mental illness or due to an underlying medical problem such as a metabolic disorder caused by untreated pancreatitis and/or peritonitis. The correct treatment for septic shock arising from untreated pancreatitis and/or peritonitis requires immediate, aggressive resuscitation with fluids and electrolytes especially calcium, antibiotics if indicated and intense supportive care which necessitates treatment in an intensive care until the patient can be stabilised. Left untreated, a patient suffering from such symptoms will go into irreversible hypovolemic shock and die. Consequently, the decision by the authorities at [detention facility no. 1] to restrain him and keep him in a cell for two hours without treating him sealed his fate and resulted in death.”

139. The PHR report also considered the injuries to Mr Magnitskiy’s wrists and concluded that such injuries “could cause considerable pain and or numbness to the hands” and that it was not possible for such marks to be left through the ordinary use of handcuffs applied by trained personnel. The report stated that the degree of the injuries documented in the photographs was inconsistent with accidental misapplication of the handcuffs by trained staff.

7. Attempts to challenge the scope of the investigation

140. On 22 November 2011 Mrs Magnitskaya lodged a complaint with the Basmannyy District Court regarding the failure of the Investigative Committee to open a criminal investigation into Mr Magnitskiy’s death. That complaint asserted that the failure to charge various named individuals other than the two doctors was not sufficient to satisfy the standard established for the protection of the right to life and the prohibition of torture, and that the failure to respond to her complaint on that issue violated her constitutional rights. The complaint was dismissed by the Basmannyy District Court on 13 December 2011.

141. On 22 December 2011 Mrs Magnitskaya lodged an appeal with the Moscow City Court. At a hearing on 22 February 2012 the Moscow City Court decided that there was no evidence that the action or inaction of the investigators in failing to open a criminal investigation into the allegations of the false arrest, torture, and murder of Mr Magnitskiy, and the failure to charge individuals other than the two doctors, had interfered with the constitutional rights of Mrs Magnitskaya.

8. Criminal proceedings against Mr Magnitskiy after his death

142. On 2 August 2011 the Prosecutor General’s office announced that that the Deputy Prosecutor General had decided on 30 July 2011 to re-open the investigation against Mr Magnitskiy for tax evasion that had been terminated on 27 November 2009, shortly after his death. On 9 August 2011 the case was re-opened. Those same officers whom Mr Magnitskiy had accused of a large-scale fraud were appointed to continue his posthumous prosecution.

143. On 18 August 2011 Mrs Magnitskaya received a summons issued by the police investigator to appear for interrogation as a witness on 29 August 2011. Ms Zharikova, the second applicant, also received a similar summons and appeared for the interrogation at the end of August 2011.

144. On 22 August 2011 Mrs Magnitskaya sent a complaint to the Prosecutor General requesting him to close the newly reopened criminal case against her son. On 5 September 2011 Mrs Magnitskaya sent two further petitions to the Prosecutor General’s office and the Investigative Committee asking them to stop the persecution of her son and his family after his death. A month later the investigators replied to Mrs Magnhskaya’s petition, stating that there was no reason to close the case or to bar the named officials from continuing the investigation. On 8 November 2011 the Prosecutor General’s office likewise rejected Mrs Magnitskaya’s petition to have the case closed, explaining that the proceedings had been re-instituted to protect Mr Magnitskiy’s rights, including his right to rehabilitation.

145. On 5 September 2011 Mrs Magnitskaya also applied to the Tverskoy District Court, asking it to declare unlawful and unconstitutional the reopening of her son’s criminal case. The complaint stated that pursuant to a decision of the Constitutional Court of the Russian Federation, only relatives of the deceased, not state authorities, had the right to open posthumous criminal investigations, in order to obtain rehabilitation. A week later the District Court rejected that complaint, having concluded that Mrs Magnitskaya was not a participant in the criminal proceedings, had no right to challenge the preliminary investigation, and had not specified which of her rights had been infringed. The third applicant’s appeal against that decision was rejected by the Moscow City Court on 24 October 2011.

146. In mid-December 2011 Mrs Magnitskaya began receiving regular summonses from the police investigators. As a result, she sent a complaint to the Prosecutor General’s office and the Interior Ministry, describing that she perceived the repeated summonses as harassment and psychological pressure to force her to terminate the criminal case concerning Mr Magnitskiy’s death.

147. The Investigation Department dismissed her claims on 18 January 2012. Attached to that response was a decision issued on 28 September 2011 by the police investigator S., whom the first applicant had accused of fraud. That decision assigned to Mrs Magnitskaya the status of a “legal representative of the deceased defendant”.

148. Two days later the police investigator sent a telephone message to the Moscow City Bar Association, instructing them to appoint a specific lawyer to represent Mrs Magnitskaya. Mrs. Magnitskaya lodged several complaints in response to those actions.

149. Between August 2011 and March 2012 Mrs Magnitskaya lodged further complaints with courts seeking to stop the posthumous prosecution of the first applicant. In April 2012 the Ostankinskiy District Court of Moscow dismissed her complaints, stating that her constitutional rights had not been violated. In May 2012, the Moscow City Court dismissed her appeal.

150. In October 2012 Mr Magnitsky was posthumously charged in absentia with two offences of tax evasion in respect of two investment companies belonging to Hermitage and registered in the Kalmyk Republic of the Russian Federation. On 28 November 2012 he was formally accused of tax evasion (1) for the underpayment of the equivalent of approximately US $14 million by wrongfully claiming exemptions from local and regional taxes, and (2) for fraudulently claiming the equivalent of US $3 million in tax benefits for employing disabled persons.

151. The trial of Mr Magnitskiy began on 4 March 2013 in the Tverskoy District Court. On 11 July 2013 Mr Magnitskiy was found guilty. No sentence was passed. Neither Mrs Margnitskaya nor Ms Zharikova nor their lawyers took part in those proceedings. Mr Magnitskiy was represented in the proceedings by a lawyer appointed by the District Court.

COMPLAINTS

1. The first applicant complained under Article 3 of the Convention about the conditions of his detention in facility no. 5 until April 2009.

2. The first applicant complained under Article 5 § 1 (c) and § 3 of the Convention that his arrest and subsequent detention had been unlawful and unreasonable. In particular, he argued that there had been no reasonable suspicion of his having taken part in any criminal offence nor any reason to conclude that he was liable to abscond, interfere with justice or reoffend.

3. Having supported the complaints raised by the first applicant, the second applicant also complained under Article 3 of the Convention that Mr Magnitskiy had died as a result of absent or inadequate medical care and under Article 6 of the Convention that the criminal proceedings against him had been unfair.

4. The third applicant complained under Article 2 of the Convention that her son had been murdered by State officials as a result of their intentional refusal to provide him with life-saving medical treatment in detention and through the infliction of physical violence.

5. In the alternative, the third applicant complained under Article 2 of the Convention that the State had failed to safeguard the life of her son given the grave deficiencies in the medical care afforded to him.

6. The third applicant complained under Article 3 of the Convention that Mr Magnitskiy had been tortured to death, given that for almost a year he had received no proper treatment and had, moreover, been beaten prior to his death.

7. The third applicant complained under Articles 2, 3 and 13 of the Convention that the authorities had failed to effectively investigate the circumstances of her son’s death, and to respond to her complaints concerning the ill-treatment of her son in detention.

8. The third applicant also complained under Article 6 of the Convention about her son’s posthumous criminal conviction. In particular, she claimed a violation of the principle of the presumption of innocence under Article 6 § 2 of the Convention.

QUESTIONS

1. Were the conditions of Mr Magnitskiy’s detention in facility no. 5 until his transfer on 28 April 2009 to facility no. 1 in breach of Article 3 of the Convention?

2. Was Mr Magnitskiy deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was Mr Magnitskiy’s arrest effected on a reasonable suspicion of his having committed a criminal offence or was it reasonably considered necessary to prevent his committing an offence or fleeing after having done so, within the meaning of paragraph 1 (c) of this provision?

3. Was the length of Mr Magnitskiy’s s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

4. The Government are asked to produce a copy of the entire case file compiled in the criminal proceedings against Mr Magnitskiy which led to his conviction, including the investigators’ reports on the basis of which the Russian courts issued decisions authorising Mr Magnitskiy’s arrest and further detention.

5. As regards the allegations that Mr Magnitskiy was handcuffed and beaten with a rubber truncheon on 16 November 2009 in facility no. 1, was he subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment, was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?

6. Was Mr Magnitskiy’s right to life, as guaranteed by Article 2 of the Convention, violated in the present case? In particular, did Mr Magnitskiy have adequate medical assistance in detention? Taking into account his medical history, did the Government meet their obligation to ensure that his health, well-being and life were being adequately secured by, among other things, providing him with the requisite medical assistance?

7. The Government are requested to produce a copy and a typed copy of Mr Magnitskiy’s complete medical record as drawn up after his arrest, and, if available, copies of expert reports and secondary opinions from civilian medical specialists assessing his health, the quality of the treatment afforded to him during his detention and specifying the medical procedures which should have been performed to maintain his health.

8. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII, and Petrović v. Serbia, no. 40485/08, 15 July 2014), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

9. The Government are asked to produce a copy of the entire case file of the criminal investigation into Mr Magnitskiy’s death.

10. Taking into account Mr Magnitskiy’s posthumous conviction, did he have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected and was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, complied with in the present case?

 

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