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Redline of MAR12542 to S1039

Redline of MAR12542 to S1039

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Published by: Josh Rogin on Apr 24, 2012
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Senate Legislative CounselCompareRite of Q:\BILLS\112\S10XX\S1039_IS.XML and O:\MAR\MAR12542.XML
1
4/24/20124/17/2012 1:08 PM
Purpose: In the nature of a substitute.
123
S. 1039
45
To impose sanctions on persons responsible for the detention,
6
abuse, or death of Sergei Magnitsky, for the conspiracy to
7
defraud the Russian Federation of taxes on corporate profits
8
through fraudulent transactions and lawsuits against
9
Hermitage, and for other gross violations of human rights in
10
the Russian Federation, and for other purposes.
1112
Referred to the Committee on __________ and ordered to be
13
printed
14
Ordered to lie on the table and to be printed
15
A
MENDMENT
I
N THE
N
ATURE OF A
S
UBSTITUTE INTENDED TO
16
BE PROPOSED BY
_______
17
Viz:
18
Strike all after the enacting clause and insert the following:
 
19
Be it enacted by the Senate and House of Representatives of the United States of America in
20
Congress assembled,
21
SECTION 1. SHORT TITLE.
22
This Act may be cited as the “Sergei Magnitsky Rule of Law Accountability Act of 2011”
 
23
2012”
.
24
SEC. 2. FINDINGS.
25
Congress finds the following:
26
(1) The United States supports the people of the Russian Federation in their efforts to
27
realize their full economic potential and to advance democracy, human rights, and the rule of 
28
law.
29
(2) The Russian Federation
 — 
 
30
(A) is a member of the United Nations, the Organization for Security and
31
Co-operation in Europe, the Council of Europe, and the International Monetary Fund;
 
32
 
Senate Legislative CounselCompareRite of Q:\BILLS\112\S10XX\S1039_IS.XML and O:\MAR\MAR12542.XML
2
4/24/20124/17/2012 1:08 PM
and
 
1
(B) has ratified
is a party to
the Convention against Torture and Other Cruel,
2
Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil
3
and Political Rights, and the United Nations Convention against Corruption
, and
; and
4
(C) is bound by the legal obligations set forth in the European Convention on Human
5
Rights.
6
(3) States voluntarily commit themselves to respect obligations and responsibilities
7
through the adoption of international agreements and tr
 
eaties, which must be observed in
8
good faith in order to maintain the stability of the international order. Human rights are an
9
integral part of international law, and lie at the foundation of the international order. The
10
protection of human rights, therefore, particularly in the case of a country that has incurred
11
obligations to protect human rights under an international agreement to which it is a party, is
12
not left exclusively to the internal affairs of that country.
In becoming parties to human
13
rights treaties, governments voluntarily undertake international obligations to respect
14
and encourage certain fundamental rights and freedoms of their citizens. The
15
protection and encouragement of human rights throughout the world is an important
16
objective of United States foreign policy.
 
17
(4) Good governance and anti-corruption measures are instrumental in the protection of 
18
human rights and in achieving sustainable economic growth, which benefits both the people
19
of the Russian Federation and the international community through the creation of open and
20
transparent markets.
21
(5) Systemic corruption erodes trust and confidence in democratic institutions, the rule of 
22
law, and human rights protections. This is the case when public officials are allowed to abuse
23
their authority with impunity for political or financial gains in collusion with private entities.
24
(6) The Russian nongovernmental organization INDEM has estimated that corruption
25
amounts to hundreds of billions of dollars a year, an increasing share of the gross domestic
26
product of the Russian Federation.
27
(7) The President of the Russian Federation, Dmitry Medvedev, has addressed corruption
28
in many public speeches, including stating in his 2009 address to Russia’s Federal Assembly,
29
“[Z]ero tolerance of corruption sh
ould become part of our national culture. . . . In Russia we
30
often say that there are few cases in which corrupt officials are prosecuted. . . . [S]imply
31
incarcerating a few will not resolve the problem. But incarcerated they must be.”. President
32
Medvedev
went on to say, “We shall overcome underdevelopment and corruption because we
33
are a strong and free people, and deserve a normal life in a modern, prosperous democratic
34
society.”. Furthermore, President Medvedev has acknowledged Russia’s disregard for the
35
rule of law and used the term “legal nihilism” to describe a criminal justice system that
36
continues to imprison innocent people.
37
(8) The systematic abuse of Sergei Magnitsky, including his repressive arrest and torture in
38
custody by the same officers of the Ministry of the Interior of the Russian Federation that Mr.
39
Magnitsky had implicated in the embezzlement of funds from the Russian Treasury and the
40
misappropriation of 3 companies from his client, Hermitage, reflects how deeply the
41
protection of human rights is affected by corruption.
42
(9) The politically motivated nature of the persecution of Mr. Magnitsky is demonstrated
43
 
Senate Legislative CounselCompareRite of Q:\BILLS\112\S10XX\S1039_IS.XML and O:\MAR\MAR12542.XML
3
4/24/20124/17/2012 1:08 PM
by
 — 
 
1
(A) the denial by all state bodies of the Russian Federation of any justice or legal
2
remedies to Mr. Magnitsky during the nearly 12 full months he was kept without trial in
3
detention; and
4
(B) the impunity of state officials he testified against for their involvement in
5
corruption and the carrying out of his repressive persecution since his death.
6
(10) Mr. Magnitsky died on November 16, 2009, at the age of 37, in Matrosskaya Tishina
7
Prison in Moscow, Russia, and is survived by a mother, a wife, and 2 sons.
8
(11) The Public Oversight Commission of the City of Moscow for the Control of the
9
Observance of Human Rights in Places of Forced Detention, an organization empowered by
10
Russian law to independently monitor prison conditions, concluded, “A man who is kept in
11
custody and is being detained is not capable of using all the necessary means to protect either
12
his life or his health. This is a responsibility of a state which holds him captive. Therefore, the
13
case of Sergei Magnitsky can be described as a breach of the right to life. The members of the
14
civic supervisory commission have reached the conclusion that Magnitsky had been
15
experiencing both psychological and physical pressure in custody, and the conditions in some
16
of the wards of Butyrka can be justifiably called torturous. The people responsible for this
17
must be punished.”.
 
18
(12)
According to the Financial Times, “A commission appointed by President Dmitry
19
Medvedev has found that Russian police fabricated charges against an anti-
 
corruption lawyer
20
[Sergei Magnitsky], whose death in prison in 2009 has come to symbolise pervasive
21
corr
uption in Russian law enforcement.”.
 
On July 6, 2011, President Medvedev’s Human
22
Rights Council announced the results of its independent investigation into the death of 
23
Sergei Magnitsky. The Human Rights Council concluded that Sergei Magnitsy’s arrest
24
and detention was illegal, he was denied access to justice by the courts and prosecutors
25
of the Russian Federation, he was investigated by the same law enforcement officers
26
whom he had accused of stealing Hermitage Fund companies and illegally obtaining a
27
fraudulent $230,000,000 tax refund, he was denied necessary medical care in custody,
28
he was beaten by 8 guards with rubber batons on the last day of his life, and the
29
ambulance crew that was called to treat him as he was dying was deliberately kept
30
outside of his cell for one hour and 18 minutes until he was dead. The report of the
31
Human Rights Council also states the officials falsified their accounts of what happened
32
to Sergei Magnitsky and, 18 months after his death, no officials had been brought to
33
trial for his false arrest or the crime he uncovered.
 
34
(13) The second trial and
,
verdict
, and sentence
against former Yukos executives Mikhail
35
Khodorkovsky and Platon Lebedev evokes
evoke
serious concerns about the right to a fair
36
trial and the independence of the judiciary in the Russian Federation. The lack of credible
37
charges, intimidation of witnesses, violations of due process and procedural norms,
38
falsification or withholding of documents, denial of attorney-client privilege, and illegal
39
detention in the Yukos case are highly troubling. The Council of Europe, Freedom House,
40
and Amnesty International, among others, have concluded that they were charged and
41
imprisoned in a process that did not follow the rule of law and was politically influenced.
42
Furthermore, senior officials of the Government of the Russian Federation have
43
acknowledged that the arrest and imprisonment of Khodorkovsky were politically motivated.
44

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