Open Letter to the President and Vice President of the
European Commission, by Andrei Nekrasov, a filmmaker.
European Commission, by Andrei Nekrasov, a filmmaker.
21 September, 2020
Dear Ms. President,
dear High Representative/ Vice President,
dear High Representative/ Vice President,
In the President's State of the Union (SOTEU) address on the 16th of September 2020, vowing to finalise the European Union's human rights violations and abuses sanctions regime, you, Ms. President, referred to it as the European Magnitsky Act.
As an independent investigative journalist and filmmaker, who has closely followed the Magnitsky case since 2009, interviewed dozens of witnesses and reviewed countless documents, I am uniquely placed to provide you with important information on who Sergei Magnitsky was and how his name became an international political commodity.
Magnitsky was an accountant and tax advisor at Firestone Duncan, a Moscow tax consultancy, whose clients included Hermitage Fund headed by William (Bill) Browder. Officially, Mr. Browder was an investment advisor to HSBC Management Guernsey. In 2001 Mr. Browder was, inter alia, the director of two companies (subsidiaries of HSBC), which illicitly used a tax reduction scheme in the Russian autonomous region of Kalmykia.
As an independent investigative journalist and filmmaker, who has closely followed the Magnitsky case since 2009, interviewed dozens of witnesses and reviewed countless documents, I am uniquely placed to provide you with important information on who Sergei Magnitsky was and how his name became an international political commodity.
Magnitsky was an accountant and tax advisor at Firestone Duncan, a Moscow tax consultancy, whose clients included Hermitage Fund headed by William (Bill) Browder. Officially, Mr. Browder was an investment advisor to HSBC Management Guernsey. In 2001 Mr. Browder was, inter alia, the director of two companies (subsidiaries of HSBC), which illicitly used a tax reduction scheme in the Russian autonomous region of Kalmykia.
Mr. Browder was convicted in Russia of aggravated tax evasion as well as illegally bankrupting a company involved in tax evasion. Sergei Magnitsky was investigated and arrested for tax evasion in his capacity as a key tax adviser to Mr. Browder's companies, illegally applying the tax reduction regime in Kalmykia.
Sergei Magnitsky was never a public figure in any sense, and, according to his own mother, whom I interviewed, held no distinct political beliefs. The claim that Magnitsky was arrested and imprisoned for challenging the Russian government or any of its agencies in any way, has no basis in fact. There is no evidence Magnitsky fought against or investigated corruption in any proactive way that would warrant the descriptions attached to his name for the purposes of promoting the "Magnitsky Acts". The persona of Magnitsky-the-whistleblower, Magnitsky-the-fighter-of-corruption is a creation of Bill Browder who has used it to misrepresent the history of his own business activities in Russia. Magnitsky and Browder were investigated and prosecuted for the same tax evasion episodes.
Sergei Magnitsky was never a public figure in any sense, and, according to his own mother, whom I interviewed, held no distinct political beliefs. The claim that Magnitsky was arrested and imprisoned for challenging the Russian government or any of its agencies in any way, has no basis in fact. There is no evidence Magnitsky fought against or investigated corruption in any proactive way that would warrant the descriptions attached to his name for the purposes of promoting the "Magnitsky Acts". The persona of Magnitsky-the-whistleblower, Magnitsky-the-fighter-of-corruption is a creation of Bill Browder who has used it to misrepresent the history of his own business activities in Russia. Magnitsky and Browder were investigated and prosecuted for the same tax evasion episodes.
Contrary to Mr. Browder's claims, neither he nor Magnitsky was investigated and prosecuted in Russia for political reasons. No such reasons were found, for example, by the European Court of Human Rights. In its judgement dated 27 August 2019 "the Court concludes that the first applicant's (Magnitsky's – A.N.) arrest was not arbitrary, and that it was based on reasonable suspicion of his having committed a criminal offence." (Case of Magnitskiy and others v. Russia; Applications nos. 32631/09 and 53799/12; JUDGMENT, § 250, p. 40.)
Nor is it reasonable to suggest there were political motives behind the investigation of Mr. Browder's own criminal offences. When the Russian authorities started the investigation into Browder's tax evasion in 2004, Browder was a vociferous supporter of Vladimir Putin.
Sadly, Magnitsky died in 2009 in a Moscow prison. The conditions of his detention and the quality of medical care were, for the most part, extremely poor and contributed to the serious deterioration of Magnitsky's health. Mr. Browder who claims that Magnitsky was deliberately tortured every day of his imprisonment, fails to mention, however, that Magnitsky spent a considerable part of his detention in an "elite" - better equipped – section of the Matrosskaya Tishina prison (99/1) where the rich and famous prisoners, such as the oil tycoon Khodorkovsky, former minister of atomic energy Adamov and the leaders of the 1991 coup against Gorbachev were kept. Magnitsky himself states that the quality of the medical care he received in that prison was adequate.
Mr. Browder has alleged that Magnitsky was beaten to death, but even an American organisation, Physicians for Human Rights, which Browder himself tasked with producing a report on Magnitsky's death, makes no mention of a beating as a cause of the death. Another detailed medical forensic report, which Mr. Browder himself (selectively) quotes, concluded clearly that Magnitsky had died of natural causes. The Special Rapporteur on the Magnitsky Case for the PACE, Andreas Gross, states in my interview with him that Magnitsky was not murdered. He died because „they didn't take care about him", but „they didn't have the intention to kill him" - told me the Special Rapporteur on the record.
Mr. Browder has alleged that Magnitsky was beaten to death, but even an American organisation, Physicians for Human Rights, which Browder himself tasked with producing a report on Magnitsky's death, makes no mention of a beating as a cause of the death. Another detailed medical forensic report, which Mr. Browder himself (selectively) quotes, concluded clearly that Magnitsky had died of natural causes. The Special Rapporteur on the Magnitsky Case for the PACE, Andreas Gross, states in my interview with him that Magnitsky was not murdered. He died because „they didn't take care about him", but „they didn't have the intention to kill him" - told me the Special Rapporteur on the record.
While Mr. Browder's international lobbying for the "Magnitsky Acts" has relied on his media
disseminated descriptions of Russian murderous brutality, the versions of events he is prepared to defend in a court of law, where standards of fact-checking are inevitably higher, differ radically from the stories he feeds to the media. In the "Karpov vs Browder" case at the High Court in London Browder claimed that the Russian authorities, wanting Magnitsky dead, imprisoned him because the lethal outcome was a "reasonably foreseeable" consequence of the imprisonment, "not least" because of high mortality rate in the Russian prisons. Judge Simon dismissed such "causal link", noting that "nothing is said (by Browder – A.N.) about torture and murder ( §128, Page 25 ).
Most importantly, a high political significance is attached to Magnitsky's name not because he died in a Russian prison, but because he was - allegedly - imprisoned and killed for exposing corruption in the Russian government. The latter allegation, as impressive as it sounds, is simply false.
disseminated descriptions of Russian murderous brutality, the versions of events he is prepared to defend in a court of law, where standards of fact-checking are inevitably higher, differ radically from the stories he feeds to the media. In the "Karpov vs Browder" case at the High Court in London Browder claimed that the Russian authorities, wanting Magnitsky dead, imprisoned him because the lethal outcome was a "reasonably foreseeable" consequence of the imprisonment, "not least" because of high mortality rate in the Russian prisons. Judge Simon dismissed such "causal link", noting that "nothing is said (by Browder – A.N.) about torture and murder ( §128, Page 25 ).
Most importantly, a high political significance is attached to Magnitsky's name not because he died in a Russian prison, but because he was - allegedly - imprisoned and killed for exposing corruption in the Russian government. The latter allegation, as impressive as it sounds, is simply false.
Claiming that the reporting of the Magnitsky Case in the international media is based solely on Mr. Browder's version I am talking from my own experience. As countless journalists I was ready to retell Browder's emotional story about his heroic "lawyer". I was making a film about Magnitsky, produced by Piraya Film, a multi-award winning Norwegian company, and supported by some of the most respectable European film and media organisations, such as Norwegian Film Institute, the Freedom of Expression Foundation, Filmkraft, Finnish Film Foundation and ZDF/ARTE. I believed Browder, partly for political reasons, as my previous work had been highly critical of the Russian government.
Having, however, detected inconsistencies in Mr. Browder's story I decided not to sweep them under the rug. The result of my investigative work, the film entitled "The Magnitsky Act – Behind the Scenes" was at first highly praised by its commissioning editors, at ZDF/ARTE inter alia. The premiere of the film was to be held at the European Parliament in April 2016. Yet, as a result of Browder's intense pressure on the top management of ZDF, and a decision of a group of Green MEPs, the screening was dramatically cancelled, minutes before the planned starting time. The scheduled transmission on ARTE was then annulled as well. It is difficult to consider that anything but censorship.
To be fair to the European media, a few reporters have since conducted their own investigations of the Browder/Magnitsky case, independently of Browder's self-serving input. Der Spiegel, Telepolis
(Germany's oldest online magazine), Finans/Jullands Posten, Børsen and Berlingske (major Danish newspapers), have all published highly critical analysis of Browder's Magnitsky narrative.
Having, however, detected inconsistencies in Mr. Browder's story I decided not to sweep them under the rug. The result of my investigative work, the film entitled "The Magnitsky Act – Behind the Scenes" was at first highly praised by its commissioning editors, at ZDF/ARTE inter alia. The premiere of the film was to be held at the European Parliament in April 2016. Yet, as a result of Browder's intense pressure on the top management of ZDF, and a decision of a group of Green MEPs, the screening was dramatically cancelled, minutes before the planned starting time. The scheduled transmission on ARTE was then annulled as well. It is difficult to consider that anything but censorship.
To be fair to the European media, a few reporters have since conducted their own investigations of the Browder/Magnitsky case, independently of Browder's self-serving input. Der Spiegel, Telepolis
(Germany's oldest online magazine), Finans/Jullands Posten, Børsen and Berlingske (major Danish newspapers), have all published highly critical analysis of Browder's Magnitsky narrative.
Danish journalists Birgitte Dyrekilde and Lars Abild released a whole book describing Browder's chequered career and his posing as an anti-corruption crusader in an attempt to cover-up his own financial misdeeds. Criticised by such mainstream outlets as Der Spiegel and Finans Browder swiftly retaliated by filing complaints with the respective national press regulators. Both the German and Danish regulators squarely dismissed his complaints, issuing detailed, point by point rebuttals of Browder's claims.
In my film Special Rapporteur Andreas Gross admits that during his work on the Magnitsky PACE report he received key documentation from the office of Mr. Browder. Browder, in his turn, tried to rely on the authority of the Parliamentary Assembly in an American trial and use Andreas Gross's Magnitsky report as evidence. William H. Pauley, the Federal Judge for the Southern District of New York, rejected Gross' PACE report on the following grounds (Transcript of hearing United States District Court Southern District of New York, May 3, 2017; pages 32-34) :
"It suffers from a lack of trustworthiness, having read it (...) One of the events that may have colored the investigation from the outset is William Browder's interference with the assembly's work."
Should it not be of concern to you that a person with demonstrable vested interest in the case, who Mr. Browder, a hedge fund manager wanted for tax evasion, clearly is, exerts such influence over the political agenda of the world's major national and international institutions, including those of the European Union? What are people to make of European democracy if the European Parliament becomes the place where a European, publicly funded, editorially approved investigative film can be banned by the subject of the investigation in question?
Should you not be concerned that the findings of other European journalistic investigations, and even a conclusion by the ECHR, while directly relevant to the Magnitsky question, have apparently failed to reach your high offices and your keen attention?
My film, "The Magnitsky Act - Behind the Scenes", ends with a question: "Will democracy survive if its moral high ground, human rights, is used to protect selfish interests?"
My film was censored, but I pose that question again today.
Yours truly,
Andrei Nekrasov
Andrei Nekrasov