Sergei Magnitsky, Russia, and the rare case of the posthumous trial

Financial Times

On February 18*, Russian prosecutors plan to put a man on trial. Two things make the case important. First, the man is a whistleblower, a lawyer who was jailed after he had publicly accused interior ministry officials of tax fraud amounting to $230m. Second, he is dead.

Amnesty International argues that the posthumous prosecution of Sergei Magnitsky violates his fundamental rights even in death, “in particular the right to defend himself in person.”

Is it even legal to try someone once they’ve died? The key question is whether the trial is criminal, or civil, says William Schabas, professor of international law at Middlesex University. “You can sue a dead person in a civil court – you can sue their estate. But the point of a criminal prosecution is to put them in jail. To my knowledge you can’t hold a criminal trial once someone has died – although I can’t rule out the fact that a perverse justice system could create such a possibility.”

Marie-Aimee Brajeux at Queen Mary’s Criminal Justice Centre, University of London, agrees. “The objective of a criminal trial is to hold someone accountable for what they’ve done wrong and punish them for it. In that case, the defendant has to be alive and no action can be brought against them once they’re dead, especially as they can’t defend themselves.”

Until very recently, it was impossible in Russia to bring criminal proceedings against a dead person – so the case against Magnitsky was closed 13 days after he died. But in 2011, a Constitutional Court ruling allowed that criminal proceedings could be continued after someone’s death, if the deceased person’s relatives insisted on it. This is the basis on which the case against Magnitsky appears to have been reopened – despite the fact that his mother is strongly against the reopening of the case.

As you can imagine, trials of people who have already died are pretty rare – but not unprecedented.

The Pope Formosus, pope from 891 to 896, was posthumously tried by his political enemies in the so-called Cadaver Synod – “one of the most bizarre incidents in papal history.”

The German historian Ferdinand Gregorovius wrote about the trial in his History of the City of Rome in the Middle Ages:

“the dead was summoned to appear in person before the tribunal of a Synod… the corpse of the Pope, taken from the grave where it had lain eight months, and clad in pontifical vestments, was placed upon a throne in the council chamber. The advocate of Pope Stephen arose, and, turning to the ghastly mummy, beside which a trembling deacon stood as counsel, brought forward the accusations; and the living Pope, in his insane fury, asked the dead: “Why has thou in thy ambition usurped the Apostolic seat, thou who previously wast only Bishop of Portus?” The counsel of Formosus, if terror allowed him to speak, advanced no defence. The dead was judged and convicted…”

Robert Browning included the trial in his narrative poem, The Ring and the Book, retelling the story of “how there was a ghastly Trial once/ Of a dead man by a live man, and both, Popes… ”
The Saint A quarter of a century after she was burned at the stake, Joan of Arc’s sentence was annulled in Paris’ Notre Dame, in what became known as the Nullification Trial. Joan’s mother Isabelle had appealed in 1455 to the new pope, Calixtus III, who authorised a retrial and appointed judges. According to an English translation of the trial documents (from 1903), Joan’s mother told the court:

“[Joan] was put through a perfidious, violent, iniquitous and sinful trial. The judges condemned her falsely, damnably and criminally, and put her to death in a cruel manner by fire. For the damnation of their souls and in notorious, infamous and irreparable loss to me, Isabelle, and mine… I demand that her name be restored.”

The proceedings overturned the original verdict. Bonus: she was made a saint in 1920. Although called a trial, the example of Joan of Arc is perhaps more similar to the proceedings that can take place after a miscarriage of justice. “It happened after Derek Bentley was executed in the 1950s,” notes Prof Schabas. “It is possible to clear the name of somebody who’s been wrongfully punished or executed. But that’s not a trial in the criminal sense – it’s more of an administrative type of procedure.”

The Nazi Martin Bormann was named as a defendant in the Nuremberg trials in 1945, although no-one could be sure where he was at the time (it later turned out that he was, in fact, dead). This example is very different from the others, in that there was a lot of doubt as to whether Bormann was still alive or not when the trial took place. In October 1945, the tribunal noted:

“one of the defendants, Martin Bormann, not having been found… it is ordered that notice be given… If he fails to appear, he may be tried in his absence, commencing November 20, 1945 at the Palace of Justice, Nuremberg, Germany, and if found guilty the sentence pronounced upon him will, without further hearing, and subject to the orders of the Control Council for Germany, be executed whenever he is found.”

Bormann was convicted in absentia and sentenced to death. His remains were found in 1972, although it wasn’t until 1998 that DNA testing laid to rest decades of speculation that Hitler’s right-hand man had been hiding out somewhere in Paraguay, Brazil, Spain, Italy or Russia.

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