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Sergei Magnitsky On April 26, 2010, Senator Ben Cardin (D), chairman of the Congressional Commission for Security and Cooperation in Europe (the U.S. Helsinki Commission), addressed an open letter to Secretary of State Hillary Clinton and requested to ban entry into the country for officers of Russian law-enforcement and judicial agencies whose actions, in his opinion, have directly or indirectly led to the death of auditor Sergei Magnitsky. Enclosed was a list of 60 names (the so-called 'Magnitsky list') made up by the Helsinki Commission staff. It includes top managers and senior officials of the Investigation Committee under the Russian Ministry of Internal Affairs, the Internal Affairs Main Administration, the General Prosecutor's Office, the Federal Security Service, the Federal Tax Service, the Federal Penitentiary Service, and a number of commercial courts. As legal grounds, the letter cited the Russia section of the Human Rights Report, issued annually by the Department of State, which said that Sergei Magnitsky's death was caused by inhuman conditions in custody, torture, and denial of medical service and that his arrest was due to the "intention of the authorities to prevent the exposure of a corruption fraud" that resulted in misappropriation of $230 million. Also, the Helsinki Commission drafted a Justice for Sergei Magnitsky Act, stipulating sanctions. On October 29,2010, the bill was formally introduced to the Senate by Bill Cardin, as well as to the House of Representatives by Congressman Jim McGovern. The people on the list and their families were to be denied U.S. visas and their assets located in the United States and in branches of American banks abroad were to be frozen The restrictions, according to the bill, could be lifted only after the Secretary of State and the Secretary of the Treasury confirmed to Congress that Russia had conducted a "thorough and unbiased investigation of the case, punished the guilty, adjusted its penitentiary system in keeping with international standards, strengthened the legislative base for the protection of individuals who testify on unlawful actions of the authorities, and recognized Sergei Magnitsky's contribution to battling corruption and ensuring the rule of law." The bill was again introduced to the 112thCongress, convened in January of 20 11. On April 15, the draft was received by the House of Representatives and on May 19 by the Senate. Like in 2010, it was written by Bill Cardin and Jim McGovern, joined by 16 senators and six congressmen.
The main difference of the new version from the old one consists in the enlargement of the list of individuals to be subjected to restrictive measures to encompass those who "attempted to shield people responsible for the death from being made liable." It is also proposed to use the restrictions with respect to officials involved in "homicide, torture, and other violations of human rights in Russia." The names must be specified by the Department of State jointly with the Department of the Treasury. By now, the bill has been supported by relevant committees of the Senate and the House.
According to the opinion of the supporters of the bill, based on materials of Hermitage Capital, the so-called 'Magnitsky case' looks like this: In 2007, Russian Interior Ministry officers, who conducted a search and seized documents, helped deliberate criminals "steal three companies" belonging to a client of Sergei Magnitsky, the Hermitage fund, by confiscating the originals of their incorporation and financial documents. Then, the same officers in collusion with the top management of Moscow tax inspectorates stole from the federal budget 5.4 billion rubles ($230 million), paid by the Hermitage fund companies as taxes. • Sergei Magnitsky was arrested shortly after he had testified against a group of corrupt Interior Ministry officials and their accomplices who took part in the theft. • Sergei Magnitsky was killed in the pretrial detention facility, and the Interior Ministry officers whom he had exposed are responsible for his unlawful arrest, torture, and murder. In this connection, we want to stress this: •
• ~We fully agree that the death of Sergei Magnitsky deserves a comprehensive, large-scale investigation, like other similar incidents of international resonance. • Countertng.economle.crime, money laundering,_and corruption must be a priority for the world community. • ' All states must .stand up for the. principles of the rule of law and defend 'rights and freedoms both at home and abroad.
That is why we have conducted a preliminary parliamentary investigation of the circumstances in which S.L. Magnitsky was taken into custody and died as well as the preceding events. The principal criteria in our work were these: • Unbiased and objective approach taking into account the opinions and arguments of all the parties. • Support on evidence and documented facts only • Conclusions must be in line with logic and common sense We are prepared to state from the start that, as a result of looking at the documents, one cannot help but recognize that the body of S.L. Magnitsky showed injuries that could result from physical action (the legality of which still has to be established) and, which is even more significant, that he was not provided timely medical assistance in connection with the illnesses that he had. Those who are to blame for those circumstances have been identified and must be held liable. However, the recognition of those facts must not prevent us from answering the following basic questions: • Did the Hermitage Capital fund operate in compliance with Russian legislation? • To what extent was S.L. Magnitsky involved in that operation and what were his functions? • Who committed the crime of stealing $230 million from the Russian budget? • Why did the searches in Magnitsky's office take place and why was he arrested? • Can Magnitsky's death in jail be considered intentionally organized? Hermitage Capital Management Activities Hermitage Capital Management, a British fund, whose executive director is William Felix Browder, a citizen of the UK, operated in the sphere of securities trade in Russia. Its operation centered on shares of government-owned companies, including Gazprom. To ensure national economic security and establish conditions for a stage-by-stage liberalization of the circulation of Gazprom' s stock, Russian legislation introduced restrictions on operations by nonresidents with the stock of the company (Edict of the President of the Russian Federation No. 529 of May 28, 1997; 'the Edict was cancelled when Edict No. 1519 was issued on December 23,2005).
The Edict limited the share of all foreign co-owners in the authorized stock of Gazprom during its privatization to 9 percent. Foreign co-owners included for-profit organizations established under Russian law whose authorized stock was at least 50percent-owned by foreign nonresidents. William Browder, in violation of the Edict, implemented a scheme involving creation in Russia of legal entities with cross-shareholding for obviatlng.the requirements
of Russian legislation concerning .Gazpromstoek,
Those entities were mainly registered with tax authorities in the Republic of Kalmykia, which in 1999-2005, offered significant tax breaks for businesses registered in the republic. Mala fide organizations actively used those privileges, minimizing their taxes paid into budgets of various levels.
Abusing this right, companies established by Browder - 000 Saturn Investments and 000 Dalnyaya Step - were illegally reducing their profit tax without meeting the investment break condition. Thus, those companies did not make any profit tax payments into the republican and the local budgets for 2001, while their tax base for that year amounted to 1,771,000,000 rubles ($65 million).
Law-enforcement agencies in Kalmykia established the fact that Saturn
Investments had forged a letter allegedly signed by Kalmykia's investment policy minister, giving Saturn Investments the right to a tax privilege. A criminal case
was opened. Materials were handed over to the Russian Tax Ministry Inspectorate for the city of Elista, capital of Kalmykia, and more than 82 million rubles of additional taxes were accounted as a result of a field tax audit. Moreover, tax violations in the shape of illegal use of investment privileges led to nonpayment of profit tax for 2001 in the amount of more than 426 million rubes.
In addition to said violations, they used alleged employment of people with special needs. Federal Law No. 2116-1 "On corporate profit tax" of December 27,
1991, stipulates a 50-percent reduction of the profit tax for entities with more than 50 percent of payroll staff made up of people with special needs; instead of 11 percent, Browder's companies' taxes were accounted at the rate of 5.5 percent. However, as established in court, people with special needs, hired pluralistically by those companies, were only formally on the payroll and in fact had nothing to do with the companies' operation. The fact was confirmed by interrogation of those individuals. Unjustified tax benefit in 2001 alone exceeded 97 million rubles.
Thus, Browder's companies have repeatedly violated tax legislation. Browder's
lawyers would contest decisions of tax authorities; however, the Commercial Court of
the Republic of Kalmykia has more than once supported the tax authorities by rejecting the companies' claims (decision on case #A22-1022/02/6-105 of February 26,2003; on May 5,2003, the appellate court left the decision unchanged). In addition, 000 Makhaon, 000 Parfenion, and 000 Rilend, also forming part of the Hermitage Capital Management group, have been registered in the Russian Federation. Makhaon, Parfenion, and Rilend worked in the sphere of operations with securities. As a result of their operation, those limited liability companies have in fact paid a profit tax for 2006 in the amount of 5.4 billion rubles into the budget of the Russian Federation. However, in October of 2007, Makhaon, Parfenion, and Rilend submitted corrected profit tax returns for 2006, according to which the amount of extraordinary charges had increased by 22,903,700,000 rubles (by 1,670,000,000 rubles; 13,660,000,000 rubles, and 7,573,700,000 rubles, correspondingly), which led to the reduction of the amount of tax to be paid into the budget by 5.4 billion rubles (by 372 million rubles, 3,276,000,000 rubles, and 1,760,000,000 rubles, correspondingly). In correspondence with Article 88 of the Tax Code of the Russian Federation (the Code), the territorial tax authorities conducted office audits of he corrected tax returns. The audits examined documents confirming the increase of extraordinary charges as a result of acknowledgement of penalties on securities supply contracts (the companies produced contracts, additional agreements, agreements on severance of additional agreements, etc.). In addition, the companies produced decisions of Commercial Courts on cases #A56-22484/2007 of September 7,2007, #A65-26689/2007-SGZ-25 of November 16,2007, and #A40-54502/07-100-385 of December 11,2007, which granted the claims of potential buyers of securities to collect penalties from Makhaon, Parfenion, and Rilend in full. As a result of verification (which included inquiries made to banks and lawenforcement agencies, instructions on verifications concerning contractors, location studies, and other tax inspection activities) the tax authorities made the decision on reimbursement of the excessively paid profit tax. Pursuant to Article 78 of the Code, the companies applied for profit tax reimbursement. After the verification, the territorial tax authorities sent payment orders to the Federal Treasury Administration for Moscow, which were executed by returning funds to the accounts of 000 Makhaon (372 million rubles), 000 Rilend
(1,760,400,000 rubles), and 000
Parfenion (3,276,100,000 rubles), totaling 5.4
billion rubles. Then it was established that this decision was made by the tax authorities based on forged documents. Subsequently it was established that the
tax authorities received forged 2005-2006 contracts for the supply of Gazprom shares, agreements on their severance in connection with failure to honor them, and other documents, which showed that Parfenion, Makhaon, and Rilend had debts before third parties. As a result, the top managers of the Federal Tax Service inspectorates for Moscow, unaware of the criminal actions and intentions of the group, made decisions on tax reimbursement to Parfenion, Makhaon, and Rilend.
Involvement of S.L. Magnitsky in unlawful activity of Hermitage fund structures
In 1995, William Browder asked the Firestone Duncan auditing firm to develop a scheme to reduce the size of the tax to be paid into the Russian budget. The auditing
firm, including one of its auditors, Sergei Magnitsky, developed a scheme using a profit tax privilege for companies employing people with special needs for the purpose of their rehabilitation. W.F. Browder, S.L. Magnitsky, and their unidentified accomplices knew that the people with special needs were not doing any job at 000 Dalnyaya Step and 000 Saturn Investments, working places for them were not created, and said companies did not meet the criteria defined by the Investment Policy Ministry of the Republic of Kalmykia for companies registered as investors and therefore had no right to the exemption from paying profit taxes into the federal budget as well as into the budgets of the Republic of Kalmykia and the city of Elista.
Nonetheless, S.L. Magnitsky, with the knowledge ofW.F. Browder, made calculations (tax returns) of the tax from the actual profit in 2001 of aGO Saturn Investments and 000 Dalnyaya Step, and in order to avoid criminal liability gave instructions to individuals unidentified by the investigation to sign said financial documents and ensured their submission on March 29, 2002, to the Tax Ministry inspectorate for the city of Elista, located at the address: 4 Gubarevicha St., Elista, Republic of Kalmykia, which made it possible to reduce the profit tax rate by 5.5 percent (into the federal budget), by 19 percent (into the budget of the Republic of Kalmykia), and by 5 percent (into the budget of the city of Elista) and thus evade paying profit tax for 2001 in the amount of 522,595,514 rubles (confirmed by tax forensic expert conclusion #12/3-5062 of June 8, 2009).
On November 24,2008, S. L. Magnitsky was providing audit services to his clients, as per his employment contract with the foreign law firm "Firestone Duncan" (representative office in Russia: 000 "<I>aMepcToYH ,Zl;aHKeH (CMAM3c), JIT,n;") when he was arrested by Oleg F. Silchenko, an investigator for the Investigative Committee under the Ministry of Internal Affairs of the Russian Federation as a suspect in criminal case number 153123. The criminal case in question was being investigated on suspicion of crimes committed by the head of the foreign investment company "Hermitage Capital Management, Ltd" (representative office in Russia: 000 "3pMMTa)l( aIIMTaJI K (Pallia) Cepsac, JIT,n;"),W. Browder, and several others, in connection with criminal offenses under Paragraph "b" of Part 2 of Article 199 of the Criminal Code of the Russian Federation - tax evasion in transactions involving securities of the largest Russian companies. From May 2007 on, the Investigative Committee under the Ministry of Internal Affairs of the Russian Federation investigators had been pursuing several analogous criminal cases regarding the actions on the part of the managers of legal entities controlled by W. Browder. During the course of the investigations into these cases, the investigative authorities imposed measures of procedural compulsion on both the employees of the abovementioned legal entities and the employees of the company serving their interests, "Firestone Duncan" (000 "<I>aMepcToYH ,Zl;aHKeH AM3c), (CM JIT,n;").Consequently, on June 4, 2007 searches were conducted in the offices of "Firestone Duncan" (000 "<I>aMepcToYH ,Zl;aHKeH AM3c), JIT,n;")and "Hermitage (CM Capital Management, Ltd" (000 "3PMMTIDK aIIMTaJI K (Pallia) Cepsac,IT,n;"). uring J D the course of the searches the founding documents and stamps of several legal entities (specifically 000 "Makhaon", 000 "Parfenion" and 000 "Rilend") had been seized, on the grounds that theses companies had been directly involved in illegal trade in Russian securities. In the course of further investigations, S.L. Magnitsky was repeatedly questioned as a witness on the abovementioned companies' economic activities as a person in their service and their representative by power of attorney. The investigation of the Investigative Committee under the Ministry of Internal Affairs of the Russian Federation established that there was ,factual evidence of S.L. Magnitsky's personal involvementin the development-and implementation of certain schemes by means of-which legal entities controlled 'by W. Browder and registered as subjects of the Russian Federation (such as 000 "Dalnyaya Step'Tand 000 "Saturn -lnvestments'Tpracticed tax evasion. Consequently, on November 25, 2008, S~L. Magnitsky was-charged under Pavts..J and 15 ,"Article 33, Paragraphs "a" 'and "b" or Pirt·2 of Article 199 of the CriminaLCode of the Russian Federation: On November 28, 2008, the Tverskoy District Court of Moscow ruled against him and for a restraining measure in-the form of incarceration;
The case also revealed several episodes of criminal activity on the part of the defendant Cherkasov. Cherkasov, the general director and chief accountant of 000 "Kameya" committed tax evasion on the profit tax from organizations affiliated with the Hermitage Fund, amounting to 2.7 billion rubles using the scheme of double taxation on the sale of OAO "Gazprom" shares. In addition, on June 18, 2008, the Central Investigation Department at the Republic of Tatarstan Ministry of the Interior has launched a criminal investigation into the theft of 5.4 billion rubles from the budget of the Russian Federation. In October 2008 the case was transferred to the Investigative Committee under the Ministry of Internal Affairs of the Russian Federation (currently the Investigative Department of the Russian Federation Ministry of Internal Affairs) for further investigation. The reason for launching a criminal investigation was an application made by the management of 000 "Parfenion", 000 "Makhaon," and 000 "Rilend" (these firms were among the Russian companies belonging to the Hermitage Fund), who, upon looking through the documents of newly acquired companies had found these companies to be greatly indebted to third parties. It was in the course of the criminal investigation that the theft of 5.4 billion rubles from the budget of the Russian Federation was officially established. More specifically, the preliminary investigation revealed the following: In September 2007 V. G. Khlebnikov, the CEO of 000 "Makhaon", V. A. Markelov, the CEO of "P arfeni on" , V. N. Kurochkin, the general director of 000 "Rilend", O.G. Gasanov, S. M. Korobeynikov and S. L. Magnitsky, by prior agreement among themselves, fabricated and filed sophisticated fraudulent tax returns for their 2006 profit tax with the Federal Tax Service in Moscow. In the fraudulent tax returns, the persons listed above made several changes reducing the tax base of profit tax by means of allegedly not previously recorded losses to the companies (000 "Parfenion", 000 "Makhaon," and 000 "Rilend") in 2006. Their total recoverable overpayment on profit tax was declared in the sum of 5.4 billion rubles. In the period from September to October 2007, after the CEOs of 000 "Makhaon", 000 "Parfenion," and 000 "Rilend" applied to the tax authorities to collect on the profit tax overpayment, the abovementioned Federal Tax Service inspections conducted office tax audits over the course of three months. The tax audits served as a basis for the decision made on December 26,2007, to transfer the sum of 5.4 billion rubles to the bank accounts of 000 "Parfenion", 000 "Makhaon," and 000 "Rilend," from which bank accounts this sum was subsequently stolen.
The large amount of tax money claimed for reimbursement did not raise any flags for the tax authorities, as the companies' previous tax deductions were also in the hundred billion-ruble range. The bringing of a criminal case against O. G. Gasanov, V. N. Kurochkin, S. M. Korobeynikov, and S. L. Magnitsky was denied due to their death. V. A. Markelov and V. G. Khlebnikov were found guilty of criminal actions under Part 4 of Article 159 of the Criminal Code of the Russian Federation and sentenced to various prison terms.
W. Browder's insistence that Magnitsky had made a statement concerning a large-scale fraudulent withdrawal of money from the state-budget by the Ministry of Internal Affairs of the Russian Federation officials, gave a detailed description of the fraudulent scheme, named names, etc ... " is not true because: On June 5, 2008, Magnitsky was questioned as a witness in a criminal case involving the theft of the Russian firms in the Hermitage Fund, launched by the Investigative Committee of the Russian Federation at the request of the abovementioned Fund. In the course of the interrogation, Magnitsky failed to present any incriminating evidence against the law enforcement officers. There is also no confirmation whatsoever that Magnitsky conducted an independent investigation. In the course of the interrogation, he reproduced the sequence of events: Who came at what time and which documents were seized (copy attached). The Investigative
Committee of the Russian Federation has ended their investigation into the matter on October 20, 2008 (copy attached).
Browder's statement that "three' Russian .companies from the Hermitage Fund were illegally re-registered in the name a felon previously convicted -of murder by means of the documents seized by Ministry of Internal Affairs officials during previous searches of the Fundts offices" is absolutely false. These arguments have
been checked and no evidence validating them has been found. They have been completely refuted by examination result.
It has been 'established that the stamps "on-the re-registration of legal entities
documents for 000 "Makhaon", 000 "Parfenion," and 000 "Rilend", which were provided to the Federal Tax Service Inspectorate for Moscow-No. 46, do not match the stamps seized during the searches.
There is also an Arbitration Court decision (copy attached), which recognizes the re-registration as completely and in all ways legitimate, as well as a resolution of the Investigative Committee of the-Russian Federation (copy attached) on the non-involvement of law enforcement officers (copy attached) in the reregistration. Magnitsky's involvement in the crimes is shown in the interrogation records of Khlebnikov (copy attached), Markelov (copy attached) and former employee of "Firestone Duncan" Konstantin.Ponomaryov (copy attached), who have already been convicted. ,
Magnitsky's Detention and Death According to the Russian legislation, Investigative Department of the Russian Federation Ministry of the Interior could not choose a measure of restraint other than incarceration for S. L. Magnitsky at the point of arraignment. S. L. Magnitsky was charged with premeditated grave offenses, took steps to exert pressure on witnesses V. A. Byatkiyev, A. E. Bukayev, O. E. Bukayev, and E. Y. Badykov (disabled persons who were allegedly employed in the republic of Kalmykia), prevented investigative actions - search at his apartment on November 17, 2008, and tried to escape pretrial investigation. Based on these charges the court made a decision on the measure of restraint. On June, 4, 2007, searches were held at the Hermitage Company Representative Office in Moscow. The next day, the absolute majority of the company's employees left Russia and departed to the United Kingdom. A few days before charges have been brought against him, S. L. Magnistky urgently made photographs at the photostudio specifying there that he needed the photographs to obtain a visa, although previously he didn't use to leave the country often. Moreover, the investigation took into account the investigative information on S. L. Magnitsky's intent to flee. During his detention, S. L. Magnitsky was repeatedly transferred between different pretrial detention facilities: on July, 25, 2009 he was convoyed from the Federal Budgetary Establishment Pretrial Detention Facility No.1 of the Russian Federal Penitentiary Service (hereinafter referred to as FBU SIZO-l) to the Federal Budgetary Establishment Detention Facility No. 77/2 of the Russian Federal Penitentiary Service Directorate for Moscow (hereinafter referred to as FBU IZ-77/2). The transfer of S. L. Magnitsky between the detention facilities was legitimate. No breaches of law have been committed. On April, 28, 2009, S. L. Magnitsky was transferred to Pretrial Detention Facility No. 99/1 (hereinafter referred to as SIZO-99/1 or Matrosskaya Tishina) for medical examination. A 16-square-meter (172-square-foot) cell accommodated three inmates that complies with the established standards. S. L. Magnitsky received medical care - Matrosskaya Tishina is equipped with an in-patient department: a hospital with medical staff of various specialties and medical equipment. On July, 25, 2009, due to extensive renovation at SIZO-99/1 Magnitsky was transferred to IZ-77/2 (Butyrska Prison) (based on a letter No. 10/44-768 from FBU SIZO-l dated July, 14,2009, a copy is attached).
Cell No. 267: sleeping accommodations - 4, number of inmates - 2, living space10.8 square meters (116 square feet); cell No. 59, sleeping accommodations - 4, number of inmates - 4, living space - 8.2 square meters (88 square feet); cell No. 35, sleeping accommodations - 6, number of inmates - 3, living space - 10.1 square meters (108 square feet); cell No. 61, sleeping accommodations - 4, number of inmates - 3, living space - 8.5 square meters (91 square feet). All cells are fitted with toilets behind the partitions, washing basins, a desk, benches, a wardrobe, hangers, daylight and emergency lamps, windows to let natural daylight into a cell, and mechanical ventilation. Incarceration conditions complied with the established Russian regulations. During S. L. Magnitsky's detention at SIZO-l, ultrasound signs of chronic pancreatitis and calculous cholecystitis were detected. In this regard another examination was scheduled for him (including ultrasound examination). On July, 25, 2009, the accused was transferred to FBU IZ-77/2, where from October, 7 to November, 12, and then from November, 13 to November, 16,2009 he received treatment at the medical unit under Dr. L. A. Litvinova's care for the following diagnoses: cholelithiasis, chronic cholecystopancreatitis, degenerative disc disease of the thoracic spine with radicular pain syndrome of the intercostal neuralgia type. On November, 16,2009, due to his poor physical condition, S. L. Magnitsky was urgently transferred to FBU IZ-77 11, where he died between 19 hours 30 minutes and 21 hours 15 minutes on November 16, 2009. In order to identify the cause of S. L. Magnitsky' s death a number of forensic medical examinations, including .panel examinations have been held. According to the findings of the experts, S. L. Magnitsky suffered from several concurrent diseases. The primary diseases included recurrent degenerative cardiomyopathy combined with diabetes and chronic active hepatitis; while associated diseases were arteriosclerosis, obliterating atherosclerosis of coronary arteries (liposclerosis), chronic calculous cholecystitis, chronic indurative pancreatitis, degenerative disc disease of the thoracic spine with radicular pain syndrome of the intercostal neuralgia type to the left, and obesity of class I-II.
S. L. Magnitsky's death was caused by congestive heart failure, cerebral edema and pulmonary edema with acute intra-alveolar and subarachnoid hemorrhages caused by ventricular fibrillation - a complication of two primary concurrent diseases: recurrent degenerative cardiomyopathy combined with diabetes and chronic active hepatitis.
The primary diseases that S. L. Msgnltsky suffered from and that lead to his death were not detected. Over the period of S. L. Magnitsky's treatment in a medical unit at FBU IZ-77/2, his physician L. A. Litvinova made a number of medical care errors that are directly related to his death. These medical care errors lie in inadequate diagnostic measures, and subsequent failure to prescribe timely and appropriate treatment of the aforementioned diseases.
Diagnostic and medical care activities performed by L. A. Litvinova were directly supervised by the Deputy Chief of FBU IZ-77/2 for Medical Care and Prevention D. B. Kratov. On July, 18,2011, criminal case No. 2011713112-11 was initiated against L. A. Litvinova and D. B. Kratov: against L. A. Litvinova based on Part 2 Article 109 of the Russian Federation Criminal Code, and against Kratov D. B. based on Part 2 Article 293 of the Russian Federation Criminal Code. On the same day, criminal case No. 2011713112-11 was integrated with criminal case No. 201/366795-10. On October 31, 2011, criminal case No. 2011713112-11 against L. A. Litvinova and D. B. Kratov was separated from criminal case No. 201/366795-10 to finish the investigation. The statute of limitations for criminal case initiation has expired, therefore criminal prosecution against L. A. Litvinova was terminated, while a criminal case against D. B. Kratov was sent over to the prosecutor with a charging document. Within the investigation of criminal case No. 201/366795-10 (investigating officer A. A. Strizhov), the actions of certain officials will be legally evaluated. These, officials include A. V. Gaus, a physician of the Medical Unit Surgery Department at SIZO-l for Moscow, who had a medical appointment with S. L. Magnitsky and conducted an examination on November, 16,2009, and other officers of the Federal Penitentiary Service Directorate, who applied handcuffs to the aforementioned person under investigation. According to the experts' report, when at about 19 hours 00 minutes on November, 16, 2009 S. L. Magnitsky developed severe decline in his physical condition, including abnormal behavior, agitation, disorientation, dialogues with voices, cardiac fibrillation, Dr. A. V. Gaus did not provide appropriate therapy, namely sedation therapy (chlorpromazine intramuscularly), fluid therapy (for example, albumin or
plasma solutions) and cardiotonic therapy after the patient developed heart fibrillation.
At the same time, forensic reports of the Russian-Forensic Science Center and interrogations of experts unambiguously show that failure to perform those measures does not have a direct cause-and-effect relation to the resulting. negative implications in the form of death of S. L. Magnitsky - this rules out the possibility for criminal prosecution against A. V. Gaus. Handcuffs application ,to S. L. Magnitsky at the Medical Unit Assembly Department was caused by his abnormal behavior, agitation, aggression; and the need to terminate wrongful actions of the accused, who failed to obey the directions of the detention facility officers, and the need to terminate his attempts to cause-damage to himself and others. S. L. Magnitsky's aggressive behavior is confirmed by the eyewitness evidence, as well as the results of forensic and psychiatric reports.
According to the provisions of the Federal Law "On the Detention of Persons Suspected and Accused of Committing Crimes", Russian Federation Law "On the Institutions and Bodies which Carry out Criminal Punishments in the Form of Imprisonment", agency-level orders, and instructions, application of special equipment to the persons suffering from various diseases is not prohibited in case there are reasons for its application.
Furthermore, S. L. Magnitsky's supporting medical documents and medical examination results do not contain any information proving that it was impossible to apply special equipment to him. At the same time, the results of the follow-up examination of Magnitsky's body that was held by the Russian Federation Ministry of Health, indicate that "the injuries on Magnitsky's body were most likely caused by multiple injuring impacts of a blunt object that might possible be a rubber baton." As of now, in April 2012, the investigation scheduled a psycho-linguistic and psycholegislative examination to hold a comprehensive, complete, and unbiased investigation of the criminal case circumstances. The examinations are called upon to reveal if there are any signs of torture (in its criminal and legal meaning) in confinement conditions at Moscow detention facilities where S. L. Magnitsky was retained.
When expert conclusions are received, it is planned to make a final procedural decision on the case and assess the actions of certain officials from the Russian Interior Ministry and the Russian Federal Penitentiary Service. In this connection, the duration of preliminary investigation of criminal case No. 201/366795-10 has been extended by the senior deputy chairman of the Investigation Committee of the Russian Federation until August 24,2012. At present, the criminal case against Sergei Magnitsky is reopened to give his relatives the right to send it to court and achieve rehabilitation of the deceased in keeping with Resolution No. 16-P of the Constitutional Court of the Russian Federation of January 14,2011. Further parliamentary investigation should give answers to the following questions: What is the amount of damage caused to the country by Browder's actions on illegitimate acquisition of OAO Gazprom shares? • To what extent tax administration representatives and other officials could be involved into the misappropriation of 5.4 billion rubles from the Russian Federation budget? • Who is the final recipient of the aforementioned funds? •
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