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Affari Internazionali: “Magnitsky Act: towards the international protection of human rights”

The death of lawyer Sergei Magnitsky on November 16th, 2009, in circumstances that have never been clarified, soon became a cause célèbre, one of the elements leading to the exacerbation of tensions in the relations between the United States and Russia, and opened a new chapter in the difficult journey towards the protection of human rights in many countries around the world. The 37-year-old Russian lawyer, who worked as a tax consultant for American entrepreneur William Browder at the time, unveiled a complex system of corruption that involved several subjects, from the police to tax authorities and criminal organizations. In 2007-2008, this led him to investigate the “dangerous liaisons” occurring between public authorities and private interests. The adoption of the so-called “Magnitsky Act”, in Italy and at the European Union level, and the possible developments of its implementation have been discussed at a conference recently hosted by the Chamber of Deputies, whose title was International protection of human rights and individual responsibility: for an Italian and European Magnitsky legislation.

The US initiative (slowed down by the Trump Administration)

A decade after Magnitsky died in jail – after he had spent 11 months of imprisonment on charges of tax fraud, without ever being called to trial – many countries are now considering the adoption of a legislative instrument based on the so-called Magnitsky Act approved by the US Congress in 2012, during the Obama presidency. The law authorizes the US government to prosecute those responsible for human rights violations by seizing their assets and banning them from the granting of entry visas to the United States. In 2016, its mandate was extended with the Global Magnitsky Human Rights Accountability Act, aimed at imposing external sanctions on those responsible for serious acts of corruption and other abuse committed in any country.

Two “blacklists” were published in December 2017, containing the names of 62 people accused of such violations, and a third list was expected to be issued in early 2018. However, the implementation of the Act was met with resistance by the Trump Administration. According to the New York Times, Russia started to exert its influence on the matter already during the election campaign, when, on June 9th, 2016, Donald Trump Jr. met lawyer Natalia Veselnitskaya, at the Trump Tower in Manhattan. As confirmed by the President’s eldest son, Donald Jr., the conversation revolved around, among other things, the Magnitsky Act and Veselnitskaya’s pressure against the act, which had already contributed to block the trafficking of minors in the United States run by some Russians.

European response is still weak

In the meantime, the Global Act was adopted not only by Canada, but also by some EU Member States: Estonia, Latvia, Lithuania and the exiting United Kingdom. On the occasion of the 70th anniversary of the Universal Declaration of Human Rights, both the Council of Europe and the EU itself promoted a discussion on a “European Magnitsky Act”.

One of the first positive outcomes was achieved thanks to the foreign ministers’ unanimous agreement on the Dutch proposal of a common system of sanctions (EU Global Human Rights Sanctions Regime), while a resolution voted by the European parliament on March 14th, 2019 is still awaiting approval by the European Council, which split into those in favour of unanimity and the supporters of qualified majority voting on a matter of common foreign and security policy. This is not the first time that the EU is divided on the issue: on several occasions, some countries have proven reluctant to vote in favour of sanctions against Russia and China.

Protection, sanctions, and possible developments of the Act

Many speakers took the floor at the Chamber of Deputies last July 24th at the conference jointly organized by Fidu (Italian Federation of Human Rights) and Open Dialogue and initiated by MP Lia Quartapelle, including several activists who reported having being the victims of systematic repression by authoritarian regimes in their countries (VenezuelaKazakhstan, Azerbaijan and the Eastern Ukrainian area, inhabited by a Russian-speaking majority).

While introducing the works, Fidu President Antonio Stango mentioned the 1975 Helsinki Declaration on the essential link between international cooperation and human rights and stressed the urgency of adopting – in our country and all over Europe – an instrument to counter the action of “actual systems prosecuting those who condemn acts of corruption, with the connivance of authoritarian states”, where the judiciary is not independent and the rule of law is violated.

Attorney Bota Jardemalie focused on the developments of the Magnitsky Act, describing its main aspects and related sanctions, clarifying possible doubts about the “potential recipients” or “those who are held responsible for serious violations of human rights”, according to “credible evidence” and based on the comparison of different sources and testimonies, without prejudice to each adopting state’s full discretion in the decision to conduct investigations.

“For lawyers, having such an instrument is vital,” said Francesco Miraglia, member of the Human Rights Commission of the National Bar Council. He then added: “Giving individuals the opportunity to make their case is necessary to counterbalance certain abuses”. Gunnar Ekelove-Slydal, deputy secretary of the Norwegian Helsinki Committee (NHC), called on Italian parliamentarians to adopt a similar law, which would have a positive impact on the fight against foreign criminals, coming from authoritarian regimes hostile to human rights.

“It is a shift in method: from sanctions against states, with possible retaliation against other countries, to a mechanism against those who violate human rights, with a deterrent effect,” said Senator Roberto Rampi, the first signatory of the bill presented in March at the Senate: “We do not believe in external interventions, but in the possibility that democratic countries act together to protect human rights”: this is how MP Quartapelle explains the meaning of the initiative. “I believe that in Italy we need an instrument that allows us to demand respect of human rights, knowing that we need to build a broader coalition”; Quartapelle also pointed out that “this law can be an extraordinary tool for foreign policy”.

Human rights emergency: Kazakhstan and Venezuela

Jardemalie herself, a citizen of Kazakhstan, is a political refugee in Belgium and the sister of Iskander Yerimbetov, a businessman who was arrested in October 2018 and sentenced to seven years in prison on grounds of corruption, as part of an operation which, according to the NGOs that have dealt with the case, was “politically motivated” and allegedly involved the dissident Mukhtar Ablyazov. Jardemalie is the attorney of Ablyazov, the main opponent of the current Kazakh government abroad. “It is impossible for these people to defend themselves”, the lawyer said, “since the judicial system does not work”: “Considering the adoption of personal sanctions is key to protect the victims of the regime”.

Among the various testimonies, participants had the opportunity to listen to Lorent Saleh, a Venezuelan political activist and former 2017 Sakharov Prize, who criticized the Italian position on the political crisis in Venezuela and the European lack of decisiveness on human rights protection: “What message are democratic governments around the world sending to younger generations? They are suggesting that if they want to commit a crime, they must be careful that it is cruel enough to go unpunished”. His speech, based on many of the findings of the recent (and controversial) “Bachelet Report” on human rights violations perpetrated by the Maduro government, denounced the continuing and arbitrary imprisonment of citizens, including European citizens. “Where there is no respect for human rights there is no justice,” Saleh continued, admonishing that “we must act in line with what was established seventy years ago and ensure that those who violate human rights and bribe are punished.