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17 December, 2012  ▪  Ariel Cohen

Will the Magnitsky Act Apply to Ukraine?

If passed in its universal version and applied world-wide, it could have serious implications for Kyiv

November 16 marked the third anniversary of Sergey Magnitsky’s death in a Russian jail. The U.S. House of Representatives Foreign Affairs Committee marked the occasion by passing the Magnitsky Bill. It now has moved on to the Senate for approval—the next step on its way to becoming law.

Provided the language Senators John McCain (R-Ariz.) and Ben Cardin (D-Md.) have written survives the legislation process, it is possible that the Magnitsky Act would apply to Ukraine. It will be up to the President and the State Department to decide, who, if anyone, may end up on a “Magnitsky List”.

The Magnitsky Act seeks “to impose sanctions on persons responsible for the detention, abuse, or death of Sergei Magnitsky, and for other gross violations of human rights in the Russian Federation, and for other purposes.” Individuals guilty of massive human rights violations would be refused visas, and their assets within the preview of the U.S. government would be frozen.

Ukraine’s treatment of former Premier Yulia Tymoshenko and ex-Interior Minister Yuriy Lutsenko, as well as of other political prisoners, may come under “other purposes” language, applicable to countries beyond Russia.

Lutsenko, a key political ally of former Premier Yulia Tymoshenko, was sentenced to four years in prison in February 2012, for “embezzlement and abuse of office.” Lutsenko, like Tymoshenko, claims that his conviction came on trumped charges brought by the allies of President Viktor Yanukovych.

The European Court of Human Rights rejected the conviction of Lutsenko and ordered a payment of EUR 15,000 in damages. However, Ukraine has not been ordered to release the 47-year-old prisoner while the government appeals the ruling. According to Serhiy Vlasenko, Tymoshenko’s lawyer, “The court found that Article 18 of the European Convention on Human Rights had been violated. They’ve recognized that this was a politically motivated persecution,” said Vlasenko.

If the Magnitsky Act passes in its universal version and is applied world-wide, it could have serious implications for Kyiv. If, on the other hand, the law is limited to Russia alone, it would take an inordinate amount of lobbying to pass a similar law applying to Ukraine specifically.

The Magnitsky Act is unique, because it took the commitment, energy and political savvy of William Browder, then-Magnitsky’s client and the founder of the UK-based Hermitage Capital private equity fund, to convince lawmakers to pass the bill.

Today, there is no discernable champion of Tymoshenko and Lutsenko in Washington who could match Browder’s tenacity and reach on the Hill. Moreover, the Yanukovych Administration has hired Washington lobbyists in the past, and would “go to the mat” to defeat a legislative equivalent of the Magnitsky Act in case one is aimed at them.

The death of Sergei Magnitsky in a Russian prison was a tragic demonstration of rampant corruption in the Russian state’s highest echelons. It would be very unfortunate if Ukraine is put in the same category as Russia.

The fallout from application of a Magnitsky Act equivalent to Ukraine would be disastrous. Ukraine is not Russia. Until recently, it had a better human rights record than Russia. With Ukraine’s legacy of forced starvation under Stalin, it would be tragic if it were recognized as a major violator of human rights.

Unfortunately, according to Amnesty International and Human Rights Watch, Ukraine’s track record is steadily deteriorating. Torture is rampant in prisons and police precincts. Human rights activists, such as Andriy Fedosov of Uzer, a mental disability rights organization, and Dmytro Hroisman of Vinnytsia Human Rights Group, are beaten or harassed. There are widespread reports of ill-treatment of refugees, asylum-seekers and migrants involving arbitrary detention, racist abuse, and extortion. Still, Ukraine is no Russia.

Even with Magnitsky Act in place, Russia, the largest country on Earth, is attractive to Western investors as a source of hydrocarbons and other natural resources. Ukraine is not as blessed with oil, gas and other raw materials, as its northern neighbour. Western business may think twice whether to invest in Ukraine if a Magnitsky-style law applies.

Nor is the Magnitsky affair exactly like the Tymoshenko and Lutsenko cases. Tymoshenko and Lutsenko are alive, while Sergei Magnitsky is dead.

He was a 37-year-old attorney and accountant who worked for Hermitage, then the largest Western private equity fund in Russia. In the course of his work, he uncovered what he believed to be a giant corruption scheme that involved the embezzlement of USD 230mn from the Russian Treasury by law enforcement and tax officials. After making accusations, he was arrested on fabricated tax evasion and tax fraud charges.

Magnitsky died in isolation at the Butyrka prison in Moscow, where he was beaten mercilessly by guards and denied medical care. An investigation by the Russian Presidential Council on Human Rights and statements by leading Russian human rights activists have confirmed as much. This has not resulted in the punishment of those involved.  Indeed, some who deserve punishment have since been decorated or promoted.

Yet, the Senate language of the Magnitsky bill is aimed at human rights abusers not only in the tragic case of Magnitsky, and not only in Russia, but around the globe. As we wrote in a Heritage Foundation Backgrounder, the United States needs to take new measures to protect human rights in Russia -- and elsewhere. 

Countries like Iran, North Korea, Belarus, and Uzbekistan, where political opposition is either exterminated in the GULAG-like death camps, or jailed and tortured, would be primary targets. Ukraine is not in the same category, but may endanger itself if the Lutsenko and Tymoshenko cases are not resolved quickly.

Targeted legislation like the Magnitsky Act would be an effective way to encourage not just Russia and other offenders to respect the rights of its citizens. However, Senate sources point out that broad application of the Magnitsky law may open a diplomatic can of worms, and spoil relations with “important” abusers of human rights, like China and Saudi Arabia.

The Magnitsky Act would provide a modern system to pinpoint and punish gross violators of human rights, while allowing U.S. firms to compete for business on a level playing field – in Russia and elsewhere.

America should prioritize the rule of law—including individual rights, human rights, corruption, and organized crime—in its relationship with Russia and other human rights violators.

Congress may take action against those corrupt officials that systematically violate the natural rights of people -- not just in Russia but across the globe. The Magnitsky Act not only empowers Congress to take action against such individuals but sends a message that the U.S. will support those who value the rule of law and freedom worldwide. Let’s hope that Ukraine will not need Congress’s attention any time soon.


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