After Russian Death, Inquiry Doors Open and Shut

The New York Times
by Ellen Barry

It was more than a year ago when six members of an obscure oversight panel filed into Butyrskaya Prison to look into the death of a prisoner. They were hardly an intimidating bunch: retired women in hats, mostly, scribbling their observations in notebooks, regarded by the prison staff as a minor irritant, like fleas.

In a country whose law enforcement structures wield enormous power, it is easy enough to ignore civilian watchdog groups. But this day was different. When the doctors were led in and told to take a seat, the panel’s leader, a veteran human rights activist named Valery V. Borshchev, felt something unfamiliar in the air.

“They lied to us, of course,” Mr. Borshchev later recalled. “But they were frightened. And the fact that they were frightened gave us hope that something would really change.”

The man who had died was Sergei L. Magnitsky. His death in pretrial detention at the age of 37, officially recorded as resulting from sudden heart failure, sent shudders through Moscow’s elite. They saw him — a post-Soviet young urban professional — as someone uncomfortably like themselves. He had been arrested after accusing police investigators of a huge tax fraud, and he died awaiting trial.

A full account of Mr. Magnitsky’s death, the group knew, could restore some confidence in Russia’s legal system. A whitewash, on the other hand, could erode what faith remained.

Investigating the death meant confronting Russia’s security structures — the police, prosecutors, courts, prisons and prison doctors, all links in a self-protective chain. The findings, however decisive, would have to compete with an official inquiry, which would ultimately determine if anyone would be prosecuted.

Even so, they felt oddly hopeful. President Dmitri A. Medvedev, by all accounts genuinely angry over Mr. Magnitsky’s death, insisted that state prosecutors stop dragging their feet and open a case. Two days later, a top prison administrator admitted “obvious violations on our part” to a Kremlin advisory group.

In a country ruled more by commands than by laws, a command had gone out: This time someone would have to be punished.

So the inspectors walked into Butyrskaya with uncommon confidence.

“We could cover ourselves with this comment and say, ‘The president demanded an investigation,’ ” said Lyubov V. Volkova, deputy head of the panel, known as the Public Oversight Commission. “It was like an umbrella. We could go in and say, show us this, show us that. We are under this umbrella.”

Unlikely Detectives

Ms. Volkova and her colleagues were hardly detectives. Their group was brand new, approved by Mr. Medvedev after more than a decade of lobbying the government. They were empowered to inspect cells and investigate complaints, but their recommendations were not binding. In their berets and reading glasses, they seemed to pose little threat. But once inside Butyrskaya, the commission members were neck deep in a criminal investigation.

They moved from cell to cell, standing in the last spaces Mr. Magnitsky had occupied, seeing the last people he saw. They paged through sheaves of complaints he made: there were more than 400, as many as three a day, sometimes written by hand. The picture of a man began to take shape before them.

“Every day, in prisons, we see beaten, constrained, terrified people, who don’t complain about anything,” said Ms. Volkova, 62, a brash blonde partial to satin pants and animal prints. “Magnitsky complained. And the more he complained, the worse they made it for him. And then he complained again.”

“He is the only one we’ve seen like this,” she said.

There were signs that something had gone badly wrong. A doctor on the prison’s medical staff who had been treating Mr. Magnitsky for abdominal pain appeared more distraught than others interviewed by the group. Three days before his death, she told them, Mr. Magnitsky complained about vomiting and severe pain on his right side.

That was a Friday, and she went home for the weekend. No doctor saw him again until Monday, and then, she said, he had “acute, belting pain, vomiting every three hours.” It looked to her as if he had acute pancreatitis, which left untreated can lead to organ failure. As the commission members hastily took notes, the doctor described her alarm, saying: “It was necessary to push for an examination. I thought he had a chronic disease.”

At this, the commission members’ ears pricked up. Whom did she have to lobby to get Mr. Magnitsky treated?

But the conversation was cut short. At that moment, Mr. Borshchev recalled, a prison official walked up behind the doctor, grasped her by the shoulders, and took her out of the room.

Tracing a Prisoner’s Journey

Mr. Borshchev learned about prisons in the 1970s, when, as a close friend of the Soviet dissident Andrei D. Sakharov, he ferried books and sausages to the outskirts of penal colonies to be passed to political prisoners. From his own interrogations for dissident activities, he knew that a prisoner needed a plan to withstand official pressure. He had his own plan: As soon as the investigator raised his voice, he would stop talking and gaze out the window.

Now 68, Mr. Borshchev has fat streaks of white in his beard, and peers over his glasses as if he is presiding over his own personal Supreme Court.

At Butyrskaya, he walked from one cell to another, tracing eight transfers Mr. Magnitsky underwent in the last three months of his life. The cells were increasingly cramped, dark and dirty.

Though a prison doctor had diagnosed gallstones and pancreatitis and ordered a follow-up ultrasound, Mr. Magnitsky was suddenly transferred to Butyrskaya, which had minimal medical facilities. There he had an attack, writing of pain “so acute that I was not even able to lie down.” In September, Oleg F. Silchenko, lead investigator in the case, refused Mr. Magnitsky’s appeal to advocate for the ultrasound, saying investigators were under no obligation to intervene. The ultrasound never happened.

Mr. Magnitsky was allowed only one visit with his wife and mother for the full 11 months he was in custody; they attended court hearings so they could stare at him from across the room. He passed the time by reading Shakespeare’s tragedies. When overcome with anxiety or despair, a cellmate later said, he would turn his face to the wall, as if he wanted it to swallow him up.

To Mr. Borshchev, there was only one way to interpret this: the prisoner was refusing to cooperate. Indeed, Mr. Magnitsky’s job at a Russian-American law firm drew him into a battle between William S. Browder — once the largest foreign investor in the Russian stock market — and the Interior Ministry, which oversees law enforcement. In 2007, Mr. Browder’s company, Hermitage Capital, based on Mr. Magnitsky’s research, accused police investigators of an immense act of corruption, charging that they had seized three of Mr. Browder’s subsidiary companies and used them to receive a $230 million tax refund.

The next year, the Interior Ministry charged Mr. Browder’s companies with evading $17.5 million in taxes. As soon as Mr. Magnitsky was arrested, investigators were pushing him to testify against someone, presumably Mr. Browder, said his defense lawyer, Dmitri V. Kharitonov. But he refused.

The commission’s narrative flowed with some logic until it reached Nov. 16, 2009, the day he died. The nervous doctor sent Mr. Magnitsky to another prison, which had a hospital. There, the oversight panel met a surgeon named Dr. Aleksandra V. Gaus, who said she noted upon his arrival that he had symptoms of acute pancreatitis and prepared to send him for treatment.

At 7 p.m., Dr. Gaus said, he started to act erratically, and she changed her mind, determining that he was suffering from “acute psychosis and persecutory delusions.” She called a team of eight guards to forcibly subdue him, and they handcuffed him to the bed in an isolation cell to wait for a psychiatric emergency team. An hour and a half later, officials said, he collapsed when the psychiatrist was examining him, and was rushed to intensive care for resuscitation. He was declared dead at 9:50 p.m.

Mr. Borshchev was mulling over this account when he got a startling phone call. A few days earlier, he had left his card for the psychiatrist who was present at Mr. Magnitsky’s death. On the phone was the psychiatrist, Dr. Vitaly V. Kornilov, who told a different story: He and his team had been forced to wait at the clinic’s outer gates for a full hour — roughly from 8 until 9 p.m. — before they were allowed inside.

By the time he entered the cell, as Dr. Kornilov would later tell the official investigators, “we were presented with the fact that we could not carry out a psychiatric examination because of the lack of a patient.”

“The head of the corpse was tilted toward his left shoulder, his eyes were open and wide,” he said, according to official documents. “No heartbeat could be felt, no breath or arterial pressure was felt, his skin was pale and cool. Biological death had occurred 15 minutes before.”

The Panel Reports

Six weeks after Mr. Magnitsky’s death, Mr. Borshchev published the commission’s report. He was pleased; though there were still gaps and contradictions, he was sure the commission had uncovered enough to show that someone could be charged, if only for negligence. “When undesirable information gets into the case file, it starts working by itself,” he said. “It must be disproved or else unraveled.”

But another inquiry — the official one — was taking place out of public view. Around 12 hours after Mr. Magnitsky died, his body was examined by a coroner who reported that Mr. Magnitsky’s death was as sudden and unpredictable as a lightning strike. In her report, a copy of which was reviewed by The New York Times, she listed the cause of death as heart failure as a result of dilated cardiomyopathy, a disease that sometimes makes headlines when young athletes collapse in the middle of a game. She found no evidence that he was suffering from pancreatitis.

The autopsy would undergo a series of expert analyses — one of which involved dozens of specialists and was headed by the country’s most famous cardiologist. That panel was confident enough to provide what appeared to be an endpoint to the investigation.

“The drawbacks in medical aid given to Magnitsky,” they wrote, “have no connection to his death.”

Still, the experts did not hide their dissatisfaction. After reviewing accounts from medical staff members, they said the testimony was so contradictory that they could not even determine the time or place of Mr. Magnitsky’s death, official documents show. They were given such paltry documentation that they “couldn’t give an objective assessment of medical care” or determine whether a crime occurred.

They noted that none of Mr. Magnitsky’s doctors had showed concern over his heart, and that diagnostic work done three weeks before his death showed no signs of heart disease.

Moreover, no blood samples were taken when Mr. Magnitsky arrived at the hospital — “the lab only works during the day, and it was night,” Dr. Gaus told a forensic expert — and little toxicology screening was done after his death. So it is difficult to know whether his symptoms were caused by septic shock, an overdose of some agent, or some other form of poisoning. And there was little explanation for the fact that he had been left in a cell for more than an hour in a state of acute distress.

By fall, police officials were so confident that they began to go on the attack. At a ceremony to observe Militia Day, the Interior Ministry bestowed public honors on the investigators who helped put Mr. Magnitsky in prison. On the anniversary of his death, the ministry held a news conference to announce an astounding new accusation: He himself was guilty, said a spokeswoman, of applying for a fraudulent $230 million tax refund. That is the crime Hermitage had reported to prosecutors in 2007.

The inquiry Mr. Medvedev had ordered was extended a second time, but now a new signal had gone out: No arrest was imminent.

“There is no basis to believe that his death was connected to the officials carrying out his prosecution,” Aleksandr Bastrykin, director of the Investigative Committee, the Russian agency that was charged with inquiring into his death, said in September.

No Longer Waiting

Mr. Borshchev had long since stopped waiting for a response to his report. He was at home listening to the radio one day when he heard Aleksei V. Anichin, the head of the Interior Ministry unit that handled Mr. Magnitsky’s case, say that his investigators were “the people who suffered the most from Mr. Magnitsky’s death” — because they lost the opportunity to convict him.

“After this statement,” he said, “it became clear that the investigation is not interested in finding the truth.”

Something had changed during the year, and the members of the Public Oversight Commission felt it as keenly as anyone. When the time came to nominate the new members of the panel — whose single high-profile act had been its damning report on Mr. Magnitsky’s death — the candidates were not well known in human rights circles.

Two were from the Association of Professional Security Guards; two were from the Veterans of the Secret Services; another two were from the Association of Retired Police Operatives; two were from the Association of Police Veterans. The balance on the panel is now so tenuous that Mr. Borshchev fears he will be replaced as the body’s president. One of his critics on the panel, Anton V. Tsvetkov of the Officers of Russia Foundation, complained about “nihilists who disavow everything, who criticize everything,” but said his position had nothing to do with the report on Mr. Magnitsky’s death. “I don’t think anyone read that report,” he said.

Two weeks ago, the state’s lead investigator for the first time asked to interview Mr. Borshchev and Ms. Volkova about their research in the case. They sat together for three hours, meticulously reviewing the findings, which are to be attached to the official file. As they left, Mr. Borshchev said, he clung to the hope that Mr. Medvedev might still press to uncover what really happened.

Ms. Volkova said she was exhausted from the effort of hoping. “I have begun to feel sorry for our president, for Medvedev,” she said. “I look at him and say: ‘Poor, poor boy. Are you really going to clean up all this dirt that they are producing? These hundreds of thousands of corrupt people?’ I am sure that he is the most pitiable person.”

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