UPDATED 11/07/13: After a number of delays, a Moscow court convicted Sergei Magnitsky ‘in absentia’ on July 11 of tax evasion.
In the next few months, 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.”