The Magnitsky Bill and Crime in Russia

Posted: August 7, 2012 at 4:11 pm, Last Updated: September 7, 2012 at 1:53 am

Author: Aaron Beitman, PhD Student, University of Minnesota-Twin Cities, Department of Political Science

In recent weeks, a bill of note has made significant progress through both houses of the U.S. Congress.  Known as the Sergei Magnitsky Rule of Law Accountability Act, the bill honors the memory of a lawyer and accountant formerly of Hermitage Capital, once the largest Western private equity fund in Russia.

After discovering an apparently massive corruption scheme involving embezzlements of over $230 million from the Russian treasury by law enforcement and tax officials, Magnitsky relayed his accusations to authorities.  Instead of following up on his claims, the authorities chose to arrest, imprison, and torture Magnitsky, ultimately leading to his death in 2009.  The bill would ban Russian officials involved in Magnitsky’s death from entering the U.S. and using U.S. financial institutions.

 

CRIMINAL DECRIMINALIZATION

While furor over the Magnitsky bill has grabbed headlines in the U.S., Russian society faces an increasingly criminal reality.  In a recent article published in the Russian academic journal Criminology, Vitaly Nomokonov, TraCCC Vladivostok Center director and vice president of the Russian Criminological Society, outlines the systemic nature of criminality in Russia’s political, social, and economic systems.  In particular, Nomokonov highlights how attempts to decriminalize Russian society have largely had the effect of facilitating higher levels of crime.  Though many observers within Russia have underscored the urgent need for decriminalization, these efforts are hindered in part due to the absence of coherent federal or regional decriminalization policies.

Unfortunately, the appearance of new government decriminalization programs has corresponded with an increase in reported crimes and decreases in registered and prosecuted crimes.  According to official statistics provided by the Russian Interior Ministry, the number of reported crimes resulting in prosecutions has declined one percentage point each year, from 12% in 2008 to a paltry 8% in 2012.  This occurred as the number of reported crimes increased by roughly one million each year, with 21.5 million reported crimes in 2008 and 24.6 million in 2012.

It also seems that corrupt bureaucrats have pushed for changes in anti-crime policies and criminal laws that are beneficial to them and their associates.  For example, in 2011, judges were awarded the right to “independently” determine the appropriate category for smuggling and contraband-related crimes.  This ostensible judicial independence only creates more opportunities for a corruption in a legal system highly susceptible to outside “influence.”  Moreover, questions are being raised increasingly about how the convoluted wording of Russia’s criminal laws facilitates criminal behavior.  In other words, by knowing the law, criminals can commit crimes with the knowledge that they are unlikely to be prosecuted.

 

CRIME AND THE STATE

Nomokonov points out that legal theorists have long noted the contradictory role of the state as regulator of law and order and pursuer of high moral goals.  In order to achieve security-related ends, the state must employ violence.  This often comes at a considerable ethical price and results in the moral decline of the state.

In the words of Russian affairs specialist Nikolai Zlobin, as quoted by Nomokonov, the state should always be honest with the people.  A leader’s most important goal should be guaranteeing the honesty of state power, ensuring that state operations are legal, and working to ensure that every bureaucrat is honest and law-abiding.  A dishonest bureaucrat creates the popular impression of a dishonest president, which undermines the president’s legitimacy, raises doubts with respect to the sincerity of the president’s motives for making particular decisions, and suggests questions about the president’s ability to clean up corruption.  Such bureaucrats are the main enemies of the president within the state.  In Zlobin’s opinion, this is exactly what is happening in Russia today.

 

WHAT CAN BE DONE?

Efforts to limit criminality require addressing the serious degradation of Russia’s political, economic, social, and moral life.  This degradation, in one way or another, has crippled society, the state, and the individual.  As such, for decriminalization to work, state policies with respect to crime and corruption must be altered significantly.  Instead of merely serving the corporate interests of a narrow wealthy stratum, the state needs to work for the good of a majority of the population.

Instead of experiencing social solidarity and cohesion, Russian society has essentially been cleft into legal and shadow worlds.  Legitimate state power exists alongside the shadow state, the legal economy jockeys with the shadow economy, and legal social organizations compete with shadow ones.  For Nomokonov, these trends may be reversed only through systemic change in concert with those healthy social institutions capable of facilitating progress.

A DIM OUTLOOK

Although Nomokonov’s assessment of current conditions is anything but positive, he maintains that change is indeed possible.  In a blog post at Foreign Policy, Sergei Magnitsky’s former colleague Jamison Firestone writes about how acting upon the evidence Magnitsky provided would begin the process of cleansing the Russian state of corrupt officials and would set new standards for expected behavior.  However, the pushback against the Magnitsky bill and the Russian government’s meagre efforts to respond to the evidence unearthed by Magnitsky seems to suggest that progress in Russia’s decriminalization efforts is further away than ever.

Write to traccc at traccc@gmu.edu