Magnitskiy and Others v. Russia (Application nos. 32631/09 53799/12)

A selection of key paragraphs can be found below the judgment.


Reasonable time of detention

214. Having regard to this considerable period of detention in the light of the presumption in favour of release, the Court finds that the Russian authorities were required to put forward weighty reasons for keeping him in detention (see G. v. Russia, no. 42526/07, § 112, 21 June 2016).

215. Bearing in mind its finding in paragraph 205 above, the Court accepts that the reasonable suspicion that the first applicant had committed the criminal offences persisted throughout the pre-trial investigation. It remains to be ascertained whether the courts gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings.

222. The Court attributes particular weight to the fact that the domestic authorities inverted the presumption in favour of release (see Buzadji, cited above, § 89 with further references) in stating that in the absence of new circumstances the preventive measure should remain unchanged (see paragraphs 41, 45, 48 and 50 above). By overturning the rule enshrined in Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases, they shifted the burden of proof to Mr Magnitskiy, the detained person. This practice has already been criticised by the Court in a number of judgments (see Zherebin, cited above, § 60; Pastukhov and Yelagin v. Russia, no. 55299/07, § 49, 19 December 2013; Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001; and Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005).

223. In the light of the above, the Court considers that the authorities extended the first applicant’s detention on grounds which cannot be regarded as “sufficient” to justify its duration. There has accordingly been a violation of Article 5 § 3 of the Convention. In these circumstances it is not necessary for the Court to examine whether the domestic authorities acted with “special diligence”.

Posthumus trial

281. A trial of a dead person inevitably runs counter to the above principles [of Article 6 Paragraph 1], because by its very nature it is incompatible with the principle of the equality of arms and all the guarantees of a fair trial. Moreover, it is self-evident that it is not possible to punish an individual who has died, and to that extent at least the criminal justice process is stymied. Any punishment imposed on a dead person would violate his or her dignity. Lastly, a trial of a dead person runs counter to the object and purpose of Article 6 of the Convention, as well as to the principle of good faith and the principle of effectiveness inherent in that Article.

284. The Court notes that it is a fundamental rule of criminal law that criminal liability does not survive the person who committed the criminal act (compare with G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 271-72, 28 June 2018; Vulakh and Others, cited above, § 34; A.P., M.P. and T.P. v. Switzerland, 29 August 1997, §§ 46 and 48, Reports of Judgments and Decisions 1997‑V; and E.L., R.L. and J.O.-L. v. Switzerland, 29 August 1997, §§ 51 and 53, Reports 1997‑V) and that this rule is a guarantee for the presumption of innocence enshrined in Article 6 § 2 of the Convention (compare with A.P., M.P. and T.P. v. Switzerland, cited above, § 48, and E.L., R.L. and J.O.-L. v. Switzerland, cited above, § 53). The aforementioned rule was breached in the instant case as the first applicant did not stand trial and was convicted posthumously. Having regard to the above and its finding in paragraph 281 above that a trial of a dead person inevitably runs counter to all the guarantees of Article 6 of the Convention, the Court concludes that there has been a violation of Article 6 § 2 of the Convention.


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