THE MAGNITSKY AFFAIR

Discussion in 'Russian Society' started by Alexander Mercouris, Oct 15, 2013.

  1. Alexander Mercouris

    Alexander Mercouris Ship Secretary (11th class)

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    A repeated pattern of court cases involving Russia is that they are scarcely ever reported correctly making it essential to look behind the news reports at the actual Judgment the Court has delivered. Another example is the Judgment Mr. Justice Simon delivered on 14th October 2013 in the libel case the police investigator Pavel Karpov brought against William Browder and the Hermitage Group of Companies in the High Court in London.

    Most media reports say that Mr. Justice Simon struck Karpov's case out as an example of "libel tourism" because Karpov actually has no reputation to defend in Britain. Whilst this is true, what these reports fail to do is touch on what Mr. Justice Simon actually said about the case itself.

    Specifically, though he struck out the case Mr. Justice Simon also said that Browder and the Hermitage "had not come close" to substantiating their "unjustified" allegation that Karpov was involved in the torture and murder of Magnitsky and that had the case proceeded to trial that part of the defence which touched on this particular allegation would have had to be struck out as "unsustainable". In other words on the most serious single allegation Browder has made against Karpov Mr. Justice Simon has said that Browder's account is "unsubstantiated" and "unjustified" and that on this issue if the case had proceeded to trial Karpov would have won.

    It is important to understand both what Mr. Justice Simon said and what he did not say. Mr. Justice Simon did not say that Magnitsky was not tortured or murdered. Nor did he say that Karpov was not involved in torturing and murdering Magnitsky. Nor did he say that Browder was lying when he said that Karpov was involved in the torture and murder of Magnitsky in the sense that Browder knew that it was untrue (though the word "unjustified" comes very close and at the very least suggests recklessness on Browder's part). Nor did Mr. Justice Simon comment on Browder's other allegations against Karpov - that Karpov framed Magnitsky, that Karpov is a member of a criminal gang and that Karpov is corrupt and was involved in a tax scam which Magnitsky exposed. All of these points could only have been made in a Judgment following a full trial of the case, which unless Karpov successfully appeals Mr. Justice Simon's Judgment (which I think unlikely) will not now happen. What Mr. Justice Simon has said is that Browder does not have the evidence to support his very specific allegation that Karpov was involved in the torture and murder of Magnitsky and that in the absence of such evidence this allegation is "unjustified" and "unsustainable".

    To my mind this is nonetheless an important finding. A British High Court Judge has for the first time looked at Browder's story and on a key allegation Browder has made has said that Browder does not have the evidence to support it. This is a significant dent in Browder's case. It should make Browder more careful about what he says about Karpov in future and I would not be surprised if as knowledge of the Judgment spreads some of the faith in Browder there has been in Britain starts to dim.

    As to why the claim was struck out, this seems to have been the result of an admission by Karpov that he did not bring his claim in Britain in order to protect his reputation there but as part of his campaign to have his name removed from the Magnitsky list. Unsurprisingly Mr. Justice Simon felt that this was not an appropriate objective such as would justify an action of this sort in a British Court.

    I would say that I do not as yet have the full text of Mr. Justice Simon's Judgment. This has not yet been fully corrected and approved. When it is and when it is posted on the internet I will provide a link. In the meantime the best I can do is provide a link to a press release prepared by Karpov's lawyers. Since it originates with one of the parties in the case it obviously comes with a health warning but I understand that it is factually correct.

    http://www.prnewswire.co.uk/news-re...ce-simon-dated-14-october-2013-227665701.html

    Lastly, I would say that though Karpov has achieved a measure of vindication in these proceedings the cost to him will be high. Since the case has been struck out he will be ordered to pay Browder's legal costs. There are rumours that the costs in the case come to the quite incredible figure of £2 million. If Karpov really is being funded by someone (eg. the Russian state) this is presumably the point when we will find this out. Alternatively Browder will have to justify and then recover his costs from Karpov. If Karpov's assets are all in Russia that may be difficult.

    Postscript: Here is the draft of Mr. Justice Simon's Judgment.

    http://www.bailii.org/ew/cases/EWHC/QB/2013/3071.html

    The Judgment actually goes somewhat further than I had realised. Specifically:

    1. It confirms that Browder cannot sustain his allegation that Karpov was whether directly or otherwise involved in the murder and torture of Magnitsky. It is also clear that over the course of the proceedings Browder and his lawyers admitted that Karpov was not directly involved in the torture or murder of Magnitsky. The Judge makes clear that the inadequacy of Browder's defence on this issue and his lack of evidence to support his claim is clear from the way Browder's defence has been pleaded.

    2. It makes clear that Karpov was not involved in an earlier tax fraud (the so called "Ringaz tax fraud") that preceded the tax fraud which involved Hermitage. Again the Judge says that this is clear from the way Browder's defence is pleaded.

    3. It expressly says that the Judgment provides and is intended to provide Karpov with a measure of vindication, which is what he sought when he brought his case as the letter from his lawyers to Browder's lawyers makes clear. Interestingly Mr. Justice Simon chose to quote both the relevant paragraph in the letter from Karpov's lawyers which says this and the paragraph written in response by Browder's lawyers in which they purport to "welcome" Karpov's claim as an opportunity for Browder to prove his allegations notwithstanding which Browder of course eventually applied to have the case struck out, which of course it was.

    4. The Judgment also contains a clear hint that if Browder makes the same allegations in future about Karpov having been involved in the torture and murder of Magnitsky this could give rise to a future cause of action by Karpov against Browder in libel, which the British Courts would have the jurisdiction to try.

    The Judgment also makes some very interesting passing comments. It observes that Browder and the Hermitage companies have engaged in a "forceful campaign" to put their account of the Magnitsky affair across. It mentions the large number of persons (including the US Congress) who have accepted the account. It refers to the point made by Karpov's barrister that this account has not actually been proved in any Court and the colossal damage it has done internationally to Karpov's reputation, which however would make it virtually impossible for Karpov to rescue his reputation through anything a British Court might say, this being ultimately the reason why Karpov is not being allowed to press on with his case. To those accustomed to reading High Court Judgments the sentiment behind these comments is clear.
    Last edited: Oct 15, 2013
  2. PCO VolgaTrader

    PCO VolgaTrader Collegiate Registrar (14th class)

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    Yes. As it should be.

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