22 January 2020
Valery Borshchev, former head of the Moscow Public Monitoring Commission and co-chair of the Moscow Helsinki Group, has written an open letter to the German Commission on Journalistic Ethics and to the editors of Der Spiegel regarding the magazine’s article on the case of Sergei Magnitsky. With Valery Borshchev’s permission, MBKh Media published this letter in its entirety.
To the German Commission on Journalistic Ethics
To the editors of Der Spiegel
An article in Der Spiegel’s 22 November 2019 issue indicates that Sergei Magnitsky’s death was not premeditated murder. An article dated 13 December 2019 asserts that Sergei Magnitsky died due to a lack of medical assistance and there is no proof of premeditated murder. Moreover, while mentioning the evidence of beatings revealed in Sergei Magnitsky’s death photos and the results of medical analysis, the authors draw the conclusion that Sergei Magnitsky could have inflicted this trauma on himself, thereby repeating the words of employees at the Matrosskaya Tishina remand centre.
Der Spiegel offers its own conclusions, citing as a source a 28 December 2009 report by the Moscow Public Monitoring Commission. I headed up the Moscow Public Monitoring Commission during the period 2008-2013, as well as the commission that investigated Sergei Magnitsky’s death. Basing myself on my many years of experience investigating Sergei Magnitsky’s death as leader of the Moscow Public Monitoring Commission and the authorship of the reports prepared by the commission with respect to Sergei Magnitsky’s death, I сontend that the Der Spiegel articles distort the conclusion of our report and mix up evidence concerning his death that was collected at different periods of time in order to present the reader with an unreliable and erroneous picture of the conclusions we arrived at within the framework of our investigation.
Meanwhile, the facts are these: Sergei Magnitsky was discovered dead on the floor of an isolation cell at Matrosskaya Tishina remand centre on 16 November 2009. The Moscow Public Monitoring Commission, which, in accordance with Russian Federation legislation is authorized to investigate the terms of confinement for prisoners, began its own investigation almost immediately after Sergei Magnitsky’s death became known. Over the course of six weeks, our commission questioned staff and prisoners at the remand centre and also familiarized itself with documents available at that time concerning Sergei Magnitsky’s detention. On 28 December 2009, we published a report that contained the following conclusions: 1) Sergei Magnitsky’s right to life was violated; 2) intentionally torturous conditions of detention were created for him; 3) he was subjected to physical and psychological pressure; 4) the officially announced cause of death does not inspire confidence; 5) there are serious grounds for thinking that the torturous conditions of detention and Magnitsky’s death were provoked by his testimony against MVD [Interior Ministry] personnel.
Our conclusions were made on the basis of official documents relating to Sergei Magnitsky’s death, the conditions of his detention, our questioning of Federal Penitentiary Service personnel, and his lawyers’ documents.
The 22 November 2019 Der Spiegel article quotes testimony from staff of the Federal Penitentiary Service and investigative bodies in support of the officially stated cause of Sergei Magnitsky’s death, which assert that his death was not violent and thereby create the false impression that these were the conclusions contained in the Report prepared by the Moscow Public Monitoring Commission which I headed up.
This does not correspond to the true state of affairs.
The commission’s report points directly to contradictions and inconsistency in the statements by Federal Penitentiary Service personnel, as well as to the fact that Sergei Magnitsky’s right to life was violated and the violations of his rights were premeditated in nature.
The Der Spiegel article also leads readers to conclude that during the writing of our report in December 2009 we had information about the use of a rubber baton and nonetheless reached a conclusion of nonviolent death. This interpretation of events in the Der Spiegel article does not correspond to the true state of affairs and is refuted by documents. Information about the use of a rubber baton became available only a year and a half after the writing of our initial report. Counter to the conclusions of the Der Spiegel article, the use of a rubber baton might well have been the cause of his violent death. The report indicates that Dr. Gaus called for a reinforcement team — eight prison officers — who handcuffed Magnitsky and took him to an isolation ward. Arriving ambulance doctors were not allowed to see Magnitsky for more than an hour. They entered the isolation ward when Magnitsky was already dead. He lay on the floor, and the handcuffs were on the floor beside him. What had eight guards been doing to a gravely ill man in an isolation ward for more than an hour? They definitely were not rendering him medical assistance.
After the preparation of the initial report, the commission received Magnitsky’s death certificate, which indicated contusion, and the report of investigator Levin, who examined the fact of Magnitsky’s death, which says that “there are facts that point to signs of a crime as provided for by Art. 105 (murder), pt. 4, and Art. 111 (intentional cause of grave injury to health, actions leading accidentally to the victim’s death).”
Moreover, the commission’s report directly indicates that the torturous conditions of Sergei Magnitsky’s detention and death could be connected with his testimony against Interior Ministry personnel, in which he indicated their possible involvement in large-scale fraud and named names. The assertions in the Der Spiegel article that Sergei Magnitsky did not accuse Interior Ministry personnel do not correspond to the reality confirmed by the documents that were at the commission’s disposal while preparing the report.
I and other commission members who engaged in the investigation into Sergei Magnitsky’s death, after studying materials that confirm the use of violence against him, came to the conclusion of his premeditated murder in connection with his statements and accusations against Interior Ministry personnel of involvement in fraud.
The Der Spiegel journalists did not ask me for comment before the publication of said articles. Had they considered it necessary to do so, I could have told them what happened in reality.
In 2011, additional circumstances around the intentional use of violence against Magnitsky became known, and this led the Presidential Human Rights Council to the conclusion that “there are well-founded suspicions for thinking that Magnitsky’s death was provoked by his beating.”
I think that readers of Der Spiegel should not be misled regarding the conclusions of the report prepared by the Moscow Public Monitoring Commission and the subsequent conclusions of the Presidential Human Rights Council with respect to the circumstances around Sergei Magnitsky’s death. Unfortunately, today much of the mass media in Russia have a very free relationship to the interpretation of facts and often mislead the public. I do not think that a German magazine with a high reputation has the right to conduct of this kind.
I would be grateful if you would investigate the facts noted here and take measures so that Der Spiegel repudiates assertions that do not correspond to the true state of affairs concerning Sergei Magnitsky’s death and that appropriate sanctions be issued against a publication that distorts factual circumstances.
Translated by Marian Schwartz