1.This Act may be cited as the
Justice for Sergei Magnitsky Act of
2010
.
2.Congress finds the following:
(1)The United States supports the people of
the Russian Federation in their efforts to realize their full economic
potential and to advance democracy, human rights, and the rule of law.
(2)The Russian Federation—
(A)is a member of the United Nations, the
Organization for Security and Cooperation in Europe, and the International
Monetary Fund;
(B)has ratified the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, and the United Nations
Convention against Corruption; and
(C)is bound by the legal obligations set forth
in the European Convention on Human Rights.
(3)States voluntarily commit themselves to
respect obligations and responsibilities through the adoption of international
agreements and treaties, which must be observed in good faith in order to
maintain the stability of the international order. Human rights are an integral
part of international law, and lie at the foundation of the international
order. The protection of human rights, therefore, particularly in the case of a
country that has incurred obligations to protect human rights under an
international agreement to which it is a party, is not left exclusively to the
internal affairs of that country.
(4)Good governance and anti-corruption
measures are instrumental in the protection of human rights and in achieving
sustainable economic growth, which benefits both the people of the Russian
Federation and the international community through the creation of open and
transparent markets.
(5)Systemic corruption erodes trust and
confidence in democratic institutions, the rule of law, and human rights
protections. This is the case when public officials are allowed to abuse their
authority with impunity for political or financial gains in collusion with
private entities.
(6)The President of the Russian Federation,
Dmitry Medvedev, has addressed corruption in many public speeches, including
stating in his 2009 address to Russia’s Federal Assembly, [Z]ero
tolerance of corruption should become part of our national culture. . . . In
Russia we often say that there are few cases in which corrupt officials are
prosecuted. . . . [S]imply incarcerating a few will not resolve the problem.
But incarcerated they must be.
. President Medvedev went on to say,
We shall overcome underdevelopment and corruption because we are a
strong and free people, and deserve a normal life in a modern, prosperous
democratic society.
. Furthermore, President Medvedev has acknowledged
Russia’s disregard for the rule of law and used the term legal
nihilism
to describe a criminal justice system that continues to
imprison innocent people.
(7)The systematic abuse of Sergei Magnitsky,
including his repressive arrest and torture in custody by the same officers of
the Ministry of the Interior of the Russian Federation that Mr. Magnitsky had
implicated in the embezzlement of funds from the Russian Treasury and the
misappropriation of 3 companies from his client, Hermitage, reflects how deeply
the protection of human rights is affected by corruption.
(8)The denial by all
state bodies of the Russian Federation of any justice or legal remedies to Mr.
Magnitsky during the nearly 12 full months he was kept without trial in
detention, and the impunity of state officials he testified against for their
involvement in corruption and the carrying out of his repressive persecution
since his death, shows the politically motivated nature of the persecution of
Mr. Magnitsky.
(9)Mr. Magnitsky
died on November 16, 2009, at the age of 37, in Matrosskaya Tishina Prison in
Moscow, Russia, and is survived by a mother, a wife, and 2 sons.
(10)There is extensive evidence that public
officials from the Ministry of the Interior of the Russian Federation, the
Russian federal tax authorities, the Prosecutor General’s Office of the Russian
Federation, and the Russian Federal Security Service, as well as regional
courts and the prison system of the Russian Federation, have abused their
powers and positions to commit serious human rights violations, embezzled funds
from the Russian Treasury, and retaliated against whistleblowers.
(11)While he was in
detention, Sergei Magnitsky called himself a hostage of officials who
misappropriated companies from his client, the Hermitage Fund, and embezzled
funds from the Russian Treasury. He said that his criminal prosecution, arrest,
and detention were organized as a retribution by police officers who had the
full knowledge of his innocence.
(12)The Public Oversight Commission of the City
of Moscow for the Control of the Observance of Human Rights in Places of Forced
Detention, an organization empowered by Russian law to independently monitor
prison conditions, concluded, A man who is kept in custody and is being
detained is not capable of using all the necessary means to protect either his
life or his health. This is a responsibility of a state which holds him
captive. Therefore, the case of Sergei Magnitsky can be described as a breach
of the right to life. The members of the civic supervisory commission have
reached the conclusion that Magnitsky had been experiencing both psychological
and physical pressure in custody, and the conditions in some of the wards of
Butyrka can be justifiably called torturous. The people responsible for this
must be punished.
.
3.In this Act:
(1)The terms
admitted, alien, and spouse have the
meanings given those terms in section 101(a) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)).
(2)Appropriate
congressional committeesThe term appropriate congressional
committees means—
(A)the Committee on
Foreign Affairs and the Committee on Financial Services of the House of
Representatives; and
(B)the Committee on
Foreign Relations and the Committee on Banking, Housing, and Urban Affairs of
the Senate.
(3)Financial
institution; domestic financial agency; domestic financial
institutionThe terms financial institution,
domestic financial agency, and domestic financial
institution have the meanings given those terms in section 5312 of title
31, United States Code.
(4)The term parent has the
meaning given that term in section 101(b) of the Immigration and Nationality
Act (8 U.S.C. 1101(b)).
(5)The term United States person
means—
(A)a United States
citizen or an alien lawfully admitted for permanent residence to the United
States; or
(B)an entity
organized under the laws of the United States or of any jurisdiction within the
United States, including a foreign branch of such an entity.
4.Identification
of individuals responsible for the detention, abuse, and death of Sergei
Magnitsky and for the conspiracy to defraud the Russian Federation of taxes on
certain corporate profits
(a)Not later than 180 days after the date of the enactment
of this Act, the Secretary of State, in consultation with the Secretary of the
Treasury, shall publish a list of each individual the Secretary has reason to
believe—
(1)is responsible
for the detention, abuse, or death of Sergei Magnitsky;
(2)conspired to
defraud the Russian Federation of taxes on corporate profits through fraudulent
transactions and lawsuits against the foreign investment company known as
Hermitage and to misappropriate entities owned or controlled by Hermitage;
or
(3)participated in
efforts to conceal the detention, abuse, or death of Sergei Magnitsky described
in paragraph (1) or the existence of the conspiracy described in paragraph
(2).
(b)The
Secretary of State shall update the list required by subsection (a) as new
information becomes available.
(c)The
Secretary of State shall, to the maximum extent practicable, provide notice and
an opportunity for a hearing to an individual before the individual is placed
on the list required by subsection (a).
5.Inadmissibility
of certain individuals
(a)An alien is
ineligible to receive a visa to enter the United States and ineligible to be
admitted to the United States if the alien—
(1)is an individual
on the list required by section 4(a); or
(2)is the spouse,
son, daughter, or parent of an individual on that list.
(b)The Secretary of State shall revoke, in accordance with
section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)), the
visa or other documentation of any alien who would be ineligible to receive
such a visa or documentation under subsection (a).
(c)Waiver for
national interestsThe Secretary of State may waive the
application of subsection (a) or (b) in the case of an alien if the Secretary
determines that such a waiver is in the national interests of the United
States. Upon granting such a waiver, the Secretary shall provide to the
appropriate congressional committees notice of, and a justification for, the
waiver.
6.
(a)The Secretary of the
Treasury shall instruct domestic financial institutions and domestic financial
agencies to take 1 or more special measures described in section 5318A(b) of
title 31, United States Code, if the Secretary of the Treasury makes a
determination under section 5318A of such title with respect to money
laundering relating to the conspiracy described in section 4(a)(2).
(b)The Secretary of the
Treasury shall freeze and prohibit all transactions in all property and
interests in property of an individual that are in the United States, that come
within the United States, or that are or come within the possession or control
of a United States person if the individual—
(1)is on the list required by section 4(a);
or
(2)acts as an agent of or on behalf of an
individual on the list in a matter relating to an act described in paragraph
(1), (2), or (3) of section 4(a).
(c)Waiver for
national interestsThe Secretary of the Treasury may waive the
application of subsection (a) or (b) if the Secretary determines that such a
waiver is in the national interests of the United States. Upon granting such a
waiver, the Secretary shall provide to the appropriate congressional committees
notice of, and a justification for, the waiver.
(d)The Secretary of the Treasury shall issue such
regulations, licenses, and orders as are necessary to carry out this
section.
(e)A person that violates, attempts to
violate, conspires to violate, or causes a violation of this section or any
regulation, license, or order issued to carry out this section shall be subject
to the penalties set forth in subsections (b) and (c) of section 206 of the
International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent
as a person that commits an unlawful act described in subsection (a) of such
section.
7.
(a)Not later than 180
days after the date of the enactment of this Act, the Secretary of State and
the Secretary of the Treasury shall submit to the appropriate congressional
committees a report on the actions taken to carry out this Act.
(b)The
Secretary of State and the Secretary of the Treasury shall submit an updated
version of the report required by subsection (a) as new information becomes
available.
8.This Act shall take
effect on the date that is 90 days after the date of the enactment of this
Act.
9.The provisions of this Act shall cease to be
effective on the date on which the Secretary of State and the Secretary of the
Treasury certify to the appropriate congressional committees that—
(1)the Government of the Russian Federation
has conducted a thorough and impartial investigation into—
(A)the detention, abuse, and resulting death
in custody of Sergei Magnitsky; and
(B)the conspiracy (described in section
4(a)(2)) to defraud the Russian Federation of taxes on corporate profits and to
misappropriate entities owned or controlled by Hermitage;
(2)the investigation described in paragraph
(1) was properly conducted, transparent, and free of political
influence;
(3)the individuals responsible for the
detention, abuse, or resulting death of Sergei Magnitsky or for the conspiracy
referred to in paragraph (1)(B) have been brought to justice according to the
laws of the Russian Federation and pursuant to the international legal
obligations of the Russian Federation; and
(4)the Government of the Russian
Federation—
(A)has taken
significant steps to bring the criminal justice system and penal system of the
Russian Federation into compliance with applicable international legal
standards;
(B)has substantially
strengthened statutory protections for individuals who disclose evidence of
illegal government activities; and
(C)has recognized
the contribution of Sergei Magnitsky to the fight against corruption and for
the rule of law.