1.This Act may be cited as the
Sergei Magnitsky Rule of Law
Accountability Act of 2012
.
2.Congress finds the following:
(1)The United States aspires to a mutually
beneficial relationship with the Russian Federation based on respect for human
rights and the rule of law, and 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 Co-operation in Europe, the Council of 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, 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 Russian nongovernmental organization
INDEM has estimated that bribes by individuals and businesses in the Russian
Federation amount to hundreds of billions of dollars a year, an increasing
share of the country’s gross domestic product.
(7)Sergei Leonidovich
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.
(8)On July 6, 2011,
Russian President Dimitry Medvedev's Human Rights Council announced the results
of its independent investigation into the death of Sergei Magnitsky. The Human
Rights Council concluded that Sergei Magnitsky's arrest and detention was
illegal; he was denied access to justice by the courts and prosecutors of the
Russian Federation; he was investigated by the same law enforcement officers
whom he had accused of stealing Hermitage Fund companies and illegally
obtaining a fraudulent $230,000,000 tax refund; he was denied necessary medical
care in custody; he was beaten by 8 guards with rubber batons on the last day
of his life; and the ambulance crew that was called to treat him as he was
dying was deliberately kept outside of his cell for one hour and 18 minutes
until he was dead. The report of the Human Rights Council also states the
officials falsified their accounts of what happened to Sergei Magnitsky and, 18
months after his death, no officials had been brought to trial for his false
arrest or the crime he uncovered. The impunity continued in April 2012, when
Russian authorities dropped criminal charges against Larisa Litvinova, the head
doctor at the prison where Magnitsky died.
(9)The systematic abuse of Sergei Magnitsky,
including his repressive arrest and torture in custody by 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 Capital Management,
reflects how deeply the protection of human rights is affected by
corruption.
(10)The politically
motivated nature of the persecution of Mr. Magnitsky is demonstrated by—
(A)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
(B)the impunity since
his death of state officials he testified against for their involvement in
corruption and the carrying out of his repressive persecution.
(11)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 on December 29, 2009, 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.
.
(12)Sergei
Magnitsky’s experience, while particularly illustrative of the negative effects
of official corruption on the rights of an individual citizen, appears to be
emblematic of a broader pattern of disregard for the numerous domestic and
international human rights commitments of the Russian Federation and impunity
for those who violate basic human rights and freedoms.
(13)The second trial,
verdict, and sentence against former Yukos executives Mikhail Khodorkovsky and
Platon Lebedev evoke serious concerns about the right to a fair trial and the
independence of the judiciary in the Russian Federation. The lack of credible
charges, intimidation of witnesses, violations of due process and procedural
norms, falsification or withholding of documents, denial of attorney-client
privilege, and illegal detention in the Yukos case are highly troubling. The
Council of Europe, Freedom House, and Amnesty International, among others, have
concluded that they were charged and imprisoned in a process that did not
follow the rule of law and was politically influenced. Furthermore, senior
officials of the Government of the Russian Federation, including First Deputy
Prime Minister Igor Shuvalov, have acknowledged that the arrest and
imprisonment of Khodorkovsky were politically motivated.
(14)According to
Freedom House’s 2011 report entitled The Perpetual Battle: Corruption in
the Former Soviet Union and the New EU Members
, [t]he highly
publicized cases of Sergei Magnitsky, a 37-year-old lawyer who died in pretrial
detention in November 2009 after exposing a multimillion-dollar fraud against
the Russian taxpayer, and Mikhail Khodorkovsky, the jailed business magnate and
regime critic who was sentenced at the end of 2010 to remain in prison through
2017, put an international spotlight on the Russian state’s contempt for the
rule of law. . . . By silencing influential and accomplished figures such as
Khodorkovsky and Magnitsky, the Russian authorities have made it abundantly
clear that anyone in Russia can be silenced.
.
(15)The tragic and
unresolved murders of Nustap Abdurakhmanov, Maksharip Aushev, Natalya
Estemirova, Akhmed Hadjimagomedov, Umar Israilov, Paul Klebnikov, Anna
Politkovskaya, Saihadji Saihadjiev, and Magomed Y. Yevloyev, the death in
custody of Vera Trifonova, the disappearances of Mokhmadsalakh Masaev and
Said-Saleh Ibragimov, the torture of Ali Israilov and Islam Umarpashaev, the
near-fatal beatings of Mikhail Beketov, Oleg Kashin, Arkadiy Lander, and
Mikhail Vinyukov, and the harsh and ongoing imprisonment of Mikhail
Khodorkovsky, Alexei Kozlov, Platon Lebedev, and Fyodor Mikheev further
illustrate the grave danger of exposing the wrongdoing of officials of the
Government of the Russian Federation, including Chechen leader Ramzan Kadyrov,
or of seeking to obtain, exercise, defend, or promote internationally
recognized human rights and freedoms.
3.In this Act:
(1)The terms
admitted and alien have the meanings given those
terms in section 101 of the Immigration and Nationality Act (8 U.S.C.
1101).
(2)Appropriate
congressional committeesThe term appropriate congressional
committees means—
(A)the Committee on
Armed Services, the Committee on Financial Services, the Committee on Foreign
Affairs, the Committee on Homeland Security, and the Committee on the Judiciary
of the House of Representatives; and
(B)the Committee on
Armed Services, the Committee on Banking, Housing, and Urban Affairs, the
Committee on Foreign Relations, the Committee on Homeland Security and
Governmental Affairs, and the Committee on the Judiciary of the Senate.
(3)The term financial institution has the
meaning given that term in section 5312 of title 31, United States Code.
(4)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
persons responsible for the detention, abuse, and death of Sergei Magnitsky and
other gross violations of human rights
(a)Not later than 120 days after the date of the enactment
of this Act, the Secretary of State, in consultation with the Secretary of the
Treasury, shall publish in the Federal Register a list of each person the
Secretary of State has reason to believe—
(1)is responsible for
the detention, abuse, or death of Sergei Magnitsky, participated in efforts to
conceal the legal liability for the detention, abuse, or death of Sergei
Magnitsky, financially benefited from the detention, abuse, or death of Sergei
Magnitsky, or was involved in the criminal conspiracy uncovered by Sergei
Magnitsky; or
(2)is responsible for
extrajudicial killings, torture, or other gross violations of internationally
recognized human rights committed against individuals seeking—
(A)to expose illegal
activity carried out by officials of the Government of the Russian Federation;
or
(B)to obtain,
exercise, defend, or promote internationally recognized human rights and
freedoms, such as the freedoms of religion, expression, association, and
assembly, and the rights to a fair trial and democratic elections; or
(3)acted as an agent
of or on behalf of a person in a matter relating to an activity described in
paragraph (1) or (2).
(b)The
Secretary of State shall update the list required by subsection (a) as new
information becomes available.
(c)A person shall be removed from the list required by
subsection (a) if the person demonstrates to the Secretary of State that the
person did not engage in the activity for which the person was added to the
list.
(d)Requests by
chairperson and ranking member of appropriate congressional committees
(1)Not later than 120 days after receiving a written request
from the chairperson and the ranking member of one of the appropriate
congressional committees with respect to whether a person meets the criteria
for being added to the list required by subsection (a), the Secretary of State
shall submit a response to the chairperson and ranking member of the committee
which made the request with respect to whether or not the Secretary determines
that the person meets those criteria.
(2)The
Secretary of State may submit a response required by paragraph (1) in
classified form if the Secretary determines that it is necessary for the
national security interests of the United States to do so.
(3)If
the Secretary of State removes from the list required by subsection (a) a
person who has been placed on the list at the request of the chairperson and
the ranking member of one of the appropriate congressional committees, the
Secretary shall provide that chairperson and ranking member with any evidence
that contributed to the removal decision. The Secretary may submit such
evidence in classified form if the Secretary determines that such is necessary
for the national security interests of the United States.
(e)Nonapplicability
of confidentiality requirement with respect to visa recordsThe
Secretary of State shall publish the list required by subsection (a) without
regard to the requirements of section 222(f) of the Immigration and Nationality
Act (8 U.S.C. 1202(f)) with respect to confidentiality of records pertaining to
the issuance or refusal of visas or permits to enter the United States.
5.Inadmissibility
of certain aliens
(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 is on the list required by section
4(a).
(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 security interestsThe Secretary of State may waive the
application of subsection (a) or (b) in the case of an alien if—
(1)the Secretary
determines that such a waiver—
(A)is necessary to
permit the United States to comply with the Agreement between the United
Nations and the United States of America regarding the Headquarters of the
United Nations, signed June 26, 1947, and entered into force November 21, 1947;
or
(B)is in the national
security interests of the United States; and
(2)prior to granting
such a waiver, the Secretary provides to the appropriate congressional
committees notice of, and a justification for, the waiver.
(d)The Secretary of State shall prescribe such regulations
as are necessary to carry out this section.
6.
(a)The Secretary of the
Treasury shall, pursuant to the International Emergency Economic Powers Act (50
U.S.C. 1701 et seq.), freeze and prohibit all transactions in all property and
interests in property of a person that the Secretary determines has engaged in
an activity described in paragraph (1), (2), or (3) of section 4(a) if such
property and interests in property are in the United States, come within the
United States, or are or come within the possession or control of a United
States person.
(b)Waiver for
national security interestsThe Secretary of the Treasury may
waive the application of subsection (a) if the Secretary determines that such a
waiver is in the national security interests of the United States. Prior to
granting such a waiver, the Secretary shall provide to the appropriate
congressional committees notice of, and a justification for, the waiver.
(c)
(1)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.
(2)Requirements for financial
institutions
(A)Not later than 120 days after the date of the enactment
of this Act, the Secretary of the Treasury shall prescribe regulations to
require each financial institution that is a United States person to certify to
the Secretary that, to the best of the knowledge of the financial institution,
the financial institution has frozen all assets within the possession or
control of the financial institution that are required to be frozen pursuant to
subsection (a).
(B)The
penalties provided for in sections 5321(a) and 5322 of title 31, United States
Code, shall apply to a financial institution that violates a regulation
prescribed under subparagraph (A) in the same manner and to the same extent as
such penalties would apply to any person that is otherwise subject to such
section 5321(a) or 5322.
(d)The Secretary of the Treasury shall issue such
regulations, licenses, and orders as are necessary to carry out this
section.
7.Not later than one
year after the date of the enactment of this Act and annually thereafter, the
Secretary of State and the Secretary of the Treasury shall submit to the
appropriate congressional committees a report on—
(1)the actions taken to carry out this Act,
including—
(A)the number of
persons added to or removed from the list required by section 4(a) during the
year preceding the report, the dates on which such persons have been added or
removed, and the reasons for adding or removing them; and
(B)if few or no such
persons have been added to that list during that year, the reasons for not
adding more such persons to the list; and
(2)efforts by the
executive branch to encourage the governments of other countries to impose
sanctions that are similar to the sanctions imposed under this Act.
8.The provisions of this Act shall terminate
on the date that is 10 years after the date of the enactment of this
Act.