The Case of Mr. Sergei Magnitsky: Motion (Resumed)
The following motion was moved by Senator Jim Walsh on 6 March 2013:
That the Joint Committee on Foreign Affairs and Trade –
- noting that the Russian lawyer, Mr. Sergei Magnitsky, died on 16 November 2009 at the age of 37, after being systematically denied medical care and beaten by riot guards with rubber batons in a Russian pre-trial detention centre, after he uncovered and exposed a major corruption scandal in Russia; and
- noting the passage in December 2012 of the U.S. Magnitsky Law, the European Parliament Report into establishing common visa restrictions for Russian officials involved in the Mr. Sergei Magnitsky case, the OSCE Parliamentary Assembly resolution and the Parliamentary Assembly of the Council of Europe Written Declaration, all calling for visa sanctions for the perpetrators of this crime;
- calls on the Government to impose an Irish Magnitsky Law which would:
- publicly list the names,
- deny visas into Ireland, and
- freeze any assets found in Ireland,
of Russian government officials and others who -
- were responsible for the false arrest, torture and death of Mr. Sergei Magnitsky,
- perpetrated or financially benefited from the crimes that Mr. Sergei Magnitsky uncovered and exposed, and-or
- participated in the cover up of those responsible for those crimes;
- calls for the Irish Magnitsky law to be imposed against all other gross human rights violators;
- calls on the Government to use its Presidency of the Council of the European Union to impose EU-wide visa sanctions as called for by the European Parliament.
Debate resumed on amendment No. 1:
1. To delete all words after “Foreign Affairs and Trade” and insert -
- noting the tragic and untimely death in undisclosed and mysterious circumstances on 16th November 2009 of Mr Sergei Magnitsky, then aged 37;
- the passage of resultant legislation in other jurisdictions; and
- the discussions in the European Parliament, the OSCE and the Council of Europe arising therefrom;
- calls on the Government to –
- liaise with the Russian authorities with a view to seeking reassurance in relation to compliance with international human rights legislation;
- ensure that any issues arising are fully investigated and a report provided for perusal by the international community; and
- calls on the Government to use its Presidency of the Council of the European Union to highlight its concern and that of the international community at the issues surrounding Mr. Magnitsky's death and the reiteration of its resolve to ensure a full and final report into the circumstances of the case.’.”.
(Deputy Bernard J. Durkan).
The committee resumes its consideration of the motion concerning the case of Mr. Sergei Magnitsky, a Russian lawyer who died in police custody in Russia in 2009, who, after his death, is being prosecuted in Russia on tax evasion charges. On 6 March, Senator Walsh moved the motion which is before the committee. Deputy Durkan tabled an amendment to the motion and moved it at last week's meeting. Deputy Durkan drew attention to a word missing from the text and that correction has now been made. The Russian ambassador has provided a written statement of the Russian position to the committee but has not as yet responded to an invitation to meet the committee.
I will call on members who have moved the motion if they want to speak on this before we put the question of the amendment.
On the last day a number of us asked Deputy Durkan to examine his amendment. There is not a rigid adherence to the motion having to be passed but we want something substantive in any amended motion. Could we have that response?
I was reluctant to support the original motion on the basis of its being too argumentative and unlikely to produce any kind of positive response in any situation. Therefore I submitted the amendment. There may be room for some change in that but I stand by the amendment. It is the best possible way to achieve a response that will be of benefit to those who have inquired of this committee, to the family of Mr. Magnitsky and to the goal of achieving some kind of clarification on the circumstances surrounding his death.
Obviously we would not have tabled the motion unless a group of us felt strongly on this issue, particularly on the infringement of human rights. I am motivated by a young man of 37 years of age who was at the forefront of this, as barristers often find themselves. His family is left without a valued member. We must stand over human rights. This country has had a proud and strong record of that. I am also motivated to some extent by the fact that we are members of the UN Human Rights Committee and also by our Presidency of the Council of the European Union. That puts a particular onus on us not to be intimidated by a letter from the Russian ambassador. I am not putting it too strongly to say it was intimidation.
I am also motivated by having been in Russia and observing there. Everybody in this Chamber will be aware of the manner in which, over the past 20 years we have seen the growth of the oligarchs where the assets of the country have been sequestered by a small elite. There is plenty of evidence that there is political involvement in that structure which is against the interests of the citizens of Russia. This is part of that.
I am also motivated by the fact that we in Ireland set the template, following the murder of Ms Veronica Guerin, that criminals who have benefited significantly financially from their crimes would not continue to benefit from their assets. The motion asks specifically that the same principle would apply in this international situation. I have listened to what Deputy Durkan said. I would be happy to amend the motion to remove the first paragraph, if it is felt that it is argumentative, and leave the rest of the motion as it is. Perhaps the first paragraph could be interpreted as being argumentative.
What we are doing is very much consistent with what other parliaments are doing. There are people here concerned about the threat in the letter to adoptions etc. I would not want to see that happening. That threat would be for the Government to consider, if we pass the motion, before it takes action on implementing it. This is a real litmus test for us, as I said last week, on where we stand on a glaring fundamental human rights issue.
I completely understand the motivation behind Senator Walsh's motion and I have great sympathy with it, but I would prefer Deputy Durkan's motion, which makes our point in the way we need to make it but does not unnecessarily jeopardise very fragile negotiations that are going on about inter-country adoption. I agree with Deputy Walsh that we should not allow ourselves to be intimidated and it would be completely wrong if we were. However we should not necessarily go out of our way to cause offence when such delicate negotiations, which mean so much to so many people in Ireland, are under way. Many people have been in the adoption application process for years and years. As we all know, as a result of the Hague Convention on Intercountry Adoption, a bilateral agreement has to be negotiated with Russia. The Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, as well as the previous Minister, have gone to great lengths to bring those talks closer to conclusion. The Minister has been to Russia. A Russian delegation is coming shortly to Ireland.
As a great deal hinges on that, I think this is the wrong moment to make a point in an unnecessarily strong way because we are making the point adequately in Deputy Durkan's motion. Somebody has to speak out for all those families in Ireland who are hoping to adopt a child from Russia in the next couple of years.
I am caught in a catch-22, and am in moral bind on this issue. I was at one with Senator Jim Walsh in trying to express the views of this committee, having heard the witness describe the circumstances under which this man died in prison. It strikes to the core of this committee's work that a human rights issue is involved. I wish to separate completely the issue of the subsequent letter from the embassy as this only dilutes and distorts the point I want to make.
I wanted this issue handled as a human rights issue on behalf of an individual who died in circumstances that can be interpreted by some as murder or medical neglect by others. Having said that I also noted the fact that the European Parliament through its human rights committee had engaged with the Russians on this issue. At the previous meeting I asked the committee if it would agree to write to the European Parliament for a synopsis of what the committee had discussed, discovered and recommended. I understand the EU committee made recommendations on 23 October 2012 but I think it is still considering this issue. I contacted the rapporteur, Ms Barbara Lochbihler, and I still think we should send a formal letter to her. I would like to think that we should liaise and link up with the other parliamentarians who are trying to address this rather complex issue. In a nutshell, I want to separate my personal views about the ambassador's letter, as we should not allow that letter to blind us as to our responsibilities in stating support for a human rights issue.
I concur with Deputy Eric Byrne's comments on being caught in the middle. We discussed this issue when the Tánaiste attended our meeting last week. He also expressed his concern about this particular case.
I accept that Senator Walsh needs to come back a little bit and I believe that Deputy Durkan needs to come forward a little bit. It is reprehensible that any issue of adoption should have been brought to the committee's attention. I cannot believe that vulnerable children are players in any circumstances. I have the recommendations from the European Union to the Council which call on Russia to conduct a credible and independent investigation encompassing all aspects of this tragic case, to bring all those responsible to justice, and in the meantime, perhaps the financial assets of anybody implicated at present could be frozen. That puts the onus on the Russian authorities to deal with this issue of human rights.
The last paragraph of the ambassador's letter is not acceptable. The ambassador is the representative of his country and he communicates with the Government and not with Parliament. I understand that is the tradition in international relations. For many years both the Departments of Foreign Affairs and Trade and Children and Youth Affairs have worked hard and diligently to try to reach bilateral agreement that will be mutually beneficial for so many families in this country and for so many potential children who have been placed for adoption in Russia. It is very unfortunate that the concluding sentence of the letter is in that reply from the ambassador.
I am not quite clear on whether the European Parliament passed a particular motion, However, if there is enough substance to the motion passed by the European Parliament, could we adopt a similar motion or endorse the motion that was agreed by the European Parliament or the particular committee of the Parliament that agreed it? Deputy O'Sullivan made a very rational suggestion that we could amend the motion we originally signed as well as strengthening Deputy Durkan's motion and incorporate the intent of both motions in a new motion. We must send out a clear message on civil and human rights.
After Mr. Browder appeared before the committee as a witness, I met the Russian ambassador at his residence and he confirmed that he would communicate in writing facts of the case to the committee. That is the genesis of that letter.
I see. I welcome the letter, but the concluding sentence is not welcome.
There is general agreement that the original motion went too far. I accept that I seconded Deputy Durkan's motion but I thought it did not go far enough. We could consider combining points (b),(c), and (d) from the European Parliament's motion with Deputy Durkan's proposal. I do not know what members would think of that suggestion.
Will Deputy Durkan comment on it?
When I drafted my amendment I had not seen the letter from the ambassador so was not influenced by it. My original objection to the motion was based on what I considered its unparliamentary approach. The approach would be fine in the case of a person on trial but it was not appropriate to Parliament. I note the difference between Parliament and the Executive. The point I raised at the very beginning was that the approach to the issue was unparliamentary. Whatever the atrocity, if we purport to achieve a result of benefit to the people who were offended, then we should do so in the best tradition of parliamentary democracy. The points raised are totally outside of our influence in most cases. I also received a telephone call from Mr. Browder, in which it was brought to my attention that other jurisdictions had made legislative changes. I fully respect that it is the right of any jurisdiction to make changes, but it does not necessarily follow that we as an independent national entity follow it. We are an independent Parliament. The fact the European Parliament has come to a particular conclusion does not necessarily mean that we must follow it either.
We need to register our protest in the strongest possible way. I have made reference in my amendment to "the discussions in the European Parliament, the OSCE and the Council of Europe arising therefrom". The amendment calls on the Government to liaise with the Russian authorities with a view to seeking "reassurance". That is probably not the right word. Perhaps we should seek an explanation of the apparent lack of compliance with international human rights, or something like that. The amendment also calls on the Government to "ensure any issues arising are fully investigated and a report provided for perusal by the international community". I am not telling the international community what it should think or what action it should take. A report should be produced to help it to make such decisions.
I will support the Chairman if he decides to seek discussions with the Russian ambassador in this context. There needs to be an awareness of the Russian ambassador's point of view and the committee's point of view. My amendment fully takes on board the need for "the Government to use its Presidency of the Council of the European Union to highlight its concern and that of the international community at the issues surrounding Mr. Magnitsky's death and the reiteration of its resolve to ensure a full and final report into the circumstances of the case". That is saying the same thing in different language. In any circles I have ever dealt with, two approaches have been available. The diplomatic option is the first approach. If one wants to go to war afterwards, by all means one can make a declaration of war.
I am responding to the situation that was presented to me. I am holding my ground. I am quite clear that I could not support the initial motion at all. I indicated that as soon as I saw it. I have not been influenced - in a good, bad or indifferent way - by anyone. I have not been influenced by any ambassador, the European Parliament or any nation, independent or otherwise. This amendment is my response to what I saw as something I did not want to be associated with. When I want to have negotiations or discussions with any other authority - statutory or otherwise - I like to start off having an equal right to talk to them on a level playing field, notwithstanding the issue at stake.
I have difficulty with two aspects of the Deputy's amendment. First, I refer to the suggestion that Mr. Magnitsky's untimely death took place in "undisclosed and mysterious" circumstances. According to a newspaper report on the matter, "The Kremlin’s human rights council says Mr. Magnitsky was probably beaten to death". That has come from Russia's own human rights council. I do not think it is that "mysterious". Maybe the word "undisclosed" needs to be clarified. Second, the amendment calls on the Government to "liaise with the Russian authorities with a view to seeking reassurance in relation to compliance with international human rights legislation". I think we should say we are seeking "further clarification and reassurance" in that regard.
I used the word "undisclosed" in the amendment because I was not there. I am sure Senator Walsh was not there either. I mean no disrespect when I say that. I am always reluctant to reach conclusions in the absence of the outcome of a court case or when the investigation is incomplete or unfinalised. I take Deputy Crowe's point about the posthumous prosecution. It is implied in the amendment that the associated activities in relation to the particular issue should be fully disclosed and examined and that a report should be provided. As I was not there, I do not know the full circumstances. My knowledge is based on what I have read and on what the European Parliament has said and discussed. As the Chairman and I know, in all situations we are entitled to have information made available to us from the highest possible authority on the other side. We got one side of the presentation. We are quite entitled to seek another side of the presentation as well.
I refute the suggestion that the language in the motion was in some way incommensurate with parliamentary procedure. It was commensurate with it. The motion was circulated to all members of the committee. Some members asked for it to be amended and that was done. I remind Deputy Durkan of a private conversation I had with him. I will not disclose the details of it. I ask him to reflect on that conversation in the context of what he said about the letter from the Russian ambassador.
I am not wedded to the wording of my motion. It strikes me that this is a real test for this committee, as a number of members have said. Human rights issues form part of our remit and responsibility. Despite what Deputy Durkan has said, there is a world of difference between his amendment's call on the Government to "liaise" with and seek "reassurance" from Russia and the specific action that is required. My motion, which notes "the passage [of the] Magnitsky Law" and refers to the European Parliament, etc., calls on the Government:
to impose an Irish Magnitsky Law which would:
- publicly list the names,
- deny visas into Ireland, and
- freeze any assets found in Ireland,
of Russian government officials and others who:
- were responsible for the false arrest, torture and death of Mr. Sergei Magnitsky,
- perpetrated or financially benefited from the crimes ... or
- participated in the cover up.
If we make such a recommendation and the Government acts on it, the barriers and boundaries of the legal framework that would be put in place would have to be met in an evidence-based manner before action could be taken. That is the protection. Innocent people in Russia would not subscribe to this. If others want to look at amending my motion, I will have no difficulty with that. I appeal to all members to come up with something. I would rather do this by means of consensus. If the committee wants to pursue Deputy Durkan's proposal, which I regard as fairly anaemic, I will call a vote on it because, as Deputy Eric Byrne suggested, it would be a betrayal of our responsibility as members of this committee to uphold human rights values.
Does any other member wish to comment before I proceed with the amendment?
It would be a pity if we were to divide on this issue. I do not think there is that much difference between the motion and the amendment in one respect. I signed the original motion following the presentation that was made by Mr. Browder, which we were all moved by. I have to say I am anxious that our motion should be as strong as possible. I hope there is room to strengthen Deputy Durkan's amendment a little. There are things in the original motion that would be difficult to do. For example, it would be difficult to "publicly list the names" or to "deny visas" to people without having the full facts, or without being on a really solid footing with regard to all the allegations that have been made. I am concerned about the adoption issue. Many thousands of orphans in Russian orphanages are waiting to be adopted. Many Irish families are anxious to see the bilateral agreement between Ireland and Russia completed. At the back of our minds, we have to be conscious of that as well. I definitely take a very dim view of the letter from the ambassador. I think it was unhelpful. I hope we do not divide as a committee on this issue. Perhaps we can amend Deputy Durkan's amendment slightly to cover some of Senator Walsh's concerns.
I am conscious that the Chairman wants this issue off the agenda after today's meeting. I know that will happen if a vote is taken. I plead with the Chairman to consider whether a small group of three or four members could sit down and examine this matter - not necessarily today - and try to thrash out an agreed version. I think the amendment could be strengthened without compromising the original motion. That motion, which I signed, needs to be toned down. I do not think we can arbitrarily decide to publicly list names, given that we have had no part in the investigation, or deny visas on the basis of someone else's supposedly factual information that has come to us at second or third hand.
I believe we could agree on a compromise motion that would be satisfactory to all of us, if we were given the time to sit down and examine the situation.
That seems to be the consensus.
Would it be possible to get the text of the motion that was passed at the European Parliament?
We have that. Are Deputy Byrne and Senator Walsh willing to postpone this for one week so that perhaps two members could deal with preparing a wording? Perhaps Deputies Byrne, O'Sullivan, Crowe or Smith would be willing to deal with it, but two people would probably be enough.
I am prepared to agree with that. It is a good suggestion. What I want is for us to have a motion that reflects the seriousness of the crime. We must be cognisant of the fact that a widow and a mother are grieving a son and a husband. I do not know what process was followed in the US, but I am sure we could find out. There, some 18 names have been listed and those persons are banned from the US. The list includes four judges. Part of the problem in Russia is that it does not have a proper separation of powers. I do not suggest we should follow the US, but at least its approach provides background information.
I suggest the four members the Chairman has named could designate two of them to draft a motion that could be brought back to us for agreement. Deputy Durkan and myself could stay out of the process and perhaps the four could come up with something of substance. I would much rather go the consensus route, despite the fact I have signalled that if the amendment was put today I would oppose it and call a vote on it.
I have no problem going the consensus route. If somebody had liaised with me before the motion was phrased-----
It was circulated to members.
It is not enough for it to be circulated. If my support is sought for something with which I have a difficulty, it is my right as a member of Parliament to make a decision on that. Nobody consulted me beforehand at all as to whether this was something we should support. Second, I wish to reiterate that I indicated my opposition the moment I saw the text, indicating how strongly I felt about it. I think it is unwise to proceed in that vein.
If somebody wants to call a vote, I will stand by the decision of the vote. I will not be intimidated by anything, but I will abide by the decision of the vote. However, everybody must accept responsibility in this situation. This is a matter that could cause further difficulties for many people outside of this room. This is not about scoring a political point, nor is it about suggesting that we impose our laws or that we follow the laws of another state. This is an amendment calling seriously on the Russian authorities, with a view to seeking an explanation and reassurance. I do not have the power, nor does anybody in this room to imprison anybody as a result of something that may have gone wrong - I do not know whether it did, because I was not there. This is not my duty, because I do not have any information other than what I have heard from the European Parliament, from the OSCE and from the Council of Europe. That is fine. It is condemnation. However, we are not in a quasi judicial situation here and we need to be careful about that and about adopting a position on this kind of situation.
My attitude is that I disagreed strongly with the wording of the motion and I put down an amendment in good faith. I continue to disagree with the wording. I would accept Deputy Byrne's amendments, but I do not intend to have prolonged dialogue on something I felt strongly about in the first place.
The wish of members here is that we get consensus. I wish the same, but I do not want the discussion dragging on from week to week. Therefore, I propose that we ask two members - not four - to draft a proposal. I suggest Deputies Byrne and O'Sullivan should be asked to liaise with Deputies Durkan and Walsh on their motion and amendment to see where there is leeway. Anybody can put forward an amendment of course. I will allow one more week for this and if we have not come up with a suitable amendment by next week, I will call a vote on the issue at the beginning of the meeting next week.
On a point of order, I do not feel Deputies Byrne and O'Sullivan have any obligation to consult with me on it. They have heard the debate and the merits of the proposal. The reason I suggested four should be involved was so that when it came back to us, it would probably lead to a situation where we would have agreement and consensus.
That is the whole idea, that they will consult with the members of the committee and Senator Walsh and Deputy Durkan to see if it is possible to come up with a suitable amendment for next week. Deputies Byrne and O'Sullivan come from two different sides on this and it is important we have that balance.
I will put this matter down as the first item on the agenda for next week. We will not go beyond next week with it. I am reflecting the views of all members of the committee on consensus and it will be up to Deputies Byrne and O'Sullivan, in conjunction with other members, to come up with a suitable amendment that will be acceptable to all members of the committee. We will deal with the matter first next Wednesday and it will be completed by the afternoon. Is that agreed? Agreed.
