Someone acting as a whistle-blower needs protection
Many were shocked last year on reading how Alexander Perepilichnyy, a 44year-old Russian businessman who was an informant in the Sergei Magnitsky case, was mysteriously murdered. It created suspicion of a second high-profile Russian murder in the UK.
The mysterious death of Alexander Perepilichnyy is the fourth unexplained or suspicious death in the Magnitsky case. For some observers of similar crimes one is reminded of the murder in London in 2006 of Russian FSB officer-turned-informant, Alexander Litvinenko. He was slowly poisoned by drinking tea laced with radioactive poloniumin, a case which badly damaged BritishRussian relations.
“There were no signs of a violent death, yet there weren’t any in connection with Litvinenko either,” Russian anti-corruption blogger Alexey Navalny wrote, following Mr Perepilichnyy’s death.
To acquaint readers about this infa- mous case one recalls how Alexander dropped dead while jogging outside his home in Surrey, England. Informed sources confirmed that he had no known health problems. In November 2011, the Russian fugitive was warned that his name was one of many on a hit list that also contained detailed dossiers on some of the targets, after police in Moscow broke up a criminal gang.
British police made the case public on 28 November, revealing to the press that an initial post mortem was “inconclusive,” that the coroner would hold an inquest, including toxicology tests whose results will not be known for weeks, possibly months, and that a senior officer has been assigned to find out what happened.
Old sayings die hard as rumours of a Russian mafia along with the dead are resurrected at State level where a deceased is to be tried in a cauldron of fury reminiscent of totalitarian theocracy that is hardly be-fitting for an approaching Easter season. Notwithstanding, in Russia the stage is set for the trial of the century, where despite the presence of a more than likely involuntary homicide, in suspicious circumstances, a whistleblower and an allegedly negligent medical practitioner reminiscent of the recent Michael Jackson saga, the protagonist of these proceedings is to be the deceased himself, on charges of tax evasion.
It gets better when one notes the context in which these charges arose, that is following a casus belli whistleblowing act by the deceased. Such a whistle-blowing act was not only not investigated in a proper manner, but it was blatantly ignored and moreover countered by the whistle-blower’s arrest, on charges that ironically mirrored the contents of the whistleblowing allegations themselves, that is, tax fraud by the Russian government.
The scene set gets increasingly more morose when it transpires that the government officials indicated by the deceased whistle-blower were themselves the perpetrators of his arrest and subsequent prosecution. Further degeneration still is attained when the cause of death of the whistle-blower, who died under police custody, was reported to have been owing to the concurrence of lacking medical attention to a known pancreatitis and further more owing to physical abuse suffered by the deceased.
Some areas like tax and other fiscal obligations have been deemed by the European Commission to fall outside the realm of human rights where fair hearing and other related rights have been said not to apply because of the sui generis nature of these obligations. However, while tax (evasion) is here the kernel of the matter, there are other overbearing factors to the case which do ring loud and mighty for human rights attention.
The concepts at play here are intricate and a look at some of the key factors at play makes fertile ground for discussion. Looking at the case as a whole, the whistle-blowing tinge runs like a thread throughout the case for tax embezzlement, followed by arbitrary arrest, abuse while under arrest and lack of entitlement to medical assistance while under arrest which culminated in death, together with a mass-violation on human rights that would leave even an alien to human rights precedent dumb-founded.
At the tip of the pyramid lies the most grotesquely morbid human rights defiance with the planned-to-proceed trial of the deceased whistle-blower and lawyer. The human right implications of this are probably beyond the grasp that words can command. Looking at the dangers of whistle-blowing, one is reminded of the different treatment that can ensue from such behaviour, from being turned into heroes, to being penalised or further still made to pay with their lives.
In this context the question looms whether had the Russian government not been implicated by this whistle-blower whether it would have still cost Magnitsky his life. Remarking on whistle-blower legislation in general, even against the backdrop of the much-debated and late introduction of the same in Malta, it is brought to light how much of a slip there truly is between the cup and the lip particularly in this instance where the roles of trust, risk and guaranteed protection need not only to be thickly laid down in laws but so much more thickly enforced in practice.
This to the effect one may truly have the comfort of taking such a leap of faith as in the case in Malta we have left the whistle-blower act in eternal hibernation when the EneMalta oil kickback scandal has been one inexplicable example where such a legislation would have unearthed the rogue trader much earlier.
It is encouraging that the newly elected government promised to promulgate such an act as a first priority in its legislation when Parliament reconvenes next month. Otherwise any endeavour is watered down through cases like the Magnitsky case in Russia which eradicate so permanently the thought of action from a contemplating whistle-blower’s mind that it sets the whole project into a hellish ice-age that would need to be re-weighed and calibrated also in the light of these new occurrences, which albeit distant from us in Malta are indubitably close in terms of the fear that such occurrences breed and spread like wildfire on a human level that transcends every bordered jurisdic- tion. The Russian stance of passing legislation banning the adoption of Russian orphans by Americans as a come-back to the black-list of implicated Russian officials by the Americans is nonsensical to an extreme that similar to the Magnitsky trial, is clearly forged on dubious legal grounds.
This is clearly so at least in terms of human rights in tax discussions where it has been elucidated that the law needs to follow a legitimate aim and have means proportionate to the ends pursued among others. A contrario sensu and where this legislation was passed following the exhuming of a massive tax evasion, this law can have neither proportionality nor legitimate aim where it affects the lives of innocent orphans and where its promulgation was a government’s mildest stance in by-passing justice sought by an unfortunate victim.
Continuing on the Magnitsky case, the acquittal of the medical practitioner involved rings dissonant given the myriad of dubious circumstances of the case, and more so when paralleled to the recent imprisonment of doctor Conrad Murray over Michael Jackson’s death.
Beyond this, while the Russian doctor was somehow tried prior to acquittal, the illegality for which the deceased lost his life, namely the alleged government tax embezzlement, was at best swept under the rug as no investigations, not even ‘sham’ ones that may have been spurred by ensuing public scrutiny were undertaken.
Given all that has happened with the Magnitsky case so far it is also unlikely that the Russian government will be moved to conduct any investigation on the matter, sham or otherwise. Quoting a retired Russian constitutional law judge , she has held that the death of the accused should have led to a ceasing in proceedings; however this has so far fallen on deaf ears.
Also having seemingly fallen on deaf ears are the elsewhere ingrained theories of the rule of law as expounded by British jurist Dicey, whose emphasis so strongly lay on the separation of powers doctrine where no man is above the law. Given that this case is diametrically opposed to all of the foregoing, human rights activists on one plane and the United States as well as European states qua nation states on the other plane have not converged to a common stance of blacklisting the persons tied with this event without just cause, as the unravelling facts conjure up the equivalent of a giant human rights medusa that seems more befitting to the legend of Hercules than current affairs in 2013.
In conclusion one argues that a whistle-blower act is an overdue essential to both protect the informants and to ensure that the police have the necessary tools to acquire reliable leads, to investigate closely camouflaged illegal acts and so be in a better position to discover fraud and corruption at high places. As with all laws but exceptionally more so in this case, attention is begged to be given to making such an Act a finely toothed one, so that bureaucracy may be seen to be punctured and justice be seen to be done.
The writer is a lawyer in PKF Malta, an audit and business advisory firm