By Stevan Lilić, Director of the Centre for Advanced Legislation
Nota bene: Translation of article published in the Belgrade weekly “Vreme” December 16, 2021 (pp. 38-39). Text also posted on the “Open Doors of Justice portal (www.otvorenavrata pravosudja.rs).
Laws on restrictive measures and targeted sanctions for corruption and human rights violations, known as “Magnitsky Legislation,” are the newest generation of laws. After the previous generation of laws dealing with human rights protection (the ombudsman, prohibition of discrimination, free access to information of public importance, protection of personal data, etc.), Magnitsky legislation focuses on imposing targeted personal and property sanctions on exact individuals and legal entities responsible for corruption and/or serious human rights violations.
Targeted individual and property sanctions primarily include visa restrictions and freezing assets to persons involved in transnational corruption, as well as persons who exert pressure and unjustifiably conduct legal proceedings against citizens who advocate for the free exercise of their constitutional human rights (freedom of speech, public accountability of state officials, freedom of public assembly, etc.), as well as against persons who institutionally, factually or by means of biased media threaten and persecute whistle blowers who uncover corruption.
Contrary to general national sanctions imposed on a state which affect the entire population (and largely innocent citizens), the quintessence of Magnitsky legislation is based on individually targeted ad personam repressive measures which, on basis of an inclusive register of “specially designated persons” are imposed on a specific natural or legal person for corruption and/or human rights violations.
In the last decade, an increasing number of countries, including the European Union, have decided to introduce some form of Magnitsky legislation into their legal systems, either as special and comprehensive laws in the form of “global Magnitsky laws” (USA, Canada, EU), or in the form of amendments to existing tax or criminal laws (UK, Estonia, Lithuania, Latvia, etc.).
Magnitsky legislation gets its name as a tribute to Sergei Magnitsky (1972-2009), a Russian citizen who was an auditor with a foreign consulting firm in Moscow. His arrest in 2008 and his death after eleven months in police custody provoked a reaction from the international community and launched investigations into corruption, theft and serious human rights violations in Russia. Magnitsky himself discovered enormous fraud of government property, which was indirectly enabled and directly carried out by state officials of the Russian Federation. Instead of initiating proceedings against the responsible officials, the Russian authorities arrested Magnitsky. He died in prison seven days before the expiration of the one-year period until which he could be detained without trial.
The news of Magnitsky’s arrest, the manner in which he was treated, and especially the news of his death in prison, provoked strong reaction from the international community, including adopting condemning resolutions of the Council of Europe and the European Parliament. The United States, however, was the first country to impose targeted sanctions on individuals suspected of being responsible for Magnitsky’s death under a law passed by the US Congress in 2012 (Sergei Magnitsky Rule of Law Accountability Act, U.S.C. §5811). Under this Law, Russian government officials suspected of being involved in Magnitsky’s arrest and death were banned from entering the United States and using the US banking system (54 individuals and 1 legal entity). In 2016, Congress extended the scope of this Law, now as the Global Magnitsky Human Rights Accountability Act (USC §2534), so that, apart for officials of the Russian Federation, it can be “globally” applied to all persons participating in transnational corruption and who commit serious forms of human rights violations regardless of citizenship or nationality.
After the United States, a growing number of countries adopted various forms of Magnitsky legislation, including Estonia (2016), Great Britain (2017), Canada (2017), Lithuania (2017), Latvia (2018), and Gibraltar (2018).
Global Magnitsky legislation on grounds of serious human rights violations has recently become an integral part of the legal order of the European Union. At the end of 2020, the Council of the European Union adopts two “global” Magnitsky documents: Regulation (EU 2020/1998) and Decision (CFSO 2020/1999) on “Restrictive Measures for Serious and Other Human Rights Violations”.
In relation to Serbia, on the basis of the Global Magnitsky Law, at the end of 2019, the US introduced ad personam sanctions to S. Tesic and nine other citizens of Serbia for illegal weapons trade. The US recently imposed sanctions against “Dana”, a company owned by the (Serbian) Karic family, due to business ties with Belarusian President Lukashenko. However, the latest targeted sanctions were imposed days ago by the US Treasury Department on the basis of Presidential Decree (Executive Order No. 13818 of December 8, 2021) to persons from northern Kosovo, El Salvador and the DRC. Sanctions were imposed against an “organized crime group” from the north of Kosovo led by (Serb) Z. Veselinovic and 15 other persons, as well as against 24 companies that the US authorities claim are under the control of this group with the explanation that, among other things, “… is engaged in a largescale bribery scheme with Kosovar and Serbian security officials who facilitate the group’s illicit trafficking of goods, money, narcotics, and weapons between Kosovo and Serbia.” (https://home.treasury.gov/news/press -releases/jy0519).
Having in mind the scale of corruption and the human rights situation in the (Western Balkan) Region, on the one hand, and the constitutional proclamation on “belonging to European principles and values” (Article 1), on the other, this may be the right time for Serbia to adopt its own Magnitsky Law.