Extension of Magnitsky Act to EU and Moldova: between promotion of human rights and fighting corruption, OP-ED

Preconditions appear in Europe for an extended “Magnitsky Act” that would envision a mechanism for sanctioning non-European officials accused of violating human rights in the states whose judicial systems are politically controllable and, respectively, produce impunity. Initiated originally based on the cause of Sergei Magnitsky, Russian lawyer and whistleblower who died nine years ago in preventive detention in Russia (November 2009), the Magnitsky Act became a document with legal effects in the U.S. in December 2012 and was extended to other cases of flagrant violation of human rights generated by the Russian authorities, in particular those from the Chechen region. Approximately 50 Russian officials were put on the list of individual sanctions imposed by the U.S., which envisions travel bans and assets freeze. The initiator of the Magnitsky Act Bill Browder intensely promotes the idea of “Europeanization” of the Act that was supported by the European Parliament in 2014. During the past four years, inside the EU only Latvia, Lithuania and Estonia adopted laws that incorporate elements of the Magnitsky Law, plus the UK whose decision was powerfully influenced by the poisoning by the chemical substance (“Novichok”) in March 2018 by Russian intelligence services.

On December 10 2018, the materialization of the Magnitsky Act at European level could be fostered by the Council of the EU if the Dutch diplomacy ensures unanimity that would bypass the friendships of governments of Italy, Hungary or Greece with Russia. Currently, they speak about 19 EU member states that are ready to lay the basis for a Magnitsky Act. The removal of the name of Sergei Magnitsky from the text (IrishTimes, December 7, 2018) was an incipient solution proposed by the Dutch side for achieving a consensus. This way, the Dutch pragmatism came into contradiction with the principledness of Bill Browder, who opposes the eradication of the name Magnitsky from the eventual European legislation. But the altering of the memory of the crime committed against Magnitsky corresponds to the agenda of Vladimir Putin’s regime (EuObserver, November 12, 2018).

 

Even if such legislation is adopted, the EU will have to take into account a series of aspects about which European experts have warned in the course of the year (ECFR, July 19, 2018). Primo, the current punishment mechanism should be supplemented with a new instrument targeted at human rights violators, not at their countries of origin. Segundo, the EU will have to set down very rigorous criteria for an eventual Magnitsky Act so as to avoid trials or to win them if the sanctions are challenged in the Court of Justice of the European Union, especially in cases of assets freezing. Tertio, the European side is to assume the risk of reciprocity and, respectively, counter-sanctions imposed by the regimes of the countries whose citizens will be put on the EU’s “black list”.

The suggestion to integrate the Magnitsky Act into the Moldovan legislation was made by the parliamentary opposition, at the proposal of civil society, in June 2018. The authors of this initiative put corruption and money laundering at the forefront, besides the punishment of human rights violators worldwide.  Even if the Government in Chisinau earlier supported actions that were anti-Russia in character (anti-propaganda law in December 2017, resolution at the UN against the Russian military forces in the Transnistrian region in June 2018, etc.), the legislative proposal on the Magnitsky Act was rejected. Not even the fact that the Magnitsky Act is already applied in the U.S., to which the Democratic Party makes reference in its foreign policy, mattered. Such an act would make Moldova the first country in the Eastern Partnership that joined the global campaign to report and penalize foreign officials to blame for human rights abuses. Already isolated in the dialogue with the EU, the government would have narrowed its maneuvering space in relation to the countries where the human rights are abused, such as Turkey from which investments or external legitimacy are expected. In general, the extension of the mechanisms of individual sanctions bothers the governments that consciously undermine the rule of law, as it happens in Moldova.

What would be the benefits of a European Magnitsky Act?

The mechanism of individual sanctions, such as the Magnitsky Act, has a powerful political connotation, especially before the elections to the European Parliament of May 2019. But this thing represents a necessity for consolidating the EU’s image of protector and promotor of the human rights and the rule of law in the region and the world. Also, the localization of the Magnitsky Act inside the EU acquis can stimulate its migration to other states of the region that intend to transpose the European legislation, such as the signatories of the Association Agreements – Moldova, Ukraine and Georgia.

Such an Act can automatically engage over 20 countries in operations to identify and penalize the members of foreign governments that undermine the human rights standards at home with or without the goal of capitalizing on tangible benefits that are often transferred to the EU. This principle will advance the regime of individual sanctions used by the EU until now, targeted at the illegalities of a country and later particularized at the level of the national authorities. The new regime can prioritize the individual sanctions, neglecting aspects of nationality.

In practical terms, the travel ban only cannot modify the decisions of foreign officials. From this viewpoint, the freezing of assets owned in the EU states is essential for remedying the situation of persons subject to abuses committed by political regimes or narrow groups that control the state institutions. The given restrictions could create difficulties for corrupt officials from Russia, Ukraine and other national jurisdictions who are involved in the commission of atrocities that encroach upon the human rights. As, no matter what country issued the passports owned by the persons, either Malta, Cyprus or the EU states, the European Magnitsky Act will persecute these persons if not by bans on entering the EU, then by freezing their assets.

The existence of the Magnitsky Act in the EU will expose to criminal liability a larger number of politicians from the EU’s neighborhood that use justice and the state institutions to intimidate the mass media or civic activists. Such a legal regime alerts the exponents of the governments from the Eastern Partnership and beyond it and also from Northern Africa and the whole Mediterranean Sea. This could refer both to Russian officials to blame for attacks against civil society, the Israeli authorities accused of destroying Palestinian social infrastructure on the occupied territories (European Parliament, September 11, 2018) or decision makers from Azerbaijan who place critics from civil society in detention. At the same time, the risks for the oligarchic regimes in Moldova, Ukraine and Georgia will multiply.

Difference between priorities in Moldova: Fight against corruption or defense of human rights?

The attempt to nationalize the Magnitsky Act in Moldova has three important particularities. The first aspect shows that the human rights persist in the draft law proposed by the parliamentary opposition in July 2018, alongside the name Magnitsky, on which Bill Browder insists in the case of the EU. This way, the amendments to the legislation on the regime of foreigners and on the prevention of money laundering and terroirs activity has seven provisions related to the violation of human rights and six provisions concerning acts of corruption. The Magnitsky Act version proposed for Moldova reveals the wish to combine the protection for human rights with the toughening up of the rules for corrupt foreign officials who are actively involved in illegal financial transactions.

The second particularity resides in the prevailing of the interest in combating corruption and money laundering that affected the Moldovan banking system (case of “the Russian laundromat”, banking fraud). The justificatory part of the draft bill puts emphasis on illegal financial transactions committed by using the banking system and offshore areas, including the facilitation of acts of corruption. Also, the goal indicated for the Moldovan Magnitsky Act is primarily to protect the national financial and banking systems and to then impose restrictions on those involved in acts of corruption and afterwards in actions violating the human rights. The order of priorities in the draft law reveals the tensions that exist between the anti-government opposition, including the critical civil society, and the oligarchic political regime consolidated around the Democratic Party in 2016-2018.

The third essential particularity that explains the size of the support for a Moldovan Magnitsky Act refers to the Democratic Party’s decision to introduce the mechanism for providing Moldovan citizenship by foreign investment that took effect in 2017, which preceded the “legalization of capital” obtained by dubious ways that was signed into law in 2018. Consequently, the adoption of a Magnitsky Act is regarded as a way of preventing the negative consequences of the government’s decisions concerning the naturalization of foreigners whose names can be related to acts of corruption and violation of human rights.

The return to the Moldovan Magnitsky Act will depend, on the one hand, on the composition of the government that will be formed after the parliamentary elections of February 2019. On the other hand, the intensity of the approach for such an Act could be determined by the progress of the efforts to “Europeanize” the regime of individual sanctions against foreign officials who violate human rights.

Instead of conclusion...

The Magnitsky Act for Moldova is both a measure of counteracting the negative effects of the government’s decisions (e.g. citizenship by investment) and also a form of toughening up the legislation on the fight against money laundering that affected the Moldovan banking system the previous years. At the same time, an individual regime of sanctions would create a new filter for distancing Moldova from vested interests for which a country with poor rule of law represents a useful jurisdiction.

The popularity of the Magnitsky Act in Moldova and other countries that signed Association Agreements with the EU could increase if this is converted into a component part of the EU acquis. At the same time, the eventual failure of these efforts would be welcomed by the political regimes from the EU’s neighborhood that are involved in the violation of human rights. In any format, a future Magnitsky Act in Moldova should be focused on the human rights and the punishment of persons who commit such illegalities in the Transnistrian region.