Criminal Prosecution of Deceased Persons – A Russian Reality

Image from

Russian authorities had arrested lawyer Sergei Magnitsky and held him in a pre-trial detention center for nearly a year. Magnitsky worked for an investment fund and was arrested on charges of tax evasion; his case was closed, but it has since been re-opened.

While all of this sounds like a “normal” course of events, Magnitsky died in 2009 while he was being held in the pre-trial detention center. It was because of this his case was closed, and his death sparked public outcry. Regardless, Russian criminal law allows for the prosecution of dead persons:

According to Article 24 of the Russian Code of Criminal Procedure, proceedings can be closed against a deceased person who stood accused of some crime pending the consent of his relatives. The case would then be closed on so called non-rehabilitative grounds meaning that relatives of the person do not demand the deceased person to be recognized as innocent. Under the law, if a family wants their deceased to be cleared of all charges and declared innocent, they must approve ongoing investigations.

However, this prosecution violates Magnitsky’s right to defend himself in person. Amnesty International is even more concerned with the precedent that this prosecution would set: not only the actual trial of a deceased person, but the forcible involvement of his relatives.

Is Russia’s law that allows deceased persons to be prosecuted unreasonable or outrageous? Is the type of the case (tax evasion) what makes the law seem silly, and if so, what types of crimes would this make sense for? For instance, what about those who commit war crimes – should those types of crimes be allowed to be prosecuted even in death, or even then the decedent’s rights should be upheld? Is potentially forcing a family to be involved in the prosecution to prove the decedent’s innocence the unfair part of this law?



Amnesty International


  1. To answer Alison’s question, I do not think this practice is ridiculous, under certain circumstances. For a crime like tax evasion, there should be no proceedings after the death of the defendant. For a more serious crime, I can understand why a family would want to clear their loved one’s name from alleged guilt. I personally may be more focused on mourning and less on justice, but if my family member was accused of say, mass murder, and I knew he was innocent, I would like to clear his name and maybe even aid in finding the actual culprit. This process would be time consuming and costly, which is why I say that this practice is reasonable, but only in special contexts. I do not think this would be forcing families to be involved in the prosecution because they would have to approve for the prosecution to continue. When I first read this article I thought that if the decedent has died, there is no need for a trial. Now that I think about it, post-death litigation could actually be beneficial pending particular events.

  2. While I respect Russia’s laws, personally I feel that prosecuting deceased persons can be seen as unreasonable on the grounds that it doesn’t serve any of the theories of punishment such as deterrence (specific or general), incapacitation (as they are already incapacitated), just desert, rehabilitation, or retribution. Arguably, it could serve general deterrence as it could be seen as punishing to shame surviving family members. I do believe that forcing a family to to be involved in the prosecution in order to clear their family name is very harsh as depending on the family they may not be in communication with that member, or if it was a tragic death the lawsuit could reopen old wounds. While I do not know Russia’s rationale for this law, I am glad that it is not custom in the United States–if only for the sake of judicial economy.

  3. I’m not sure I understand the purpose of continuing with the prosecution after the death of the defendant. Forget about the injustice of prosecuting someone who cannot defend himself, or the hardship it may cause on his family, the real problem seems to be that there is no point to this practice at all, at least not from the government’s standpoint. If the prosecution wins, great, but nothing happens; they have simply proved their point. Nobody goes to jail; nobody can pay a fine (unless it’s possible to take it from the estate). However, if the defense wins, still nothing happens but now the government has wasted time and money trying a case and they did not even win. Pointless. This practice only makes sense to me from the defense’s point of view. If the family wants to vindicate their loved one, then I could see why going through this process would be worth it for them.

  4. While reading this post, Professor Humbach’s teachings in Criminal Law and the main justifications for punishment came to mind. If we consider why we “punish” here in the United States, none of our deep-rooted justifications for punishment fit the crime when the perpetrator is dead. For example, we cannot incapacitate someone who is no longer living and no longer poses a threat to society. Nor can we deter or rehabilitate them. One could argue that retribution may be gained by the local community or society as a whole. In this case, I guess the government who was arguably harmed by the wrongdoer’s tax evasion, would receive some sort of retribution or vengeance. On the other hand, one could argue that tax evasion by one particular taxpayer is hardly worth seeking retribution for an entire government organization.

    In the end, it seems that only general deterrence could be achieved. Others might remember that even after death, their names and their families could be shamed if they are found guilty of the alleged crime. However, I think that the prosecution of a crime that was committed by someone who is no longer living will “shock the conscience” (to use a law-school term) more than it would teach a lesson and deter others. I for one was shocked that resources and time would be “wasted” in this way. In my opinion, let the crime die with the person.

  5. I strongly believe that this is a show put on by the Russian government to protect its own officials. In 2008, Magnitsky first drew attention to himself when he claimed that Russian organized crime members, with the assistance of Russian government officials, managed to illegally secure a $230 million tax rebate by defrauding William Browder, who was a client of Magnitsky, and his company, Hermitage Capital Management. Both Magnitsky and Browder, an English investor, were then accused of tax evasions, oddly enough, by the very same officials that allegedly participated in the fraudulent tax rebate. Magnitsky was then allegedly beaten in jail and denied medical treatment. The United States actually passed a law (named after Magnitsky) that sanctioned the accused tax rebate officials. Russia responded by banning them from adopting Russian children, claiming that the United States is interfering with Russia’s sovereignty.

    To me, criminal trials of deceased people make little sense. Like Amanda commented above, a dead person cannot be punished or rehabilitated. If damages or compensation is required, that is for civil courts to decide.

  6. From my point of view I believe that the Russian law which allows for deceased persons to be prosecuted is outrageous and nonsensical. This law serves very little purpose and provides minimal benefits to society, while also wasting time and taxpayer money. As Patrick mentioned above, I agree with the point that a family would want to consent and approve ongoing investigations in hopes of clearing the name of their family member. However, I do not feel that the benefits of furthering an investigation to clear a person’s name who has already passed away, outweighs the costs it brings to society. As I mentioned above, this a waste of both time and money that could be allocated elsewhere to benefit more members of society. Further, I do not necessarily agree that the unfair part of this law is forcing a family to get involved in the prosecution. Rather, the unfair part is not allowing the defendant to defend himself in the court of law and present his account of the events to his lawyer and the court.

  7. I do think this Russian law can be useful, especially in this context. The charge against him is tax evasion. To be able to recover from his estate the money he owes would be beneficial to the government and as a result, the citizens. Imagine if he owed $5 million in unpaid taxes although this is a relatively small number in comparison to the entire budget of Russia, or most countries, it has a deterring effect on the living in that it will deter them from trying to evade taxes because of the consequences it will have on their estate/ heirs.

    In situations where the deceased was charged with murder I see less incentive to pursue the claim because justice is served; the murderer is dead. However, I can see a case being made by the families of the victims who may want to have that final bit of closure. I do not think that the cost of the litigation in this situation should be an issue because the cost of keeping criminals alive and in jail is far more expensive then the cost of conviction. The benefit is closure for the families and reassurance that the right person was convicted. If the defendant is proven innocent it may highlight flaws in a legal system and should most definitely result in compensation for the deceased defendant’s estate.

    Overall, I think in most situations this law would actually be more beneficial then others believe it to be.

Leave a Reply

Your email address will not be published. Required fields are marked *