Dáil to debate Magnitsky Bill to tackle human rights abuses

15 December 2021
  • Proceeds of Crime (Gross Human Rights Abuses) Bill to be debated from 4.52pm on Thursday.
  • Bill would allow seizure of assets of human rights violators.

The Dáil will on Thursday evening debate Magnitsky legislation from Labour Justice spokesperson Brendan Howlin which would allow for the seizure of the assets of human rights violators.

Deputy Howlin said:

“Since 2012, several countries have passed laws providing for financial sanctions against the officials of other states who have committed human rights abuses, or have been involved in significant corruption.

“These are collectively referred to as Magnitsky laws, named after Sergei Magnitsky an accountant who made serious accusations against Russian tax and law enforcement officials and was in turn accused of aiding tax evasion, was arrested and jailed in Russia, and after being allegedly beaten by police died in prison. In 2012, the United States Congress passed the Magnitsky Act, which imposes sanctions on officials involved in that case, laws along similar lines have subsequently been passed in the United Kingdom, and in Canada.

“In this state, powers under the Proceeds of Crime Act, 1996 -2016, to seize and dispose of assets, may be available against corrupt foreign officials who have assets within this jurisdiction. However, in order to apply that legislation, a dual criminality test would need to be satisfied. The conduct giving rise to the acquisition of those assets, must be such that it would constitute an offence, both under Irish law, but also an offence under the law of that foreign state.

“The purpose of my Proceeds of Crime (Gross Human Rights Abuses) Bill is to make the Act more easily available to deal with such cases, the bill provides that certain conduct occurring outside of our state is described as criminal conduct for the proceeds of our own Proceeds of Crime Act, notwithstanding, that it does not constitute a defence under the law of the foreign state concerned.

“This piece of legislation mirrors legislation being enacted in progressive countries across the world. There is an initiative by the European Parliament to encourage all European Union states to mirror this type of legislation. So that foreign governments and officials who are involved in corrupt practices or involved in gross violations of human rights, if they have assets in this state, that we can act against them, so that they cannot stash ill-gotten gains in jurisdictions, such as our own, where we have very extensive inward investment in financial services.

“I hope that the Government will consider supporting this legislation which is in place in many other countries including the UK and US.”

NOTES TO EDITOR

The original Magnitsky Act was a bipartisan measure passed by the U.S. Congress and signed by President Obama in 2012, intending to punish Russian officials responsible for the death of a tax accountant Sergei Magnitsky in 2009.

Mr Magnitsky died in a Moscow prison after investigating a $230 million fraud involving Russian tax officials. Magnitsky was accused of committing the fraud himself and detained. While in prison, he was refused medical treatment and, after almost a year, was allegedly beaten to death while in custody. His friends publicised the case and lobbied American officials to pass legislation sanctioning Russian individuals involved in corruption.

Since 2016 the Act, which applies globally, authorizes the US government to sanction those who it sees as human rights offenders, freeze their assets, and ban them from entering the U.S.

More generally, Magnitsky legislation refers to laws providing for government sanctions against foreign individuals who have committed human rights abuses or been involved in significant corruption.

A number of countries have passed legislation similar to the US version, including Russia, Canada and the United Kingdom.

In February 2017 the UK House of Commons unanimously passed an amendment to the what became the Criminal Finances Act 2017 inspired by the Magnitsky Act that would allow the government to freeze the assets of international human rights violators in the UK.

The attached draft is along similar lines. It amends and expands the definition of ‘criminal conduct’ that can trigger a CAB application under the Proceeds of Crime Acts.

At present, criminal conduct means either an offence in the State or conduct which occurs outside the State and which constitutes both an offence under the law of the State, if it had occurred here, and an offence under the law of the place where it occurred.

The expanded definition provides that conduct is criminal if it occurs outside the State, it would constitute an offence if it occurred within the State and it constitutes, or is connected with, a gross human rights abuse.

In order to trigger a CAB application, there must be property in the State that was obtained or received by or as a result of or in connection with the criminal conduct.

A gross human rights abuse is defined as conduct –

  • carried out by, or at the instigation or with the consent or acquiescence of, a public official, in the performance or purported performance of official duties,
  • involving the intentional infliction of severe pain or suffering, physical or mental, on, or the cruel, inhuman or degrading treatment or punishment of, a person who has sought to expose illegal activity carried out by a public official, or to obtain, exercise, defend or promote human rights and fundamental freedoms, and
  • it is carried out in consequence of that person having sought to expose illegal activities or to exercise human rights.

Conduct is ‘connected’ with a gross human rights abuse if it involves acting as an agent for another in connection with a gross human rights abuse, directing or sponsoring such an activity, profiting from such an activity, or providing material assistance in support of or in connection with the carrying out of such an activity, including by providing goods or services or financial or technological assistance.

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