Case in point | The rebirth of posthumous convictions

Lurking in law's annals is the macabre 9th-Century trial of Pope Formosus. Posthumously charged with ecclesiastical offences in 897, Formosus's ?corpse was exhumed, arrayed in papal vestments and enthroned in the papal court where the body was tried. The defendant corpse naturally exercised its right to silence. After Formosus was convicted at what became known as the Cadaver Synod his body was dumped into ?the Tiber.

Such Grand Guignolish posthumous trials had been thought to have been consigned to legal history along with the mediaeval ?prosecution of dogs, chickens and pigs; until, that is, the trial of deceased Russian lawyer Sergei Magnitsky opened in Moscow on 11 March this year.

In 2008, after investigating a £125m tax fraud, Magnitsky was himself arrested for the swindle. Coincidentally, police officers who were scrutinising Magnitsky's dealings had themselves been fingered as fraudsters by him. After nearly a year awaiting trial, Magnitsky died in suspicious circumstances in a SIZO (a remand centre).

Worse was to follow. Thirteen days ?after his death in 2009, criminal proceedings against Magnitsky were discontinued. However, two years later, proceedings were reopened by state prosecutors purportedly acting under the authority of a 2011 Russian Constitutional Court judgment that had ?allowed family members to insist on the ?continuation of criminal proceedings against deceased defendants to vindicate their loved ones' names. Magnitsky's family strongly opposes his posthumous prosecution. A ?ruling that appeared to relate to family ?reputation has perversely led to a bizarre ?return to the Middle Ages.

Is Russia unwilling to allow criminality no sanctuary, even the grave? Whatever the answer, the deathendant has now entered the Russian legal system. And with 4,121 people dying in the Russian ?Federation's prisons and pre-trial detention centres in 2012 '“ roughly 11 a day '“ there would appear to be no shortage of ?future deathendants.

Rights after death

By trying corpses, has the Russian ?Federation found a sinisterly absurd way around conducting fair trials? Russia is, of course, a signatory to the European Convention on Human Rights and is obliged to ?adhere to article 6. However, although an action instituted by an applicant who ?subsequently dies may be continued by his family, article 34 does not give the dead or their family members standing to ?institute posthumous actions other than those ?founded on alleged violations of article 2, the right to life. In Fairfield v United Kingdom, Application 24790/04, the daughter and ?executors of evangelical Christian Mr ?Harry Hammond argued after his death that his conviction under section 5 of the Public ?Order Act 1986 for brandishing a sign with the words 'Stop Homosexuality', 'Stop ?Lesbianism' and 'Jesus Is Lord' on a Saturday afternoon in Bournemouth town centre ?violated articles 9 and 10. The Strasbourg court concluded that there was no 'victim' for the purpose of article 34 ?following Mr Hammond's return to his Lord. Similarly, the dead and their estates have no privacy rights and actions for alleged ?violations of individuals' rights to ?liberty and a fair trial cannot be commenced posthumously (Estate of Kresten Filtenborg ?Mortenen v Denmark, Application 1338/03); Biç v Turkey (2007) 44 EHRR 38).

But what of the conceptual nightmare of a deceased who is tried? Corpses cannot be considered natural or legal persons: the rights granted to 'everyone' under article 1 would not appear to cover the dead, ?confirming that although the jurisdiction of the convention can stray beyond the ?territorial borders of the signatory states themselves (Al-Skeini and Os v the United Kingdom, Application No 55721/07), its reach does not extend to the undiscovered ?country. If a cadaver be not a 'person', a ?cadaver need not have a fair trial. And the dead are unable '“ through no fault of their own '“ to be present at their trials (Pope ?Formosus's grisly 'presence' might not count), and cannot directly instruct ?representatives or cross-examine witnesses.

Surviving death

But might prosecuting the dead violate grieving relatives' right to family life? And, if the livings' entitlements as heirs under wills were affected by dead testators' trials, might article 6 or protocol 1, article 1 rights then be engaged? Is not trying the dead in such ?defiance of logic as to undermine the rule ?of law? Could corpses be prosecuted here? ?Grim posthumous indictments are unknown to modern English criminal law: the dead are simply not prosecuted, although the ?Restoration brought with it a series of posthumous executions, including that ?of Cromwell.

Immune from prosecution, the dead can, however, maintain or even commence appeals against convictions through approved representatives: section 44A of the Criminal ?Appeal Act 1968. And posthumous pardons are not unknown, although the 2012 campaign to secure Alan Turing's pardoning foundered. ?Civil liability, of course, survives death ?under the Law Reform (Miscellaneous ?Provisions) Act 1934.

It is unlikely that this country will follow the Russian Federation's example; an application by Russia for mutual legal assistance relating to the Magnitsky case was last year rejected by the United ?Kingdom. After the Cadaver Synod, Rome was ?a-murmur with rumours that Pope ?Formosus's corpse performed miracles. Perhaps Magnitsky will become a secular saint, patron of those who defy kleptocrats.

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