Being searched or removed from the courtroom, having one’s phone tapped and email hacked — these and other violations have become routine in the daily lives of many Russian lawyers. The challenges they face are driven by external factors as well as those arising inside the corporation.
On September 9, 2018, police in Krasnodar violently apprehended lawyer Mikhail Benyash and forced him into a car without a licence plate. The officers snatched his phone from his hands, strangled and hit him, but later said in court that the lawyer had resisted arrest by “biting them” and “hitting himself against the car.” As a result, the lawyer now faces charges for causing minor harm to the police officers. On the day of his arrest, Benyash was planning to provide legal assistance to detained participants of a protest rally in Krasnodar.
Mikhail Benyash’s story is just one of the 50 cases of lawyers’ rights violations discussed in the paper “Legal Profession under Attack: Violence, Harassment and Internal Conflicts” authored by Alexander Popkov, a lawyer with Agora International Human Rights Group and a member of the Krasnodar Territory Bar Association.
“Defense lawyers get interrogated, searched, pushed, kicked, handcuffed, strangled and beaten, and then sometimes accused of assaulting the law enforcement officers,” Popkov reports. Even during court hearings, lawyers are not always allowed to state their case and sometimes have been forcefully removed from the courtroom. According to the report author, perhaps the most disturbing trend is “an increasingly unceremonious treatment” of lawyers by law enforcement officials.
In the context of active NGOs being labeled “foreign agents,” human rights groups facing harassment and other dire political developments in Russia, the legal profession “is perhaps the last remaining institution which can afford some degree of autonomy and independence,” Popkov reflects.
But independence comes at a cost. According to Novye Izvestia, more than 300 lawyers have been killed in Russia over the last two decades, and more than half of the killings remain unsolved. Yury Pilipenko, President of the Russian Federal Bar Association (FBA), says that over the period of their monitoring the issue, 47 lawyers have been killed. “Most of the killings were not random crimes but were clearly linked to the lawyer’s professional practice,” comments Pilipenko. According to the FPA, three lawyers have been killed in the last two years, and the total number of violent attacks has dropped from 21 in 2017 to six in 2018 1«Отчет о деятельности Совета Федеральной палаты адвокатов Российской Федерации за период с апреля 2017 года по апрель 2019 года», page 44.
“For a lawyer, a working day which has been free of violations is a cause for celebration,” comments Anastasia Pilipenko, lawyer with the St. Petersburg Bar Association. According to Pilipenko, lawyers can face violent pressure regardless of their gender and physical fitness: “I have literally been carried out of the police station, although I am not someone of small size or fragile physique. Indeed, one needs to be physically fit to practice as a lawyer.”
A typical workday of a lawyer dealing with criminal and administrative cases may start, e. g. with being refused access to a client: “This is particularly typical [for clients detained in connection with] the recent protests: first they stop you from entering the police station so you cannot see your client, then they refuse to accept your papers which entitle you to defend your client who is facing administrative charges,” Pilipenko explains, “and finally they say, ’Yes, he’s been arrested but we have not drawn up the arrest report yet. You may only talk to your client at the time the arrest report is being drawn up, not before or after it.” She adds that defense lawyers may continue to face pressure afterwards, e. g. by not being given enough time to read through the case file or having their warrant and application letter rejected.
Lawyer Nadezhda Zhirnova, member of the St. Petersburg Bar Association Qualification Board, had her phone tapped with a court’s permission twice as she defended a client charged with organizing a murder attempt. “I entered the case when the preliminary investigation phase was almost completed. The police detectives filed a formal petition with the court to authorize tapping my phones, alleging that I could be hiding evidence of the crime,” Zhirnova said. The Leningrad Regional Court authorized tapping her phone for 180 days. “Both the request and the authorization were illegal as I was not a suspect in the proceedings but only a defense lawyer. Fortunately, there were decent people in this rotten system who warned me.”
The Russian FBA reports that in recent years they have seen an increasing number of attacks on lawyer-client privileges, such as summoning a lawyer for questioning to remove him or her from the case or unlawfully searching a lawyer’s home or office 2«Отчет о деятельности Совета Федеральной палаты адвокатов Российской Федерации за период с апреля 2017 года по апрель 2019 года», page 44.
According to lawyer Alexander Pikhovkin of the Moscow Bar Association, “Our opponents seek every opportunity—short of blatantly breaking the law—to bypass legal restrictions, e. g. by subjecting privileged parties such as lawyers to unlawful searches. The so-called examination of a lawyer’s premises is one example. Such ’examinations’ have no basis in the Code of Criminal Procedure; instead, they are justified by reference to the law on operational-search activity,” the expert explains. “This substitution of legal bases enables law enforcement agents to avoid seeking a court’s sanction for searching a lawyer’s home or office while at the same time being able to confiscate items or papers and access the lawyer’s files.”
Based on the FBA’s data, Russian lawyers were illegally summoned for interrogation on 223 occasions in 2018, which is 25% more than in 2017 3«Отчет о деятельности Совета Федеральной палаты адвокатов Российской Федерации за период с апреля 2017 года по апрель 2019 года», page 44. According to statistics from the RF Judicial Department cited in Agora’s report, in 2018, Russian courts granted 358 out of the 388 (92%) petitions seeking permission to search a lawyer’s premises 4«Адвокатура под ударом: насилие, преследования и внутренние конфликты», page 10. “Given that courts tend to grant such requests in respect of ’ordinary’ citizens in 95% of cases, lawyers’ homes and offices are not much safer,” Popkov concludes.
According to Alexander Pikhovkin who is Mikhail Benyash’s defense lawyer, active involvement of the legal community has made a great difference in his client’s case: “If it had not been for his colleagues’ intervention, Benyash would probably have been found guilty and convicted.” In the Benyash case, the Krasnodar Territory Bar Association bailed him out, and he was released from pre-trial custody. “Such rulings reinforce corporate self-esteem and make one feel protected from arbitrary enforcement,” the expert says.
In Krasnodar Territory, just as in some post-Soviet countries such as Ukraine and Georgia, lawyers get together for solidarity and mutual support in facing their common problems. According to Pikhovkin, the situation in Russia overall is similar, but with some reservations: “Both the strength and weakness of Russia’s legal profession is that the number of lawyers here is many times greater than in any other post-Soviet country. We are more than 80 thousand, dispersed over a vast territory. Due to geographic distance, it is relatively easy to make us believe that a violation affecting a lawyer in Yaroslavl will not affect their colleague in Vladivostok. But this is not true. We live in a common legal space, and the negative practices affecting lawyers tend to spread quickly across regions.”
According to lawyer Alexander Meleshko of the St. Petersburg Bar Association, by standing up for their own rights, lawyers also defend those of their clients. “They refuse to respect our rights as professionals because no one cares about the defendants, let alone the defense lawyers. They [the authorities] get the defendants exhausted during transportation from the pre-trial detention facility to the court, and then force them to defend themselves in a distressed state.” The expert is convinced that no lawyer alone can change the humiliating treatment of defendants in the criminal proceedings; it would take the entire legal profession to address a problem of this magnitude.
Decisions to remove lawyers or representatives of defendants from the courtroom are increasingly common, according to Popkov. Furthermore, “lawyers are effectively denied any opportunity to appeal against their removal from proceedings.” No complaints of this type have brought tangible results so far. Protesting the practice by other methods is not an option either: many bar associations prohibit their members from protest actions which, in the bar’s opinion, can be regarded as violations of professional ethics.
According to Agora’s report, bar associations as self-regulatory bodies have disciplined lawyers for their actions in 22% of cases, and in 3% of cases the lawyer’s status was revoked following disciplinary proceedings 5«Адвокатура под ударом: насилие, преследования и внутренние конфликты», page 23. “Disciplinary practices vary across regions. Something considered a violation in one region may be found too small to merit disciplinary proceedings in another,” Anastasia Pilipenko comments. “But before slamming the door while exiting the courtroom, one should think of how the judge and the bar association would react to such conduct.”
The legal corporation is not doing enough to defend lawyers’ rights; it “fails to protect us not only from pressure but also from the humiliating position in which we are forced to wait for hours outside the door [to see our clients] in prison or to access the courtroom,” says lawyer Karinna Moskalenko, member of the Moscow Bar Association.
Lawyer Konstantin Rivkin calls upon the legal profession to allow its members to actively defend themselves: “I would like to see bar associations give their members permission to protest. If a judge chooses to be rude towards a lawyer, the latter should be allowed to get up and leave the proceedings rather than tolerate humiliating treatment.” According to the expert, the legal profession’s code of conduct prescribes that lawyers in such situations should express their displeasure, request that a note be made in the minutes of the proceedings, and complain; however, this procedure is not effective. “As a result, a lawyer could get thrown out of the courtroom, hit his head on the metal detector frame and break it, and later required to pay the cost of the damaged equipment.”
Agora’s report highlights a number of shortcomings in the bar associations’ disciplinary proceedings; e. g. one can appeal a decision of the bar association in court only on procedural grounds and only if the case concerns termination of one’s status as a lawyer. Otherwise, the quasi-judicial process within the bar association does not provide for an appeal procedure, and this “leaves room for abuse and for score-setting among members.”
Alongside problems with disciplinary proceedings, Popkov highlights the trend towards a “monopoly on power” in the legal profession: “Elected positions in bar associations have transformed into bureaucratic offices and have even been passed on between family members.” “Lawyers in Russia, on the one hand, are afraid of the government since they are not sure that the bodies of the legal profession will protect them,” says Karinna Moskalenko. But on the other hand, these bodies mandated to represent the legal community often try to suppress lawyers who think and act independently. “Dissent is repressed in the legal profession. This is a dreadful phenomenon that our colleagues, supporters and groups such as Initiative 2018, the Prague Club and the so-called Group of 32 have been working to oppose,” Moskalenko adds.
According to Moskalenko, Agora’s report downplays the legal profession’s internal issues which have worsened significantly in the past 20 years. “Internal procedures are far from democratic and fail to prevent or restrict arbitrary actions by the bar leadership. The governance of the bar can be characterized as non-transparent, authoritarian and unchanging,” Moskalenko explains. According to her, the legitimacy of the bar’s governing bodies is questionable, and the way they are elected does not reflect the perspectives of the entire legal community: “I understand that these arrangements reproduce the situation with the country’s government, but the legal profession is obliged to be different, because it is founded on other principles.”
The article is based on materials from an international seminar of the Prague Club of Lawyers on defending the rights of lawyers in the post-Soviet space (Berlin, August 2019).
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