18 January 2022
An extract from «Вся надежда на отчаянных одиночек»”[All hope rests on extremely brave individuals”] , Vazhnye istorii, 18 January 2022
Source: Vazhnye istorii [‘Important Stories’]
The state is gradually stripping Russian lawyers of their independence. How lawyers are resisting and the threat this poses to their possible defendants.
THIS COMMUNICATION (MATERIAL) HAS BEEN CREATED AND (OR) DISTRIBUTED BY FOREIGN MASS MEDIA ACTING AS A FOREIGN AGENT, AND (OR) A RUSSIAN LEGAL ENTITY ACTING AS A FOREIGN AGENT.
[…] Important Stories spoke with Ekaterina Gorbunova and Aleksandr Chernykh, the editors of the Advocates’ Street project, about how lawyers up until now have managed to preserve at least partial independence from the state and who is going to defend Russians if this independence comes to an end.
— Last year, the political situation in Russia was compared more and more often with the situation in Belarus: political rallies became impossible, and many journalists, activists, and opposition politician were forced to leave the country. The situation in the legal profession is also being compared to the Belarussian. For example, this summer Belarus passed a new law on the legal profession that basically cedes all power over the their professional bodies to the Justice Ministry. Recently our Justice Ministry published amendments to the Russian law that lawyers did not like either. How correct does this comparison seem to you?
Aleksandr Chernykh (ACh): My impression is that the difference lies in the following. In Belarus the legal profession’s subordination to the state came about abruptly. Whereas in Russia approximately the same process has been under way slowly, delicately, and not that perceptibly. […]
Ekaterina Gorbunova (EG): It seems to me, the Russian legal profession has only just started down the Belarussian path. The package of amendments to the law on the legal profession presented by the Justice Ministry in December 2021 is the state inserting itself into the regulation of the legal profession at the legislative level.
— What is the essence of this bill and what is there about it that outrages lawyers?
Even the Federal Bar Associationi (FBA) (an organization uniting and coordinating the activities of all Russian regional advocate chambers; it is the FBA that represents the interests of the legal profession in state organs. — Ed. note) didn’t like some of the amendments.
–As I understand it, the FBA usually takes a very conservative position. Does this mean that the new amendments present a real threat not only to lawyers working on high-profile cases and defending oppositionists?
EG: Most important are the changes that concern disciplinary action. (For violating the ethics code or failing to carry out the decisions of the organs of the legal profession’s self-administration, a lawyer can be called to disciplinary account: they can issue a comment or warning against him or strip him of his lawyer status. — Ed. note). Right now the ministry can submit representations (complaints. Ed. note) against lawyers to regional bar associations, and the association’s leadership is required to start disciplinary proceedings based on those representations. However, decisions on this case are taken specifically by the bar associations, and the Justice Ministry is not supposed to influence them. If the bill passes, then the Justice Ministry can go to court and appeal a bar association’s decision acquitting a lawyer or stopping his disciplinary action. All lawyers understand what a Russian court is. And they understand that in a dispute between a lawyer and the Justice Ministry, the court will take the Justice Ministry’s side.
Naturally, this amendment takes away the bar associations’ very self-sufficiency, their independence in deciding whether a lawyer has violated the Code of Legal Ethics (it establishes mandatory rules of conduct for lawyers, for example, requirements to maintain legal secrecy, or not borrow money from a defendant, and the procedure for bringing them to account for violating them. — Ed. note). Right now entry into and departure from the profession are in the hands of the bar associations, but the Justice Ministry is making an attempt to circumvent this corporate self-sufficiency and drive out disagreeable lawyers through the court. This is dangerous [for the bar associations], therefore even the Federal Bar Association has spoken out against it.
Right now the FBA is in a kind of negotiation process with the Justice Ministry and is attempting to exclude this amendment from the bill. The fact that they have come out against it publicly is indicative in and of itself.
ACh: I should add that the amendment on disciplinary cases is perceived by a great many lawyers as cementing into law what they are trying to do with the lawyer Ivan Pavlov. (In April 2021, the Investigative Committee opened a criminal case against Pavlov for disclosing a secret of a preliminary investigation due to the lawyer’s comments in the media about the case of his defendant, the journalist Ivan Safronov. In the summer of that same year, the Justice Ministry demanded that the chamber to which Pavlov belongs initiate disciplinary proceedings against him. — Ed. note). The bar association to which Pavlov belongs refused to initiate disciplinary action against him after the Justice Ministry’s first representation. After the second representation, it found no violations on his part. Then the Justice Ministry attempted to dispute this decision in court, and the court agreed to take on the suit. Then the ministry itself recalled it and drew up a third complaint on which the association nonetheless “found” minimal violations. Recently, a fourth Justice Ministry representation appeared, and one of the bar association’s vice-presidents sent a fifth. This cannot help but lead lawyers to alarming thoughts. After all, if the Justice Ministry was targeting only Pavlov, then why did it need this entire bill? It all looks as though officials have developed a taste for this and have decided to reinforce it—because Pavlov is not the only one to raise questions for them. The bill looks like a scheme to help the Justice Ministry to spit on the chamber’s opinion and strip any lawyer of his status. […]
And has the Federal Bar Association spoken out on the Pavlov case?
EG: The Federal Bar Association has not released an official statement, but individual members of the Association’s council have made comments. For instance, FBA vice president Gennady Sharov said outright that Pavlov is a genuine “foreign agent”, and that his activities are “a unique example of foreign states’ involvement”. Words like that coming from the FBA’s own vice president will be widely interpreted as the Association’s position. Evgeny Semenyako, president of the St Petersburg bar association – the one that will decide Pavlov’s fate – also spoke disapprovingly of his actions, saying that he’s setting up the entire legal profession.
How unexpected was it when the St Petersburg Bar Association disagreed twice with the representative of the Ministry of Justice regarding Pavlov?
EG: Many lawyers were expecting them not to support [the Ministry’s decision]. They took to social media to say that Pavlov’s behaviour was not a breach of legal ethics, and that a lawyer is not obliged to sign a non-disclosure agreement. But when the Ministry of Justice made its third submission, many took that as a sign that the St Petersburg Association was trying to strike a compromise – it would find some minor offence, so that the Ministry of Justice would back down. And that’s exactly what happened.
Pavlov was charged with being absent from investigative activities [for instance, defendant interrogations or investigative experiments. Ed.] during the case against his client, Ivan Safronov, without first informing the investigative committee. But there is a whole group of lawyers who decide among themselves who will attend which parts of the investigation. It is telling that the Bar Association did not find any offences on the part of Pavlov’s colleague, Evgeny Smirnov, when considering similar charges.
From the outside, this all looks like a battle between the Ministry of Justice on one side, representing the government, and the St Petersburg Bar Association on the other, representing the legal profession. And the Bar Association has done its utmost in this conflict to defend its lawyer.
But then the Ministry of Justice made its fourth submission. The department demanded outright that Pavlov be disbarred. A decision has not yet been reached. However, in late December one of the vice presidents of the St Petersburg Bar Association personally asked for Pavlov to be held accountable for the fact that he had published documents from the Ministry’s submission on social media. And for observers in the side-lines, this looks like a decision to sacrifice one in order to save the others. […]
Ivan Pavlov has positioned himself above all else as a leader of the movement for an independent bar. What has this movement managed to achieve over the past few years and what is happening with it now?
EG: I can’t say that there’s currently a cohesive movement for an independent bar with a centre and a permanent agenda. There are spontaneous reactions to independent violations: petitions being drafted, appeals to the Federal Bar Association. There have been projects like the Prague Club of Russian Lawyers [created in 2018 by a group of Russian lawyers, including Ivan Pavlov, as an informal union “aimed at finding solutions to problems encountered while defending and strengthening the independence of Russia’s bar”. Ed.], which raised the issues that were not always discussed by the legal profession’s self-regulatory bodies.
ACh: […] In our circumstances, any attempt to create a large and influential association of lawyers would end up the same way as the Anti-Corruption Foundation [In June 2021, Alexei Navalny’s Anti-Corruption Foundation was deemed an extremist organisation and banned in Russia. Ivan Pavlov was one of the lawyers defending the organisation at trial. Ed.]. Pavlov tried to found the Prague Club, and what happened? Now, the submission against him [which the Ministry of Justice sent to the Bar Associationi] states that he was engaged in political – not legal – activity. […]
Translated by Marian Schwartz and Judith Fagelson