28 October 2020
The Moscow Helsinki Group has prepared a draft amendment to the legislation on freedom of assembly. This includes discussion on the pressing issue of lawyers being prevented from entering police stations. The authors propose that a guarantee of access for the defence counsel at the spoken request of the detainee be established in the Code of Administrative Offences. In addition, the human rights defenders believe that all evidence obtained without the participation of a defence lawyer needs to be automatically recognised as inadmissible.
The MHG document consists of 50 points, the majority of which pertain to the problem of the detention of participants of single-person pickets. The human rights defenders point out that legislation in this area is ambiguous, excessive, and often interpreted unfavourably for citizens. Remember that a single-person protest does not formally require notification of the authorities. However, it is becoming increasingly difficult to express one’s civic position in this manner. Protesters are being detained and fined under a variety of pretexts. For example, a picket can be regarded as a violation of the coronavirus quarantine. Another popular framing is to view the pickets as “covert forms of collective large-scale events”.
In an attempt to solve these problems for picketers, the authors of the amendments raised the issue of lawyers and defenders being barred from seeing their detained client. MHG refers to the infamous “Fortress” plan thus: it should be declared when there is a terrorist threat to the buildings of power structures. However, in practice, it is being used to prevent lawyers from seeing detainees. “As a result, hundreds of people are unable to exercise their statutory right to access legal aid,” the authors of the amendments said in their explanations, “and professional defenders, lawyers, are deprived of their right to see their client and carry out their professional responsibilities.
MHG experts propose Article 25.5 of the Code of Administrative Offenses be supplemented with the provision that “the defence lawyer and representative have the right to unimpeded access” to both the detainee and the victim. Human rights defenders also believe it necessary to prescribe a separate warning in the code that non-admission “is a gross violation of a person’s right to access legal assistance from a defence counsel”.
Furthermore, they propose to introduce a rule regarding the admission of a representative “at the oral request of a person […] without certification authorised by a warrant or power of attorney.
Finally, the human rights defenders demand that the Code of Administrative Offences be supplemented with a clause stating that all evidence obtained in violation of the human right to legal assistance should be inadmissible in court. “You can file as many petitions as you like regarding the violation of the right to a fair trial; that a person’s right to defence was not taken into account from the moment of their arrest and the drawing up of fundamental procedural documents. But that isn’t enough,” says MHG lawyer Roman Kiselev. Today, the non-admission of a defence attorney in an administrative offence case will in most cases in no way affect the outcome of the trial in court, he adds.
Kiselev explained that the amendments linked to the admittance of defence attorneys needs to be introduced specifically in the Code of the Russian Federation Administrative Offences, as rank and file officers usually refer to this codex: “If you’re talking to an average police officer who’s arresting you, he’s unable to tell you what exact federal laws you’re breaking. They often don’t know them at all…” according to the rights defender. In this sense the Code of Administrative Offences is a closed document to them, although we have many examples where this Code has been impudently broken.
The chair of the Commission for the Defence of Lawyers’ Rights of the Moscow Bar Association, Robert Zinoviev, believes that the proposition put forward by the rights defenders is “completely logical and founded on experience.” A colleague of the commission, Evgeny Bobkov, agrees that “While the issue of the defender’s participation may be included in the Criminal Procedure Code, it isn’t in the Code of Administrative Offences. Therefore, the Moscow Helsinki Group’s initiative is useful; and if it has a place, then why not? Today in the Ombudsman’s office in Moscow and across Russia, active conversations are going on about protests and single pickets. So, I think that we should pay attention to this.
It’s interesting that the lawyer Maria Eismont, who has been suing the management of the Ministry of Internal Affairs’ Airport department due to their “Fortress” plan for a year, didn’t see any “particular point” to the amendments: “The right to a defence attorney from the beginning of a case is already there. Any protocol can be used to initiate a case. If a protocol is specified, then the case has been opened, and a defence attorney should be allowed in.”
“No words put between other words are going to solve the problem. The problem will be solved by changing the people in the system and their approach to the issue of the defence of citizens’ rights. You write three words on the left and they add two on the right in the interpretation.” added Eismont. It is worth remembering that the Second Cassation Court recently decided in favour of the lawyer Maria Eismont in the case with the Airport department of the Ministry of Internal Affairs and returned the case to the Presnensky court for review.
The co-chairman of the Moscow Helsinki Group, Dimitry Makarov, admits that he doesn’t yet know how to get these amendments introduced into the State Duma. According to him, after the 2019 Moscow protests, in the Moscow City Duma there was “an attempt to look at the laws surrounding the freedom to assemble more systematically and to try to formulate their own suggestions, from the regional parliament to the State Duma.” But this theme gradually quietened. Today, rights defenders hope most of all for help from the Moscow and Federal human rights ombudsmen. Their participation, according to Makarov, will help at least to more equally discuss amendments on multiple levels: “Important work was done on consensus-building among all positions which in some way or another are connected to the theme of the freedom of assembly. If there will be some signs of political will to at least begin this discussion, then we will have a lot to say.”