29 November 2022
by Leonid Nikitinsky, journalist, PhD in law, and Moscow Helsinki Group prize winner
Ahead of the 1 December entry into force of the law ‘On the oversight of the activity of persons under foreign influence’ (No. FZ-255 dated 14 July 2022), a group of lawyers representing the interests of ‘foreign agents’ and activists discussed whether advocacy has a future in light of these developments.
To date, four lawyers have been included in various ‘agent’ lists, which since 1 December have been consolidated into a single register: Ivan Pavlov and Valeria Vetoshkina from St Petersburg, as ‘the media’; and Ilya Novikov and Mikhail Benyash, both in a personal capacity. A whole raft of human rights organisations providing similar assistance has also been recognised as ‘agents’ and banned or prevented from carrying out their legal activity. However, a Zoom call with lawyers last Saturday, 26 November, dealt only with the situation of those designated foreign agents in a personal capacity or as ‘the media’.
In March, the St Petersburg Chamber of Advocates suspended Pavlov as a practising lawyer, in reality, for his determination to defend Ivan Safronov and other individuals being prosecuted in connection with allegedly divulging state secrets. He fled the country under threat of criminal proceedings but continues to offer expert advice to his colleagues. Vetoshkina is also overseas, and she worked with Ivan at Team 29 right up until it was disbanded in 2021 after its website was blocked. Following the start of the Special Military Operation, llya Novikov, who starred on the TV game show What? Where? When?, left for Kyiv, from where he offers sharp political commentary. Meanwhile, his status as a lawyer with the Moscow Chamber is pending consideration.
One way or another, these three have been prevented from working in the Russian courts, which is evidently what the authorities were seeking to achieve. It means that the only active lawyer remaining among those ‘foreign agents’ is Benyash. He is best known for the criminal case brought against him in 2018 for ‘assaulting policemen’ during his arrest. After a month in custody, in 2019, he was found guilty and fined. In 2021, a regional court overturned the conviction, and the case is now being batted off by various judges in Krasnodar.
In the Zoom meeting, Benyash said that since he was ‘foreign agented’ he feels “more like a lab rat than an expert, but with little to show for it in the way of test results”. Judges and prosecutors are starting to ask, in a friendly sort of way, how come he is not going abroad as well, but this Benyash cannot do until he has honoured his commitments to his various clients. He has to suffer the various hardships of ‘foreign agency’, like establishing a legal entity and filling out reams of financial statements (violating lawyer-client confidentiality in the process). However, he has yet to start adding the ‘agent’ marking to his outgoing documents and he does not know if this will lead to any new claims being brought.
One of the cases Benyash is working on relates to secrecy and, by law, an ‘agent’ cannot be cleared for state secrets. So, he may be left to work the case or he may have to leave it, and that really would be a ‘test result’.
There are actually few human rights lawyers around – especially in the regions – as cases like that are not exactly money-spinners, and they can bring a good deal of trouble. While there is little chance of success in an official sense, the work of these lawyers is still worthwhile as a way of documenting violations by the prosecution and the court so that such cases can be reviewed in the “beautiful Russia of the future” [as political opposition leader Aleksei Navalny has dubbed it], and for historians in general, when they come to describe our troubled times. Defence lawyers appointed to work on political cases do not provide any actual assistance.
It is easy enough for Rosfinmonitoring to find foreign sources of funding for advocacy, or for other income streams a lawyer might have – even two or three steps removed. In practice, it follows from examples given by lawyers in our meetings, Rosfinmonitoring’s files are ‘inspected’ by judges ex parte and kept hidden in confidential envelopes such that those implicated in ‘foreign agency’ have no access to them, contrary to the principles of openness and immediacy of trial proceedings.
From 1 December, there may be no need to bother with all this, since you could be ‘under foreign influence’ for anything at all.
By excluding human rights lawyers from participation in certain cases and then pushing them out of the country, including through the application of ‘foreign agency’, the political authorities, represented here by the Ministry of Justice, are effectively depriving other ‘agents’ and activists of the right of defence. An active part, if not the majority, of the advocacy community, is greatly concerned by this. However, there are few means of resistance, and a knowledge of the law is no help here, for such is the ‘law’.
Translated by Lindsay Munford