Leonid Nikitinsky: Fruit of the ‘poisoned tree’. On the trials of Navalny’s lawyers

14 October 2023 

by Leonid Nikitinsky

Source: Novaya gazeta

From the point of view of ‘legal positivism’, the prospects for Navalny’s arrested lawyers, alas, do not look very good at all

Alas, with all due respect to the First Department, which positions itself as an open community of lawyers and human rights defenders, the thesis that ‘lawyers do not participate in the activities of their clients, whatever they may be’ in the specific case of Navalny needs clarification. Judging by the information made public by Navalny’s supporters abroad, the basis of the charges that will be brought against his lawyers will be the transmission through them ‘to the outside world’ of certain messages that may not fit into the formal framework of the defence in specific cases.

The logic of the investigation is as simple as a spade. Navalny created an ‘extremist organisation’ – this is documented by the Moscow City Court’s verdict of 4 August under Article 282.2 of the Russian Criminal Code, which came into legal force after the appeal was rejected on 26 September. This verdict (let’s leave aside its validity and political motivation) creates the so-called presumption – there is no need to further prove the fact of the creation of the ‘organisation’.

Recently, Russian judges have so often had to cross the line of formal ‘legalism’ that here they simply breathe a sigh of relief.

An ‘extremist organisation’, as such, spreads ‘appeals to extremism’, including on behalf of Navalny, who is in strict isolation. How do these ‘appeals’ get through the locks and bars?

The investigation, which has been underway for several months and is evidently based on operational data from the places of Navalny’s detention, will prove that during meetings with his lawyers, Navalny conveyed to them some form of theses, which Navalny’s supporters who are at large then put into the form of ‘appeals’ and disseminated them. The only caveat is that the ‘participation in the activities of the organisation’ of the lawyers taken into custody will have to be proved not on the principle of ‘there are no other options’, but substantively: when, what, how, and in what form Navalny (for the time being, supposedly) passed to them.

Theoretically, this leaves some chance for at least one of the three to go free.

Vadim Kobzev, Igor Sergunin, and Aleksei Liptser will be charged in person, and possibly some of Navalny’s other lawyers who are not in Russia will be charged in absentia, making it impossible for them to return to work on his defence.

From a political point of view, cutting off Navalny’s channels of communication with the outside world can also be linked to the upcoming presidential election, but before his ‘extremist’ verdict came into force (26 September), such a combination with regard to his lawyers had not been legally possible. So this precedent in itself does not create risks for those lawyers who are acting for defendants charged under other articles of the Russian Criminal Code. The clue here lies in the ‘extremist organisation’. There is no separate offence in the Russian Criminal Code of sending greetings to the world ‘at large’ from those in remanded in custody, and until now such a practice has only been punished by suspension of a lawyer for the defence.

In American jurisprudence, this is called the ‘fruit of the poisoned tree’. When Navalny’s ‘extremist’ case – sooner or later – will be reviewed and the verdict quashed, the ‘fruits’ will share in this outcome – and their verdicts will also be quashed.

Until then, however, it will be possible to ‘saw out’ of the poisoned tree a whole group of similar cases against Navalny’s ‘accomplices’. For your information: the sentence for ‘participation in the activities of an extremist organisation’ under Article 282.2, Part 2, of the Russian Criminal Code is from two to six years.

Translated by Rights in Russia

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