Leonid Nikitinsky: The Lawyer’s Claw

13 April 2024

The recently adopted amendments to the law on the bar are the predictable and depressing outcome of a lengthy process of the degradation of the whole judicial system

By Leonid Nikitinsky

Source: Novaya gazeta

If its claw gets stuck, the whole bird is lost – a Russian proverb

On 10 April, the Duma finally, at the third reading, adopted amendments to the law ‘On Legal Practice and the Russian Bar Associations,’ dating from 31.05.2002 No. 63-FЗ. These are far from the first changes to it. The process of shrinking the magic skin of lawyers’ rights and guarantees has developed over the past twenty years or so and redounds, of course, upon their defendants and clients. 

The amendments that have been adopted were approved at the first reading as long ago as 12 April last year, examined at a speed in no way typical of the current Duma, which is quick only to crackdown. The Ministry of Justice which proposed the law was confronted by a very highly qualified lobby. The lawyers in the Duma, and especially in other bodies whose approval is required for any law to be passed, had to prove to their colleagues that they are doing something to earn their bread and butter. 

The Ministry of Justice even pretended that the amendments offer lawyers some sort of perks. It’s true that these appear comical: for example, the right to enter judicial settings and agencies of the Prosecutor’s Office using a certificate to practise law. But it’s possible to enter a court just with a passport while it will be more difficult to go to the police even with a warrant: police premises do not figure in the amendments, not to mention institutions of the Federal Penitentiary Service.

It was possible to repel some of the most objectionable proposals and addenda to the law as a result of discussions, largely in the corridors. Thus, one amendment which did not become law proposed granting a court the right to disbar a lawyer over the head of the relevant regional bar. So that the grandiloquent Duma lawyers, whom everyone knows, can report back: “It could have been even worse…”

The law as such is not the point, however. The point is how practices will come about and what kind. After all, it is not practices that stem from the law and comply with it here. Rather, the Duma is attempting to keep pace with those practices established without prior authorisation by what are called the law-enforcement agencies. The most important and most comprehensive of this is the prosecutorial bias. On the basis of this bias, practices go further. At their core is the loss or limitation of the right to a defence and, subsequently, the citizen’s defencelessness before the “agencies” seen in specific procedures and the innovations that have been adopted allow some of these to be clearly seen.

The lawyers we questioned see the greatest danger in the Unified State Data Resource on Lawyers, which the amendments envisage. The register will be kept by the Ministry of Justice which will also determine the list of information to which there will be open access. The status allowing a lawyer to act for the defence in criminal proceedings will now operate not from the moment a lawyer becomes a member of a bar association after passing an exam, but only from the moment the lawyer is included in the Ministry of Justice’s register. Lawyers will be granted this licence for a period of 15 years (thank goodness, it wasn’t five!).

The need for the Unified State Data Resource on Lawyers is explained in terms of concern for the interests of those who need qualified legal assistance while understanding little of the matter. However, the information will also be accessible to a laywer’s opponents in court and, above all, to the Ministry of Justice itself and to security officials. From here there will follow practices that give the advantage to whoever controls the monopoly on lawyers’ services.

In theory, it is already impossible to bypass this monopoly. A lawyer is endowed with a series of prerogatives which can only be delegated by the state, for example, the right to a lawyer’s request, which state officials are in duty bound to answer. But that’s theory and practice is another matter: the request may be answered in such a way and at such a time that it will be useless.

Under the revamped law, going abroad for more than a year will become a reason for losing lawyer status. At the same time, bar associations will not be allowed to decline to consider the relevant appeals from the justice agencies. 

This would threaten loss of lawyer status for Karinna Moskalenko, for example, who, 30 years ago – and up until the time the Russian Federation left the Council of Europe – succeeded in creating a mechanism whereby the ECtHR could monitor the verdicts handed down by Russian judges. “Foreign agent” Ivan Pavlov would lose his status, having been forced out of the country after the cases brought against him for publishing information from the preliminary investigation into Ivan Safronov. To date, the St Petersburg Justice Department has only managed to have his status suspended. This is not to mention “foreign agent” Ilya Novikov who has not only had his lawyer status revoked but is also wanted on charges of state treason.

There is no shortage of “runaways” already although, off the record, those same lobbyists retort  “And so what?” to their colleagues. No one will deny Moskalenko the floor in Strasbourg or the UN but, on the contrary, will pay her even greater heed. Nor can others who have left be prohibited from holding client and colleague consultations remotely – it’s not the formal status but expertise that matters here. 

However, removing these and other brave warriors such as Andrei Ragulin (who wrote an entire epic about the decline of the Russian legal profession) from the list of those entitled to practise in Russia will still further weaken the faction within the legal community that still views the justice system as a battleground in the struggle for human rights and freedoms, that is to say, the rights of your and our future clients. They will still be able to work in the courts behind the scenes, but not to vote in meetings of the profession.

These days, the “self-governing” legal profession comprises a motley collection of lawyers with very different motivations. The fact they are called the same thing can confuse the uninitiated. Indeed, you can discern three main subtypes of legal practitioner.

A significant part – in the regions, perhaps the majority – of the legal community tend to consistently side with the same “law enforcement agencies.” These are former public prosecutors and investigators who have retired (not always entirely voluntarily). Some of those lawyers do, of course, work for the client first and foremost, but the majority make their living from cases “to order” and prefer to avoid picking fights with former colleagues. In the best-case scenario, a lawyer like that will at least meet with the client in prison, and this is very important, but it is not what influences the outcome of the case.

There are lawyers who advise large and medium-sized businesses and work mainly in arbitration courts, but this is a separate issue. The adopted amendments, meanwhile, although they may indirectly address those lawyers, are not aimed at them directly.

Then you have a group made up of human rights workhorses, but these are a vanishing breed. Clients who have ended up as victims of repression are not typically well off, there is no state support in Russia, and it is risky to rely on foreign support. While “foreign agents” are apparently not yet prohibited de jure from practising as lawyers, this can lead to numerous difficulties and may even negatively impact the outcome for the defendants.

There is one final category that crosses over with the three already mentioned: functionaries from the legal profession – figureheads, if you will – those who create the flamboyant image of a lawyer for the public and go about “fixing problems” in the kinds of circles in which they can only be fixed.

Federal Law No. 63-FZ, dated 31 May 2002, was a good law that incorporated ideas born during the brief heyday of adversarial trials in the 1990s. The drafters and lobbyists of this law were those who headed the Federal Bar Association (FPA) and main regional bar associations, which made sense. But then things began to change, prosecutorial bias gathered momentum, adversarial practice started to disappear from the courts, and the pressure on lawyers grew…

And in the kinds of circles where “problems are fixed”, if you drive a Volkswagen, and not the latest Mercedes (ideally a Maybach), then you are a nobody.

This sort rarely offers direct bribes – that would be uncouth. Instead, they invite friends to go skiing in the Alps or play golf, or they simply take them for lunch at La Marée restaurant, which costs a tidy sum.

They also take cash by way of contributions from the workhorses – this is about protecting common interests, after all. However, decision-making power has begun to gradually shift from open roundtables to closed committees within bar associations, in which functionaries have appointed one another to leadership positions. In the 20 years since the adoption of Federal Law No. 63, tensions between the human rights faction and the functionaries have greatly intensified. This results, amongst other things, in financial scandals. We will be steering clear of this contentious area, though our readers can learn about it themselves if they wish.

Unlike lawyers, the “law enforcement agencies” present a united front. Judges, public prosecutors, investigators, and police officers, even if they do not share the same values (whatever they might be), are in any case driven by the need to serve the same political objectives. Moreover, these days, the focus is not so much on conventional crime fighting, which gets less and less attention (the Crocus City Hall terrorist attack being the most striking example), as it is on maintaining the regime.

Throughout the last 20 years, functionaries from the legal profession have been trying to maintain the professional community through compromises. But a compromise with a stronger party, especially with a ‘securocrat’, always brings to mind the parable about the bird and its claw.

This can lead to only one outcome. But there is surely a similar trend in other parts of society, for example, in journalism and in the church. And in the membership of the State Duma it is surely the same? But it is the decline of the judicial system which affects the legal profession most notably.

What can a lawyer do, for example, to defend Liliya Chanysheva, who had a couple of years added to her sentence, out of pure vindictiveness, in the case of “the extremist group, the Navalny headquarters”? Nowadays, there is nothing they could do. But a professional defence leaves all sorts of traces in such cases, and these will be significant when, sooner or later, such cases are reviewed. No doubt, judges and securocrats will be thinking about the future, since they are increasingly trying to curtail the right of defence. We would do well to keep that in mind.

Translated by Melanie Moore and Lindsay Mundford