16 November 2020
By Leonid Nikitinsky, Novaya Gazeta columnist, member of the Presidential Council for Human Rights and laureate of the Moscow Helsinki Group’s Human Rights Award
The manner in which lawyers in Belarus are persecuted deserves the attention of our Russian colleagues. This is “dictatorship of law”, led by Lukashenko.
The online project “Golos Advokata” (Advocate’s Voice), which brings together a subset of the Russian legal profession and is actively involved in human rights work, held a remote conference together with the Moscow Helsinki Group on the situation of our colleagues in Belarus. Lawyers from Ukraine, Kazakhstan and European countries were also in attendance.
With the mass arrests and criminal procedures in Belarus, where there are just over two thousand lawyers for a population of 9.5 million, there are simply not enough defence lawyers.
By no means are all of them prepared to take on cases with a political element, and those that do face frequent obstruction from the courts and law enforcement agencies.
Minsk City Court lawyer Dmitry Layevsky who is defending, among others, Viktor Babariko, who was arrested in June after an attempt to run for president, said that in the majority of cases defence lawyers cannot see those detained at protests prior to the trial. They are often not permitted to call their lawyers or their family, and even when the defence lawyer manages to find out where the detainee is, they are not allowed to visit them, supposedly because of the epidemic.
Detainees are not usually brought to the administrative courts, instead having to testify via Skype from isolation. In such cases lawyers are given the opportunity to talk to them from the courtroom for a few minutes, but any confidentiality is out of the question.
The court’s conclusions are often based on the testimonies of witnesses, employed by law enforcement agencies, with their faces hidden and their names changed. However, Belarusian legislation does not provide for changes in the personal data of witnesses in the administrative process. The courts refuse to examine the video recordings and they turn a blind eye to the discrepancies between the data from the administrative offence report and the information regarding the location of citizens.
Typically, detainees will apply for legal assistance once released, but then filing an application to initiate a criminal case in response to violence becomes the problem. For this you need to get into the district branch of the Investigative Committee, where they also may not be allowed. Citizens that were beaten and tortured by security officials in August, are receiving refusals to initiate criminal cases en masse.
The situation is no better with those held in pre-trial detention centres on criminal charges related to political activity. For a long time, lawyers were not allowed to enter the KGB detention centre, where Babariko is being held, under the pretext of the epidemic or “due to technical reasons.” You can enter there now but you have to queue early in the morning and there is no guarantee that you will be able to meet with your client. The confidentiality of communication in the KGB pre-trial detention centre raises great doubts as a video camera records conversations between lawyers and clients.
In the Ministry of Internal Affairs’ pre-trial detention centre, where Laevsky’s other client, his colleague, lawyer Maksim Znak, is being held, they are provided with the same worst sort of office for visits. The rooms are divided in two and people have to talk through the “feeder”.
Znak was detained on 9th September accused of calling for action that could harm the national security of the country. The authorities have not elaborated on how statements made by Znak could be interpreted in this way . According to the defence team, which studied all his public speeches and comments in the media, Znak did not go beyond expressing a professional opinion on legal issues and clarifying current legislation. The real reason for the prosecution was his work as a lawyer at the election headquarters of Babariko and Tikhanovskaya, which he carried out under a contract. Lawyer Ilya Salei was also remanded alongside Znak though he was later placed under house arrest.
Lawyer Aleksndr Pylchenko, who spoke after Laevsky, had his lawyer’s license revoked by the Ministry of Justice for commenting on the current legislation. He had shared his comments with journalists from the Internet portal Tut.by. Prior to that, he defended Viktor Babariko and an activist of his headquarters, Maria Kolesnikova. Pylchenko also spoke about the prosecution of Kolesnikova’s second defence lawyer Liudmila Kazak. Kazak was able to get through to Kolesnikova after the latter was kidnapped and authorities tried to take her to Ukraine against her will. Kazak spoke about this publicly and was abducted herself shortly thereafter. In the afternoon in the centre of Minsk, security officials who did not present their documents pushed her into an unmarked car, took her to a police station and then to a detention centre. Another lawyer, Yulia Levanchuk, also spoke publicly about the use of illegal methods against her client. However, she got off with just having her license revoked.
The third speaker, Valentin Stefanovich (one of the leaders of the Spring Human Rights Centre), talked about how the legal profession works in Belarus. Following the Soviet model, self-government there is a formality, but the Ministry of Justice has extensive authority over the legal profession: it issues, suspends and revokes licences to practice law; it establishes the ethical rules; it can initiate a disciplinary prosecution through the Qualifications Commission, which is mostly made up of judges and security officials; it can request that lawyers undergo additional performance evaluations; and it controls the leadership of republican and regional bar associations.
It is clear that it is not the lawyers themselves who are the target of repression, but it means that those being prosecuted under the Criminal and Administrative Codes for disagreeing with Lukashenko’s policies are deprived of procedural guarantees. It is difficult to say who is borrowing “best practices” from whom, but we are able to understand what actions Russian security officials could take to neutralise lawyers should the political situation worsen, and we should be prepared for that.
Our colleagues from Belarus came up with the term “legal default” to describe the situation. It was put into circulation by Maksim Znak before he was remanded in custody, but it probably sounds too mild. One of our European colleagues put it better when they said that the Rule of Law regime has become the Rule by Law regime, and, for Russians, this is recognisable as “the dictatorship of law”.
At the same time, and with the optimism characteristic of the Belarusian protests as a whole, our colleagues from Minsk noted that the repressions are gradually leading to a consolidation of the more active members of the legal community and a re-examination of the role of the legal profession in society: more than 50 Belarusian lawyers were willing to personally vouch in court for their colleague Znak to be released from pre-trial detention, and a recent petition demanding his release has already gathered 143 signatures, which would have been unthinkable just a few months ago. Officially active bar associations are also trying, at least in some cases, to save their reputations: so, although it did not actually save anyone from prosecution, the Minsk City Bar Association did not consent to Aleksandr Pylchenko’s licence being revoked.
In the discussion that followed the presentations, various points of view were expressed that are also familiar to our Russian colleagues. Attempts to defend independence and self-government could backfire: the authorities, having legislative instruments in their hands and the ability, in varying degrees, to put pressure on the leadership of law chambers, could weaken this already half-asleep institution even more.