19 March 2021
by Genri Reznik, lawyer, vice president of the Russian Federation’s Federal Chamber of Lawyers, member of the Moscow Helsinki Group, member of the Presidential Council for Human Rights
On ideological convictions and professional duty
In recent years, public life in the country has become noticeably politicized. People react more severely to crises in the economy, corruption, doubtful or even simply fabricated “terrorist” and “extremist” cases, and the persecution of non-systemic opposition. Politics has even begun to affect our professional community as well, attacks against the age-old maxim “advocacy is outside politics” have been launched.
Initially, the call for lawyers to go into politics came from “pale neophytes with a burning gaze.” They undertook to teach their colleagues that lawyers needed to defend not so much the interests of their clients but ideas and principles, and I just smiled. But the slogan, “a lawyer is fundamentally political” when proclaimed and supported by lawyers with solid professional experience and accompanied by reproaches to fellow professions for conformism, fear and rejection of any protest corporate activity, should concern us. This is about the very essence of the legal profession, its purpose.
Encouraging lawyers to have ideological convictions is equivalent to breaking down an open door. Each of us, of course, has our own views on politics, economics, the state and social structure, and the history of the country. That said, these views are not necessarily democratic and liberal, as evidenced by those lawyers who shouted at their colleagues to “not remain on the sidelines in light of the latest political trends”. The spread of ideological positions among members of our community has developed on a large scale in relation to the opposition activities of Aleksei Navalny and his criminal prosecution. Such views were found among the communists, imperialists, and national-patriots; even among monarchists and neo-Stalinists. And what, would you order our Federal Chamber to respond to one law firm’s proposal and give a corporate assessment of the criminal prosecution of an opposition politician amid all the noise?
But I have serious doubts about the argument that the political views and preferences of a lawyer should influence his or her choice of cases and how they conduct the defence of an already accepted commission. We know that the most successful revolutionaries in tsarist Russia were defended by liberal lawyers who did not at all share the socialist ideas of the defendants. “The King of the Russian Bar,” Vladimir Spasovich, who led the defence in all the major political trials of the 1860s and 1870s, left unsurpassed examples of court speeches in the Nechaev case, the “case of the 193,” and the case of Petr Shchapov. By all accounts, members of the so-called young advocates, who acted as the defence in political cases during the revolutionary turmoil of the early 1900s, were as a rule less professionaly skilled than their predecessors – the “first conscripts,” often replacing legal analysis with opposition rhetoric. It is no coincidence that, in the political trials of the Brezhnev period beginning in the mid-1960s, Soviet lawyers reverted to the methodology developed by Spasovich and his colleagues. A rollcall of the times, separated by a century, took place.
“Giving free range to one’s thoughts,” Spasovich declared at the “trial of the 193,” “has been punished nowhere and never since Roman times. It is also not punishable as a political crime in our country.”
“I have the right to argue that our law does not recognise criminal responsibility for beliefs, for thoughts, or for ideas… If the prosecutor characterises motives, personal opinions and beliefs as political immaturity and instability, then there is no criminal liability for political immaturity and instability,” – this is from a speech by the eminent Soviet lawyer Sofia Kallistratova at the trial of the participants in the protest demonstration on Red Square against the invasion of Czechoslovakia by Warsaw Pact troops on 21 August 1968.
It remained a secret – as she revealed in her memoirs – that the lawyer Dina Kaminskaya, who pursued just such a line in defence of dissidents, shared their views. This was not only because open support for a client’s views of the political system in the Soviet Union would have been suicidal for a lawyer, but also because it would have meant her immediate expulsion from the bar and the likelihood that she too would have been put on trial. It was simply unnecessary and could have done nothing but harm. In fact, Dina Isaakovna did fully agree with the ideological positions of all her clients, as she explained in her memoir, Lawyer’s Notes (Vermont: Chronicle Press, 1984, p. 189). And this by no means prevented her from defending the right of the defendants to freedom of thought and speech, which was written into all of the Soviet constitutions but which werr interpreted by the totalitarian authorities merely as freedom “for,” rather than freedom “against.”
In the defence speeches of lawyers at the political trials of the early twentieth century, when it became quite clear that the tsarist regime had outlived its usefulness, solidarity with the democratic ideas of the clients of course became quite natural. We should not however forget that the success of the defence – acquittals, softening of punishment, review of convictions (and such reviews did indeed take place since, thanks to the Judicial Reform of 1864 carried out by Alexander II, the courts of tsarist Russia gained independence from the executive branch) – occurred not so much as a result of harsh criticism of social conditions, but thanks to a legal rebuttal of the accusations made by the luminaries of the classical school who participated in the collective defence – Alexander Turchaninov, Wilhelm Lyustig and Nikolai Karabchevsky.