19 October 2023
by Ilya Shablinsky
This is something we truly haven’t witnessed since the early days of the Soviet Union. Three lawyers – who were defending a person who, perfectly legally, were opposing the authorities – were accused of the same thing as their client and remanded in custody. Effectively, in a similar way lawyers defending a person accused of murder could be charged with accessory to murder.
But why? Because they were an inconvenience. Apparently, someone in the presidential administration had noticed that Aleksei Navalny continued to speak out on various issues on the current agenda of the state. For example, the elections in September, the future presidential elections, the missed opportunities in the 1990s, and so on.
Therefore, a decision was made, in a sordid way – wholly in the spirit of the current regime.
In actual fact, Vadim Kobzev, Igor Sergunin, and Aleksei Liptser carried out their professional obligations with good faith and integrity. Their legal assistance is the only means by which a prisoner can communicate with his loved ones. Moreover, Navalny’s legal team knew perfectly well that their client is the object of real hatred and political retribution on the part of the head of the regime. A president that even avoids using the family name of his primary adversary, which is both a tactic and, apparently, out of a genuine fear. Nonetheless, over the past decades, Russian lawyers have become accustomed to the fact that basic procedural norms are respected. Prosecutors have their own work, while defence lawyers have theirs.
From a strictly legal point of view, the authorities’ intention is simple and clear. In 2021, Moscow City Court, having ruled in favour of a lawsuit filed by the Prosecutor’s Office, designated the Anti-Corruption Foundation (ACF) and Navalny’s regional headquarters as ‘extremist’ organisations. This was, in effect, Putin’s revenge for a series of exposés published by the ACF, including in particular one on Putin’s ‘palace’ in Gelendzhik, although Putin easily takes offence and he would have found a way to take offence regardless. Needless to say, there was nothing ‘extremist’ about the activities of Navalny’s organisation – even according to Russian law. It was not by chance, then, that the court hearings in this case were held in camera. The prosecution’s arguments were insignificant. But Moscow City Court issued its verdict.
Two months ago, on 4 August, this same Moscow City Court found Aleksei Navalny guilty of creating an ‘extremist organisation’ under Article 282.2 of the Russian Criminal Code. And now any investigators, who were tasked with developing the ‘lawyers’ case’, have nothing in particular to prove (such as the ‘extremist’ nature of certain actions). All they will have to do is point out what ‘Navalny said’ and that ‘they passed it on’. That’s all. And yes, it would be necessary to choose particular episodes, but that would be rather a matter of technique…
There is neither criminal nor administrative liability for a lawyer who forwards information from a prisoner to the outside world. But, here what are at issue are the ‘activities of an extremist organisation’!
Is the goal here, then, to cut the leader of the opposition off from any information from the outside world and from any possibility to pass information outside? Yes, of course. But there is clearly also a desire to intimidate lawyers once and for all.
This really is something we did not see even in the late Soviet regime. Dissidents in the 1970s were defended by a small group of lawyers. The authorities put pressure on them, but they did not use the harshest measures. In particular, Boris Zolotukhin was expelled from the bar association and Dina Kaminskaya was suspended from practising law. Later, under threat of criminal proceedings against her husband, she was forced to leave the USSR. In fact, criminal cases against lawyers – in connection with their representation of ‘objectionable’ defendants – were initiated very rarely. For example, against Sofia Kallistratova in 1981. But even that case did not end in imprisonment.
It is these lawyers who are the pride of the Russian bar today.
In general, what kind of practice is it, after a political opponent has been imprisoned, to jail their lawyer?! Where and when was that ever an accepted practice?
Of course, nowhere. The authoritarian regimes that existed in the second half of the twentieth century and those that exist now, got by without repressions aimed at lawyers. For example, Chile and Argentina in the 1970s practised summary executions, torture and the persecution of opposition journalists. But lawyers who defended members of the opposition, if the case went to trial, were not touched. The dictators mostly showed respect (more often purely for show) for judicial procedure. It was not customary to make lawyers the objects of political retribution.
This was indeed a generally accepted and unwritten rule. However, the Russian government and the Russian manner of doing things after 24 February 2022 has somehow very quickly descended into the darkest and most vicious forms of dictatorship.
Lawyers defending – in accordance with the law – the authorities’ political opponents were persecuted in Stalin’s USSR and in Hitler’s Germany. Also in present-day Belarus, but that merits a separate discussion.
In 1928 in Moscow there were the court hearings in the so-called Shakhty Trial, which was aimed against engineers and other specialists with a pre-revolutionary past. Of the 15 lawyers who defended the defendants, six were later shot. One, the most famous, Vladimir Malyantovich, died in 1947 in Vorkuta while serving a 15-year sentence. There is no doubt that these lawyers attracted the attention of the GPU precisely because they acted as defenders for the so-called Shakhty ‘saboteurs.’
In the 1930s, Soviet courts very often did without lawyers altogether, and after 1934, prosecutions on political charges were heard by ‘troikas.’ What kind of procedural guarantees could there be then…?
Under the Third Reich, back in 1933, the Ministry of Justice issued a memorandum addressed to lawyers. It stated that in the defence of certain political criminals ‘only those lawyers may be considered suitable, whose position proves beyond any doubt that they fully approve of the political plans of the state and the ideological goals of the movement.’ In accordance with this memorandum, the role of the defence counsel was changed. Their main responsibility thenceforth was to join with the state in eliminating those who posed a threat to public order.
The German defence lawyers understood this very clearly, although some details were elucidated only in practice. For example, the first two lawyers of Ernst Thälmann, the Communist leader, were almost immediately imprisoned. The next two were members of the NSDAP and fulfilled their roles, probably without calling down on themselves the Führer’s disapproval. But at the same time, in 1933, several lawyers were shot dead in the Dachau camp, apparently as ‘preventive measures.’
The position of the current Russian authorities is based not only on the fact that these are lawyers working for Aleksei Navalny who have conveyed his views on various matters to the Russian public. For example, Aleksei Liptser has not represented Navalny for a long time, not since the summer of 2022, and he has been working on other cases. But it seems that somewhere on Old Square a directive has been adopted laying down the need to increase pressure on lawyers, to demonstrate that their role is never anything but purely decorative. And to deal sternly with those who don’t take the hint.
Ivan Pavlov, for example, turned out to be a tough nut to crack. For several years, he acted for the defence in cases of state treason and espionage and he managed to take part in the Anti-Corruption Foundation case. In addition, he created an informal association of lawyers and journalists who tried to fight arbitrariness with legal means. A criminal case was opened against him, but he was given the opportunity to leave the country. Dmitry Talantov, president of the Udmurtia bar association and another of the defence lawyers acting for the journalist Ivan Safronov, on trial on charges of state treason, was not allowed to leave. Talantov was arrested in what had by then become another era – after 24 February 2022, when it was already possible to charge him with ‘discrediting the army’.
In 2018 Krasnodar lawyer Mikhail Benyash was jailed on two completely absurd charges. He was detained on his way to a client’s house, beaten in a police car, and immediately, with bruises on his face, taken to court to face criminal charges of ‘assaulting police officers.’ The officers explained the bruises by the fact that the lawyer hit himself in the car.
The brazen behaviour of the law enforcement officers, and the absurdity of the charges, led to strong support from among the lawyers of the region and the whole country. Ten of the most prominent local defence lawyers appeared in court to represent Benyash’s interests. In the upshot, the Investigative Committee was obliged to close the case.
But that was before 24 February 2022. Now it seems that law enforcement officers can do anything at all with impunity. The attack on Navalny’s lawyers is a demonstration of this.
In this situation, the appeal by a group of Russian lawyers calling on lawyers to refuse to participate in all types of legal proceedings from 25 – 28 October is a serious and courageous act. Yes, it is hard to imagine that thousands of lawyers, bound by various obligations and well aware of their vulnerability, will be able to heed this call. But those who have signed the appeal to date are fully deserving of respect. We know that despite pressure and threats, there have always been and will always be people in the Russian lawyers’ community who carry out their professional duties with firmness and fearlessness. Like these three who have now been remanded in custody.
Translated by Rights in Russia