No Place For Independent Lawyers In Putin’s Russia

Legal scholar Maxim Krupskiy writes about how the recent arrest of Alexei Navalny’s lawyers, together with new legislative initiatives aimed at attorneys-at-law, marks the final days of the independence of the Bar in Russia.

By Maxim Krupskiy, Visiting Scholar of the Russia and Eurasia Program at The Fletcher School

On October 13, the Basmanny District Court of Moscow arrested three lawyers defending opposition politician Alexei Navalny: Igor Sergunin, Alexei Liptser and Vadim Kobzev. They are accused of “participatingin an extremist organization” (Part 2 of Article 282.1 of the Criminal Code of the Russian Federation). Each faces up to six years in prison. The “extremist organization” in question is the Navalny-founded Anti-Corruption Foundation (FBK), which in 2021 was declared as such and liquidated by the Moscow City Court.

Lawyers under pressure

According to information posted in the Telegram channel of Navalny associate Ivan Zhdanov, the prosecution is claiming that the arrested lawyers allegedly “using their status as providers of legal assistance to gain access to the correctional facility, ensured the regular transfer of information between the leaders, participants of the extremist organization and Navalny A.A.” Navalny, according to the investigative authorities’ version, “thereby continued to exercise the functions of the leader and head of the extremist organization.”

It is obvious that having sentenced Alexei Navalny to 19 years in a “special-regime colony” (with the strictest conditions of detention) in August 2023, the Russian authorities continue to see him and his associates, who carry on their activities outside Russia, as a serious threat.

In this regard, the criminal prosecution of Navalny’s lawyers aims to completely isolate the opposition politician from the outside world and prevent him from continuing to put up an active defense through new legal representatives. The concept of extremist activity in Russian law is so vaguely defined that any lawyer who refuses to be loyal to the investigative authorities and carries out his work honestly and principledly risks going to jail, like Sergunin, Liptser and Kobzev.

Lawyers defending victims of politically motivated persecution have been under pressure from the Russian authorities for the past few years, and several of them have even been forced to leave the country. Nevertheless, “The arrest of Alexei Navalny’s defense lawyers was perhaps the first case in which professional legal assistance was characterized by the state as complicity in the crime imputed to their client.”

This precedent is not just another shot at political opponents, but also a public demonstration by the Russian authorities of their monopoly on determining the limits of legal assistance, as well as a clear signal to the entire legal community that it may be independent only to the extent that this “independence” is tolerated by the state.

A group of Russian lawyers called on their colleagues to strike. In their address, they said that law enforcement and the courts have routinely used “complex methods of persecuting lawyers for their professional activities on trumped-up administrative and criminal charges.” However, the Federal Chamber of Advocates of the Russian Federation (FPA), the highest self-regulatory body of Russian lawyers, did not support their appeal.

In fact, the FPA, Ministry of Justice and government is focused instead on further encroaching on lawyers’ rights. A bill envisaging sweeping changes to the Law on Legal Profession and the Bar already passed a first reading in April 2023.

Erosion of independence

On October 10, the official newspaper of the FPA reported that the Government Legislative Commission had prepared amendments to the bill. Both the bill itself and the amendments put forward very dangerous norms that, if adopted, will legislatively make Russian lawyers dependent on the FPA and state bodies.

For example, the bill provides for the development of a so-called Comprehensive Information System of the Russian Bar (CIS AR) – an electronic database officially designed to automate the exchange of information related to the Russian Bar and store the personal data of lawyers, as well as information about their advocacy and clients. The list of what information must be provided will be determined solely by the FPA, and a lawyer will not have the right to refuse to do so.

In addition, law enforcement officials, including from the Ministry of Internal Affairs, Ministry of Defense and FSB, will have access to the database – it is still hard to say how much – which will contain a huge amount of information constituting attorney-client privilege.

However, the very obligation to share information constituting attorney-client privilege with third parties puts the lawyer in a vulnerable and dependent position, not to mention the risk of leaks of confidential information and its getting into the hands of law enforcement agencies, which could use it to pressure the lawyer and/or his client.

Another important amendment put forward by the Ministry of Justice and supported by the FPA is depriving status to lawyers who, without “valid reasons” (training, medical treatment, etc.), left Russia for permanent residence elsewhere or for a period of more than one year, “including to unfriendly states,” and “continue their activities, including those aimed at undermining confidence in the institution of the legal profession.”

It does not take a genius to realize that this is aimed mainly at human rights lawyers who, facing political persecution in Russia, left the country but continue to provide their clients with professional legal assistance. Thus, the Russian authorities, with the support of the FPA, are in effect banning from the profession lawyers who have left Russia and feel safe enough to defend “politically dangerous” clients, while at the same time making lawyers who remain in Russia think twice before taking up “political” cases, lest they fall foul of the government.

Today is no “golden age of the Russian Bar,” as former FPA President Yuri Pilipenko called it. In fact, we are witnessing the erosion of independent advocacy in Russia, marked by active and principled defense lawyers being squeezed out of the country and the profession, labeled “foreign agents” and now prosecuted in fabricated criminal cases.

(This post is republished from Russia Post.)

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