The largest mass arrest of lawyers in Russia’s modern history took place on October 13 when three lawyers defending the jailed opposition politician Alexey Navalny — Vadim Kobzev, Igor Sergunin and Alexey Liptser — were taken into custody and now face politically motivated charges.
Meanwhile, in annexed Crimea, the lawyer Alexey Ladin, who has acted for the defence in multiple cases of persecution by the occupying Russian authorities, was also arrested, no doubt foreshadowing his own prosecution.
A criminal prosecution should ideally be a public dispute between prosecutors and the defence overseen by a judge, an independent arbitrator between the parties. Both the prosecutor and defence lawyer in such disputes act as assistants to the judge, providing them with potential outcomes based on their analysis of the facts and the law.
Alexey Liptser. Photo: Yevgeny Razumny / Kommersant / Sipa USA / Vida Press
It is vitally important to understand that, under such a system, true justice can only be achieved if the parties have a case to argue and someone gives an independent assessment of both positions. That is only possible if there are two competing parties — the prosecution and the defence — operating in accordance with the rules prescribed by law.
This makes the judge, the prosecutor and the defence lawyer integral parts of justice. Remove just one of those elements and you don’t get an argument and, therefore, no real justice. All participants in the process are so important that it is impossible to administer justice without them.
It makes sense, therefore, that their independence is safeguarded so they can carry out their duties in an environment free from threats, hindrance, intimidation or undue interference.
That’s why, in a democracy, when a lawyer is prosecuted for a crime, all procedures are followed to the letter, especially if the lawyer is accused of abusing his professional position. An external observer needs to see flawless proceedings that meet the highest international standards, as, depending on who is in the dock, a trial can cast a shadow over judges, defence lawyers or prosecutors, or the judiciary in general.
Vadim Kobzev. Photo: Yevgeny Razumny / Kommersant / Sipa USA / Vida Press
I understand that any Russian reader, especially those with connections to the justice system, won’t fully accept what I say because justice in the country has now long been justice in name only. In democratic countries, the arrest of an investigator, prosecutor or defence lawyer would be a national talking point leading to resignations high-up. A judge going on trail would be huge news. In Russia, it is routine and surprises no-one.
But this scenario is not the norm. It is a terrible, monstrous anomaly, and the main obstacle to the development of a civil society. It is, of course, a man-made obstacle, lovingly constructed by the current regime to control and suppress society as a whole.
Dialogue is fundamental to democracy. Say the word “state” in a democracy and you think of different institutions competing with each other in a pluralist environment.
Autocracy, by contrast, is based on absolute authority, and the purpose of the state is the ruler’s will, whether collective, as with the politburo in the later years of the USSR, or of one man, as with Hitler in Nazi Germany. It is logical that autocracies will soon have any institution that could act as a check on its total domination of society in its sights.
Igor Sergunin. Photo: Yevgeny Razumny / Kommersant / Sipa USA / Vida Press
An autocracy is no place for discussion and even less so for argument, especially in state institutions such as the courts. So there can be no justice in an autocracy. The first thing an autocrat does is bring the judiciary to heel to ensure it always finds in favour of the state. Once the judiciary and legislature are dealt with, the autocrat sets about suppressing independent opinion on any issue, including the law.
It’s textbook autocracy. First, we kill state institutions that place a check on power, then we imprison opposition politicians, then activists, then journalists, then human rights lawyers. If Navalny or any of his fellow political prisoners write letters from prison, that freedom of expression clearly needs to be shut down. If you criticise the war in Ukraine and civilian atrocities — again, free opinion. Shut it down. Speaking out against crackdowns in Crimea? Once again, that conflicts with the party line and must be shut down.
Human rights lawyers are always served up to autocrats last of all. The arrest of our colleagues means it is time for dessert as all the previous courses have long been cooked and eaten. Yet this is just the beginning. There is much more to come.
Four professional human rights lawyers are now behind bars. Any professional lawyer can see that all four are innocent. They were all arrested at the same time to make a point. All four worked on political cases, which is why they are now being pursued themselves. Three have been detained, which is grossly disproportionate. The fourth faces a long period of probation.
To the trained eye, this suggests the fate of at least three of them is already determined, as the authorities have made a political decision. All the “court” and “investigation” need do is disguise that political decision with a convoluted charge sheet and sentence.
Alexey Navalny. Photo: Ivan Vodopyanov / Kommersant / Sipa USA / Vida Press
Human rights lawyers with years of political experience understand this, as does every member of the Russian Federal Bar Association (RFBA) and regional bars around the country. That includes its president, Svetlana Volodina, and Henry Reznik, Chairman of the Commission for the Protection of the Rights of Lawyers, who issued an official statement on behalf of the association regarding the calls made by some lawyers for strikes in protest at the arrests. In it, they argue that “the success of legal defence is ensured by professionalism and accountability, not demagogic bluster”.
They are wonderful professionals, especially Reznik. For this very reason, they understand that professionalism isn’t worth a penny if it can’t be put into practice. You can’t work with your eyes closed and your hands tied behind your back. They understand only too well that there isn’t a lawyer in the world who could reverse or change the political decision against Kobzev, Sergunin and Liptser by conventional means. In other words, our RFBA colleagues are making empty gestures themselves in order to maintain the status quo, preferring not to rock the boat and demonstrating their loyalty to the authorities instead. Their statement is a tacit signal to the Kremlin that they will allow the authorities to continue treating their colleagues the way they already have done for several years, albeit on a smaller scale.
Human rights activist Alla Gutnikova with Dmitry Zakhvatov. Photo: Facebook
It pains me to say it, but has to be said. The RFBA likes to stress the independence of the legal profession. It demonstrates all its “independence” in that statement, at least to those who can read between the lines. Once the authorities start to use the law against their political opponents, they tend to pursue ordinary criminal cases.
In going after Kobzev, Sergunin and Liptser for Navalny’s letters and Ladin for defending activists in Crimea, the authorities are prosecuting the legal profession as a whole.
If we don’t push back now, then other lawyers will soon find themselves in the dock on similar charges. The only way to remedy the situation and prevent similar prosecutions in future is to declare a general strike.
A strike would see all lawyers temporarily refusing to participate in criminal cases. A strike would stop courts and investigative bodies holding hearings and carrying out criminal investigation procedures. A strike would be a severe blow to the judiciary and investigative bodies and would force the authorities to negotiate with the legal profession. All we ask is for the law to be observed and our colleagues to be released as their detention is illegal.
In the absence of an independent judiciary, the lawyer’s role in criminal justice is now greatly diminished, but not irrevocably so. However, we must band together, express solidarity with our colleagues, and support the decision to strike, otherwise we will soon find ourselves little more than courtroom furniture.
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