The devil and the advocate: The rationale behind Kremlin's crackdown on attorneys and the new “rules of the game”

RU

Arrests and the risk of disbarment for leaving the country

On October 13, the Basmanny District Court in Moscow sent three defense attorneys of jailed opposition leader Alexei Navalny to pre-trial detention. Vadim Kobzev, Igor Sergunin, and Alexei Liptser were all charged with “participating in an extremist community,” which is how the Russian authorities had labeled Navalny’s Anti-Corruption Foundation. On the same day, a Crimean court in the annexed city of Simferopol sentenced attorney Alexei Ladin, who was arrested for “discrediting the army” and alleged dissemination of extremist symbols, to 14 days of arrest and a ~$500 fine. The Insider's source in the legal community sees it as a coincidence because no one would have bothered to report the detention of Navalny's attorneys to Crimean law enforcers, and arresting lawyers is business as usual on the peninsula.

Russian lawyers soon published a petition calling for a strike:

“In today's Russia, attorneys at law are forced to pursue their profession in an environment of fear for their and their families’ life and health, fear of arbitrary imprisonment, systematic impediments to legal practice and interventions into it that go unpunished, in an atmosphere of violence and torture, intimidation, and immediate threats to freedom, health, and life.”

The authors of the petition suggested that Russian attorneys suspend their participation in court proceedings for three days, from October 25 to October 28. They demanded an inquest into cases of pressure on defense attorneys, an end to their prosecution, and the liberation of their incarcerated colleagues. At the time of publication, the petition has gained over 250 signatures.

The Russian Federal Bar Association (FBA) countered with a statement by attorney Genri Reznik, pointing out that the bar is “a professional, not a political, association.” “At the moment, the FBA has no information about the essence of the charges against [Navalny's lawyers – The Insider] and the grounds for them; hence, we are unable to form a professional opinion on the case,” his statement reads.

Meanwhile, the Ministry of Justice has drawn up amendments to the Law on Advocacy and the Practice of Law providing for the disbarment of lawyers who leave the country. According to two practicing lawyers interviewed by The Insider, this initiative was inspired by the cases of attorneys Ilya Novikov and Ivan Pavlov, who posed a problem to the government because it took a while to disbar them after they left.

In June 2023, the Moscow Bar Association stripped Novikov of his license; in late November, the Ministry of Justice declared him a “foreign agent,” and subsequently, he was put on a wanted list. On October 9, media reported that Novikov had been charged with high treason in the form of defection. Ilya Novikov has been living in Kyiv since 2019 and calls himself a Ukrainian lawyer. As he previously stated, his Russian practice ceased to exist on February 24, 2022, and “all of his cases went up in smoke.” Meanwhile, Novikov has been vocal in his condemnation of the Russian aggression in Ukrainian media and has given politically charged comments in hundreds of YouTube broadcasts since the beginning of the full-scale invasion.

Attorney Ivan Pavlov left Russia in the fall of 2021 after being charged with disclosing classified information in the case of journalist Ivan Safronov, who is serving a long prison sentence for high treason. His organization, Team 29, has been labeled “undesirable” in Russia. On November 8, the Ministry of Justice placed Ivan Pavlov, Valeria Vetoshkina, and three more former Team 29 members on the “foreign agents” list.

According to a source in the FBA, the organization wasn’t quick enough in fulfilling the Ministry’s request for disbarring Pavlov and Novikov. The legal community was reluctant to give in to the pressure that could create a precedent applicable to any of their colleagues on other occasions. So the government came up with a way to disbar emigrants directly, without the involvement of the Association.

Nevertheless, as our source from among law practitioners remarks, the new bill has a silver lining. For instance, the amendments introduce automated distribution of cases assigned by the authorities. As The Insider's interviewee explains, the process currently lacks transparency, with corrupt attorneys who have an in with regional bar associations stealing government-funded cases from their less-connected colleagues.

“To scare them away from political cases”

The arrest of Navalny's lawyers was preceded by public debate between several opposition members and representatives of Navalny's ACF. Navalny's associates were accused of writing online posts in his name, so they had to admit that his lawyers kept him posted about the situation outside the prison and relayed the essence of his statements. When the attorneys were arrested, the opposition started blaming those who triggered the debate about the authorship of Navalny's posts.

However, a lawyer we spoke to believes Navalny's defenders’ arrest has nothing to do with him sending messages from prison.

“Considering that Sergunin and Liptser have stayed away from the case for at least a year and had no contact with Navalny, why the timing? Political logic suggests their case has been timed with the presidential election campaign.”

According to The Insider's source at the FBA, Navalny’s lawyers were arrested to show that high-profile political prisoners can only count on defense from appointed lawyers who cooperate with law enforcement:

“They will make sure political prisoners remain truly isolated from the outside world, which has not been the case with Navalny recently. The formal charges against Navalny's lawyers must have been connected to them being his liaisons. The government wants to scare lawyers away from political cases.”

According to lawyer Ivan Pavlov, although the pressure on political prisoners’ attorneys has become a trend in recent years, arresting as many as three Navalny's lawyers at once is a massive attack. He too links their arrests with preparation for Russia's upcoming presidential election. Although the authorities meant to intimidate all lawyers, the country still has attorneys who are performing their professional duties with integrity even in these challenging times,” he remarks.

Indeed, Navalny got a new lawyer in no time. On October 13, Leonid Solovyev agreed to represent him in court. In an interview for Cherta, Solovyev admitted that the arrest of the opposition politician's attorneys had delivered a blow to the entire legal community but emphasized his willingness to defend Navalny despite the threat of criminal prosecution. According to the lawyer, taking on this case is an attempt to save his profession and himself: “I’m a lawyer, and I’m going to do my job. That's it. No other options. Otherwise, I’d have to give up this identity and be anyone but a defense attorney.”

According to Pavlov, the authorities largely ignored defense attorneys in court, not seeing them as a threat to the regime as long as their activities were confined to the courtroom:

“The government had a neutral attitude to lawyers because you can counter any legal argument. They had a bunch of professionals on their side, such as investigators, judges, and prosecutors, who could make sure the state got away with anything as long as it looked legitimate on paper. However, the authorities have always been afraid of lawyers who took the defense of their clients outside the courtroom, appealing to the press and the general public. It is this category of lawyers who present the biggest threat to the regime, and they will be harassed and prosecuted.”

In turn, The Insider's source in Moscow’s legal community suggested that Russia’s main problem isn’t lawyers but a justice system that has no use for defense. “Even prosecutors say that trials didn't use to be such a walk in the park. These days, even a ‘cardboard prosecutor cutout’ is enough to get a conviction. Speaking of Moscow, this system can be credited to judges Olga Yegorova and Vyacheslav Lebedev.”

However, another source in the legal community remarks that some lawyers have nevertheless focused on defending the mobilized and have been able to continue their practice, despite this being a sensitive issue for the state. And they’re even making good money, considering the number of cases. According to him, “such lawyers are plenty, but this doesn’t mean they’re doing fine or that they aren’t drawing parallels with the case against Navalny's attorneys.”

A rift in the Federal Bar Association

On February 27, 2022, the members of the FBA Council signed an antiwar letter (which has since been deleted from the Association's website), and the signatories immediately got “death warrants,” according to The Insider's interviewee.

In November 2022, two of the signatories, FBA Vice President Vadim Klyuvgant and Deputy President Konstantin Dobrynin, withdrew from the Council because the Association was being forced to endorse Russia’s decision to annex Ukrainian territories. In their withdrawal notice, they stated they could no longer contribute to the Council's activities in light of the situation. A few days later, Genri Reznik followed suit.

The antiwar letter triggered a scandal when some of the Council members made a statement in support of the “special military operation” on the very next day. Alexei Navalny’s supporters listed the signatories of the second letter as candidates for future European sanctions. Eventually, both statements were taken down from the Association’s website, and those who signed the antiwar letter received the demand to recall their signatures, according to The Insider's interviewees.

The Insider's source in the FBA shared that one of the antiwar letter signatories, the president of the Moscow Region Bar Association Alexei Galoganov, withdrew his signature and signed the other statement.

In December 2022, Federal Bar Association President Yury Pilipenko, who had appeared to be loyal to the regime, was demonstratively removed from his post for signing the antiwar letter. The legal community feared he would be replaced with Mikhail Tolcheev, a lawyer accused of ties to security services and servility to the government, says a source at the FBA. However, it was low-profile lawyer Svetlana Volodina who took over as president. “It wasn't even a compromise; it was a good option,” says The Insider's interviewee on behalf of the community.

Soon after, new bar associations were established in the so-called people’s republics of Donetsk and Luhansk and the occupied Kherson Region and Zaporizhzhia, our interviewee recalls. Volodina later joined the Ministry of Justice Board.

“The bar has been exsanguinated”: The Belarus case

The situation in Russia’s legal community will soon resemble that in Belarus, where many lawyers have already faced unprecedented pressure, according to Belarusian attorneys interviewed by The Insider.

Before 2010, repressions against lawyers in Belarus were mostly targeted, matching the individual repressions against members of the opposition. “In 2011, about a dozen attorneys fell prey to this approach. They were disbarred, expelled from the board, and as far as I know, none of them has resumed practice,” says Pavel Sapelka, lawyer of the Viasna Human Rights Center.

At the same time, strangely enough, the prosecution of specific lawyers was accompanied by increased profits for the entire legal community, the lawyer notes:

“Amended in 2011, the Law on the Bar further entrenched the bar's dependence on the Ministry of Justice. Nevertheless, it provided, by way of compensation, an opportunity to diversify one's legal activities. Thus, in addition to legal consultations (the only form of lawyers' work), Belarusian lawyers could found bureaus or practice law individually.”

By 2020, these changes had borne some fruit, Sapelka says. Although the legislation provided for strict control over the Bar and the possibility for the Ministry of Justice to interfere in its activities, lawyers became more independent. Primary, this was due to their financial independence and greater freedom in carrying out their activities, receiving additional training, and so on.

As a result, in 2020, hundreds of lawyers rose to the defense of detained Belarusian protesters who’d suffered from police brutality or torture. They also represented defendants in criminal and administrative cases. According to the lawyer, this triggered sanctions against individual lawyers and the urgent amendment of the law regulating their practice:

“The Bar made a one-eighty, almost reverting to where it was before 2011 in terms of organizational structure. The Ministry of Justice introduced additional measures of control over and interference in its activities. Dozens of lawyers had to leave the country for fear of criminal prosecution. As a result, the Bar has been exsanguinated, both in numbers and quality. The customs, rules, and environment that are currently being imposed are incompatible with professional standards. It has become almost impossible to hire a lawyer for a political case. The best you can hope for is an assigned defender who will more or less diligently do their job.”

A Right to Defense lawyer who wished to remain anonymous told The Insider that the law was amended in late 2021 to prevent lawyers from working in law firms or practicing solo. Today, the only available form of legal practice is Soviet-style legal consultancies. The amendments also introduced the rule that all self-governing bodies in the legal community had to be appointed by the Ministry of Justice. The electoral system has been preserved, but if the elected candidate faces disapproval from the Ministry of Justice, the Ministry proposes an alternative candidate. The Ministry’s candidate is appointed automatically after two instances of electing an “unfit” candidate. Also, according to the interviewee, the Ministry has ample powers to initiate proceedings.

Furthermore, lawyers are facing psychological pressure: “They are encouraged to stay quiet, not to speak up, and if someone's rights are violated, one shouldn’t go to the media but to the Republican Bar Association.” However, going to the Association is useless, says the lawyer. If an attorney makes it public knowledge that their client was beaten but no case was initiated, the police complain to the Ministry of Justice, which disbars the attorney for offering “non-professional and false interpretation.”

“Bar associations have to monitor attorneys’ social media. An order to that effect was even published on our website,” the source remarks. “It's a directive by the Belarusian Republican Bar Association Council.”

One of the key intimidation techniques employed against Belarusian lawyers is criminal prosecution, says a Right to Defense spokesman. In 2021, more than 20 disciplinary proceedings have been initiated against lawyers facing administrative liability. The vast majority of these cases are politically motivated:

“There is a systematic denial of justice for political cases in the country. The process is clear and manageable. The protocol for such cases suggests that a lawyer gets 24 hours to prepare their defense. So whenever we need to find an attorney for a political case, we look for a lawyer who is a single mom because she gets more preparation time. Twenty-four hours is a way of getting an attorney thrown off the case and disbarred.”

As a rule, all lawyers who are tried in administrative cases end up disbarred, the lawyer explains. “Harassing lawyers through tampering with the trial is business as usual,” he notes. “You’ll be hard-pressed to find a lawyer who hasn't argued a political case, so involvement in a political lawsuit is no longer a distinguishing factor. The state punishes lawyers for defending the most radical political prisoners, activism, and complaints. The police have already streamlined the process and use it to their advantage. Lawyers are keeping their heads down these days.”

Sometimes attorneys even get prison sentences. Six Belarusian lawyers are currently in custody. “The most high-profile case is the conviction of Aliaksandr Danilevich for 10 years for alleged calls to sanctions. Ostensibly, he drafted letters to independent trade unions, labor committees, and sports organizations to impose sanctions. Danilevich offered legal advice on issues the state didn't like. He was also allegedly interviewed by an extremist source. This is a standard sentence: if you as much as talk to the wrong people, you get six years for promoting extremist activity,” says the lawyer. Meanwhile, absolutely all independent media are labeled “extremist sources.”

Illia Salei, the attorney of Viktar Babaryka and Sviatlana Tsikhanouskaya's campaign office, also notes that the situation with political prisoners’ defenders in Belarus is catastrophic. “Lawyers who continue to represent political prisoners despite the obvious professional and personal risks, do so non-publicly because any publicity in today's Belarus exponentially increases personal safety risks and the threat of disbarment,” he says.

Representing democratic opposition leaders in today’s Belarus is impossible even off-book, Salei says. “Lawyers are denied access to incommunicado clients under all sorts of far-fetched pretexts. Thus, we haven’t heard anything about Viktar Babaryka or Maria Kalesnikava for over seven months,” he recalls.

According to the lawyer, attorneys often refuse to represent political prisoners, and finding a lawyer for political leaders such as Babaryka or Kalesnikava is nigh impossible.

“Attorneys representing political activists or leaders face two main risks: disbarment and criminal prosecution. There can be two formal pretexts for disbarment: either an alleged misdemeanor incompatible with the high rank of a lawyer (usually some public statement in the client’s defense) or allegedly lacking qualifications. In practice, the qualification commission summons the attorney, poses a few questions, and concludes, after a few minutes, that the attorney who has successfully practiced law for the last twenty years is not qualified enough to continue his work.


As for the criminal prosecution of lawyers, this is mainly due to the fact that the Belarusian law enforcement agencies equate defense lawyers with their clients and can therefore detain them as accomplices,” says Salei.

According to him, Belarusian lawyers who were deprived of the right to pursue their profession or faced illegal criminal prosecution and, as a consequence, had to leave the country, mostly continue their practice abroad:

“Their activities aren't always public but often go beyond providing legal advice to Belarusians. A striking example is the Belarusian Association of Human Rights Lawyers, a non-profit that was recently registered in Lithuania and brought together probably the most active lawyers who were forced out of the country. Today the team is actively interacting with international organizations, including the United Nations, and various international and national legal associations, mainly on matters of human rights and advocacy in Belarus.”

According to the lawyer, Russia's legal community is following the Belarusian scenario, but with a lag of several years, and the final destination will be the ultimate loss of independence from the state:

“Targeted pressure on lawyers will be coupled with systemic changes in the law. And once these changes take place, the Russian bar will have reached a point of no return in terms of independence from the state. For this reason, only a handful of the lawyers who were disbarred in Belarus traveled to Russia to continue their practice there. They were unwilling to work in a system identical to the one they were trying to leave. That’s why all of them are now in EU countries.”

However, The Insider's source in the legal community disagrees that Russia will follow the Belarusian scenario. In his opinion, it can't happen in Russia because Lukashenko had 25% of all lawyers disbarred in two years, while in Russia there are 80,000 lawyers and no one can disbar as many as 20,000 attorneys.

Russia's history of repression against lawyers

In 2019, the international human rights group Agora published a report titled “The Bar Under Attack,” which examines 100 cases of persecution and reprisals against lawyers over more than a decade.

Thus, in January 2009, well-known lawyer and human rights activist Stanislav Markelov and Anastasia Baburova, a Novaya Gazeta journalist who was accompanying him, were shot dead in the center of Moscow. They were massacred by neo-Nazis for defending the interests of anti-fascists.

In 2011, lawyer Irina Fetisova was murdered at the door of her apartment in Ryazan. The assailants stabbed her several times in the neck. Three years earlier, there had been a similar attack on prominent lawyer Iosif Gabunia in St. Petersburg, but the wounded lawyer was able to dislodge the knife and made it to the hospital.

In April 2017, a contract killer followed Natalia Vavilina, the chair of the capital's Delphi Bar Association, into the lobby of her house and shot her dead. In 2019, the public learned of the death of Irkutsk lawyer Galina Muzyka in Usolye-Sibirskiy under strange circumstances and the cardiac arrest of defense attorney Vladimir Gaponov right during the court session.

The Yukos case is infamous for repressions against lawyers: Representing Mikhail Khodorkovsky and other defendants cost Vasily Aleksanyan both his freedom and his life. Lawyers Ivan Kolesnikov and Pavel Ivlev were forced to leave Russia and applied for political asylum. On May 24, 2019, Moscow's Khamovnichesky District Court sentenced Ivlev to ten years in absentia on charges of embezzling 195 million tons of oil, which is 100 million tons more than Khodorkovsky himself had allegedly appropriated. Lawyer Elena Agranovskaya was also suspected of embezzling “black gold” and was taken into custody, but was released a week later.

Lawyer Olga Artyukhova was prosecuted by the Ministry of Justice in 2003-2004 for a note from the arrested head of Yukov, which had allegedly been handed to her at the Matrosskaya Tishina pre-trial detention center. Law enforcers searched the attorney and seized documents subject to attorney-client privilege. The Council of the Moscow Bar Association refused to initiate disciplinary proceedings against her, but the Ministry of Justice went to court. Eventually, Artyukhova stopped practicing law “for family reasons.”

The authors of the report note that defenders in political cases have been repeatedly interrogated and searched. At some point, the authorities went after the most vocal, public, and politicized lawyers, such as Mark Feigin, Ivan Pavlov, Ilya Novikov, and Mikhail Benyash.

In the fall of 2019, bailiffs beat up and detained lawyer Dmitry Sotnikov in the Tula Region.

In the spring of 2020, police officers in Kabardino-Balkaria attacked three female attorneys at a police station, took away their cell phones with video recordings, and pushed them out into the street. Then they dragged one of the attorneys, Diana Tsipinova, back into the building, handcuffed her with two pairs of handcuffs, and threatened her with gang rape throughout the night. None of the law enforcers were held accountable.

Ivan Pavlov, jailed journalist Ivan Safronov's lawyer, left Russia in the fall of 2021 after being charged with disclosing investigative data. His organization, Team 29, has been labeled “undesirable” in Russia.

Shortly thereafter, Safronov's another lawyer, Dmitry Talantov, the former president of the regional Bar Association, was detained in Udmurtia. He was the first lawyer to face prosecution for spreading “fakes” about the Russian army. Currently, he is facing up to 15 years in prison, of which he's already served a year and a half in pre-trial detention.

In annexed Crimea, lawyers Edem Semedlyaev, Nazim Sheikhmambetov, Aider Azamatov, and Emina Avamileva have been repeatedly detained for defending the rights of Crimean Tatars.