SOCIETY

Lawyers and law enforcement in wartime

June 17, 2022

Ekaterina Khodzhaeva

Sociologist 

Ekaterina Khodzhaeva on how Russian lawyers are working in an environment where law enforcement is becoming increasingly oppressive and opportunities for appeal to international courts are narrowing.
Ilya Yashin, Russian politician charged with "discrediting the Russian army", 2022. Source: Facebook
After the outbreak of the war, the wheels of repressive lawmaking and law enforcement began to turn with renewed vigor in Russia. Like it has done in response to each new round of mass political protests since 2012, the Russian parliament responded this time with new initiatives, tightening the already familiar measures limiting freedom of assembly, speech and the media (now not only institutionalized media, but also Facebook and Instagram). Arrests for protesting have become more frequent: according to OVD-info, 14 thousand people were detained in the first 17 days after the start of the “special military operation.” Repressive articles specially added to the Code of Administrative Offenses (CAO) and the Criminal Code are being widely applied to those arrested and detained at mass protests. All these developments have further increased the demand for high-quality, independent legal assistance. At the same time, lawyers themselves have become a target for repression and preemptive actions by the security forces.

New repressive laws

In the first days after the Russian invasion, mass antiwar protests broke out across Russia. In response, already on March 4 (within 10 days after the invasion) lawmakers hastily adopted new laws for the administrative and criminal prosecution of protesters;

  • Article 20.3.3 on discrediting the armed forces and Article 20.3.4 on the call for restrictive measures, that is, sanctions against Russia were added to the CAO;

  • Two new offenses were added to the Criminal Code: Article 207.3 on the public dissemination of deliberately false information about the Russian armed forces and other state institutions and Article 280.3 on repeatedly discrediting the armed forces within a year.

Neither construction represents an innovation in Russian criminal law. Public dissemination of deliberately false information about the security of citizens (Article 270.1), as well as any other “fake” if dissemination leads to serious consequences (Article 270.2), was criminalized back in April 2020 during the pandemic. As for so-called offenses with administrative prejudice – when two administrative cases are brought against a person for a certain article of the COA within a year, this entails criminal liability – this is an old and widely used form of criminalization in Russia. In 2021, one in six charges in the country were filed for this: it isn’t political cases, but primarily failing to pay alimony and repeat drunk driving.

Unlike other politically motivated novelties in the Criminal Code, some of these new offenses and crimes have been applied very widely.
"Observers and human rights activists have recorded widespread enforcement of repressive laws targeting anti-Russian and antiwar rhetoric on social networks based on denunciations by vigilant citizens, public statements or simply participation in a demonstration."
According to Pavel Chikov of the Agora human rights group, before May 24 the courts had heard 2,029 administrative cases on discrediting the armed forces, with 352 in Moscow. The main outcome is a fine of R30-50k. For repeated discrediting (i.e. two or more protocols for the same article) four people are planned to be brought to criminal responsibility. All of these cases have been initiated in the provinces (Petropavlovsk-Kamchatsky, Blagoveshchensk, Kemerovo and Nalchik). The administrative article outlawing calls for sanctions against Russia is used much less often – only four cases are known. As of now, human rights activists are aware of 53 criminal cases initiated under the article on public dissemination of knowingly false information about the Russian armed forces and the exercise of power by state institutions. Some of the accused live outside Russia, while 13 people have been detained.

The new laws, like many other prohibitions in Russian legislation, are formulated not specifically but generally, and with an open list, providing law enforcement with ample opportunities. As Dmitry Dubrovsky, a legal expert and researcher of the role of linguistic examination in Russian criminal justice, comments: “It’s difficult to legally challenge the unlawful law, as the law itself was invented to stop any antiwar activity.” Law enforcement (with administrative prohibitions it's police; with criminal cases it’s detectives) from Center E (E stands for of “Extremism”; these subdivisions of police forces are officially called “anti-extremism departments” and Investigative Committee investigators work by the book, using legally weak arguments that Russian courts nevertheless uphold. The usual pacifist slogans “no war,” or even a 50-year-old photograph from protests against the Vietnam War, as in the recent case against politician Ilya Yashin, Russian courts are saying discredit the Russian army and punishing with fines.
Maria Eismont, a lawyer with broad experience in human rights cases, 2022. Source: VK
Accusatorial bias

It must be emphasized that the repressiveness of law enforcement has steadily risen over the years. At the same time, broad and selective enforcement in the new laws mentioned above is far from a new trend, which concerns not only “politically motivated” administrative and criminal cases. Similar enforcement has been seen in relation to religious minorities (most often Muslims), as well as in numerous criminal cases against Jehovah's Witnesses and scientists about state secrets (the latter were often charged with high treason, tried in closed trials and sentenced to long terms), etc.

The accusatorial bias in Russian criminal justice is present not only in high-profile political cases – it’s just that information about these cases becomes public more often. Any criminal defense lawyer knows that the accusatorial bias is a systemic feature of the Russian law enforcement machine.

We can roughly distinguish two main sources of this bias.

The first is a super-centralized system of courts and law enforcement agencies. This institutional design includes the inquisitorial approach inherited from the Soviet Union, when there is another intermediary between detectives and broadly the police and the prosecutor's office as an institution for prosecution – this is investigators and inquiry officers, who prepare the case for the prosecutor. Despite all guarantees of fairness, this intermediary reduces the rights of a criminal defender and the degree of his participation in the investigation of a criminal case.

At the pre-trial stage, a lawyer can’t influence the volume and quality of the evidence collected and doesn’t have full access to all the information collected by the investigators, while he must petition the investigators for certain evidence to be admitted (the investigators can easily deny these petitions). For example, the rights of the defense when it comes to experts are limited – the experts brought in by lawyers most often speak as specialists, while expert examinations that the courts and the investigators have arranged are given more attention in final decision.

A major contributor to the accusatorial bias is the so-called “palochnaya sistema,” the performance system used by law enforcement agencies, which links the KPIs of all institutions investigating a criminal case. The key KPI for the police and detectives in particular is the number of solved crimes. Investigators and inquiry officers who draw up a criminal case based on the materials provided by the detectives are assessed by the number of criminal cases sent to the court. The key KPI for the prosecutor's office is the number of charges that lead to sentencing. Judges are assessed by the number of cases in which a higher court hasn’t overturned or changed the sentence.
"At the same time, prosecutors and law enforcement agencies challenge acquittals with particular zeal: after all, in the criminal prosecution system acquittals are perceived as an error and become an obstacle for career advancement."
All involved in a criminal case must strictly observe timetables for investigation. This encourages them to choose simple cases to investigate and strive for convictions.

The second source of accusatorial bias is political campaigns, whether it’s the war on drugs or politically motivated cases like against Alexei Navalny’s FBK anti-corruption organization in recent years of the antiwar movement today. In these cases, the courts, striving to comply with the political interests of the state, generally don’t acquit.

Because of the accusatorial bias, the share of acquittals and other exonerating decisions in cases of public prosecution is 0.2% in Russia.

So what opportunities are available to lawyers in a typical criminal case?

Lawyers as players with a weak hand

The power of lawyers is limited – both formally and informally – by more powerful institutional players. Therefore, their moves are predominantly tactical, not strategic. In situations where an acquittal is virtually impossible, so-called “quasi-acquittals” are considered acceptable and benevolent outcomes:

  • Suspended sentencing instead of real imprisonment;

  • Punishment below the minimum prescribed by law (often accompanied by an early release after taking into account the time served in pretrial detention);

  • Termination of the criminal case against an innocent person on other non-rehabilitative grounds (reconciliation, term limitation or general amnesty);

  • Reclassification, partial waiving of charges and even acquittal on some counts. Investigators often deliberately impute considerably wider scope of crimes so the court has the opportunity to requalify them in the future. Often this is done to ensure the provisional arrest of a suspect. For example, for economic white-collar crimes in Russia there is a direct prohibition on provisional arrests; however, investigators bypass it by accusing a businessperson of “organizing a criminal community” (Article 210 of the Criminal Code), which allows them to place him or her in pre-trial detention center. Later, in court, defenders manage to have this accusation dropped in almost every second case, achieving a “partial acquittal.”

In cases of private prosecution (libel cases now), where the interests of law enforcement are not at stake, defense lawyers have the best chances, with widespread acquittals in Russian courts. Another source of acquittals is the relatively modest number of jury trials (the share of acquittals in such trials in regional courts was 17% in 2021 and 35% in district courts), though appellate courts overturn up to 70% of all such acquittals. The opportunities for lawyers at the stage of investigation and in court are also much wider when they represent an injured party and work with the prosecution, their positions overlapping. In such situations, the lawyer actively cooperates in the interests of his client and his petitions are usually granted by both the investigators and the court. He can obtain good compensation for the injured in a civil action filed in a criminal case.
“However, for 'politically motivated' cases, the opportunities for specifically exonerating outcomes substantially narrow."
Lawyers focused on human rights in cases with a political component (where the investigation is conducted by the FSB or Center E) have a limited repertoire of formal options:

  • Drawing public attention to the work of the investigators and the court through media coverage and on social networks. Still, public attention rarely leads to the termination of criminal prosecution. Such an exception is the case of investigative journalist Ivan Golunov when operatives planted drugs on him – it received unprecedented public media attention, and protests made it possible to terminate the criminal case against him;

  • European Court of Human Rights. In recent years, a specialization of lawyers who initially took cases specifically at the ECHR has developed. However, because of Russia’s decision to withdraw from the Council of Europe, the possibility of appeal to the ECHR was officially closed (Russia withdrew from the Council of Europe on March 15, 2022. And although the decisions of the European court of human rights(ECHR) would be valid until September 15, 2022, a separate law was adopted on June 11 on non-recognition of the ECHR rulings made after March 15, 2022; the UN Human Rights Committee is expected to be flooded with appeals.

Room for maneuver
“In most politically motivated criminal cases, it is the quasi-acquittals that represent a good, though rare, opportunity to rescue the defendant."
Mikhail Biryukov, a lawyer for human rights organizations, 2022. Source: Twitter
Lawyer Mikhail Biryukov says that if common criminal cases, and especially in economic cases, are heard in court – barring acquittals, which happen but are rare in politically motivated cases – you can still only try for a quasi-acquittal: “a suspended sentence, a sentence below the minimum prescribed, a fine or correctional labor instead of real imprisonment, or a reduction in the sentence, is really considered a blessing.” He gives the example of Konstantin Kotov, who was convicted in September 2019 under Article 212.1 (a criminal offense with administrative prejudice for repeated violations of the established order of organization or conduction of a gathering, rally, demonstration, march, or picket) and had to go to the Constitutional Court to have his sentence reduced to up to 1.5 years, instead of the four years of real imprisonment in a prison colony given by the court of first instance. Such modest results are viewed by lawyers as a success, even though they work with great dedication and as they bring cases before the Supreme Court or Constitutional Court with little or no chance of a favorable outcome.

When it comes to administrative persecution, there is still room for maneuver. The case could be “red-taped” (for example, getting the court to turn an administrative case back over to the police to address irregularities, and there it remains without progress until the statute of limitations expires) or reclassified under regional administrative legislation with lesser sanctions. For example, one lawyer from St Petersburg said that she had managed to reclassify participation in an antiwar rally from “discrediting the Russian army” (20.3.3 of the Criminal Code), the fine for which is R30-50k, to a violation of Covid restrictions on mass public events, which under regional administrative law in St Petersburg is punishable by a fine of R3-4k. This required a lot of work with the defendant both when the police took depositions from him and then in court.

Work on cases in which a human rights lawyer represents a victim injured by the actions of the state differs from usual cases, where it is usually easier for a lawyer to get a decision in the interests of his client. Since the charge must be brought against a representative of the state (policemen, Federal Penitentiary Service officials, etc.), such cases and their further investigation face major problems, including refusal to initiate a criminal case, red tape during the investigation and a lenient position by the courts toward police and prison guards who torture.

Risks that come with the profession
“Illegal practices are increasingly being used against lawyers and their clients – barring lawyers from seeing detainees at police stations, searches, inspections, wiretapping lawyer-client meetings during pre-trial detention, screening lawyers’ dossiers and documents."
Recently, lawyers themselves have been increasingly subject to persecution for their professional activities (criminal cases, being named “foreign agents;” the most striking case is that of lawyer Ivan Pavlov, who was actually pressured to leave the country). For example, a survey among active defense lawyers conducted in 2021 by the Institute for Law and Public Policy showed that 88% of those who conduct criminal and administrative cases had had their rights violated.

Still, the legal community itself, which unites almost 75k professional lawyers across the entire country, is extremely heterogeneous. Some are part of sturdy teams, while some work alone. A certain contingent isn’t involved with criminal cases at all, specializing in civil litigation or serving large corporate interests. Among those who specialize in criminal law, there are lawyers who are far from the human rights agenda and often have the same goals in their work as law enforcement and the courts. In another 2021 survey, for comparison, among lawyers from rural areas half reported that they don’t face violations of their rights, while among lawyers from small and medium-sized cities (up to 200k people) only 23% said they don’t come across violations. That is, the larger the location, the greater the sensitivity of lawyers to violations and the more unwilling they are to make common cause with the prosecution.

Lawyers who deal with human rights cases are a very small minority of Russian lawyers; they are mainly concentrated in Moscow, St Petersburg and some regional capitals. Yet against the backdrop of increased repression, there is a grassroots movement, cooperation and consolidation among such lawyers; they are uniting and engage in collective action. Still, in some regions this trend is often opposed by the official leaders of regional bar associations. In a number of cases, the most “unreliable” lawyers were disbarred. In addition, Justice Ministry initiatives are being strengthened to control the legal community through reporting (including financial reporting – all financial transactions of licensed lawyers have been open to Rosfinmonitoring for several years) and through complaints sent to the leadership of regional bars.

On June 8, 2022, the Supreme Court, on the suit of the Prosecutor General's Office, finally liquidated the Trade Union of Licensed Lawyers of Russia, the oldest organization independent from bar associations. The Federal Bar Association was recognized as an interested party and supported this liquidation.

The “military operation” in Ukraine has divided the legal community, as it has Russian society as a whole, with some condemning and some supporting the country’s leadership. And just like across society as a whole, there has been a trend of lawyers’ informing on each other. For example, Dmitry Talantov, the critically minded head of the Udmurt Republic Bar Association, published on Facebook the materials from an administrative case initiated against him, which, among other things, contain a call by lawyer Violetta Volkova for law enforcement to respond to the antiwar statements of her colleague. Lawyers are also prosecuted under the new laws, just like ordinary citizens. For instance, in late May in Crimea human rights lawyer Edem Semedlyaev was detained and fined for "discrediting the Russian army". His lawyer, Nazim Sheikhmambetov, was unable to defend him, since he himself was charged with organizing an illegal mass event and sentenced to eight days of administrative arrest. Lawyers Ayder Azamatov and Emina Avamileva, who came to сourt to defend Sheikhmambetov, were, in their turn, also accused of organizing a rally and arrested for eight and 5 days, respectively.

Thus, not only have the opportunities for effective legal protection narrowed, but the pressure on independent lawyers is set to grow, both from law enforcement agencies and their own colleagues. Meanwhile, the widening criminal and administrative repression in the country has sharply increased the demand for active and committed lawyers.
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