Defenders need protection – Newspaper Kommersant No. 215 (7416) of 11/21/2022

The Federal Chamber of Lawyers (FPA) and the Center for Constitutional Studies have prepared a report on the problems of Russian lawyers. They complain that the investigation, the police and even the court interfere with the work of the defenders. The Federal Chamber proposes to pass a law criminalizing the obstruction of the work of a lawyer. Legislators and lawyers interviewed by Kommersant tend to believe that the current laws on guarantees of the rights of lawyers would be sufficient if they were enforced, although a special rule of the Criminal Code on liability for obstructing lawyers would probably increase the efficiency of their work.

In the summer of 2022, the researchers interviewed 520 lawyers from 64 regions of the country. Their answers were analyzed – and a report was prepared “The degree of protection of the professional rights of lawyers”, which Kommersant got acquainted with. It turned out that 41% of the lawyers surveyed had experienced violations of their professional rights over the past year. Most often, lawyers complained about the investigation, including the failure to provide procedural documents (67.5%) and the limitation of the time for familiarization with the materials of the criminal case “on spurious grounds” (55.4%). Often there were cases of “double protection” – when the investigator calls a lawyer by appointment, although he knows that a person has his own lawyer (43.3%). 41.7% of lawyers faced violation of rights in courts. Defense lawyers had the least problems in bar associations (2.1%) and bar associations (3.3%). 6.5% of respondents reported cases of physical violence by employees of the Ministry of Internal Affairs, operational-search and investigative bodies, the Federal Penitentiary Service and bailiffs. At the same time, 31.5% complained of psychological abuse.

“The level of qualification of the investigation and the prosecutor’s office is declining in our country, so it’s hard for them to oppose lawyers in the legal field – after all, they are more qualified,” Olga Shvarts, co-author of the report, adviser to the FPA, explained to Kommersant. “Also, the investigation often does not perceive them as participants in the process, part judicial system. In the understanding of our law enforcement officers, a lawyer is a person who prevents the investigation from bringing to justice. Until this attitude is corrected, the problem will remain.”

The interviewed lawyers appealed only 11.8% of violations. Most often, defense lawyers file complaints on the topic of limiting the time for familiarization with the case materials (59.7% of those who applied), violations of rights by FSIN employees (56.3%), searches at home or at the workplace (50%). At the same time, only 38% of defenders turned to the regional chamber for help. “None of the legal remedies available to lawyers is effective and does not allow protecting a lawyer even from such a serious violation of his professional rights,” the researchers explain such a low level of activity. the small number of positive outcomes of the appeal only strengthens the lawyers’ confidence in the futility of their use. “Lawyers don’t waste their time on things that are useless,” Olga Shvarts briefly commented on this part of the report.

Lawyer Alexander Popkov also speaks about the lack of effective mechanisms for the restoration of rights or punishment of those responsible: “Filing and supporting a complaint or an allegation of violation of professional rights requires huge resources. In particular, the time that the lawyer spends on himself, and not on his direct activities in the interests of the principal. Appeals to the bodies of lawyers’ self-government are even more useless, since the chambers of lawyers, and even more so the commissions for the protection of professional rights, have neither effective powers nor resources to defend the interests of individual lawyers. In the course of the study, 45.2% of the interviewed lawyers called the identified problems systemic, and 64.9% admitted that these problems create significant or insurmountable obstacles to the provision of legal assistance.

In July 2020, the FPA announced a bill criminalizing obstruction of a lawyer. It was developed together with State Duma deputy Oksana Pushkina (ER, powers expired in October 2021). The authors intended to supplement the Criminal Code with a new article 294.1, by analogy with the existing article 294, which establishes liability for interference in the activities of the court, prosecutor’s office and investigator. In September 2020, the bill was submitted for public discussion, but it was criticized by a part of the legal community. Those who were dissatisfied pointed out that the wording about “holding accountable for obstructing activities” does not cover most violations and will not work. In the end, the bill was never introduced.

Deputy Chairman of the State Duma Committee on State Building and Legislation (KPRF), former Deputy Prosecutor of Moscow Yuri Sinelshchikov believes that investigators violate the rights of lawyers, because they prevent them from “living in peace.” At the same time, he does not believe that the new article of the Criminal Code will fundamentally change the situation: “If you shout to the investigators that there is a special article, the problem will not be fixed. All the same, the rights of lawyers will be violated. No one will initiate such cases, or these will be isolated cases. Law enforcement officers know that even now they can be held accountable, for example, for abuse of power or other violations. All this is already in our Criminal Code.” He believes that it is necessary to more actively use the existing tools to combat violations of the rights of defenders: “This will change the practice – the attitudes will also change.” Alexander Popkov says the same thing: “With the current law enforcement, when any police officer is a priori right, no even the most progressive laws will help.”

An article in the Criminal Code on liability for obstruction of lawyer activity could improve the situation, Olga Shvarts objects: “If the amendments are adopted, lawyers will have more reason to demand something. They will have protective mechanisms, formally they will have something to refer to. Now there is not even that.”

Marina Tsareva