The Critical Role of Belarusian Lawyers In Country's Recent Events: Must Read Interview with Natalia Matskevich and Dmitry Laevsky
As protests erupted after Belarus’s widely-condemned 2020 presidential election, the Belarusian government has used several punitive tools against lawyers who express views critical of the government or who represent protestors or other opposition figures. The government’s actions against lawyers over the past several months have taken the form of criminal proceedings, administrative detention and penalties, disciplinary proceedings, and in several cases, has resulted in disbarment. Since August, 2020, the American Bar Association’s Center for Human Rights (ABA CHR) has been monitoring the situation of the legal profession and individual lawyers in Belarus. The ABA expressed its concern about ongoing violations of local and international standards as it applies to the lawyers and the legal profession. The ABA President published statements here and here and rule of law letter, and the CHR issued a report on the disbarment of Alexander Pylchenka. Below is the interview with leading lawyers from Belarus Natalia Matskevich and Dmitri Laevski. The views are their own and do not express the views of the ABA.
How has the Belarusian legal profession evolved in the last several years?
Natalia Matskevich:
After Belarus gained independence in 1991, the Law on the Bar was adopted in 1993 for the first time. The law established that in the Republic of Belarus the Bar is an independent legal institution designed to carry out professional defense of citizens’ rights. According to the law, admission to the legal profession, the resolution of issues of disciplinary liability, including the revocation of the attorney’s status, fell within the competence of the bar associations.
However, subsequently, the legislation on the bar has undergone changes that have led to the erosion of its principle of independence.
Since 1997, the licensing of attorneys became the prerogative of the Ministry of Justice, an executive body. Thus, the issues of admission to the legal profession came under the control of the Ministry.
In 2010, a presidential decree introduced the Regulation on the licensing of certain types of activities, according to which the Ministry of Justice received the authority to issue binding orders to attorneys, and to suspend and terminate the license of an attorney on its own initiative. The Ministry of Justice has already used these powers in 2011, when it issued orders to several attorneys, who defended the imprisoned ex-presidential candidates of the 2010 elections and their supporters, to refute their statements in the media, and then revoked the licenses of five lawyers – Aleh Aheyeu, Tatsiana Aheyeva, Tamara Sidarenka, Uladzimir Toustsik and Tamara Harayeva.
In 2012, a new Law "On the Bar and Attorneys practice" was adopted. On the one hand, this law has expanded the list of options for various forms of practice (bureau, individual practice), but on the other hand, it increased the dependence of the Bar on the Ministry of Justice, giving the latter not only powers of admission to the legal profession and deprivation of the status of an attorney, but also the right to initiate disciplinary proceedings, initiate the annulment of decisions of the attorneys’ self-government bodies, etc.
In 2017, the adopted amendments to the legislation on the bar introduced a procedure for performance review of attorneys, which can be carried out by the Qualification Commission of the Ministry of Justice with regard to any lawyer and can include legal oral test/interview covering an unlimited range of questions in spite of attorney’s specialization. In the same year, an extraordinary performance review was arbitrarily scheduled for at least eight attorneys, who represented citizens in a politically motivated criminal case. One of them, Hanna Bakhtsina, an attorney with more than 30-year long experience of exceptional legal practice, was disqualified after such a performance review, the qualifications of the rest of the attorneys were questioned, and the follow-up performance reviews were scheduled after a 6-month period.
Thus, the Belarusian Bar approached the events of 2020 without legislative guarantees of real independence; rather on the contrary, having a negative experience of the Ministry of Justice using its powers in order to pressure active attorneys, which results in self-censorship and fears of most attorneys to work on the “sensitive” political cases.
What role have lawyers played in the recent events in Belarus?
Dmitry Laevsky:
Despite this, the attorneys in Belarus played a notable role in the events of the presidential election campaign and the protests that followed it, professionally defending legal principles and protecting human rights.
In particular, during the election campaign, attorneys provided legal advice to the headquarters of presidential contenders and various public initiatives; were publicly commenting on and explaining legal procedures in the field of electoral law and constitutional rights of citizens; now defend the leaders of the political opposition, civic activists, journalists, human rights defenders from criminal prosecution, which seems to be used as a punishment for their legitimate activities and as a means of preventing such activities. Attorneys defend peaceful protesters in administrative cases and help victims of police violence and torture. In the first weeks after the elections, when more than six thousand people were detained on the streets of Belarusian cities and placed in temporary detention facilities, where, according to their testimony, they were subjected to inhuman treatment and beatings, dozens of lawyers were on duty around the clock next to the detention centres in Minsk (Akrestsina detention center) and other cities, advised and helped people who were released from the detention centers to draft legal documents.
Attorney Maxim Znak represented the interests of Viktar Babaryka, the main rival of the current president, who was arrested several weeks before the elections. In June 2020, when Viktar Babaryka was already in custody, Mr. Znak submitted the application for registration as a presidential candidate to the Central Election Commission on his behalf; in July 2020 he represented Mr. Babaryka at the CEC meeting that considered the issue of his registration, and after the refusal to register, he filed a complaint on his behalf with the Supreme Court. Then, in August 2020, attorney Maxim Znak, on behalf of Sviatlana Tsikhanouskaya, has become a member of the Coordination Council she created and was doing legal work, after which Mr. Znak himself was arrested on September 9, 2020 and was subjected to unlawful criminal prosecution for expressing a legal opinion; he has been in custody for seven months now.
What are some of the challenges and opportunities currently facing the Belarusian legal profession?
Natalia Matskevich:
In 2020, lawyers faced firstly an obvious violation of their professional rights and the fundamental rights of their clients, and secondly personal threats and harassment for their professional activities, which continues in the current year 2021.
Among the most obvious violations of the right to council is that the attorneys are denied access to their clients in detention facilities. People who are detained after the protests and accused of administrative offenses (mainly participation in unauthorized mass events, disobedience to police officers) are deprived of the opportunity to meet with their attorneys in the detention center, since, as a rule, the latter are not allowed there at all. This is usually explained by the meeting rooms being occupied and quarantine measures. Court sessions are held through a video communication system, the provision of legal assistance without meeting with and contacting the client reduces the effectiveness of such assistance to nothing.
Also, citing COVID-19 as a reason, the KGB pre-trial detention center, where the accused in the most high-profile cases are kept, is periodically closed for visits. At the same time, the attorney has no way of contacting the client by phone or any other means in order to find out about their condition and how they are treated.
Personal threats and harassment of attorneys began in September 2020 and continue to this day: we are faced with the detention of attorneys on criminal charges based on the actions done on behalf of their clients, with kidnapping and arbitrary imposition of administrative sanctions against an attorney; and with the revocation of attorneys’ licenses based on the decisions of the Ministry of Justice; and with state representatives discrediting lawyers - behind the scenes and in public in the state media.
Apart from Maksim Znak, there are already more than a dozen lawyers who have faced obvious repressions, and this number continues to grow.
The case of attorney Liudmila Kazak, who defended Maryia Kalesnikava, one of the leaders of the election campaigns of Viktar Babaryka and Sviatlana Tikhanouskaya, is telling. Kalesnikava was abducted by intelligence officers in early September 2020, and only two days later it became known that she was in a pre-trial detention center in Minsk, detained on the count of calls for actions that threaten state security. After a meeting with her attorney, Maryia Kalesnikava reported the use of violence against her and the attempt to forcibly expel her from the country, which attorney Liudmila Kazak reported in the media. Two weeks later, Liudmila herself was detained (which looked more like a kidnapping), and placed in a detention center, where she stayed incommunicado for more than 20 hours. The next day, the court found her guilty of disobeying the legal demands of an official during her arrest and sentenced to pay a fine. This punishment was the basis for the disciplinary sanction of the attorney by the Bar Association, which issued a warning. And on February 16, 2021, the Qualification Commission of the Ministry of Justice revoked Ms. Kazak's attorney’s license, using a court ruling on an administrative offense as a formal reason.
Aliaksandr Pylchanka, who represented Viktar Babaryka and Maryia Kalesnikava in criminal cases, had his attorney's license revoked in October 2020, the sole basis for the revocation was an interview he gave in August to the online media portal TUT.BY. In this interview he expressed his professional opinion on what actions should be taken by the state officials regarding numerous reports of the use of violence against protesters and other citizens, torture of detainees in detention centers, that took place immediately after the elections on August 9-13. Also, attorney Mikhail Kiryliuk had his license revoked for talking to the media.
Attorneys Kanstantsin Mikhiel and Maksim Konan had their licenses revoked by the Ministry of Justice, because they were found guilty of an administrative offence of participating in unauthorized mass events.
Dozens of lawyers are now undergoing performance reviews by the Ministry of Justice. In March, seven lawyers were disqualified and lost their attorney’s status, among them is Sergei Zikratsky, a lawyer for Maxim Znak and a defender of journalists, who have recently been subjected to criminal and administrative sanctions for their activities.
All these cases demonstrate various forms of persecution of attorneys working on the cases of opponents of the current government. The obvious unjustified nature of this persecution suggests that it is exclusively related to professional activities, with the aim of intimidating and restraining these attorneys as well as other members of the legal community.
Moreover, at the moment it became known that the Council of Ministers, based on the initiative of the Ministry of Justice, has submitted a bill on amendments to the Law on the Bar to parliament. This bill was not discussed in the legal community and did not go through public discussion. The attorneys were provided with this draft law after it was submitted to the Council of Ministers and were given less than a day to submit proposals and comments on it. The proposed changes to the law concern the expansion of powers of the Ministry of Justice regarding the establishment of the attorney’s self-governance bodies – Bar Associations’ Councils: their members should be approved by the Ministry, otherwise the Ministry of Justice propose their own candidates. Also, according to the bill, the disciplinary commissions of the bar associations can be abolished, and the disciplinary proceedings are passed under the jurisdiction of the bar associations’ councils, the election of which is under the control of the Ministry. The powers of the Ministry of Justice to control compliance of lawyers with the law and the rules of attorneys’ ethics are more clearly enshrined, the approval of candidates for admission to the bar association traineeship is introduced, a written test may be canceled when a license is obtained by former law enforcement officers and courts’ employees. According to the draft, such forms of organization of advocacy as bureau and individual activity are abolished. Thus, if this bill is adopted, it will be possible to state the disappearance of an independent legal profession in Belarus.
Can you explain the concept of “legal default?"
Dmitry Laevsky:
The concept of “legal default” was introduced by our colleague, attorney Maxim Znak.
In its most general form, legal default can be defined as a situation when the state, represented by executive authorities, law enforcement agencies and courts, does not fulfill its obligations to protect human rights and does not redress their violation, and this assumes a massive systemic character. In such a situation, citizens cannot exercise their rights and freedoms guaranteed by the Constitution and laws, as well as international legal documents, and cannot receive protection when these rights and freedoms are violated by the authorities. As a result, citizens not only find themselves defenseless against unlawful violence and coercion by the state, but also lose confidence in the courts and other authorities.
Unfortunately, this situation is a fact of reality right now. Once the political regime changes to a democratic one, it will be necessary to establish legislative and judicial authorities, the law enforcement system, and other state institutions anew and almost from scratch.
Dmitry Laevsky:
Today it can already be unequivocally said that if the current political regime remains in place, then the prospects for jurisprudence and the legal profession are extremely dubious. Because legal work is not valued where it is impossible to achieve justice based on the laws, and where courts do not have real independence. The legal profession cannot develop in a state where the authorities do not adhere to law and in which the rule of law is not really respected. Now we observe the deterioration of the situation in Belarus every day, this is reflected, among other things, in the large-scale pressure and repression against human rights defenders and attorneys, the destruction of the independence of the legal profession. The country is sliding into the Middle Ages in the most negative sense. The continuation of this trend will lead to the complete devaluation of the legal profession. This is another by-product of the legal default.
However, another option is also possible. Namely, if the society in Belarus can achieve the establishment of a democratic governance, then a major transformation will take place in the legal system - law will become an instrument for protecting the rights and freedoms of people and companies, and legal aid will gain significance. Because there is a great demand for the rule of law in society after the terrible events of 2020-2021, when tens of thousands of people suffered from unlawful violence, arrests, termination of employment, threats, administrative and criminal prosecution, and many citizens faced the fact that it is impossible to protect their rights in courts and law enforcement agencies. Perhaps the work of full-time lawyers in companies will not change, but the sphere of public service and private legal practice will undergo dramatic changes. It will be necessary to replace a large part of lawyers in courts, investigative bodies, and executive authorities. Declaring and ensuring the priority of legal values can attract good specialists to this area who were not involved in repression and violations of citizens' rights, as well as ensure return of those who have suffered or lost their jobs due to civil stance and adherence to the rule of law. With regard to the Bar Associations, it is necessary to radically change the legislation on the bar in accordance with the generally recognized principles of law and the principle of the independence of the attorneys; colleagues who have their licenses revoked for political reasons and in connection with their professional activities should be given the opportunity to return to the legal profession. Under such conditions, the demand for legal aid from attorneys will increase, since in a state governed by the rule of law, the value of legal assistance is high. Therefore, the future of the legal profession can be quite positive.
What, if any, tradeoffs / problems have you been faced with in doing your work? How have you resolved them?
Natalia Matskevich:
The most serious problem I, like all other lawyers, face in my work is that the officials pass arbitrary decisions that violate the rights of the clients, and it is totally ineffective to appeal (including through judicial system) these decisions.
For example, my client Siarhei Tsikhanousky (a political opponent of the current government, who announced his intentions to participate in the 2020 presidential elections in Belarus, but was not registered, after a while he was arrested and has been in custody for 10 months) was placed in a pre-trial detention center in a solitary confinement cell for 14 days, and then - for another 4 days for the fact that he was allegedly unshaven and that a cobweb was found in his cell. The arbitrary nature of the claims and the disproportionate punishment applied to a person who has not yet been found guilty by a court verdict, is obvious. Therefore, we understand that the disciplinary measure was used as a means of putting pressure on Tsikhanousky. Moreover, the conditions of detention in the solitary confinement cell have reached the level of cruel and inhuman treatment. However, the court to which we filed a complaint against these actions recognized the disciplinary measure as lawful and justified, moreover it examined the case in a closed process.
In the same pre-trial detention center, the unjustified, humiliating and discriminatory conditions were created for attorneys to meet with certain prisoners. Thus, I can meet with my client, blogger and anarchist Mikalai Dziadok, who also actively and publicly criticized law enforcement, only in a specially equipped room, where he is placed in a cage sealed with plastic panels away from the attorney. The exchange of documents, records, having confidential conversations in such conditions is impossible. The attorney’s complaints resulted in nothing.
There is another example from the defense of the main opposition presidential contender in the elections, Viktar Babaryka, the ex-chairman of the board of one of the largest banks, who was arrested a few weeks before the elections. From the very beginning of the criminal investigation, he was subjected to informational attacks: top state officials (the president, the attorney general, etc.) spoke out publicly, and state television channels produced and still publish reports that obviously violate the presumption of innocence. At the same time, the responses to many complaints submitted to the General Prosecutor's Office did not contain any arguments responding to the arguments presented by the defense. An attempt to obtain a refutation of one of the public statements through the court failed due to the fact that the client's complaint was not even sent to the court from the detention center’s administration.
Thus, an appeal against any decision on the cases of political prisoners is deprived of a chance of success by default. Even if this is obviously illegal, unmotivated or absurd decision, we know in advance that a higher authority, prosecutor's office or court will support and never overturn it. But, nevertheless, these complaints are important in order to document violations of the clients’ rights.
Dmitry Laevsky:
On the very first day of the criminal prosecution of Viktar Babaryka, on June 18, 2020, my colleague, attorney Aliaksandr Pylchanka, and I were not allowed to enter the building of the Financial Investigation Department, where Viktar Babaryka was after his arrest, the officers simply locked the doors. On the same day, we were also not allowed into this building to file a complaint on the detention of Mr. Babaryka (according to Belarusian law, a complaint about detention is filed with the court through the body conducting the criminal process).
We, the defenders, were periodically not allowed into the pre-trial detention center of the State Security Committee, where Viktar Babaryka was remanded in custody. This problem emerged immediately after his arrest and has been periodically resurfacing thereafter. In addition, in this pre-trial detention center, the attorneys are prohibited from handing over legal documents to their client, this can only be done through the administration of the detention center, which directly violates the confidentiality of communication between the defense attorney and the client and the confidentiality of legal aid.
From the moment Viktar Babaryka's defenders joined the case, they signed a mandatory non-disclosure agreement not to publicize the materials of the preliminary investigation (under the threat of criminal prosecution for disclosing information), while the limits of information that are not subject to public disclosure are not indicated neither in the agreement, nor in legislation. Such an agreement is used arbitrarily and turns into a means of preventing publicity, including preventing defense lawyers from publicly reporting violations of the law by the investigating authority.
A common problem is that defense attorneys are not allowed to photocopy case materials. In the case of Viktar Babaryka which consists of 122 volumes, each of which averages about 300 pages, most of which are financial documents, contracts, corporate documents, defenders were only allowed to make excerpts, while photocopies were prohibited. This puts the defense team in an unequal position with the prosecution, which is not prohibited or limited in copying materials. At the same time, the impossibility of copying materials does not allow to pursue defense, since information of such a volume and nature is impossible to be copied by hand.
In addition, the Supreme Court will consider the case against Viktar Babaryka as a court of first instance - this means that the accused are deprived of the right to appeal, since the Supreme Court's verdict enters into force immediately and is not subject to appeal, which in itself does not allow to say that the right to a fair trial is ensured.
How did we solve these problems? We used all legal means – we provided motivation to our requests, both orally and in writing, appealed against the illegal actions and decisions of the investigating body to the senior officials, prosecutor, and in court. Our legal arguments were almost never evaluated or refuted, in other words they were simply ignored. The only tangible result we got was when we challenged the obstacles to visiting Viktar Babaryka in the pre-trial detention center and at the same time gave it a greater degree of publicity - almost all the media outlets reported on this problem - we managed to get the opportunity to visit him.
In your view, what does the Belarusian legal profession want or need from the international community? How can we / others help?
Natalia Matskevich:
Since June 2020, when, against the background of pre-election events, arrests and persecution of opposition leaders, activists, bloggers and journalists, the right of these citizens to a counsel and the professional rights of the attorneys defending them began to be violated on a large scale, the international human rights community and professional bar associations have responded to these challenges. Already on August 17, the Council of Bars and Law Societies of Europe published a letter in which it expressed concern about the threats to which attorneys are exposed. At the moment, more than two dozen appeals and legal opinions from international coalitions of human rights defenders and lawyers, international professional associations, foreign attorneys' offices have been sent to the Belarusian authorities in support of all Belarusian attorneys and those of them who have been persecuted. These appeals contain a legal analysis of the cases regarding the compliance of the authorities' actions with international standards of the legal profession and calls for adequate action to eliminate the persecution of lawyers and violations of the right to defense.
We hope that such support will expand, it is invaluable because professional communities from abroad point out to the government that the pressure on lawyers is unacceptable. It seems important to me that reputable international lawyers' communities appealed to Belarusian Republican Bar Association (and that such appeals are widely public). Belarusian Bar Association need to be reminded of its obligations to protect its members - so that it can generally be considered as a body representing lawyers in the country and having such reputation internationally. And, of course, it is important that professional associations of attorneys, which are undoubtedly a strong part of civil society in their countries, draw the attention of their governments to the issue of ensuring the right to defense, and prosecution of lawyers in Belarus, so that this issue is included in the agenda for negotiations with the Belarusian authorities. The attention from the media towards the situation can also play a role in this.
What would happen in the future for lawyers of Belarus?
Dmitry Laevsky:
As I have already noted, the future of lawyers in Belarus depends on the political situation. With the change of the political regime and the transition to democracy, taking into account the demand in society for the rule of law, the role of lawyers and their importance will increase significantly. However, there is still a long way to go towards this. Today, while large-scale and brutal repressions have been used against the Belarusian society, and foreign politicians remain passive even in public rhetoric, it is extremely difficult to predict an imminent improvement in the human rights situation in Belarus; the last centers of free-thinking in the legal environment are being destroyed. But we do not lose faith in victory.
Learn more about the situation in Belarus by reading the American Bar Association Center for Human Rights new report, available in English and Russian here.
Comments
Post a Comment