Lawyers Need Defense
- By Mumin Shakirov
- Jun. 17 1998 00:00
Like priests, lawyers should protect the confidentiality of those they defend. But they are seen as valuable sources of information.
Russian juridical practice today is such that anyone who falls within sight of the law-enforcement agencies is at risk of being arrested, detained and subjected to psychological pressure. It is for this reason that lawyers now play an especially significant role in defending the interests of these people. But the question arises: To what extent is the safety and defense of lawyers guaranteed by the law and practice?
Unfortunately, it must be said that the level of defense is insufficient. A lawyer not only is unprotected in his private life, but in his work, given that law-enforcement agencies often try to interfere in legal proceedings. He has few means of defending his interests because he is more vulnerable in the procedural sense than a prosecutor or a judge. And this, in turn, puts him in an unequal position as a participant of the court process against a public prosecutor or arbiter.
Press reports have shown that the law enforcement bodies have exerted ever increasing pressure on lawyers recently. Lawyers have often become the objects of persecution, various kinds of provocations, physical pressure and intimidation. It is precisely those lawyers who show "too much zeal" in defending their clients or who have been able to oppose the aims of the law-enforcement agencies that have found themselves to be under the most pressure.
There are many examples of how law-enforcement agencies, convinced that a certain person is a criminal from the start, have begun to act against him unlawfully, using the ends to justify the means.
Defense lawyers are of particular interest to the law-enforcement agencies. They have the greatest access to suspects, the possibility of listening to their confessions and having a true picture of the way things are.
Like priests, lawyers should protect the confidentiality of those they defend. But for investigators, the defense lawyers are seen as invaluable sources of information.
There are laws that are meant to protect the rights of lawyers. Item 15 of the law on lawyers says that "a lawyer cannot be interrogated as a witness to circumstances that became known to him in connection with fulfilling his duties as counsel or representative for the defense." Article 51 of the Russian criminal procedural code says that the "counsel for the defense does not have the right to divulge information that was provided to him in confidence in connection with carrying out the defense and giving other legal aid." Thus, any attempt to extract information from a lawyer is against the law.
It is especially dangerous when workers in state agencies, called on to defend law and order, try nonetheless to extract information. For many in the law-enforcement agencies, lawyers are seen as a hindrance. These agencies often try to pressure the defense counsel into becoming a witness to their investigations.
One case involved a defense lawyer, Vladimir Kizyakovsky, who was called in by investigators from a regional directorate on organized crime to explain some judicial and procedural fine points of a case involving a commercial deal.
Instead of being asked about legal matters, however, he was put under interrogation, during which investigators tried to obtain compromising information on the lawyer's client. When the lawyer refused to provide testimony, his briefcase was searched and he was subjected to psychological pressure.
"When I refused to give them that kind of testimony," Kizyakovsky told me, "they began to threaten me severely."
Kizyakovsky was, of course, forced to report the incident to the presidium of the Interrepublican Bar Association and the Prosecutor General's Office. But Kizyakovsky was unable to prove his rights as a lawyer had been violated. This is not an isolated case. I was told of many similar incidents by Nikolai Klen, the chairman of the bar association.
In order to avoid such rights violations by military structures, it is necessary increase measures to protect attorneys. There is a law that establishes the procedures for calling investigators from the prosecutor's office and the prosecutor general to account. There is a law on the status of judges. There should be similar procedures established for lawyers to guarantee that their rights remain inviolable.
A lawyer should not be subjected to detainment without first informing the presidium of the lawyers' chamber. Arrests of lawyers for administrative offenses, which are a type of noncriminal offense, should not be permitted. Lawyers need to be defended. The level of their defense should be no lower than those in the prosecutor's office.
The law on the legal profession, if applied, could offer the proper defense of lawyers. As the chairman of the Moscow Bar Association, Genri Reznik, told me, "A law on the legal profession will, I think, settle the very complex relations between lawyers and the state. Now in the statute on lawyers has set a norm by which the Justice Ministry keeps general control over lawyers. Of course, if we do not want to leave the Council of Europe, then no rule on the part of the state over the activities of lawyers can exist. The bar is a very specific institution. We carry out public legal functions. A lawyer's activities are a part of legal proceedings and a necessary part of justice. The state should only watch over lawyers so that they observe the requirements of the law."
Mumin Shakirov is a staff writer for Radio Liberty, Moscow. He contributed this comment to The Moscow Times.