Defence attorney Yury Schmidt comments on the latest menace to his profession

Echo Moskvy, 08.05.2008

Alexander Plyushchev: On his very last day in office President Putin proposed a bill to the Duma that would strengthen the monitoring and supervisory functions of the Federal Registration Service. In particular, territorial agencies of the Service would be able to apply to the courts for a lawyer to be disbarred if the council of the Bar Association had either not considered their application or had rejected it.

That, however, is not the most important aspect. As several newspapers note today the Registration Service would gain “the right to formally request any documents from a defence lawyer that are linked with his or her defence of a client, and receive the necessary explanations concerning the case”. Many defence attorneys consider this an attempt to place their profession under State supervision. Our guest today is the well-known lawyer Yury Schmidt.

Yury Schmidt (speaking by telephone): Good afternoon.

Irina Merkulova: Good afternoon.

A. Plyushchev: How do you assess this bill which was proposed to the Duma by Vladimir Putin himself, a bill that directly affects your work and activities?

Yu. Schmidt: I think there are no supporters of this proposal among my colleagues. Even such pro-Putin individuals as Messrs Pavel Astakhov, Mikhail Barshchevsky and Anatoly Kucherena have voiced their negative opinion. I may add that the prestige and influence of defence attorneys as a profession defines, to a great extent, the level of rights, liberties and legal protection enjoyed by the individual in any society.

Let me quote my own opinion stated many years ago: “the profession of defence attorneys in the USSR was a concession forced on the regime by the ‘rotten’ West”. Defence lawyers were then kept on a short leash. Like prisoners under escort, a step out of line, to left or right, was considered “an attempt to escape”. And in its present condition the profession does not fit comfortably into the chain of command established by Putin. An authoritarian regime does not want strong, independent defence attorneys who are not intimidated by those in power.

As to this bill ... A similar amendment was introduced two years ago. Then, however, it was put forward by a group of deputies. Probably that was why it was not passed by the Duma. Now it has been introduced by the president (the former president) I think it will be triumphantly accepted. It is in line with all the legislation of the last few years, which aims to destroy civil society. For instance, if we are talking about defence attorneys then I can say that last summer the norm of the Criminal-Procedural Code requiring the court’s agreement before an attorney could face criminal charges was abolished. It is no longer necessary.

Those are the main points. There is something else I find astonishing. These gentlemen in high office are totally convinced that they will never need a defence lawyer themselves. As history teaches, that is a major delusion. Even the last twenty years of Russian history show how people holding such office have found themselves inhabiting quite different premises and, instantly, they chose the most famous and, as they thought, the bravest lawyers to defend them.

I. Merkulova: But we have a new president now. What do you think? Could Dmitry Medvedev in some way block this proposal ...?

A. Plyushchev: Especially since he is himself a lawyer!

I. Merkulova: Yes and he was, somehow, always on the side of the profession ...

Yu. Schmidt: [sighs] You know ... Let’s wait and see ... So far I’ve heard a lot of good words from Mr Medvedev. Now the time has come when words must be transformed into deeds.

And, by the way, I’d like to add, as concerns the bill, that defence attorneys are equally worried by both its aspects: the right of the Ministry of Justice in the person of the Federal Registration Service to challenge a decision by the council of the Bar Association if they are dissatisfied with it, and the right to apply to the courts.

I recently read an Internet interview with Genry Reznik, president of the Moscow Bar Association. He said that in recent years demands to disbar lawyers were made exclusively in relation to those defending Mikhail Khodorkovsky. There was one other application and, it seems, that was approved but there have been applications to disbar all Mikhail Khodorkovsky’s lawyers (in my own case, two applications). So if the councils of the various Bar Associations had proved unable to reach a decision the issue would have come before the courts. Now as we know, for almost five years the courts have done exactly as the Kremlin told them. If that had happened, Khodorkovsky would not have had any defence attorneys at all.

A. Plyushchev: But if, as you say, our courts act in accordance with instructions from officials, and carry out the orders of the Kremlin, why bother to treat defence lawyers in this way? They can quite calmly take their decisions without such measures. What do defence lawyers matter to them? They can’t stop them, it would seem ...

Yu. Schmidt: Well, it’s like this. Some high official or even the president himself is making statements about particular cases, criminals or corrupt individuals. Then, suddenly, an interview with a defence attorney is published, explaining that “it’s nothing of the kind” and that the evidence of the Investigative Committee or the Prosecutor General's office is “worthless” ... “What’s the meaning of this?!” They respond, “This undermines our authority!”

The profession of defence attorneys, we may say, is a form of legal opposition. If I say that “the Soviet regime tolerated it” then, at the same time, it took protective measures, and they were very effective. As concerns political cases, they only permitted defence attorneys (with very few exceptions) who had been carefully selected. In cases concerning treason, naturally, only the most trusted lawyers were admitted. And ... I don’t know [laughs] how well you remember the Soviet period ... in order for an interview with a defence lawyer to be published or for him to be allowed to speak on television (!) ... well, I cannot recall anything of the kind during [that part of] my long life as an attorney.

So that’s why, like it or not, they fear us. If they want again to “get their claws into us” it means they fear us.

And it’s just one more proof that the system is turning into a frankly authoritarian regime. It’s yet another illustration for those naïve people in the West who consider that Russia is a democratic country (if such people remain).

A. Plyushchev: If, as you say, the courts themselves are not independent is there anything a defence attorney can do to help his client? You’ve mentioned the political aspect, that a lawyer may give an interview and expose what’s going on ... That’s fine but that’s a political matter. Can you and your fellow attorneys help specific individuals today?

Yu. Schmidt: I have had to answer this question so many times that the answer simply rolls off my tongue. In those instances where the case is politically motivated the authorities today can achieve any result they want — they have numerous means for doing so. In those cases where corruption is at work, and often political motives and corruption are intertwined, as was the situation in all the criminal cases of the Yukos affair, there remains a certain freedom of manoeuvre. In that free space, which is not dominated by those two oppressive factors, defence attorneys can genuinely be of help. In fact, I consider they can do so in other instances, although it is very hard ...

I. Merkulova: What do you think will happen to your profession in Russia? Will there cease to be defence attorneys? Probably they will be afraid to take part in certain major cases?

Yu. Schmidt: For the time being there are still enough brave people. During the Soviet period they were constantly weeded out: either they were forced to emigrate; or expelled from the profession, like Sofia Kallistratova and Boris Zolotukhin; or kept in line by the Party and the overall system of coercion ... Defence attorneys knew exactly the limits of their freedom and knew what was, for them, “forbidden territory”. Probably that’s what the regime wants today.

I. Merkulova: We have a request from our listener Diana in Saratov. Please tell us, very briefly, how is Mikhail Khodorkovsky?

Yu. Schmidt: Let us pray that everyone shows the same fortitude. He is in good spirits and has nothing wrong with him.

A. Plyushchev: Our guest tonight was defence attorney Yury Schmidt. Thank you very much for your words of advice.