The more incriminative the legal system the greater the role of lawyers, says Genrih Padva – a living legend at Russia’s Bar Association.
Best known Moscow lawyer says fight
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To the Eston Kohver case backdrop, member of Russian Bar Association Genrih Padva delves into peculiarities of the Russian legal system, and into the role of a good lawyer in times when all the authorities want is to convict people.
What’s the role played by a lawyer, in a Russian criminal procedure?
To answer this, I’d split criminal cases in three notional groups.
The first would be the «national issues» where state authorities intervene, even with cases not political... Sadly, Russian courts can be influenced by state authorities starting with President’s administration to government to the lowest level agencies.
The other category is court cases which, crudely speaking, are solved by bribes.
The third category is cases solved by courts without power or money intervening.
What would fall into category three?
The simple stuff, mostly, like hooliganism, but sometimes robberies and rapes. All such criminal cases where state authority interests and money aren’t involved.
What’s the role of a lawyer?
It varies. In the 1st category issues, it is sadly small, but I can’t say they play no role at all. The options are just so limited. The lawyer gets a chance if he manages to prove some gross fundamental procedural errors, or violations of citizen’s rights.
Is the lawyer’s role larger in the bribes-related cases?
With the second category, the lawyer’s role is also highly limited. Here, I’m not talking about such cases where the lawyer is himself part of material battles. But should someone slip a bribe without the lawyer’s knowledge but from his side, the lawyer would appear to have won the case but not due to his mastery, experience, knowledge, but due to money. But is he loses, he also loses because of money.
In most such cases, the role of the lawyer is small from the start. But, again, in some cases if the lawyer does a good job and is bold, and there is evidence that an unjust judgment is being hatched, he may see a judge, prosecutor or investigator backing down. These will realise the risk may be too high, and they will refuse the money and solve the case according to law.
Can a lawyer at least do his job in the 3rd category stuff?
Here the lawyer’s role is a lot larger. Even so, it is not always the lawyer’s arguments that win out. That may, for instance, be due to low competence of the judge, or several judges pre-tuned to incriminate.
What other problems will a defence lawyer face, in a Russian court?
Regrettably, there are rather many among the lawyers who are incompetent. The problem being, lately the Bar Association has been joined by many former judges, prosecutors, investigators, even intelligence workers, who lack the lawyer special skills. They think that if yesterday you stood in court as prosecutor, today as a lawyer you just say the opposite. Yesterday he said it was black, today he says it’s white! That’s a totally wrong notion.
The specifics of working as a lawyer are totally differing from a prosecutor of a judge. A judge and a prosecutor must always weigh all arguments pro and con – and a prosecutor has the option to waive the accusation.
A lawyer, who has undertaken to defend someone, must only defend and defend only! He can’t say oops my clients will not own up to it but he’s guilty of course – but would you please give him some milder punishment. A lawyer has no right to do that! A lawyer is always obligated to take the client’s side and to always speak in his favour.
A lawyer must learn to look at the material in a criminal case in a way to detect any slight detail speaking in favour of the client being defended. That’s quite difficult. Even experienced lawyers at times face a dead end, unable to find facts speaking for the person defended.
Compared to the Soviet times, how would you assess the present situation?
I started out a lawyer the year that Stalin died, in 1953. Formally, of course, it is a totally different situation for layers today. Formally, a lawyer has much more rights now. A lawyer has the right to participate in preliminary investigations. In the old times, we were not let near the preliminary investigation materials, nor the person defended, before the court session. So according to law the lawyer’s situation is a lot better than in Soviet times.
But, at the same time, the lawyer’s rights are being annulled. What’s the good of having the right to meet the client from the moment of being accused or suspected, if somebody has called from higher up and ordered to close everything up? In that sense, the layer’s rights don’t play too much of a role.
«Administrative resource» was in action during the Soviet times as well, wasn’t it?
There wasn’t such direct intervention. It was … more cautious, somehow. And there was no such whirlwind of bribes then like now, of course. Though there were some single cases, of course.
Also, the lawyers were more competent back then. They were few in number and they were chosen for (bar association) membership very carefully, with utmost caution. Increased quantity will always result in decrease of quality.
You are claiming that the Soviet powers were not that invasive regarding the work of courts?
In some ways it was less, in some ways more. In Soviet times, the system was built otherwise. The Communist Party (of the Soviet Union, CPSU) central committee issued a regulation to boost fighting hooliganism, for instance. So, as one man, the courts got busy jailing everyone accused in hooliganism, considering nothing. Today, it’s not like that.
But, on the other hand, now there’s strong intervention is certain issues. All it takes is someone in power publicly saying something about come court case – immediately, the judges say aha, that’s what is needed …
But, the Soviet party committees at oblast level intervened more, in local and regional court system. Now, local powers intervene less.
But, in political issues, for instance, next to no one was ever judged innocent in Soviet courts.
Then, political issues were even worse and more hopeless for lawyers than today. Now, thanks to media, there is at least a discussion on such processes, expression of opinions.
Take the Bolotnaya cases for instance, which were political, but look how much it was publicly discussed, how boldly the lawyers presented their case. Or then the girls who played music in the church, there the lawyers came out with very bold statements, fought for their stands (the Pussy Riot case – J. P.).
In Soviet times, lawyers admitted to their clients’ guilt. I recall there was this excellent and wise lawyer Boris Zolotukhin who, at a political process, pleaded to judge the client innocent. After that, he was thrown out of Bar Association.
(In a court case in 1967, Mr Zolotukhin was defending the dissident Aleksandr Ginsburg. Allegedly, Mr Zolotukhin was one of the four lawyers in the history of the Soviet Union who, in political processes, asked to judge their clients not guilty. – J. P.)
With a legal system so strongly inclined towards incrimination, what’s the role of a layer then?
The more incriminative the legal system, the greater the role of lawyers.
Why?
Because there needs to be a counterweight, see? It can’t be that no one protests. Otherwise they’ll jail the entire country. Despite everything, at times the lawyers still manage to stand against the system.