Tehver: A lawyer depends on their legal environment

Chairman of the Estonian Bar Association, CCBE member Jaanus Tehver. Photo: Sander Ilvest

The situation in Belarus recently merited a reaction from the Council of Bars and Law Societies of Europe (CCBE) that has sent two letters to President Aleksandr Lukashenko expressing concern over harassment of colleagues in Belarus.

Chairman of the Estonian Bar Association, CCBE member Jaanus Tehver says that even though the situation clearly escalated after presidential elections in August, his Belarusian colleagues have been having increasingly serious problems for years. And even though the dangers of working as an attorney are not often discussed, the CCBE has appealed to different countries hundreds of times regarding the safety of his colleagues.

The rights of lawyers are not as often discussed as those of journalists.

That is true, while I have heard claims that if being a journalist is the most dangerous job in the world, being a lawyer is a close second.

It comes up in professional circles. It’s simply that when journalists discuss their line of work, it is often in the public eye. Conversations between lawyers usually do not go beyond those circles, which might be the reason why risks there are more seldom discussed.

In which countries is it most dangerous to be a lawyer?

There are quite a few such countries and problems differ. The first that come to mind are totalitarian regimes, such as Iran, Syria and China.

Other problematic places include the Philippines; all manner of Central Asian countries – Turkmenistan, Uzbekistan, Kazakhstan – Russia, of course, and especially Crimea; Moldova. Also, Columbia in Latin America.

There are quite a few problematic places. The nearest such place to us in Europe is Turkey and, in light of recent events, also Belarus.

It is generally a phenomenon associated with totalitarian regimes, while there are exceptions. Countries we usually associate with a more or less sensible democracy, such as Mexico and India, can also be affected.

Both have their own peculiarities. Mexico is combating drug trafficking and organized crime that brings with it attacks on lawyers. India has clashes over nationality and religion.

What are the typical fields where representatives of the law, so to speak, usually get into trouble?

The likeliest victims of attacks are human rights lawyers and those who bring cases against the state.

But criminal attorneys are not far behind, whereas they can also be at risk in democratic countries.

How many cases has the Estonian Bar Association seen where lawyers have been concerned for their safety?

Luckily, I can say that we are in a highly privileged situation in this regard as I have virtually never heard of a colleague being seriously concerned for their safety.

People say things through the bars sometimes, but we have nothing that even compares to the kind of problems that exist elsewhere in the world.

At what point did the CCBE decide it was time to send a letter to President Lukashenko regarding the human rights situation in the country?

The letter sent in August was a reaction to the wave of violence that followed presidential elections and one part of it concerned accusations against a number of lawyers seemingly without grounds and their detention.

The situation of lawyers in Belarus has been in the CCBE’s focus for years. How people raising uncomfortable issues for the regime have been simply expelled from the bar, how fabricated disciplinary cases have been brought and lawyers’ actions impeded every which way is an age-old problem in Belarus.

How many contacts do Estonian attorneys have with colleagues in Belarus? What kind of a life do they lead?

I have few contacts there myself. Contact is fairly limited on the level of the bar associations. Those who have personal contacts might know something, while many have no association with Belarus whatsoever.

The kind of life they lead is perhaps difficult for us to understand, especially for people in my generation who have not experienced how a lawyer lived in the totalitarian period that ended a few dozen years ago here.

A lawyer cannot really do anything outside the confines of the legal environment in which they operate. Everything they do falls within that framework that brings people face-to-face with tough choices.

All they can do is what the regime or system allows and whether it matches the person’s convictions or not is technically a secondary matter.

Professionally, they can work within that system. Wanting to do more makes one a “revolutionary” or “activist” at which point the person stops being a lawyer. They can criticize, make public statements and carry out media campaigns – things that lawyers do to some extent. But all of it is outside a lawyer’s professional scope, strictly speaking.

It splits a person in a way, placing them in a schizophrenic situation where, on the one hand, they want to say that what is happening is absurd and a circus and something they would like nothing to do with, while on the other, a lawyer has an obligation to their client.

A lawyer must do everything in their power to achieve the best possible result for the client. In that role, you cannot just declare that you do not recognize the legitimacy of the court. I mean, you can, but it will be utterly useless. One must inevitably navigate a gray area of various principles.

You cannot freely pursue classic activism in such a situation. If you literally become an anti-system activist, it is very likely that you will find working impossible.

An attorney is not seen in two separate roles. An activist at night and a professional during the day. It is not that simple in such systems. Perhaps I can criticize who I want and still turn up in court the next day and be accepted professionally in Estonia.

In totalitarian regimes, such activism can make professional life impossible and cost you your freedom or even your life.

It can begin with one’s choice of client. If a client has a very strong anti-regime background, simply agreeing to represent them can turn one from an attorney into an activist overnight.

Absolutely. It is clearly visible that doing certain things, representing certain clients requires a great deal of courage as simply accepting such a task makes you an undesirable element at best in the eyes of the regime.

Looking at Belarus or Turkey, where purges that begun in 2016 have been carried out with support from the courts, while judges, lawyers and others have fallen victim to those same repressions, what feelings are conjured up when thinking about colleagues representing different parties there?

The feelings are very confusing. The first one is that it makes you appreciate just how good we have it here and how few our problems are.

It is very difficult for me to imagine myself living and working in a system where you need to count on the possibility of not being able to work again at all times. Where you are lucky if you can continue walking the streets and might not even have that luxury.

This undoubtedly creates immense solidarity and respect for people who manage to remain true to their principles and remain active in spite of it all.

On the other hand, we need to remember that there are all kinds of regimes and people. Simply because a person is a highly trained lawyer does not mean they value the same principles we hold dear.

What about the broader human rights situation in our society? One cannot help but feel – and perhaps the stereotype is familiar from American movies – that human rights issues are handled pro bono by a girl in a woolen sweater sitting in a derelict office somewhere, while lawyers represent the rights of wealthy businessmen.

This picture as painted by the movies has a grain of truth to it. While it’s not the whole story.

Talking about Estonia, our problem is a very weak nonprofit sector. This has a number of reasons many of which have to do with the funding model.

The Estonian nonprofit sector largely relies on project-based funding, meaning that whoever pays the bill gets to dictate what the recipient does.

And the human rights field is no exception in terms of the nonprofit sector being short on resources: financing, staff – everything. In other words, the phenomenon in Estonia is that if lawyers do not do it, no one will.

This is a slight exaggeration, of course, as we have the Estonian Human Rights Center that is relatively active. They are doing very good work considering their funding; and we have a few other organizations. I’m not looking to undermine them here.

But the general picture is that resources are scarce, meaning that the role of the bar association is perhaps disproportionately big. We have almost the entire independent legal resource. And this means that if we do not pursue these matters, they will simply go unpursued.

The situation is slightly different elsewhere in the world. Associations of activist lawyers who are not members of the bar traditionally have a stronger position and are more active there.

Translation by BNS.