An indefensible public defender system How Russia's state-appointed attorneys help prosecutors get convictions
More than 70 lawyers from 19 regions of the Russian Federation have signed a petition demanding that the country's system of state-appointed defense lawyers be reviewed and reformed. Free public attorneys are available in many countries around the world, offering legal defense to people who can't afford hired representation. In Russia, however, they have effectively become part of the law enforcement system. In fact public defenders help prosecutors get convictions. In a special report for Meduza, journalist Vera Chelishcheva (of the newspaper Novaya Gazeta) investigates how Russia's state-appointed attorneys actually work.
No appeals, please
The criminal proceedings against Svetlana Davidova—a woman who was accused of treason in March 2015 and later acquitted—provides a glimpse into the work of free, state-appointed defense lawyers.
Davidova's appointed defense counsel, Andrei Stebenev, not only failed to object to her arrest, but he also gave a statement saying there were sufficient grounds to bring the case against her.
Then, Stebenev let lapse the allotted period for appealing her arrest. It was only then that Davidova—just an ordinary person living in Smolensk, not versed in the finer points of Russia's legal system—finally dismissed her public defender.
Davidova's new lawyer, Ivan Pavlov, managed first to obtain her release (with her pledge to remain in country), and then got a court to throw out the case, due to insufficient evidence. The Moscow Chamber of Lawyers soon stripped Stebenev of his license, concluding that he had not adequately fulfilled his obligation to assist his client.
Unfortunately, Davidova should consider herself lucky. Seventy-three-year-old Yuri Soloshenko, the former director of the defense company Znamya who was accused of spying for Ukraine, was literally denied access to his private attorney, Ivan Pavlov, whom Soloshenko's sons hired to defend him. Police investigators simply blocked Pavlov from visiting Soloshenko in jail, forcing him to accept the services of a court-appointed lawyer, who rarely appeared or did any work. Soloshenko was told that adding a new lawyer to the case “could drag [it] out” while he remained behind bars.
As a result, Soloshenko refused the services of private counsel, completely admitted his guilt, and was sentenced in a closed courtroom on October 14 to six years in a high-security prison. He has since submitted an appeal for clemency.
Moscow State University student Varvara Karaulova is charged in connection with her attempt to join the Islamic State. All of the testimony needed for the investigation was given under the advisement of her state-appointed lawyer. The events in the case followed an already well-rehearsed formula: Karaulova’s relatives signed agreements with several private attorneys, but, for undisclosed reasons, they were not allowed to meet their client. Most of the investigation took place without the private attorneys' input, which will clearly have significant consequences for her sentencing.
The lawyers’ community finally lost its patience after the case of Dmitri Buchenkov, who was recently charged in the so-called Bolotnoe Affair. He was arrested on December 2, 2015, under suspicion of involvement in unrest during an opposition rally in Moscow in May 2012. The day after his arrest, his family enlisted the services of lawyer Svetlana Sidorkina, but she was unable to make contact with Buchenkov, who was refused his right to a phone call, and his relatives did not have the investigator’s number. Buchenkov was assigned a court-appointed defense attorney, who first didn't challenge his client's arrest, instead of requesting other terms from the judge. After the arrest, he informed Buchenkov’s relatives that any appeal of the court’s decision would have to be handled by their hired lawyer, as he had no desire to do it himself.
It was after this example in particular that several well-known lawyers—more than 70 from 19 regions of the Russian Federation—signed an appeal to the Council of the Federal Chamber of Lawyers, calling attention to the increasingly common practice of state investigative bodies violating people's right to good legal defense by forcing them to use corrupt lawyers. The same appeal was sent to the Moscow Chamber of Lawyers. “We’ve encountered a situation where, no court—not even the Constitutional Court—no prosecutor, and no investigator is in any way interested in the observance of the constitutional right of detained persons to their defense,” says one of the petition’s initiators, the head of the international human rights group “Agora,” Pavel Chikov. “It means that there is nobody to fall back on, anywhere in our law enforcement system. We have to come together ourselves. Our task is to lay out precise regulations for public defenders. We want to set the bar high enough that they can’t surpass it. [Every sanction] up to and including the threat of losing their status, that is the most grave punishment for them.”
The lawyers’ Code of Ethics states that the quality of free, court-appointed defense should not differ from a reliability standpoint from the quality provided by private attorneys.
In practice, an institution that was created to help lower-income citizens (with its analogue in countries around the world) has become an appendage of Russia's state prosecutors. Especially when it comes to controversial political cases, the only thing separating public defenders from the police is that they don't wear uniforms. Courts maintain the appearance that suspects' rights are being observed, but the confessions that detained persons give in the presence of their appointed defenders frequently leave committed lawyers in horror.
Looks like you've already got a lawyer
According to the code of criminal process, if someone detained has no lawyer, then the detective, investigator, or judge calls—as a rule—to the nearest bar association to ask the director to appoint a defender for the course of any investigation and the court hearing. The head of that association distributes appointments between its members. They do not have the right to refuse these case assignments.
By law the public defender, upon taking the case, is compelled to ask relatives of the accused whether they have hired anybody else. If not, then the investigator or judge gives power of attorney to the court-appointed defender.
“The thing is, like Lenin said—‘the form is all correct, but the reality is a mockery,’” says Vladimir Gorelik, the chair of the Moscow firm Gorelik and Partners. “The defendant with state-appointed counsel finds himself in a kingdom of crooked mirrors. It’s as if he's got a lawyer, but in fact that lawyer's support for the interests of his client in the case is either faked or altogether absent.”
According to jurists, in practice investigators appoint the defender themselves, without waiting for the detained to choose. More than likely, the defender and investigator have worked together on previous cases, and the chosen lawyer is known to “play ball.”
“Each investigator has the cards of lawyers ready to serve by appointment on his desk, and they tend to have a comfortable working relationship,” says Andrei Grivtsov, former state investigator and now a partner with Zabeida, Kasatkin, Saushkin, and partners. “For the investigator, this comfort means the [appointed] lawyer is on call to take part in all investigative or processual meetings at any time, including the middle of the night, and is not going to take an active stance for the defense or appeal any rulings. Ideally, he’d simply sign all the documents without even looking.”
Any lawyers who might take a more active role—and inconvenience the prosecution—investigators simply stop appointing.
“One of the partners in my firm, Aleksandr Zabeida, started his career in exactly this position: state-appointed defender. He never conceded to the position of the prosecution, and as a result he was invited to work as court-appointed defense no more than once by each investigator,” explains Grivtsov.
For cases being pursued by Russia's Federal Security Service or the Main Investigative Directorate, there is a genuine, closed caste of appointed attorneys. Even well-known, experienced lawyers acknowledge that in this regard “the situation is unique and not altogether clear.” They admit that these cases are staffed by people with “particular” or even “affectionate” relationships with investigative or state security bodies.
Yet another huge problem relates to the difficulty privately retained counsel faces in quickly joining a case. If the person under arrest claims to have his own lawyer or asks to be in contact with relatives, this creates additional headaches for the investigator. The latter is primarily concerned with expediting as much as possible, to suit procedures that mandate two-day arrests.
So for the investigator, it is easier to file the necessary materials when they can write, “The contracted defense lawyer didn’t show up after all, and a public defender had to fill in for the initial stages,” though the attorney could be standing just outside the door in a police station or investigator's office at that very moment. Attorneys have to call the investigator personally to have them come out and let them in. Frequently, it’s impossible to get through, or the investigator’s colleagues say he is “busy and it’s unclear when he’ll be available.”
Lawyers surveyed by Meduza confirm that this is the general policy, officially sanctioned from on high.
Disappointed in the profession
The lawyers who work in unison with law enforcement agencies tend to be people who long ago became disillusioned with their profession, and now treat it with cynicism. Andrei Grivtsov suggests this disappointment comes to many as a result of the prosecutorial bias that is characteristic of the existing system of criminal investigation. Verdicts vindicating defendants are so rare that many lawyers work years on end without winning a case.
For that reason, some lawyers—seeing no point in contesting the actions of the investigator—choose the simpler path: collaborating and signing off on any necessary documents.
Aleksei Miroshnichenko, a lawyer and formerly Moscow's chief bailiff, remembers that defenders in Soviet times were happy to pull on-call duty, as it was a way to find new clients. The well-known lawyers bought their way out of this, which helped lawyers new to the job. It was these on-duty attorneys who defended suspects as necessary, on the basis of requests from courts and investigators. In practice, the lawyers simply cast lots to see who would get a client, but even then some investigators tried to mold themselves narrow, reliable circles of “close” lawyers. But this was significantly more complicated back then because an appointed lawyer had to come from a nearby region (not from the other side of the city). Otherwise it would look too suspicious.
Many Meduza sources further tied the low-quality work of public defenders to the mass influx of former police officers, prosecutors, and investigators into the legal profession, where they easily find a common language with their former colleagues.
Many of these lawyers have earned the nickname “fixers.” Investigators can be sure they’ll encounter no problems whatsoever with them.
“In provincial regions, friendship with the investigator is an indispensable precondition to get anything done,” says Aleksandr Trifonov, an expert with the legal service 48Prav.ru. “Already back in 2010, I was surprised to find that all of the officers at a district police station carried the cards of one and the same lawyer—literally, they all had his card.”
Who are these people?
Highly-qualified and active lawyers generally shy away from work as state-appointed defenders on criminal cases. They are already in high demand, busy working under contract with clients.
The call for work as public defender usually goes to specialists who maintain certain relationships with investigators and judges—to attorneys who don’t have an active or well-paid practice of their own.
Since such lawyers aren’t receiving compensation from their clients, they tend to be passive, even poorly acquainted with the case materials. Most of their work boils down to giving a single piece of advice to their their defendants: confess your guilt and they’ll give you a reduced sentence.
“These people are even worse than the employees of the law enforcement agencies,” says lawyer and bankruptcy specialist Aleksei Nikolaev. “After all, the suspect needs at least somebody they can trust, some help they can depend on. And the state seems to be providing that kind of help—free of charge, even—when in fact the accused gets the inescapable stab in the back.”
State-appointed lawyers frequently serve as a kind of middleman between investigating authorities and the suspect in a case, conveying to their client through one channel or another financial propositions in exchange for softer sentencing or other preferential treatment. Another Meduza source, lawyer Suren Avanesian, adds that such defenders understand the situation perfectly: if they demand the observance of their client’s rights, then they won’t be invited back the next time by the investigator and they’ll lose their main source of income.
What they're paid
Compensation for the work of appointed lawyers is designated by government resolution and orders of the Ministers of Justice and Finance. For one working day, public defenders are due no less than 275 ($3.50) and no more than 1,100 rubles ($14). For particularly sensitive cases (for example, those under statutes for treason, espionage, or terrorism), maximum wages increase to 1,200 rubles ($15) per diem. Nighttime work draws a double rate. Time spent is measured in days during which a lawyer was occupied with fulfilling case duties. If the lawyer spent just one or two hours on matters under investigation, then it counts as if they worked the entire day.
In addition to the state budget, pay for the labor of appointed attorneys also comes from the distribution of funds from within the legal community. Lawyers unwilling to work by court appointment pay a designated monthly contribution from their private fees to pay lawyers who serve as public defenders.
According to attorneys, working a single case in the pretrial phase can produce significant earnings—$5,000 and up (all the more so, if it’s a complex case with a preliminary investigation that drags out over nearly a year). Moreover, lawyers that work well with investigators cash in from amassing as many cases as they can for themselves. And it doesn't seem to bother these defenders very much how these cases turn out.
How much they're valued
As Pavel Chikov told Meduza, the authors of the appeal to the Federal Council of Lawyers tried not to generalize, given that public defenders—like privately retained lawyers—vary. Both groups include some people with integrity and others are less honorable. “As lawyers we accept this sad fact like the saying ‘there’s a freak in every family.’ They are traitors to the profession, but there are still not so many of them. The situation must be observed dispassionately,” he says.
According to Chikov, there are many who worked in their time as public defenders among the signatories of the appeal.
Other jurists who signed the petition also say that labeling appointed defenders as an “arm of the investigation” is an oversimplification. They claim that lawyers would only openly and directly act in the interests of the investigator when participating in a direct conspiracy with clear material implications, in which the corrupt lawyer more often than not needs to convince their client that it is against their own interests to obstruct the investigator.
Such a lawyer might also serve as a spy for the investigator, passing along information given by their client in confidence.
“These situations are the most repugnant, as they represent a direct betrayal and discredit the community of lawyers,” says Aleksei Miroshnichenko. “Yet in the grand scheme of things they aren’t all that common. And it’s not like the participation of a traitorous lawyer is a necessary precondition in all, shall we say, ‘bought’ cases. The investigators can fabricate it all even without them.”
The view from the inside
The protocol for appointing state attorneys in Moscow courts differs somewhat from that of preliminary investigations. Judges do not call upon specific lawyers they know, but simply send a message to the chamber of lawyers without participating in the selection of a convenient candidate.
“The Tverskoy district court has an enormous workload," one public defender told Meduza. Its territory includes a long list of agencies, police branches, facilities, and services. “Accordingly, requests from investigators regarding pretrial restrictions or extension of arrest terms are reviewed here; it’s a tremendous volume. Consider this example: the court gets a petition from the investigator about extending the arrest of a suspect who has hired a defense lawyer. The judge informs this contracted lawyer that the petition will be reviewed in court within seven days. At the allotted day and time, he appears in court to find that the accused still hasn't arrived from the detention facility, as the same car transports several suspects to various district courts, getting stuck in Moscow traffic en route. Let’s say instead of 11 a.m., they are only delivered at 2 p.m. For that reason, the judge hears other cases involving other people, and the whole schedule breaks down. The contracted lawyer sits for several hours waiting. And, in addition to this, he has other cases slated for hearings. So he leaves court, having waited for nothing.”
As a result, the hearing takes place much later and with an appointed defender who can’t simply get up and leave (this is forbidden under Russian law). This attorney is also reluctant to participate in a case about which he knew nothing until just a few hours earlier. The scheme that then unfolds is quite simple: the court-appointed lawyer files a motion stating the case cannot be reviewed without the hired lawyer. The judge denies the motion on the grounds that the hired defender was duly informed of the time and place of the case under review, and then he makes his ruling: an extension of the suspect's pretrial detention. The rights of the accused, in this manner, are left without any real defense. It is only later, upon appeal, that the privately retained counsel might contest the decision.
“Take effective measures”
Lawyers who work under private agreements consider it vital on principle to rule out the possibility that investigators could choose lawyers at their own convenience.
In their appeal, they call for the adoption of a practice of electronic, randomized assignment of cases amongst lawyers from each chamber assigned to a given investigative organization.
Similar rules are already being instated in a few lawyers’ chambers in some regions throughout the country. Moreover, they say, the system could be designed such that the investigator contacts the association in real time, with an available lawyer sent their way within 30 minutes.
That way, the lawyers who signed the petition are certain, personal relationships between an investigator and defender can be ruled out.
The Federal Chamber of Lawyers has confirmed that it received the appeal from the group demanding better regulation of the work of public defenders. “We are in touch with the Council’s Secretariat,” says Pavel Chikov. “They say they intend to deal with Dmitri Buchenkov's [Bolotnoe Delo] case, as well as more generally with other similar complaints.”
The chamber did indeed commit to opening disciplinary action against the defender assigned to Buchenkov, but that seems to be the most the chamber can do on its own initiative. Their press release in response to the lawyers’ appeal concludes with a call to the heads of Russia's investigative agencies and courts to “take effective measures to rule out the possibility of cooperation between dishonest representatives of those institutions and the lawyers they appoint.”