Irina Gak's colleagues called the amendments on disbarment unconstitutional
The amendments that allow a lawyer to be stripped of his or her status after leaving the country violate the constitutional rights of a citizen to choose a profession and place of residence, and the repressive norm is aimed specifically at the human rights community.
As "Caucasian Knot" wrote, the Rostov Region Bar Association has for the first time applied the amendments to the law on advocacy that allow a lawyer to be stripped of his or her status for living abroad, stripping Irina Gak of her status. She represented the interests of activist Anatoly Berezikov, who died in a special detention center.
On June 14, 2023, Anatoly Berezikov died in a Rostov special detention center, where he was serving his third consecutive administrative arrest after a pacifist action. The activist's arrest was set to expire on June 15. Lawyer Irina Gak was told about his death when she came to meet him. At the same time, when Gak met with her client a few days before, according to her, he looked healthy. Earlier, the lawyer recorded traces of a stun gun on Berezikov. "He complained to me that he was threatened, that he was afraid that he would be killed... He complained that the security forces took him out of town and tortured him with stun guns," Irina Gak said.
The first case of applying the amendments to the law on advocacy, which allow a lawyer to be deprived of his status for living abroad, was commented on for the "Caucasian Knot" by legal expert, former associate professor of Volgograd State University Roman Melnichenko, representative of the Interregional Public Organization of Advocates and Lawyers "Initiative 2018" Sergey Naumov, lawyer Timur Filippov and representative of the project "A Word to the Defense".
Restoration of the status of a lawyer is possible only if the status was suspended, not terminated, explained Roman Melnichenko. "In the example under consideration (Irina Gak), the status of a lawyer was terminated, which means that it is impossible to restore it. The former lawyer has the opportunity to get it again by passing the relevant qualification exams and paying the chamber a certain amount of money, the "first lawyer's fee," he told the "Caucasian Knot."
He believes that it makes sense to challenge the decision of the chamber's council, since the article applied is new and "untested." "If you remain silent, the practice of automatically depriving "departed lawyers" of their status will become entrenched." In this case, you can pay attention to the phrase "may terminate the status" used in the law: that is, the Bar Association can ignore this article altogether and even leave the Ministry of Justice's appeal to terminate the status of a departed lawyer without satisfaction on legal grounds. It is very sad that the lawyer managers did not do this, that is, they personally and voluntarily acted as accomplices in the movement to enslave Russian lawyers," he noted.
In his opinion, the rule on depriving an expatriate lawyer of his status does not directly contradict the Constitution of the Russian Federation, which "does not mean that such a step is civilized."
"Any constitutional system is a stable, but not an unshakable phenomenon. In the context of 1993, when the Constitution of the Russian Federation was adopted, human rights were the highest value in accordance with the norms of the international community, but now Russia is on the path of isolation from international legal values. In this paradigm, an individual as an independent unit loses his social weight. Back in the early 2000s, Russian lawyer managers were the instigators of such processes, which we call "the enslavement of lawyers." It was the Bar Association that first limited, for example, the right of a candidate to take an exam to obtain the status of a lawyer only to the region of his residence, then limited the transfer of lawyers from one chamber to another. The Russian state follows in the same vein today, considering citizens to be state property. A lawyer who has left is lost property, and in order to stop this, a rule was introduced on depriving a lawyer of his status for leaving. In the new contexts of nationalization of the individual, this rule on depriving a lawyer of his status who has left looks quite constitutional, which does not mean that such a step is civilized," he emphasized.
In April 2024, amendments were made to the law "On Advocacy and the Bar in the Russian Federation" (No. 63-FZ). According to them, from October 20, a lawyer can be deprived of his status if he left Russia for more than one year or for permanent residence. Exceptions are departure for treatment, study, for official needs of family members or for "valid reasons". In December 2023, Initiative 2018 appealed to the UN, international bar associations and human rights organizations with a request to pay attention to the violation of the rights of lawyers in Russia.
Russia ignored the UN request to amend the law "On Advocacy and the Bar in the Russian Federation," said Sergey Naumov, a representative of the Interregional Public Organization of Advocates and Lawyers "Initiative 2018." "In response to the appeal of "Initiative 2018," the UN special rapporteurs sent a communication to the Russian government, which has not responded to it to date," he told the "Caucasian Knot."
He also believes that it makes sense to challenge the deprivation of the status of a lawyer on the basis of the new amendments.
"The status can only be restored by retaking the qualification exam on a general basis and, as a rule, paying the entrance fee established by the chamber. There is a point in challenging the termination of the status, but apparently, this will have to be done in the context of challenging the law itself, on the basis of which this termination was made. The law obviously does not comply with the Constitution of Russia and international standards. A more detailed justification for this is given in a special statement by Initiative 2018, published back in 2023, at the stage of proposing the amendment under discussion for adoption," he noted.
Lawyer Timur Filippov also believes the law is unconstitutional. "The Constitution of the Russian Federation guarantees freedom of labor, including the right to choose a profession and occupation. Amendments to the law on advocacy (Federal Law 63) dated October 20, 2024 effectively deprived lawyers who went abroad of the right to practice their profession without breaking the law, which is equivalent to a direct restriction of professional activity, a ban on the profession. Article 15 of the Constitution of the Russian Federation requires that laws do not contradict the Constitution and international treaties. Russia has not denounced most international human rights agreements, including the International Covenant on Civil and Political Rights, which directly prohibits discrimination based on place of residence. The amendments affected only lawyers, they did not affect judges, prosecutors, notaries, law teachers and others. This indicates a selective application of the repressive norm, aimed specifically at the human rights community. This violates the principle of equality before the law (Article 19 of the Constitution) and demonstrates the political bias of the norm. Previously, a lawyer could be deprived of status only for disciplinary offenses or gross violations of the law, now - for the fact of living abroad, even if he continues to work remotely, participate in online meetings and observe ethics. This destroys the principle of independence of the bar, turning the chambers into a punitive body at the behest of the Ministry of Justice. "In fact, the concept of "bad faith" was substituted by the place of residence," he told the "Caucasian Knot."
You can challenge the decision, but, in Filippov's opinion, this is unlikely to yield any results.
"Formally, the federal law "On Advocacy and the Bar" (Article 15) allows you to retake the exam for the status of an advocate even after being deprived of the status, if there is no lifelong ban by a court verdict. However, this is not a restoration of the status, but a re-obtaining from scratch. You will have to go through the whole process again: submitting documents, exam, and so on. If you have a reputation as "unreliable" or a "foreign agent," the chamber may formally refuse under a far-fetched pretext or not allow you to take the exam at all. At the same time, challenging through the court is almost pointless in the Russian Federation: Russian courts almost never go against the decisions of the Ministry of Justice and bar associations, especially when it comes to politically motivated cases. Moreover, the arguments of the chambers and the Ministry of Justice will formally be "within the law": they say, "left the Russian Federation for more than a year, did not prove an exception, therefore, is subject to termination." Even if the lawyer returns and files a lawsuit, time, practice, reputation have already been lost, and the chances of restoration are minimal," he said.
The "Word to Defense" project also considers the amendments unconstitutional. "The editors of "Word to Defense" fully agree with the lawyers' organization "Initiative-2018", which was against the amendments even before the adoption of these amendments and contacted human rights organizations and the UN on this issue. Since April 2024, Russian legislation has had a provision that allows the termination of a lawyer's status if he has left the country for more than a year, with the exception of certain cases (treatment, study, official necessity and other "valid reasons"). However, human rights activists point out that this provision contradicts the Constitution and Russia's international obligations. Thus, Article 27 of the Constitution of the Russian Federation guarantees freedom to leave the country, and Article 37 - the right to free choice of profession. The new exclusion mechanism effectively punishes lawyers for exercising these rights. In addition, Law 63-FZ itself does not require permanent residence in the territory of the Russian Federation, and Article 17 contains an exhaustive list of grounds for termination of status - among them there is no clause on leaving the country. Moreover, Article 2 of the law directly provides for the possibility of practicing law abroad," the project representative told the "Caucasian Knot".
What is happening with Gak is an attempt to get rid of "unshakable lawyers," he is sure. "As is known, Gak worked on cases with a pacifist position: she represented activist Anatoly Berezikov, who died in the Rostov special detention center, documented traces of torture and reported pressure from security forces. It is obvious that depriving her of the status of a lawyer is another attempt to get rid of "unshakable lawyers", as openly stated by the head of the Ministry of Justice Chuichenko. He recently stated this at the SPIEF. Irina Gak is not the only one who was deprived of the status for her political position; there are many such lawyers, for example, Mikhail Benyash. As for the question of the advisability of appealing the decision to deprive her of the status of a lawyer in court, in our opinion, such an appeal makes sense. The law provides for the possibility of retaining the status in the presence of valid reasons for a long-term departure from Russia, and indicating such reasons can serve as grounds for recognizing the deprivation of the status as unlawful. In addition, even despite the fact that the Russian legal system is formally not a precedent-setting one, such a case could play an important role - including in demonstrating the failure to comply with the law in its literal interpretation, which could be useful for other lawyers who find themselves in a similar situation. We all see that recently the blindfold of Themis in Russia has simply fallen from her eyes. In a country where people are jailed for such long terms just for words, there is no point in tilting at windmills. Everything will be decided in favor of the state, which, represented by the authorities, directly states that there is no place for “unshakable lawyers” in the legal profession,” he said.
Irina Gak herself refused to comment on the termination of her status. “Irina decided that at this stage she will not report any details or circumstances,” the president of the International Association of Russian Lawyers Karinna Moskalenko told the “Caucasian Knot”.
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Translated automatically via Google translate from https://www.kavkaz-uzel.eu/articles/412716