Right to Defense: 2023 Summary

Published on January 5, 2023
The year 2022 has come to an end, which means it is time to look back on it: the past year will be remembered not only for its global catastrophe, but also for local shocks. In particular, many things took place in the Belarusian legal profession, starting with the increased by 6 times number of lawyers — political prisoners and ending with the officials statements as to the "statesmanship" nature of the Bar. So, let’s recall 10 main events that affected the development — and, conversely, the crises — of the human rights and legal communities.

Belarusian Bar crisis 2022 in figures:

The curve of the number of lawyers that went into a tailspin in 2020, still aims to historical lows. At the beginning of 2023, under the register of lawyers on the Ministry of Justice website, 1,697 lawyers remained in the legal profession, while at the beginning of 2022, according to the same Ministry, there were 1,868 persons (that is, now the total number is down to 181 person).
Furthermore, during the year 195 lawyers left the Bar for some reasons, and only 24 were admitted to it. At the same time one can already find among the attorneys the judges who were directly involved in repressions after the 2020 elections.
We remind that at the beginning of 2020 there were more than 2,200 lawyers in the Belarusian Bar. Despite the fact that the number of attorneys in Belarus was already many times lower than in developed countries or in countries that are on their path to development, and is approaching the number of attorneys in countries such as Uzbekistan. The Ministry of Justice is doing everything possible to further reduce the number of attorneys in Belarus. This process will have extremely negative consequences, which won’t be as obvious as higher prices or drops in industrial production, but it is catastrophic for society.

1. Staffing turmoil within the self-government bodies

It is no secret that the self-governing bodies of the Bar have long been dependent on the state. Therefore, it is logical to assume that the chairmen of the Bars, members of the Bar Council try to express their loyalty to the current political regime by participating in and initiating repressions against attorneys that involve in high-profile cases, voice their civic position or are otherwise inconvenient to the current government. Therefore, the news about the dismissal of active participants of pressure and repressions of the independent legal profession is quite unexpected.

In early February 2022 Viktor Chaichyts announced that "the decision has been made" and that he is no longer the chairman of the Belarusian Republican Bar Association. "Please do not speculate, do not try to look for reasons for my departure and certainly do not expect me to start speaking negatively about my colleagues or the state." Instead of Chaichyts, Aliaksei Shvakov took the post of the chairman.

The Minsk Regional Bar Association has been shaken by leadership changes all year long. Chairperson as at January 1, 2022 Iryna Smirnova was dismissed in the beginning of the year, and Maksim Tereshkov was "elected" (evidently appointed) in her place. Iryna is remembered for her testimony in the case against the attorney Andrei Mochalov; a notice signed by her was sent to court in 2021 prohibiting Mochalov to practice, and disciplinary proceedings were initiated against the lawyer Dmitry Laevsky based on her report as well. Among other things, a letter signed by her was sent to Mikhail Kirilyuk with a request to hand over his lawyer's license after his unlawful expulsion from the Minsk Regional Bar. A little later, information about Iryna Smirnova as a member of the Minsk Regional Bar Board simply disappeared from the board's website altogether, and her successor, Maksim Tereshkov, lost his position in December, after not even a year in that position.

Maksim became one of the symbols of repression and the possibility of temporary career building on exceptional loyalty and devotion to the state bodies in the Belarusian Bar. It should be noted that since 2020, at least 16 Minsk Regional Bar attorneys have lost their legal licenses. Maksim Tereshkov, as well as Iryna Smirnova, were witnesses in the trumped-up case against the lawyer Andrei Mochalov.

2. Anti-war petition of Belarusian lawyers

One of the key 2022 events was the armed invasion of Ukraine by Russia, inter alia, from Belarus. The Belarusian legal, attorney and human rights communities decided to speak out in support of peace and the principle of inviolability of state borders, so in late February a petition appeared in the network, where, referring to the norms of the current Constitution, the petition authors claimed that missiles, planes and helicopters should not take off from the territory of Belarus to attack the neighboring state. The petition was signed by more than 260 lawyers. The reaction of the bars (and the state) was not long in coming: lawyers began to be summoned to the bars and asked for explanations, some had their licenses revoked for the signature. In addition to the usual non-certifications one of the lawyers who signed the petition, Alexander Danilevich, was fired from the university where he taught, detained and is still being held in the pre-trial detention facility. On July 22, 2022 Alexander Danilevich got a decision on his case against the university denying his claims for reinstatement in the former job. See the link featuring how the trial took place [written in Russian].

3. Lawyers are “government men”

The fact that the amendments to the legislation on the Bar are intended to completely deprive the latter of any independence has been repeatedly voiced by experts. Now official sources do not hesitate to broadcast this position: it is clear from the statements of individuals that the Bar is now perceived as part of the state apparatus. For example, Alexander Lukashenka stated on April 21, while hearing the report from the Minister of Justice Sergei Khomenko, that “The bar should be controlled, it should operate in accordance with the law and be a real bar. A lawyer has to perform their functions without any fears, but at the same time, we must understand that they are government men. Their actions should be based on the law, rather than some made-up norms like freedom of speech, and other freedoms. We've had enough of this freedom. Thank God, we understood what freedom they brought us here.”
In June, congratulating lawyers on the Day of the Belarusian Bar, Minister of Justice Sergei Khomenko called lawyers "government men".
"Today, the justice system is unimaginable without professional protection in criminal and civil proceedings. You, as government men, watch over the observance of the legitimate interests of individuals and legal entities."
This statement contradicts the generally accepted standards of the legal profession and international principles on the role of lawyers, which, among other things, prohibit interference of the Ministry of Justice and the state in the activities of the legal profession.

4. Maxim Znak's "Zekamerone" was published

The detention of political prisoner and attorney Maxim Znak was declared arbitrary by the UN Working Group on Arbitrary Detention. Taking these findings into account, the Working Group has stressed that Maxim Znak should not have been tried in principle.
Nevertheless, this didn't prevent the KGB from including the attorney in the list of organizations and individuals involved in terrorist activities, as well as Bar self-governing bodies from depriving him of his lawyer's license, and the administration of the colony from transferring him to a cell-type unit.
At the same time, this year Maxim Znak's book "Zekamerone" was published, which is a collection of stories about life in prison. It can also be bought in Belarus.

5. The lawyer of the lawyer’s lawyer was arrested

In September, attorney Vladimir Angelsky was arrested for 14 days under Article 24.3 of the Code of Administrative Offences (allegedly disobeying an internal affairs officer). A situation occurred in which attorney Angelsky, who defended another attorney Vitaly Braginets, found himself in Okrestina detention center. In turn, before that, the attorney Vitaly Braginets, who defended another attorney Andrei Mochalov, found himself in the detention center and was declared a political prisoner. Even before that, attorney Andrei Mochalov, who had participated in many high-profile cases before being disbarred, became a defendant in a trumped-up criminal case. Thus, voluntarily or involuntarily, a terrifying legal matryoshka came out — a consistent punishment for the professional work of lawyer of a lawyer’s lawyer.
You can familiarize yourself with the apparently fabricated grounds for prosecuting attorneys Vitaly Braginets and Andrei Mochalov (the transcripts of the trials can be found at the links [written in Russian]).

6. Detention of the attorneys of the defendants in the "Revolutionary Action" case

One of the most notorious cases of the past year was the "Revolutionary Action" case. Its defendants, including human rights "Viasna" activists Marfa Rabkova and Andrei Chepyuk, were sentenced to 5-17 years. According to eyewitnesses, after the end of the trial at the Minsk City Court, at least five persons were detained; they were "dragged into a vehicle," including representatives of diplomatic missions. The state media filmed this unpleasant performance. Among the detainees was human rights activist Nasta Loika. There was an attempt to detain one of the defenders of the political prisoners in the case, but if it was not possible to detain the lawyers on the day of the trial, then, unfortunately, it turned out to be done a few days later.
Among the detainees is attorney Mikhail Makarov, who defended Mikita Dranets. His wife Victoria Gulkova was also detained. Both were arrested for 15 days under Article 19.11 of the Administrative Code (distribution of extremist materials). At the moment Mikhailn Makarov is in custody, he is a defendant in a criminal case.

7. Nasta Loika: endless detentions, complaint to the HRC

The name of the human rights activist Nasta Loika was featured more than once in the news, because when it seemed that she had already served her administrative sentence, the court appointed her another 15-day arrest. So, after the fifth arrest of the human rights defender this fall, her complaint was registered and accepted for consideration as to admissibility by the UN Human Rights Committee. The complaint was filed under articles 9 (right to freedom and personal inviolability — arbitrary detention) and 14 (right to a fair trial) of the Covenant on Civil and Political Rights. In connection with the denunciation of the Optional Protocol, it is possible that the complaint will be one of the last considered by the Committee in relation to Belarus.
At the trials, Nasta stated that during her arrest, she was twice taken to conversations with the GUBOPIK employees, where she was once hit with a stun gun, and on November 11, one of the employees of the detention center took her out into the courtyard and left her without outerwear for 8 hours. As a result, Nasta became very ill. Now she has been charged under two articles of the Criminal Code and transferred to the pre-trial detention center number 1.
Nastya's lawyer, Tatiana Lishankova, was detained on November 29, 2022 at about 5 pm in the center of Minsk (after Nasta’s trial). At the end of the day, a protocol was drawn up against her under Article 19.1 of the Administrative Code (petty hooliganism). Tatiana was charged with allegedly using obscenities in the police department. On December 1, 2022, the lawyer was sentenced to 15 days of administrative arrest. Here is the transcript of the court session on bringing Tatiana Lishankova to administrative liability. The charges are obviously absurd and far-fetched, which, nevertheless, did not affect the court ruling.

8. Bialiatski Nobel Prize

Independent Belarus has got a second Nobel laureate — human rights activist Ales Bialiatski. At the moment, the human rights defender is declared a political prisoner, and is being held in pre-trial detention center number 1. In 2022, he was nominated for the Nobel Prize for the fifth time. On December 10, 2022, the awarding of the 2022 Nobel Peace Prize winners took place in Oslo. Although the European Parliament recommended the Belarusian authorities to release Bialiatski for the award, Natalia Pinchuk had to receive the prize for her husband.
In my homeland, the entirety of Belarus is in a prison. Journalists, political scientists, trade union leaders are in jail, there are many of my acquaintances and friends among them... The courts work like a conveyor belt, convicts are transported to penal colonies, and new waves of political prisoners take their place... — This award belongs to all my human rights defender friends, all civic activists, tens of thousands of Belarusians who have gone through beatings, torture, arrests, prison. This award belongs to millions of Belarusian citizens who stood up and took action in the streets and online to defend their civil rights.
— ​he managed to convey these words from prison for his Nobel lecture.

9. Denunciation of the Optional Protocol

In August, information appeared on the website of the House of Representatives of Belarus about the preparation for consideration in the first reading of the draft law "On the denunciation by the Republic of Belarus of the Optional Protocol to the International Covenant on Civil and Political Rights". The legislator acted quickly: the law was passed, the note was sent. On November 8, the UN Secretary General registered a note on Belarus' denunciation of the Optional Protocol to the International Covenant on Civil and Political Rights. The document provides for the termination of Belarus' participation in the Optional Protocol to the International Covenant on Civil and Political Rights of December 16, 1966. The Protocol establishes a mechanism for filing and considering complaints of individuals about violations of their rights in the UN Human Rights Committee.
The official motivation voiced by the Deputy Minister of Foreign Affairs Y. Ambrazevich is the following: "Arbitrary extension of the powers of the said committee, creating additional unreasonable obligations for the state, which it had not accepted when it acceded to the international act." However, among the possible unofficial reasons is an increase in the flow of complaints to the HRC from Belarus. Taking into account the previous practice of considering complaints, it is already possible to understand which violations will be recognized as violations of human rights and in what quantity — violations of the right to freedom of expression, freedom of peaceful assembly, the right to a fair trial, the right to participate in public affairs, arbitrary detention, degrading and inhuman treatment. In particular, complaints of a strategic nature are filed, which show a complex of violations that stem from general illegal practices and from legislation that does not comply with the Covenant. It is almost impossible to reasonably object to these complaints from the point of view of international law, and the decisions of the HRC on these complaints taken over time will show the full scale of what is happening, starting in the spring 2020.
The last day of filing complaints to the UN Human Rights Committee for Belarusians should be considered February 8, 2023.

10. Publication of the report on the crisis of the Belarusian bar

At first glance, it may seem that everything has been said about the Belarusian bar on a variety of occasions more than once.
However, a full chronologically detailed report on the crisis of the Belarusian bar was presented only relatively recently: on October 1, the presentation of the report "The Crisis of the Belarusian Bar was held: how to restore the right to defense" (prepared by the experts of the European Humanities University Center for Constitutionalism and Human Rights in partnership with our project "The Right to Defense", the human rights organization "Human Constanta", the Polish Helsinki Foundation for Human Rights).
The report not only plays the role of a historical source (although it does contain a chronology of the deprivation of independence of the Belarusian bar), but also demonstrates the consequences of neglect of the standards of the legal profession and their violation by the state and the professional association of lawyers and their direct impact on the fate of attorneys deprived of their profession, and most importantly — deprived of the right to defend those to whom they provide legal assistance. In special sections, you can find the action program proposed by the authors of the report to restore the advocacy and the legal environment in which lawyers could freely and effectively perform their functions.
The report is available in pdf format, as well as in a convenient form on the website. (in Russian, English version coming soon).

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