Update to the Report 2015 “Human Rights Lawyers at Risk”
16 September 2019

The pressure on lawyers working on human rights or representing individuals claiming their rights were violated in most of the countries we are considering has only intensified in recent years. Human rights lawyers from the countries represented in this document - Azerbaijan, Belarus, Moldova, Russia and Ukraine, are increasingly subjected to harassment, threats and intimidation, regular and extraordinary re-certification, discredit, disciplinary proceedings and disbarment from their professional organisations, administrative punishment and even criminal persecution, including imprisonment.

Lawyers and Jurists provide professional defence of human rights, ensuring the right to qualified legal assistance to victims of human rights violations, as a key principle of the right to a fair trial. In their professional activities, human rights lawyers promote the application of international standards in national court system and make extensive use of international mechanisms, such as the European Court or the UN Human Rights Committee.

International legal recognition of the right of individuals to individually, or in association with others, promote and strive for the protection and realisation of human rights and fundamental freedoms exists; in other words, the right to be a human rights defender. This right ensures that all human rights defenders are able to carry out their work unhindered, and under the protection of national law, if needed, and includes the work on all aspects of human rights[1]. Hence, this protection entrenched in the United Nations Declaration on Human Rights Defenders[2] also covers the work of human rights lawyers and the material and procedural guarantees provided for advocacy and human rights promotion apply to this professional group. Under this approach, the concept of a human rights defender and the guarantees for human rights work become the general guarantees and should extend to all lawyers who promote and protect human rights in their work[3]. Alongside the general guarantees, the regulatory framework of the concept of a human rights defender do not annul but, on the contrary, stress the importance of observing the respective national and international standards of professional conduct and ethics[4]. For lawyers, the complex of professional (or special) guarantees and standards drawn from national legal systems is enshrined in a set of international legal documents used in the process of implementation and monitoring of compliance by particular states with obligations in the field of rendering legal assistance[5].

Accordingly, the deteriorating situation with respect to and promotion of human rights in the countries of Eastern Europe, which, inter alia, is reflected in numerous international reports, and the negative trend, which indicates increased risks and new threats to human rights lawyers, are tightly interconnected. As through the repressions directed against human rights lawyers, the professional defence of human rights is counteracted, i.e. in essence, the carrying out of human rights activities.

Human rights lawyers often work in high-profile, politically-motivated cases that objectively cause increased public interest, they protect activists and opposition leaders, taking a principled stand and becoming undesirable lawyers for the authorities. An increasing number of cases of harassment of lawyers, as well as new threats and risks that appear in the countries of our region, indicate a deteriorating legal background in countries and an atmosphere of impunity for harassment of lawyers and violation of their guarantees and immunities. It should be noted that many cases of harassment of human rights lawyers were not disclosed due to possible further consequences. Many of those who are threatened either intend to leave their countries or have already been forced to leave, without the possibility of continuing to provide legal assistance to their clients.

The problems that human rights lawyers began to face have attracted public attention for a long time. In case of increasing risks and threats, undisguised interference in the professional activities of lawyers, the work of the human rights lawyers has become increasingly unsafe and inefficient, which entails grave consequences and evolves into negative implication for the right of a client to protection. These issues have been repeatedly raised by human rights lawyers from Azerbaijan, Belarus, Moldova, Russia, and Ukraine, all of whom are alumni of the International Law in Advocacy programme (ILIA) of the Human Rights House Network (HRHN). They initiated joint work on the Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", published in September 2015.

The report was a response to the growing threats and risks that human rights lawyers faced in the countries under consideration. It was intended to serve as an understanding that professional defenders - human rights lawyers - need greater protection, that it is necessary to increase support to such lawyers and take greater measures against retaliation against human rights lawyers[6]. Since the preparation and publication of the Report "Human Rights Lawyers at Risk" in 2015, many joint actions have been taken to confidently justify that in order to improve the situation, there is a need for strengthening guarantees for human rights lawyers through new international documents, for the use of new mechanisms against impunity for the prosecution of lawyers and violation of their guarantees and immunities, and for ensuring the protection of human rights work. Thus, the 2015 Report was the "starting point" for the overall work to strengthen the guarantees of the independence of lawyers and the principles of independence of the legal profession. And the reports, conclusions and recommendations presented and discussed during subsequent working meetings and other regional and international forums, expert consultation materials can and should become an additional source of information that will be needed by those who work on the development and implementation of legal standards for human rights lawyers.

The report's recommendations aimed to increase the level of national and international implementation of the already existing guarantees and immunities which are provided for lawyers under international law (special guarantees), and to include proposals to improve the effectiveness and safety of human rights lawyers through the dissemination and widespread use of general guarantees for human rights work. The recommendations also highlighted the necessity to supplement the guarantees to ensure the principle of equality of arms before the international courts and quasi-judicial bodies[7]. These most important recommendations are still relevant today. So many years have passed, and the recommendations have not been implemented, the situation of human rights lawyers in the countries under consideration is only deteriorating, pressure on them has only intensified in recent years, professional defence of human rights has nullified.

In Azerbaijan, human rights lawyers are increasingly subject to disciplinary proceedings held by the Presidium of the Bar and often resulting in disbarment (termination of the lawyer's license), criminal charges for various crimes, administrative arrests and detentions. Intigam Aliyev was prosecuted on charges of tax evasion and abuse of official power. He was convicted to 7,5 years of imprisonment, but after 1,5 years of detention the Plenum of the Supreme Court suspended the sentence. Alaif Hasanov was found guilty of crimes under articles 147 (Defamation) and 148 (Public Insult) of the Criminal Code of the Republic of Azerbaijan, and sentenced to 240 hours of public service (correctional labor)[8]. The Bar Association is becoming increasingly repressive, conducting disciplinary proceedings on the basis of appeals and complaints of the Penitentiary Service or other government agencies, or punishing lawyers for their speeches and principled stand on the cases of their defendants. Dozens of lawyers are subject to disciplinary proceedings (Asabali Mustafayev, Agil' Laidzh, Fakhraddin Mehdiyev, Nemat Kerimli, Elchin Sadigov, Shahla Humbatova, Fariz Namazli and others) and are often deprived of a lawyer's license and expelled from the Bar (Intigam Aliyev, Alaif Hasanov, Khalid Bagirov, Muzaffar Bakhyshev, Yalchin Imanov, etc.).

In Belarus, low-quality legislation allows professional associations of lawyers to be directly dependent and under the actual control of the Ministry of Justice. Lawyers are forced to undergo the humiliating procedure of regular re-certification every 5 years and according to the latest amendments to the Instruction of the Ministry of Justice on the procedure for certification of lawyers in May 2017, an opportunity has appeared to conduct an extraordinary re-certification of lawyers. As a result of such an extraordinary re-certification, in September 2017, Anna Bakhtina, a lawyer with 38 years of legal experience, was deprived of the status of a lawyer "due to insufficient professional qualifications"[9]. In April and July 2017, the Ministry of Justice carried out an inspection of the Mogilev regional and Minsk city Bar Associations. As a result, out of 33 attorneys who have passed the certification procedure, the Qualification Commission of the Ministry of Justice made a decision on the impossibility of fulfilling their professional duties due to lack of qualifications with respect to 2 lawyers; on incomplete compliance with the requirements of the legislation with a delay of attestation for six months - with respect to 12 lawyers[10]. I.e. lawyers have to work in constant tension, again being re-certified after 6 months.

In Moldova, at high risk, among other human rights defenders were lawyers, jurists and even judges[11]. Increasingly, lawyers defending the opposition figures raising awareness of cases of corruption and human rights violations are being intimidated and threatened, discredited, administratively punished, and politically motivated criminal prosecutions[12]. This is a trend that had been initiated against political opponents and judges in 2014, which has been extended to lawyers and other civil society members since the beginning of 2016. As part of the unlawful criminal prosecution, lawyers Veaceslav Țurcan and Maxim Belinschi are charged under Art. 352 prim of the Criminal Code of Moldova "False statements in declarations". This article cannot be applied to lawyers, as it concerns false statements by public officials about available income for tax purposes. The threats and criminal charges faced by lawyers include, in some cases, their relatives. Lawyer Ana Ursachi is accused of being involved in the murder committed 19 years ago and a powerful slanderous information campaign was launched against her and her former husband by media affiliated with the authorities with charges of involvement in the murder. Another tendency for Moldova is the intolerance of the society, the identification of a lawyer with a client. Lawyer Doina Ioana Străisteanu, working on protection of the rights of LGBT community, faced permanent threats from members of the general public, including threats of physical violence[13], and subsequently intentional arson of her car in May 2019[14][15].

In Russia, the law enforcement officers systematically violate the professional rights of lawyers – conducting of measures of detection and investigative actions against lawyers, trying to persuade lawyers to cooperate, calling and interrogating lawyers as witnesses in criminal cases (in order to obtain confidential information constituting a lawyer's legal professional secret or to neutralize a lawyer), unlawful institution of criminal proceedings, unlawful searches and arrests. In September 2018, lawyer Mikhail Benyash was arrested on suspicion of violating the procedure for organizing a public protest, based on his post on Facebook. He was repeatedly beaten by police. There are reports of pressure on lawyers representing clients who have been persecuted for political reasons or other forms of reprisal. Lawyer Yevgeny Ryzhov was prosecuted, deprived of the right to freedom of movement, put on the wanted list, he is prevented from exercising the right to appeal investigative actions[16]. More often lawyers are deprived of a lawyer's license, for example, in October 2017 a Lawyer Vitaly Burkin was deprived of the status of a lawyer for public criticism of the judiciary[17][18].

In Ukraine there is serious pressure on human rights lawyers, their rights are violated everywhere, and there is an obstacle to the free exercise of the legal profession. Moreover the human rights work of a lawyer may endanger his life, health, and integrity of property[19]. In 2016 the lawyer Yuri Grabovsky was killed; there is still no single version there as regards to the causes of the murder. Lawyers are increasingly being prosecuted. In 2017 the lawyer Oleg Veremeenko, who collaborates with the Ukrainian Helsinki Human Rights Union, was charged with two charges - resistance to a law enforcement officer (part 2 of article 342 of the Criminal Code of Ukraine) and pressure on a law enforcement officer (part 1 of article 343 of the Criminal Code of Ukraine). Lawyers were also threatened with physical violence. In October 2017 the lawyer Sergei Sainchin was beaten, seriously injured and taken to hospital (the human rights defender had a double fracture of the jaw and a head injury).[20] On September 20, 2017, in the Kiev detention facility (SIZO), the detective of Ukraine's National Anti-Corruption Bureau (NABU) Pavel Yershov attacked lawyer Alina Samarets[21]. In June 2017, in the City Court of Chernomorsk (formerly Il'ichyovsk / Illichivsk), unidentified men attacked lawyer Valentin Rybin, who sprayed the lawyer with a gas spray, delivered several blows and accused of helping the separatists[22]. However, a particular concern is the situation of protecting the rights of lawyers and the ability to safely and independently carry out their professional activities in the armed conflict zone (occupied Crimea and some areas of Donetsk and Lugansk regions not controlled by Ukraine). In the territories located in the so-called effective control zone of the Russian Federation, cases of the murder of lawyers[23], the abduction of lawyers by illegal formations and holding them captive[24], and the prosecution of lawyers and human rights defenders were reported, including for interacting with international organisations and media[25].

In most of the countries under consideration, lawyers complain about a violation of the principle of independence of lawyers in the disciplinary procedure, a violation of the principle of confidentiality, and barring the access of lawyers to clients. However the lawyers in Moldova experienced an unprecedentedly long lack of access to their client - in the case of Veaceslav Platon[26], lawyers did not have access to the client in penitentiary No. 13 from February 6, 2019, for more than four months, in conditions of daily inconclusive attempts to see a client, which is a violation of the right to visit a client, without limiting number and duration of these visits, which negatively affects the provision of effective legal assistance in a criminal case, and directly violates the right to defense.

In the absence of positive development dynamics, it was decided to prepare an update to the Report of 2015. The deteriorating situation requires a synthesis, consolidation of the aforementioned long-term efforts of representatives of legal communities and their international partners to strengthen guarantees for human rights lawyers, ensure the protection of human rights activities, and address / eliminate the threats and risks faced by human rights lawyers in Eastern Europe.

That is why the purpose of this document is to recall and reiterate the key findings and recommendations of the report of 2015, talk about the development dynamics, subsequent joint actions and decisions taken, describe the current realities with the situation of human rights lawyers in the countries of the region, draw the attention of the international community to new trends and growing threats, as well as describe specific cases, including new cases of pressure on human rights lawyers in Azerbaijan, Belarus, Moldova, Russia and Ukraine.

The full text of the Document "Update to the Report 2015 "Human Rights Lawyers at Risk", 16 September 2019, is HERE

The Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", 10 September 2015, is HERE

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[1] From the Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", Human Rights House Network, September 2015 - https://humanrightshouse.org/noop-media/documents/21177.pdf

[2] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms, adopted by General Assembly resolution 53/144 of 9 December 1998

[3] Guidelines on the Protection of Human Rights Defenders by OSCE-ODIHR (2014), page 37

[4] Article 11 of the UN Declaration on Human Rights Defenders (1998)

[5] Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/ CONF.144/28/Rev.1 at 118 (1990); Recommendation Rec(2000)21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer (Adopted by the Committee of Ministers on 25 October 2000 at the 727th meeting of the Ministers' Deputies); Resolution (78) 8 on Legal Aid and Advice adopted by the Committee of Ministers of the Council of Europe on 2 March 1978 and explanatory memorandum; Draft Universal Declaration on the Independence of Justice (Singhvi Declaration) 1980

[6] From the Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", Human Rights House Network, September 2015 - https://humanrightshouse.org/noop-media/documents/21177.pdf

[7] The Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", page 11

[8] Please see the detailed information on Alaif Hasanov case in the Report "Human Rights Lawyers at Risk: Making the Case for Protection of Legal Professionals in Azerbaijan, Belarus, Moldova, Russia, and Ukraine", September 2015 - https://humanrightshouse.org/noop-media/documents/21177.pdf

[9] From materials prepared by participants of the Study Visit and Expert Consultations of ILIA Alumni and Experts, Council of Europe and ECHR, January 23-24, 2018, Strasbourg, France; see also http://spring96.org/ru/news/87826 and https://naviny.by/article/20170924/1506251447-belorusskih-advokatov-zastavlyayut-hodit-stroem

[10] http://minjust.gov.by/ru/news/1183/; http://spring96.org/en/news/87914; see also - http://spring96.org/en/news/87811; http://spring96.org/en/news/87909

[11] In 2017 appeals court judge Domnica Manole was dismissed by a presidential decree following a Superior Council of Magistrates decision declaring her unfit to serve, based upon an advisory opinion by the Security and Intelligence Service (SIS) - https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/moldova/

[12] From the End of mission Statement by Michel Forst, United Nations Special Rapporteur on the situation of human rights defenders on his visit to the Republic of Moldova, 25 – 29 June 2018, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23291&LangID=E

[13] In relation to this activity, she faced repeated damage of personal car, swearwords, spit, threats with death and beatings

[14] See the Moldovan Bar Association public statement on the official web-page of the Bar http://uam.md/index.php?pag=news&id=875&rid=1972&l=ro and their press conference on the subject entitled "Lawyers need protection as well" (rom. "Și avocații au nevoie astăzi de apărare"), available at: https://youtu.be/py1EZLm0NDc 

[15] Statement "Human Rights Embassy condemns the permanent threats towards the human rights lawyer Doina Ioana Străisteanu", Chișinău, 7 June 2019

[16] From materials prepared by participants of the Study Visit and Expert Consultations of ILIA Alumni and Experts, Council of Europe and ECHR, January 23-24, 2018, Strasbourg, France

[17] From materials prepared by participants of the Study Visit and Expert Consultations of ILIA Alumni and Experts, Council of Europe and ECHR, January 23-24, 2018, Strasbourg, France

[18] See also: Lawyers' newspaper. Aleksei Ivanov, Managing Partner, Law firm «Legal status», Member of the Commission for the Protection of the Rights of Lawyers of the Krasnodar Region Bar Association, Publication "On the right to profession. A few words in defense of our ideals " - https://www.advgazeta.ru/mneniya/o-prave-na-professiyu/ 

[19] From materials prepared by participants of the Study Visit and Expert Consultations of ILIA Alumni and Experts, Council of Europe and ECHR, January 23-24, 2018, Strasbourg, France; see also -  http://legalspace.org/ru/novosti/item/5276-andreya-vishnevskogo-lishili-prava-na-zanyatie-advokatskoj-deyatelnostyu 

[20] Please see - http://odessamedia.net/news/napadenie-na-advokata-v-centre-odessi-pravozaschitniki-byut-trevogu/ 

[21] http://iadvocate.com.ua/instruktsiya-dlya-zhinok-advokativ-iz-samooborony-vid-detektyviv-nabu/ 

[22] http://mignews.com.ua/proisshestviya/18184825.html 

[23] Please see - http://informator.media/archives/67905

[24] Please see - https://censor.net.ua/news/342699/advokaty_prosyat_osvobodit_iz_plena_lnr_svoego_kollegu_nikolaya_zagladu_dokument 

[25] From the Report "Advocates under occupation", Ukrainian Helsinki Human Rights Union (UHHRU), 2018 - https://helsinki.org.ua/wp-content/uploads/2019/04/Report_Advocates_under_occupation-Engl.pdf 

[26] Veaceslav Platon - Moldovan politician, lawyer and businessman, former member of the Moldovan parliament, accused of fraud, money laundering on a large scale, and other crimes

 

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