National pressure records / Article
If an Attorney Is Denied Access, One Can Confidently Assert that Human Rights Are Being Violated There
Published on January 27, 2023
On 10 December, Human Rights Day is celebrated around the world. On the eve of this holiday we decided to talk to our regular contributor Natalia Matskevich (a human rights expert who has worked as a lawyer in Belarus for many years and has defended Siarhei Tikhanovski, Viktar Babariko, Mikola Dziadok and many others) about what it means to be a lawyer, and what choice is better to make when there is virtually no choice.
— Natalia, thank you very much for agreeing to answer our questions. We hope that this interview will be read not only by professional lawyers, so we will begin with the basics. An attorney is often perceived outside of court as a terse professional in a super-expensive suit who, after a quick glance at a stack of documents, immediately delivers the verdict "They don't have a chance". Post-Soviet cinema depicts a different image: more often than not, it is a cowardly accomplice of the criminal. Both images operate with a completely distorted view of the profession's essence. So what is the meaning of the legal profession? Why was law, along with theology and philosophy, among the first professions to be taught in universities?
— You are asking about a mission, rather than just functions. In this sense, we have to start from the fact that the structure of human society presupposes the formation of certain rules. Otherwise, we would still exist in a primitive state. These rules are understood and accepted by people, they become a norm. This, in fact, is the essence of law. The state creates legislation. In a state governed by the rule of law, they must correspond to justice and the law. But sometimes things work differently. The legal system is a complex phenomenon, and with every period of human development it becomes more and more complicated. It is important for people who live their social life to understand what is the right thing to do within this system in different situations, how to resolve a dispute, especially if one's opponent is the state. You need a guide in this world of rules — a specialist, which a lawyer is. It's the same as in any other field — for example, you can almost never be treated on your own. Lawyers are hardly needed where there is no social life and no rules, where you are not confronted with society, with the state, where you don't make decisions, where you can't have a dispute.
Therefore, as I see it, the essence and mission of an attorney's occupation is that he is the professional who stands between you and your opponent in a world of rules and regulations, and he is exclusively on your side. Your interests, which he defends, should be more important to him than his own.
— Why can't other professionals — judges, prosecutors, for example — take over this function?
— If we think about the essence of these professions, even assuming that their efforts would be aimed at protecting the law, the prosecutor does not represent your interest, but the public, rather, even the state. And a judge has to be independent and impartial. He cannot take only your side and protect only your interest, he needs to look at both sides.
— There is an opinion that nothing depends on the attorney, some call them an 'expensive way to transfer a parcel to the pre-trial detention center' or even express themselves more crudely. But at the same time we can observe that in political trials, when the defendants realize that the sentence is still going to be a very harsh one, they are grateful to their attorneys (Akihiro Hanada, Grigory Kostusev). Why do you think this happens: without getting the desired result, the defendant still thanks the attorney?
— Regarding the neglect and aggression towards attorneys, I believe this is how people vent their anger and frustration. Unfortunately, they are directing it at the wrong target. "Nothing depends on the attorney's actions" — in what sense? Whose decision is not up to the attorney? The court or the law enforcement agency? If we formulate this claim correctly, it is rather about a situation where a court or an official (prosecutor, investigator) makes its decision without paying attention to the attorney's arguments. And, therefore, disregarding the person. Whose responsibility is that? It probably belongs to those making such inhumane decisions, but not to the attorney. If society is talking about the responsibility of an attorney for other people's decisions, then society should also take responsibility for the fact that we have such a legal system formed.
But if, for example, the attorney is lacking expertise and fails to do something (or does not do it properly) — then, yes, it is his individual responsibility, and about him you can, apparently, say what was sounded in your question.
Returning to the role of attorneys in a legal system like a Belarusian one, I want to mention the opinion that an attorney performs only a psychological, "therapeutic" function. Indeed, if an attorney wants to help a client, to explain the legal nuances and, in general, support him, first of all, it is necessary to build a relationship of trust. Although we do not practice psychology specifically, no one sets such a task. On the other hand, imagine the condition a prisoner might be in, especially if they are inhumane or one is in solitary confinement, and there is no way out. Then it will become clear how important it is to have someone who speaks to you as a human being in the moment. Those in isolation may have nothing (no contact with loved ones, no letters or books) but an attorney. So it is not such a minor function, although it is not a major one.
— What can an attorney even do for a client now?
— The first thing is to keep his client within the space of a normal human relationship. Because in the system in which prisoners find themselves, such relationships generally do not exist — moreover, efforts are made to destroy the human dignity in them.
We are now seeing many attorneys being flushed out of the profession. And this process is widening, although there are now virtually no open trials, no alternative press, attorneys are no longer in the public space where their voice is heard, which probably annoys someone. But deprivation of the right to defense becomes a means of suppressing the human dignity of defendants when the whole system is indoctrinated: "What's happening to you is the norm, that's the way it should be" and there is no alternative point of view, no alternative view of you and your situation. No matter how strong a person may be, at some point it is possible to believe in this. If you are told all the time that you have a hump — and you don't have the opportunity to verify it, you are likely to think like that after a while. So don't offset this function — the attorney's presence as a human being.
Now let's talk about what an attorney can do from a legal point of view and what is most often overlooked on the outside. When a person is involved in criminal or administrative proceedings and ends up in isolation as a result of prosecution, they often do not understand why they deserved it. Their position does not coincide with the accusations of the state, but it is difficult to formulate this position. The attorney's task is to understand what the person wanted to say or do, to understand their actions and internal motives, the context of what happened, to put it all into legal language — and to explain it to the person. Otherwise, when a person lacks a legal position, they do not know what is their current place in this space of norms and means of coercion applied by the state, they do not know which facets of their position are important in deciding their fate.
Without this, it is very easy to convince a person that he or she is wrong. The attorney, on the other hand, brings back and maintains the inner reality in which the person actually exists.
At the same time, the attorney shall not communicate the position of the state, nor replace the client's position with his own, but shall put into legal language exactly the perception of his client. When a person is aware of the legal meanings of actions and words, he or she has the ground beneath his feet and begins to understand what is happening in the process. For example, until the moment of communication with the attorney he or she may not realize that they are being prosecuted for exercising their rights: freedom of expression, freedom of assembly.
Therefore, it is very important to identify, verbalize, consolidate and defend the position with all the tools available. And in all my years as a lawyer I don't remember any of my defendants saying "you know, everything is already decided, don't come here, don't write complaints, stop defending me". On the contrary, the more everything points to the unfairness of the accusation, the more the person asks to act in his defense, and complaints, petitions, appearances in court take on real meaning first and foremost for him/herself.
— The legitimate aim of the legal system and the work of the judiciary is to achieve justice. Would it be a big mistake to say that the sensitive cases attorney is the only part of the justice system that is now working towards achieving justice, and which in principle continues to work in accordance with its real purpose? And why does an attorney proceed with it if everything else is not functioning well?
— Here we need to recall the natural rights of man. What is the minimum human being should have in order to remain a human being? Human rights are shaped by needs: man fears pain — hence the right not to be tortured; man is given life — hence the right to life. When a human being is born, the first sound is a cry, an expression of oneself. Then, when we become members of society, we have a need to unite and gather with other people, because there are few goals that a person can achieve alone. This is the origin of the natural rights to freedom of expression, assembly and association.
Justice is the same basic human need. From infancy we want to be treated fairly. Hence the right to a fair trial. The attorney is one of the pillars of a proper system of justice. The same pillar must be his opponents — representatives of the state, if they act in a legal way, and the same pillar is a fair independent court. These are the pillars on which justice rests. If they collapse one by one, or are to be transformed from a pillar to a stick that hits the head, it does not mean that an attorney should cease to be an element of this foundation and step aside. If things don't work around here, it doesn't mean that an attorney shouldn't work. Sometimes the attorney becomes the only person who satisfies the public and individual demand and need for justice through his or her actions.
The attorney must use all available means that do not contradict the law: from advising the client, participating in trials, drafting and communicating the client's position to government bodies and decision-makers, to the general function of ensuring that all the rights of his client are satisfied, including the right not to be ill-treated.
The attorney deals with issues that relate to the private life of the client, but we should not forget that the profession also has public duties. After all, a lawyer is the one who has to say the words of truth in the language of law. And if a lawyer (not necessarily an attorney) sees that there is a legal problem which may lead society down the wrong road, then he or she must speak about it. Just like doctors, if they see that an epidemic is coming, they should not fail to act. This is the international standard: lawyers should not tolerate problems because, among other things, they are responsible for the state of the law.
— Digital rights activists have derived a law of thumb: if the internet is shut down somewhere, it means that people are being killed there. Can the same be said about attorneys: if a lawyer is deprived of access somewhere, it creates a situation where human rights are being violated?
— Apparently, yes. The very fact that an attorney cannot reach his client is already a violation of the right to defense. We know of examples where the very appearance of an attorney stopped the abuse or coercion to testify. Not to mention that it is the attorney who ensures a number of other personal rights of the individual.
— Alexander Cherkasov, head of Moscow Memorial, cites as one of the organization's main achievements the fact that they have "prevented tragedies from becoming statistics". How would you characterize the key recent achievement of Belarusian attorneys?
— To paraphrase, the lawyers "prevented a conscious society from accepting lies as truth," because while the lawyers were present in the information field, the truth was out there.
— What kind of attorney can be called a hero?
— Yes, unfortunately, serving the profession properly and in good faith, with an understanding of it, is now becoming a heroism, because there is a lot of opposition. Laws, their interpretation and application are being adapted to the current conjuncture. But in this situation, an attack on attorneys as a group and on individual lawyers as personalities is a losing proposition since it destroys even the artificially created picture of legitimacy, even imaginary. It takes place, apparently, in order to keep the alternative legal point of view from being heard, which, incidentally, citizens have shown a lot of interest in lately.
But in reality I think that heroism implies an extra effort that has to be made, while a good lawyer just does his job. When we make a choice - to stay with our understanding of the profession and values, or to bend to someone else's desires and change ourselves, in what situation do we win? I believe that we have to choose ourselves. It is good if one never faces such a choice. It is bad when there are no values to choose in favor of. But when faced with such a choice, a person evaluates what he/she is actually losing. In layman's terms, it is the worst thing to lose your job and your salary. But I do not envy those who choose to keep it by betraying their beliefs. I have seen many examples of how destructive it is when a person lives as if making excuses to themselves, not to mention those around them. And professionally, in the long run — a lawyer who has abandoned legal principles just to feel his own security (which, in fact, is already becoming an illusion to everyone), can hardly maintain his reputation, including among potential clients. And reputation is, in fact, the only real career achievement in this profession, on which, by the way, the salary also depends. And if you are still you, with your values and dignity, it is not a loss, but an investment in yourself, present and future life.
— You are asking about a mission, rather than just functions. In this sense, we have to start from the fact that the structure of human society presupposes the formation of certain rules. Otherwise, we would still exist in a primitive state. These rules are understood and accepted by people, they become a norm. This, in fact, is the essence of law. The state creates legislation. In a state governed by the rule of law, they must correspond to justice and the law. But sometimes things work differently. The legal system is a complex phenomenon, and with every period of human development it becomes more and more complicated. It is important for people who live their social life to understand what is the right thing to do within this system in different situations, how to resolve a dispute, especially if one's opponent is the state. You need a guide in this world of rules — a specialist, which a lawyer is. It's the same as in any other field — for example, you can almost never be treated on your own. Lawyers are hardly needed where there is no social life and no rules, where you are not confronted with society, with the state, where you don't make decisions, where you can't have a dispute.
Therefore, as I see it, the essence and mission of an attorney's occupation is that he is the professional who stands between you and your opponent in a world of rules and regulations, and he is exclusively on your side. Your interests, which he defends, should be more important to him than his own.
— Why can't other professionals — judges, prosecutors, for example — take over this function?
— If we think about the essence of these professions, even assuming that their efforts would be aimed at protecting the law, the prosecutor does not represent your interest, but the public, rather, even the state. And a judge has to be independent and impartial. He cannot take only your side and protect only your interest, he needs to look at both sides.
— There is an opinion that nothing depends on the attorney, some call them an 'expensive way to transfer a parcel to the pre-trial detention center' or even express themselves more crudely. But at the same time we can observe that in political trials, when the defendants realize that the sentence is still going to be a very harsh one, they are grateful to their attorneys (Akihiro Hanada, Grigory Kostusev). Why do you think this happens: without getting the desired result, the defendant still thanks the attorney?
— Regarding the neglect and aggression towards attorneys, I believe this is how people vent their anger and frustration. Unfortunately, they are directing it at the wrong target. "Nothing depends on the attorney's actions" — in what sense? Whose decision is not up to the attorney? The court or the law enforcement agency? If we formulate this claim correctly, it is rather about a situation where a court or an official (prosecutor, investigator) makes its decision without paying attention to the attorney's arguments. And, therefore, disregarding the person. Whose responsibility is that? It probably belongs to those making such inhumane decisions, but not to the attorney. If society is talking about the responsibility of an attorney for other people's decisions, then society should also take responsibility for the fact that we have such a legal system formed.
But if, for example, the attorney is lacking expertise and fails to do something (or does not do it properly) — then, yes, it is his individual responsibility, and about him you can, apparently, say what was sounded in your question.
Returning to the role of attorneys in a legal system like a Belarusian one, I want to mention the opinion that an attorney performs only a psychological, "therapeutic" function. Indeed, if an attorney wants to help a client, to explain the legal nuances and, in general, support him, first of all, it is necessary to build a relationship of trust. Although we do not practice psychology specifically, no one sets such a task. On the other hand, imagine the condition a prisoner might be in, especially if they are inhumane or one is in solitary confinement, and there is no way out. Then it will become clear how important it is to have someone who speaks to you as a human being in the moment. Those in isolation may have nothing (no contact with loved ones, no letters or books) but an attorney. So it is not such a minor function, although it is not a major one.
— What can an attorney even do for a client now?
— The first thing is to keep his client within the space of a normal human relationship. Because in the system in which prisoners find themselves, such relationships generally do not exist — moreover, efforts are made to destroy the human dignity in them.
We are now seeing many attorneys being flushed out of the profession. And this process is widening, although there are now virtually no open trials, no alternative press, attorneys are no longer in the public space where their voice is heard, which probably annoys someone. But deprivation of the right to defense becomes a means of suppressing the human dignity of defendants when the whole system is indoctrinated: "What's happening to you is the norm, that's the way it should be" and there is no alternative point of view, no alternative view of you and your situation. No matter how strong a person may be, at some point it is possible to believe in this. If you are told all the time that you have a hump — and you don't have the opportunity to verify it, you are likely to think like that after a while. So don't offset this function — the attorney's presence as a human being.
Now let's talk about what an attorney can do from a legal point of view and what is most often overlooked on the outside. When a person is involved in criminal or administrative proceedings and ends up in isolation as a result of prosecution, they often do not understand why they deserved it. Their position does not coincide with the accusations of the state, but it is difficult to formulate this position. The attorney's task is to understand what the person wanted to say or do, to understand their actions and internal motives, the context of what happened, to put it all into legal language — and to explain it to the person. Otherwise, when a person lacks a legal position, they do not know what is their current place in this space of norms and means of coercion applied by the state, they do not know which facets of their position are important in deciding their fate.
Without this, it is very easy to convince a person that he or she is wrong. The attorney, on the other hand, brings back and maintains the inner reality in which the person actually exists.
At the same time, the attorney shall not communicate the position of the state, nor replace the client's position with his own, but shall put into legal language exactly the perception of his client. When a person is aware of the legal meanings of actions and words, he or she has the ground beneath his feet and begins to understand what is happening in the process. For example, until the moment of communication with the attorney he or she may not realize that they are being prosecuted for exercising their rights: freedom of expression, freedom of assembly.
Therefore, it is very important to identify, verbalize, consolidate and defend the position with all the tools available. And in all my years as a lawyer I don't remember any of my defendants saying "you know, everything is already decided, don't come here, don't write complaints, stop defending me". On the contrary, the more everything points to the unfairness of the accusation, the more the person asks to act in his defense, and complaints, petitions, appearances in court take on real meaning first and foremost for him/herself.
— The legitimate aim of the legal system and the work of the judiciary is to achieve justice. Would it be a big mistake to say that the sensitive cases attorney is the only part of the justice system that is now working towards achieving justice, and which in principle continues to work in accordance with its real purpose? And why does an attorney proceed with it if everything else is not functioning well?
— Here we need to recall the natural rights of man. What is the minimum human being should have in order to remain a human being? Human rights are shaped by needs: man fears pain — hence the right not to be tortured; man is given life — hence the right to life. When a human being is born, the first sound is a cry, an expression of oneself. Then, when we become members of society, we have a need to unite and gather with other people, because there are few goals that a person can achieve alone. This is the origin of the natural rights to freedom of expression, assembly and association.
Justice is the same basic human need. From infancy we want to be treated fairly. Hence the right to a fair trial. The attorney is one of the pillars of a proper system of justice. The same pillar must be his opponents — representatives of the state, if they act in a legal way, and the same pillar is a fair independent court. These are the pillars on which justice rests. If they collapse one by one, or are to be transformed from a pillar to a stick that hits the head, it does not mean that an attorney should cease to be an element of this foundation and step aside. If things don't work around here, it doesn't mean that an attorney shouldn't work. Sometimes the attorney becomes the only person who satisfies the public and individual demand and need for justice through his or her actions.
The attorney must use all available means that do not contradict the law: from advising the client, participating in trials, drafting and communicating the client's position to government bodies and decision-makers, to the general function of ensuring that all the rights of his client are satisfied, including the right not to be ill-treated.
The attorney deals with issues that relate to the private life of the client, but we should not forget that the profession also has public duties. After all, a lawyer is the one who has to say the words of truth in the language of law. And if a lawyer (not necessarily an attorney) sees that there is a legal problem which may lead society down the wrong road, then he or she must speak about it. Just like doctors, if they see that an epidemic is coming, they should not fail to act. This is the international standard: lawyers should not tolerate problems because, among other things, they are responsible for the state of the law.
— Digital rights activists have derived a law of thumb: if the internet is shut down somewhere, it means that people are being killed there. Can the same be said about attorneys: if a lawyer is deprived of access somewhere, it creates a situation where human rights are being violated?
— Apparently, yes. The very fact that an attorney cannot reach his client is already a violation of the right to defense. We know of examples where the very appearance of an attorney stopped the abuse or coercion to testify. Not to mention that it is the attorney who ensures a number of other personal rights of the individual.
— Alexander Cherkasov, head of Moscow Memorial, cites as one of the organization's main achievements the fact that they have "prevented tragedies from becoming statistics". How would you characterize the key recent achievement of Belarusian attorneys?
— To paraphrase, the lawyers "prevented a conscious society from accepting lies as truth," because while the lawyers were present in the information field, the truth was out there.
— What kind of attorney can be called a hero?
— Yes, unfortunately, serving the profession properly and in good faith, with an understanding of it, is now becoming a heroism, because there is a lot of opposition. Laws, their interpretation and application are being adapted to the current conjuncture. But in this situation, an attack on attorneys as a group and on individual lawyers as personalities is a losing proposition since it destroys even the artificially created picture of legitimacy, even imaginary. It takes place, apparently, in order to keep the alternative legal point of view from being heard, which, incidentally, citizens have shown a lot of interest in lately.
But in reality I think that heroism implies an extra effort that has to be made, while a good lawyer just does his job. When we make a choice - to stay with our understanding of the profession and values, or to bend to someone else's desires and change ourselves, in what situation do we win? I believe that we have to choose ourselves. It is good if one never faces such a choice. It is bad when there are no values to choose in favor of. But when faced with such a choice, a person evaluates what he/she is actually losing. In layman's terms, it is the worst thing to lose your job and your salary. But I do not envy those who choose to keep it by betraying their beliefs. I have seen many examples of how destructive it is when a person lives as if making excuses to themselves, not to mention those around them. And professionally, in the long run — a lawyer who has abandoned legal principles just to feel his own security (which, in fact, is already becoming an illusion to everyone), can hardly maintain his reputation, including among potential clients. And reputation is, in fact, the only real career achievement in this profession, on which, by the way, the salary also depends. And if you are still you, with your values and dignity, it is not a loss, but an investment in yourself, present and future life.
