The Russian Advokatura (Bar) and the State in the 1990s

University of Glasgow

The Russian Advokatura (Bar) and the State in the 1990sAuthor(s): Pamela JordanSource: Europe-Asia Studies, Vol. 50, No. 5 (Jul., 1998), pp. 765-791Published by: Taylor & Francis, Ltd.Stable URL: http://www.jstor.org/stable/153892 .

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EUROPE-ASIA STUDIES, Vol. 50, No. 5, 1998, 765-791

The Russian Advokatura (Bar) and the State in the 1990s

PAMELA JORDAN

ALTHOUGH THEY WERE REQUIRED TO OBTAIN general law degrees, lawyers in the Soviet Union (called jurists, or yuristy) were more often identified by their separate positions. These included the advocate (advokat), a practising lawyer who represented clients in court and belonged to the bar; the jurisconsult (yuriskonsul't), an in-house counsel for state enterprises; the judge (sud'ya); the procurator (prokuror), who supervised the actions of courts and acted as prosecutor; the investigator (sledovatel'); the judicial official; and the legal scholar. During the Soviet era, the meaning of the term 'professional' was tied to the ways in which jurists were carrying out the state's dictates, rather than seeking to fulfil the ideals of Western professions, such as gaining a monopoly, controlling admissions and training, and improving their socioeconomic status.1 However, advocates, more than any other type of jurist, tried to maintain at least some elements of self-regulation as one Soviet regime and approach to legal reform gave way to the next.

Then, beginning in the late 1980s with Gorbachev-era reforms, advocates encoun- tered opportunities for gaining significantly more control over their professional programmes. This article will examine whether, since the late 1980s, advocates have in fact benefited from those opportunities by becoming relatively autonomous from state officials, or whether their relations are still strongly influenced by Soviet-era legacies.2 The approach used here to explain the process of organisational change in the advokatura is historical institutionalism, a neo-institutional approach that focuses on how institutions shape actors' goals and strategies and mediate their relations of cooperation and conflict.3 This approach sheds light on the long-standing constraints imposed by state officials that Russian advocates have continued to work under in the 1990s, and shows why, at the same time, advocates nevertheless have managed to reshape and control aspects of their profession.

The author employed diverse methods of research in her study. In 1994-95 and 1997 she collected data from 93 interviews with advocates and over two dozen interviews with other Russian jurists (officials from the Ministry of Justice (Minyust), the President's Main State Legal Administration (GGPU), the Moscow Department of Justice; private lawyers, judges, procurators and legal scholars). The selection criteria for the advocates interviewed included representatives from all bar associations in Moscow, Ivanovo and Petrozavodsk; advocates from various kinds of law offices and various types of practices in these cities; both bar leaders and rank-and-file members; a gender balance; and different age cohorts. Secondly, in 1995, the author, along with

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Daniel McGrory of the American Bar Association's Central and East European Law Initiative (CEELI), wrote and conducted surveys of advocates' opinions on the state of their profession and aspects of their criminal and civil practices in Moscow (25), Ivanovo (32) and Stavropol' (20). Thirdly, the author observed criminal and civil trials in Ivanovo and Moscow in 1994 and 1995. In addition, in 1994 and 1995 she observed a number of bar meetings and conferences, and in 1995 she attended two meetings of the Duma Committee on Legislation and Legal and Court Reform. These various data were controlled by a reading of Russian legal periodicals, as well as a selection of files on the advokatura housed in the archives of Minyust and the Centre for the Preservation of Contemporary Documentation (TsKhSD).

Historical background: the Soviet bar before Gorbachev

The Soviet state's control over the bar's organisation

A lack of respect for law and popular disdain for lawyers, first encouraged by the words of Lenin, as well as by the early actions of the Bolshevik government, would continue throughout the Soviet period. However, its standing would never again be as low as it was in the first two decades, when often the only qualification needed to practise law was the proper class consciousness. In the mid-1930s Stalin restored the status of law, but in a cynical attempt to use it as an instrument of power. Instead of establishing a set of laws as the legal foundation of society, political elites continually re-made the rules in the Soviet system in response to their changing interests. The role of Soviet advocates in the legal system was to strengthen 'socialist legality' and to follow orders set by state officials, which, more often than not, limited their autonomy and access to clients.

On 16 August 1939 the USSR Council of Ministers approved the 'Statute on the Advokatura', to regulate the work of the 8000 advocates who served a population of 191 million.4 It eliminated loose collectives by creating state-regulated bar associations called colleges of advocates (kollegii advokatov), and compelled advocates to work in one type of law office, the legal consultation bureau (LCB). Colleges, which numbered approximately 163 by the 1980s, were organised on the regional (oblast') level. Although typically elected by the general membership of a college every three years, the leadership council (presidium) was composed almost exclusively of CPSU members, or at least advocates approved by the party. The presidium appointed managers of LCBs, assigned them new members-with the approval of local justice and party officials-and monitored the conduct and discipline of members. LCBs operated as work units that contained party cells and fulfilled official goals, such as providing free legal aid to the indigent and special categories of citizens (e.g. veterans, members of soviets, pensioners). Although individual advocates en- joyed a more flexible work schedule than many other categories of workers, they were still assigned most cases by their managers, regularly worked 'walk-in' shifts, and were paid on a fee-for-service basis according to rates approved by Minyust.

Until the final years of the Gorbachev period, the union-republic levels of Minyust, through their departments of the Advokatura and local justice sections of the ispolkom (executive committee of the soviet), continued to wield the largest amount of daily

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control over the colleges of advocates. The courts also were subordinate to Minyust, which had the power of 'organisational guidance' and served as a 'transmission belt' to the courts for the state's policies.5 Minyust limited the number of advocates admitted to the colleges, set payments for particular advocate services, and instructed advocates about their work goals and behaviour. Justice officials supervised individual advocates through access to their files and sometimes by monitoring their courtroom behaviour.6

CPSU officials in the administrative organs section of oblast' (obkom) or city (gorkom) party committees monitored bar activities as well. Most advocates, even in the early Gorbachev period, were not completely opposed to the occasional party intervention in their internal affairs; in 1985 57.9% of advocates were members of the CPSU.7 On occasion, party officials gave presidium members instructions on whom to admit and expel, although sometimes they overstepped accepted boundaries. Boris Abushakhmin, a member of the presidium of the Moscow City College of Advocates (MGKA) from 1977 to 1990, described relations between MGKA and the gorkom as 'undeclared war', and accused the gorkom of consciously banning the most talented candidates.8

Thus advocates' loyalties were not transferred to the state on the whole. According to Eugene Huskey, the bar still retained much of its tsarist-era identity and had limited autonomy.9 One unique aspect of this Soviet institution was that it functioned within a semi-autonomous market, in that advocates competed for clients on a fee-for-service basis within legal consultation bureaux. Colleges had a semblance of control over admissions (including the coordination of training classes and internships), disbar- ment, professional conduct and fee schedules. However, the advokatura lacked a centralised apparatus and platform that might have more strongly challenged Soviet policies.10

In 1980 amendments were made to the RSFSR 'Statute on the Advokatura' (adopted after the all-Union version was approved in 1979). This statute (henceforth 'the 1980 Statute') remains the acting law on the advokatura today." In it, colleges of advocates are defined as 'voluntary organisations', but additional ones may be formed only after meeting the approval of local government agencies and the republican justice ministry. Minyust continued to have supervisory control over the bar. Advocates were obligated to accept court-appointed criminal cases (those involving indigent clients) under this law, as well as under Article 49 of the Criminal Procedure Code (UPK). They also were obligated to give public lectures about socialist legality, reconfirming their duty to disseminate state propaganda. In addition to stipulations which clearly emphasised the bar's dependence on Minyust and the CPSU, the statute granted advocates certain professional protections. These included guidelines pertaining to conflicts of interest, client-lawyer confidentiality, and the right to refuse to act as a witness against one's client.

The state and advocates' ability to render legal assistance

Soviet criminal procedure was an authoritarian version of the inquisitorial approach practised in continental law systems. Investigators typically wielded considerable discretionary power and prevented exculpatory evidence from being admitted into the

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final report used at trial. The regime considered advocates not only to be defenders of citizens' legal interests but also social actors who aided the courts in pointing out certain failings of procurators and investigators. Simultaneously, advocates were 'ordering' society by reconfirming the rules of criminal procedure and opposing the interests of the state.

Revisions to the RSFSR UPK made between the late 1950s and 1970s were meant to grant the defence counsel (zashchitnik) the right to attorney-client privilege and to represent minors, disabled people, and people who did not speak the language used in court (namely Russian) from the beginning of the preliminary investigation.12 In reality, investigators sometimes pressured advocates into dropping their cases and repeatedly refused their requests to review case files and to release clients from custody. Advocates appeared in court in 70% of criminal cases, but were present for only one-third of the preliminary investigations.l3 To compound the impediments standing in the way of a sufficient defence, advocates were paid less for their work in preliminary investigations than for trial work, owing to a Minyust decision.'4 From 1970 to 1980 in the RSFSR, investigators rejected more than 70% of petitions and declarations filed by advocates.'5

Advocates' effectiveness in court always was limited to some extent by the state's interest in securing high conviction rates. On average, courts acquitted defendants in less than 1% of criminal cases. Only a limited number of advocates were chosen by presidiums (in consultation with the KGB) to hold special clearances that allowed them to represent the accused in political trials.'6 During the late 1960s some advocates who held these clearances represented dissidents in high-profile political trials and risked their careers by doing so.17 In addition, advocates played an extremely circumscribed role as defence counsel to those dissidents who were forced to undergo psychiatric evaluations.'8 In a 1985 survey of 200 advocates who were members of two Moscow area colleges of advocates, respondents reported that they were not very effective in achieving positive results for their clients owing to accusatorial bias.19 Soviet advocates, however, sometimes devised methods for gaining small victories, such as a return to supplementary investigation (when procurators could then dismiss a case without registering a formal acquittal), petition- ing for lesser charges, and striving for leniency in sentencing.20

The Soviet command economy automatically dictated the boundaries of advocates' practices in the area of economic law.21 In the 1970s CPSU and government decrees and resolutions finally permitted advocates to contract with enterprises, institutions, collective farms and other official organisations that had no full-time yuriskonsul't.22

In sum, in the Soviet era, legal institutions like the advokatura were necessary as a part of maintaining the state's legitimacy. Most zashchitniki, out of a fear of being cut from cases, rarely risked confrontations with law enforcement officials. Such an acknowledgement of law enforcement's upper hand illustrated advocates' recognition, if not acceptance, of the 'statist orientation' of Soviet political culture.23

The Gorbachev period and state-bar relations

The judicial reforms initiated during the Gorbachev era were linked with efforts to end forms of personalised power. The aim was that courts should become more

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independent of local governmental and CPSU bodies. One major step towards this goal was to limit the main function of Minyust vis-a-vis the courts to their 'organisational maintenance', instead of their 'organisational guidance', to signify how the role of Minyust would become less supervisory and more administrative.24 By the late 1980s some changes did occur in the courts. High conviction rates decreased as court reforms were implemented, and judicial independence was compromised more by the way in which higher courts dominated lower ones than by outside interference.25

Changes in advocates' practice under Gorbachev

The Gorbachev regime looked to the advokatura and advocates as possible role models of a new civic virtue in the age of glasnost'. Advocates, for example, would socialise their clients to appreciate how laws would now, at long last, work in their favour. At the 19th CPSU Conference in June-July 1988 Gorbachev pledged to raise the status of advocates.26 The numbers of advocates and law offices which served the general public were to increase. The number of advocates in the RSFSR in 1986 was only 40% of the number in 1913, with only one advocate to 13 000 people (about five to ten times lower than in European countries).27 In addition, advocates were meant to play a more substantive role in preliminary investigations, including earlier access to their defendants and case files, as well as in trials.28

Supporters of a stronger defence and sostyazatel'nost' (adversarial principle), such as professors of criminal law at the Institute of State and Law (IGPAN) and certain Moscow bar leaders, succeeded in gaining adoption of a number of their proposals in the 'USSR Fundamentals of Criminal Procedure' in November 1989 and April 1990.29 These proposals included earlier access of defence counsel to clients and case materials during the crucial pre-trial phases. What appeared to be a triumph for advocates, though, fell short of the ideal for members of the bar, once defence attorneys found they would be paid less at the preliminary investigation stage.30 The unreliable system of payment and shortages in their ranks continued to prevent advocates from effectively representing the accused in preliminary investigations, as well as in court, for years to come.

Movements toward a self-regulating profession

As a part of Gorbachev's plan for restructuring the legal system and devolving power away from centralised agencies, advocates' bar associations were now allowed to monitor their own professional behaviour to a certain extent and participate in a number of new legislative drafting efforts. However, justice officials were willing to give some further degree of autonomy to the colleges in order to improve the quality of legal assistance, although they did not want to see advocates gain complete autonomy from the state. Also at this time, Minyust and CPSU officials permitted the formation of legal cooperatives, which were semi-private law firms that catered to the emerging business classes and whose members did not belong to the advokatura.

Initially, Minyust officials were assigned the task of defining the boundaries of self-regulation of the bar through locally administered decrees.31 Minyust control over

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the advokatura became a point for reformist jurists to rally against, as the Soviet state's legitimacy continued to plummet and spontaneous forces 'from below' began to influence the reform process.32 Fearing that they would lose their administrative mandate, Minyust officials reluctantly devolved their supervisory powers. By 1992, after a number of negotiations between bar leaders and justice officials, colleges gained more control over such professional issues as entrance and training, compensation, and the creation of new law offices.

Coupled with these developments was the creation of the Union of Advocates of the USSR in February 1989. This was the first independent union to be formed under Soviet power.33 In late 1988 the USSR Ministry of Justice had attempted to control the process of creating the organisation by forcing advocates to adjust to its own terms. Yet, thanks to the endorsement of some reformers inside the higher echelons of the CPSU, as well as a supportive article in Pravda, the independent union was permitted to form.34 In December 1990 around 600 members of the Union marched to the USSR Ministry of Justice to protest against draft Minyust revisions to the 1980 Statute, which the ministry had written without consulting them. Minyust subsequently withdrew the draft from consideration.35

The union's existence, however, did not turn advocates into a major political force against the state. In this sense, the union represented an opportunity lost for the Soviet advokatura as a voice of social consciousness.36 Despite the fact that the late Gorbachev era presented professionals like advocates with opportunities to enter political life, many advocates have prided themselves on the fact that they are not mired in a political scene wracked by corruption and hypocrisy and prefer to focus instead on their daily practices.37

State-bar relations in the post-Soviet era

Members of the advokatura began to confront critical junctures of institutional choice in the late 1980s and have continued to confront them well into the 1990s. As a result of advocates' own choices, as well as historical contingencies and path dependencies related to the strong supervisory control of justice officials, the organisational structure and functions of the advokatura are both changing in some ways and remaining static in others. The distinct sources of institutional dynamism in the advokatura have been, first and foremost, the broad changes in the socioeconomic and political context. The late 1980s in the USSR saw change in the political opportunity structure for groups and individuals. These years represented critical junctures in terms of how advocates were now able to negotiate their status vis-a-vis the state. External changes encouraged advocates to shift a number of their goals and strategies. By 1992 some advocates decided to pursue other avenues of practice and even other work arrangements in new colleges and law offices.

Autonomy over the professional programme

By mid-1997 the 26 500-member advokatura was composed of four national bar organisations (some with competing interests), over 100 Soviet-era colleges (composed of 19 000-20 000 advocates) and about 40 new colleges (with a total of nearly

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7000 advocates). In addition, the state allowed advocates to form new kinds of law offices, ones that differ in focus and management techniques from Soviet-era LCBs. Such an array of structures on the three organisational levels-national, college and law office-divided advocates' loyalties and created various interests and approaches to practice and management.

The dual existence of old and new bar structures is an indication of the development of pluralism and the increased autonomy professions have had over their organisation and practices in Russia in the 1990s. Instead of viewing this diversity in practice and organisational structure as an indication that advocates are reaching out to more types of clients, leaders of the bar have been fighting over jurisdictional and identity issues. Such a situation reflects what has been developing in Russian society in general: the proliferation of competing sub-groups that are unable to compromise or focus on consensus building.

In 1989, the same year the Union of Advocates was formed, the USSR Ministry of Justice approved the creation of new colleges.38 The new colleges are informally called 'parallels'; the colleges that existed before 1989 are informally called 'traditional' or 'original'. In 1990 the RSFSR Ministry of Justice began to permit the registration of parallel colleges, on the basis of a temporary experiment in expanding legal services.39 The then Russian Minister of Justice, Nikolai Fedorov (1990-93), argued that the advokatura needed to be liberated from state regulation to respond to newly emerging market trends. He even believed the monopoly of the original colleges needed to be broken because it violated the new law on anti-monopoly activity.40

Aleksei Rogatkin, then chairman of the presidium of MGKA, remarked that 'in Soviet times, the state accused the advokatura of being bourgeois, but now we're accused of being too communal and monopolistic'.41 Many, if not most, advocates belonging to Soviet-era colleges have opposed parallels. Soviet-era colleges argue that members of parallels are underqualified to practice law, although many of their assumptions are based on anecdotal evidence.42 Aleksei Galoganov, chairman of the Moscow Regional College of Advocates (MOKA) and ex-president of the Federal Union of Advocates, claimed that Minyust permitted the parallels to stir up opposition inside the bar, to weaken its unity, and to create a job placement scheme for former state bureaucrats, whom original colleges would not have accepted.43 Parallel colleges do have some support in regional governments. At least 20 of Russia's 89 subjects (through either their administrations or legislatures) have indicated that they would favour having more than one college per region.44

Soviet-era colleges have carried the burden of low-paying court-appointed criminal cases, while parallel colleges have more typically catered to business clients.45 The traditsionshchiki, as the members of the Soviet-era colleges are sometimes called, handle over 90% of criminal cases, but only 2.5% of civil cases.46 However, both types of colleges are obligated to accept at least some court-appointed criminal cases and other types of pro bono cases.

Gassan Mirzoev, head of the parallel called Moscow Legal Centre (Mosyurtsentr) and president of the National Guild of Advocates, has called the original colleges 'conservative' and 'monopolistic', and 'of the totalitarian era'.47 While parallels have tried to promote themselves as post-Soviet institutions with new, Western outlooks on

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management and practice, most function within the same hierarchy as Soviet-era colleges, and many have had ties equally as close to local and federal organs of power as the Soviet-era colleges. For example, Mosyurtsentr began in 1989 as an agency of the Moscow government and was created by permission of the Politburo and Moscow gorkom. MGKA leaders are aware of how well connected Mosyurtsentr and other parallels, as well as the Guild of Advocates, are to political power centres in the capital, such as Mayor Yurii Luzhkov and even presidential offices.48

However, Minyust officials have proved to be an exception. In early 1993, after dozens of parallels were already formed, their support for the parallels began to fade. Minyust officials at this time sent letters to regional justice organs requesting that they take action to stop the experiment.49 In the autumn of 1994 founders of a parallel college in Moscow filed a civil case against the Moscow Department of Justice and the Russian Ministry of Justice for cancelling their request for registration.50 The Tverskoi Intermunicipal (People's) Court ruled that Minyust has the right not to register parallel colleges and that the experiment of using them to expand legal aid had ended. Nonetheless, parallels continued to operate, and across Russia's regions local justice organs registered new colleges up to at least 1996. As former deputy Minister of Justice Anatolii Stepanov described it, 'the genie had already been let out of the bottle'.51 Minyust officials, claiming responsibility for the experiment's failure, are now supporting advocates in the original colleges in their campaign to outlaw parallels via the new draft law on the advokatura.52

According to the 1980 RSFSR Statute, local justice organs were not only supposed to approve the opening and closing of new colleges; they were also authorised to approve the opening and closing of all LCBs. By 1991 the RSFSR Ministry of Justice began to allow advocates to form new law offices, often called kontory, byuro or advokatskie firmy. In order to avoid paying taxes, advocates usually do not name their new offices simply 'firms'; firms are for-profit commercial businesses, while new byuro attached to colleges of advocates are legal entities (yuridicheskie litsa), which are non-profit and not subject to state or local taxes. Advocates in both original and parallel colleges have formed byuro, although most parallels-with comparatively smaller memberships-tend to house their headquarters and law offices in the same buildings.

The post-Soviet byuro typically raise more revenue for colleges and promote higher salary levels than the LCBs do. They offer advocates ways in which to establish commercial law practices without having to leave the bar and pay taxes as for-profit legal providers. Colleges have given advocates who practice within these new law offices the latitude to establish management systems which more often resemble those of Western firms than LCBs. The number of clients in LCBs from 1993 onward dropped sharply because clients, especially from the business community, began searching out experts in different areas of law.53 On the other hand, advocates working in LCBs have been forced to bear the burden of accepting the bulk of the low-paying court-appointed criminal cases. The existence of these two strata within the bar structure has precipitated tensions within the profession over the fairness of this de facto structure and exactly what kinds of pro bono obligations each advocate should be expected to bear.

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In the early 1990s, as members of the bar were failing to reach their own compromises over issues of self-regulation, officials also permitted non-profit legal aid organisations and private law firms to form. Both types of law offices operate outside the purview of colleges and the 1980 Statute. Many non-profit legal aid organisations, which are governed by the Law 'On Non-Commercial Organisations', have been created with the financial assistance of Western foundations.54 The existence of non-profit law offices indicates that advocates have failed to address the needs of the lower classes for legal assistance in civil matters.

Private law firms, the successors to the legal cooperatives formed in the late 1980s, are for-profit legal services providers. Included in this category are several branches of prestigious foreign law firms, which normally contain a mixture of foreign lawyers and Russian jurists, some of whom once belonged to the bar.55 Instead of acting as litigators, as advocates do, jurists in private law firms typically practice corporate law. They register companies, draw up founding documents and management plans, and assist with tax policy and development projects.56 Nearly all respondents to the author's 1995 surveys on advocates' opinions answered that private jurists were harming the prestige of advocates and lowering standards of practice. But the existence of private law firms indicates that advocates are not fulfilling the legal needs of the emerging market system.

On 15 April 1995 Prime Minister Viktor Chernomyrdin issued a resolution requiring privately practising jurists and private law firms to obtain licences from either the RF Minyust or local justice organs.57 For now, advocates are not licensed by the state because they provide legal assistance or aid (yuridicheskaya pomoshch'), not for-profit legal services (uslugi). Many advocates fear that state licensing would grant the ministry increased discretion over their institution.58 State organs are issuing licences, not only in the legal sphere but also in other fields, such as to institutions and individuals providing psychiatric care, as a way to reassert control over professions.59 By early 1997 Minyust and regional justice organs had issued approximately 8000 licences; half of this number represents private law firms, the other half (non-advocates) jurists.60 In 1996 the new licensees created their own interest organisation, the Association of Law Firms and Jurists-Licensees.61

The three main reasons why Minyust decided to permit the creation of private practitioners and law firms, beyond the immediate ones of expanding the market in legal services and observing new legal stipulations, were the need to widen its jurisdiction (through the licensing of jurists and private law firms), the state's interest in collecting additional tax revenues, and Minyust's tacit goal of preventing the advokatura from becoming a powerful, unified interest group. If advocates were a strong professional group, they would already have succeeded in blocking the proliferation of private law firms. Advocate organisations had neither sufficient leverage over Minyust officials to force them to ban private law firms in the first place nor the foresight to expand their own jurisdictional reach into the commercial law sphere before outsiders began doing it themselves.

In some specific ways, advocates have taken measures to separate themselves from the state, especially Minyust. Leaders of Moscow's International Union of Advocates, for example, argued that the right of bar organisations to exist independently from state organs is protected by Article 30 of the RF Constitution, as well as Article 17

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of the Federal Law 'On Societal Associations'.62 IGPAN law professor and advocate Igor Petrukhin has maintained that advocates cannot simply rely on justice organs anymore to solve their problems.63

Advocates are building self-reliance in a number of ways. The Federal Union of Advocates, with 18 000 members, is beginning to organise information systems (in the form of regular press releases) to track violations of advocates' rights by government organs.64 In addition, by mid-1997 there were three independent advocates' publications: Advokat, published by the International Union, Rossiiskii Advokat, published by Mirzoev's Guild of Advocates, and a second publication also with the title Advokat, which is not affiliated to any particular advocates' organisation. Several colleges, parallel and original alike, have refused to send Minyust annual statistical reports (otchety) on advocates' work, documents Minyust officials used in the Soviet era to monitor performance and shape future bar regulations. Since the late 1980s, as the Ministries of Justice and Higher and Secondary Education lost their grip over the creation of educational objectives and approval of staff appointments, advocates' organisations have also attempted to strengthen their role in legal education. They convinced a number of law faculties to adopt new courses on the advokatura and are now raising funds to build a new independent advocates' school.65

Lastly, some colleges have established ties with human rights organisations or themselves have more strongly emphasised human rights advocacy and monitoring of state abuses. For example, members of MGKA have been in contact with staff members at the Moscow Research Centre for Human Rights to discuss a number of issues about legal aid and defence rights.66 One parallel college in St Petersburg, the Sankt-Peterburg inter-regional college, focuses its work on defence advocacy, particularly human rights cases. The respected human rights advocate and head of the Russian Lawyers' Committee for Human Rights, Yurii Shmidt, belongs to this college. The Karelian branch of the college initiated a small foundation for assistance to prisoners. Their goal is to establish regular shipments of medicine and other goods to prisoners.67

Historical patterns of state-profession interaction have partially reasserted themselves, mainly in response to the destabilising forces inside and outside the bar. While keeping their distance from the state in some matters, advocates have still found it necessary to seek out alliances with state officials in an effort to regain their monopoly over legal services, to secure low-rent premises for colleges and law offices, and to guarantee funding from state budgets to cover a growing number of court-appointed criminal cases.68 Like other professions in Russia, the bar is experi- encing downward social mobility and is compromising some of its autonomy in order to gain material resources, protection and validation from state agencies.69 As with any legal profession, professional autonomy and goals of self-regulation are not absolutes. What continues to set the Russian case apart, however, is the extent to which justice officials and other executive branch agencies are still interfering in the bar's professional programme and advocates are still viewing the state as their patron.

According to the head of Minyust Department on Mutual Activity with the Advokatura, Isai Sukharev, 'there is no longer any state control over the advokatura'.70 However, Sukharev's actions betray his objective to maintain Minyust's patronage. He has stressed to colleges that the federal budget partly finances them and

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that Minyust must protect them against today's perceived enemy, offices of the Tax Inspectorate.7 In addition, in June 1997 Sukharev announced that Minyust would cease registering new advocate byuro.7 Advocates did not react uniformly to this news. MOKA agreed to freeze the number of new law offices until a new law on the advokatura is passed, while MGKA and other colleges still encouraged new offices to form.73

According to Valerii Alpatikov, head of the Moscow parallel college Inyurkol- legiya, 'Minyust now has no power to affect our practices. But sometimes this is not good, because advocates need protection from other state entities, such as municipal authorities (colleges have to pay very high rents) ... We need a government body to represent us, because the situation that we're in is not satisfactory'.7 From a review of the main issues involved in state-bar relations in Russia-including the drafting of new regulations governing the organisation and operations of the advokatura, as well as the reform of criminal procedure-it appears that neither state officials nor advocates themselves are setting clear standards for what 'protection' means.

The remainder of this section will focus on the drafting of a new law on the advokatura, Minyust's effort in 1997 to force new regulations on the bar, and the controversy over a revised federal pension law adopted in 1997, and how they each have affected the bar's autonomy from the state. First, a new law on the advokatura has been under construction in the federal legislature since 1992.75 The Duma committee that now carries responsibility for drafting the law is the Committee on Legislation and Legal and Court Reform (henceforth 'Duma Committee').76 Officials in the GGPU and Minyust have played a major role in the drafting process; advocates-including representatives from MGKA and MOKA, two parallel colleges, and three national bar organisations-have been directly involved in the drafting process only since 1994, when they first sat on the Minyust and GGPU in-house drafting committees.

Executive branch officials' instrumental role in drafting documents relating to the bar (they have the right to legislative initiative, whereas advocates do not) has forced advocates, with limited resources at their disposal, to compromise aspects of their autonomy in exchange for validation from the state. Minyust officials particularly have attempted to amass more responsibilities over the bar.77 The Law 'On the Court System of the Russian Federation', signed by President El'tsin on 31 December 1996, removes from the Ministry of Justice the right to administer the courts of general jurisdiction and transfers it to the courts themselves.78 Here, the Ministry lost a major mandate, at a time when the GGPU was obtaining more power in drafting key pieces of legislation.

The main theme of the drafts, as echoed in their texts, as well as in the rhetoric of the drafters, has been less about building the advokatura as a self-governing legal profession in the Western sense and more about maintaining a legal institution whose main function is to provide legal aid to Russian citizens. Minyust officials stand to benefit from this theme. It provides a civic-oriented cover for their participation and distorts the ulterior reason they are involved: to widen their administrative raison d'etre. Advocates themselves stress this theme for two reasons. First, they want legally binding guarantees from the state that it will pay them for their court- appointed criminal cases, and second, many advocates sincerely believe that one of

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the main traditions of the Russian advokatura, even stretching back to the tsarist era, has been public service.

In 1994 leaders of the original colleges formed a coalition with Minyust officials in support of a stipulation that would outlaw most parallel colleges. The first GGPU draft, submitted in 1994, did not outlaw parallels. Also that year, a member of the Duma Committee, Aleksandr Traspov, submitted a draft which reconfirmed the right of parallel colleges to form; however, he did not win re-election in 1995. A combined Minyust GGPU draft submitted to the Duma in early 1995 limited the ability of advocates to form new colleges. Predictably, parallel colleges went on the defensive. Advocates from the parallels and leaders of the Guild of Advocates used the media to appeal for wider support.79

The 1995 draft law jointly supported by Minyust and GGPU was subsequently revised to outlaw most parallel colleges, with the exception of a number of specialised colleges that have already registered with justice organs. Mirzoev, whose Mosyur- tsentr attempted to introduce its own revisions, claims that the draft law is 'anti- democratic' because it seeks to limit the number of colleges.80 However, with Traspov gone and communist hard-liner Anatolii Luk'yanov chairman of the Duma Com- mittee, Mirzoev had little chance of convincing the members of the special Duma drafting committee to accept his revisions. The draft law that outlaws most parallels passed its first of three required readings on 24 April 1996. Then members of the Federation Council drew up 120 pages of amendments to the draft that members of the special drafting commission would be required to make before approving it.

Since mid-1996 the drafters have been working on incorporating these amendments into the existing draft law. The draft also offers a more scaled-back role for justice organs and a reconfirmation of attorney-client confidentiality. No licensing procedures are mentioned, and advocates may practice in new law offices, as well as individually. Moreover, if passed, the law will require that a criminal case be brought against an advocate only by the General Procurator's Office or the Procurator or Deputy Procurator of a region, and only heard in the RF Supreme Court. Other than the opposition that most parallel colleges have to the draft law, some advocates believe that it fails to create any economic independence for law offices from a college's presidium.81 The draft, like so many other legal documents of the post- Soviet era, is the result of compromise, with the radical reformers more often relinquishing their ground to the moderate reformers or conservatives.

In mid-June 1997, in a letter to the Duma, El'tsin stated his dissatisfaction with the slowness of this drafting process, even calling for the Duma to withdraw the draft. Neither Mikhail Gofshtein, Vice-President of the International Union, nor Aleksandr Kligman, President of the Federal Union, knew for certain what (or who) motivated El'tsin to write the letter.82 Gofshtein believes its tone may indicate that El'tsin would prefer the government to maintain more control over the advokatura. On 15 July 1997 Moscow advocates discussed with the newly installed Justice Minister, Sergei Stepashin, a proposed presidential decree that would temporarily regulate the activity of the bar.83 But leaders of the International Union were less worried about whether the president's administration would control their profession, and more concerned that Minyust would view El'tsin's impatience as a chance to lobby for increased control over fee schedules, training interns, and administering bar exams.84 The Duma refused

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to withdraw the draft law when it reconvened in August 1997. By early 1998 the Duma had not yet approved it.

On the whole, advocates have tolerated Minyust assistance in the drafting of the law on the advokatura and a new code of ethics for lawyers, as well as in protecting colleges from tax agencies.85 However, conservative elements in the Ministry, possibly without Sukharev's knowledge, took steps in 1996 that most advocates opposed. In late 1996 a closed group of Minyust officials attempted to return state-bar relations to their pre-Gorbachev status by drafting a statute on the Ministry that would have restored its supervisory control over the bar. The draft law, the text of which advocates acquired in the late summer of 1996, included statements about how Minyust would issue bar licences and instructions on how to guarantee 'the improvement of the activities of the advokatura'.

Rogatkin and Petrukhin sounded the alarm in two articles in two bar publications which came out in September 1996 and early 1997.86 They warned that 'the Draft of the Statute on Minyust RF returns us to the years of totalitarianism and stagnation ...'. In early 1997 Rogatkin met the then Minister of Justice Sergei Kovalev to discuss why the draft law was detrimental to the advokatura. According to Rogatkin, he may have convinced the Minister to delete those parts of the draft statute that would have restored Minyust's supervisory powers over the advokatura.87 For whatever reasons, by early 1997, Minyust had deleted the deleterious parts of the draft law.

Once that controversy ended, the bar was next faced with a legislative dilemma which many advocates viewed as a mortal blow to its financial integrity. On 25 December 1996, after only one day of readings, the Duma unanimously passed a revision to the Law 'On Rates for Insurance Fees to the RF Pension Fund'. El'tsin signed it into law on 5 February 1997, and it was published on 11 February.88 The document significantly increased the percentage of advocates' monthly contributions to the state pension fund, from 5% to 28%. In the 1996 version, advocates were grouped with notaries and detectives as members of professions who were exempted from having to pay the federal government anything higher than 5% of their salaries.89 Now advocates, whose work is officially non-profit, had to contribute to the federal pension fund at the same level as business people.90 Moreover, the pension law went into effect on 1 January but was not signed by El'tsin until 5 February. In order to make the law retroactive, Duma legislators, with El'tsin's approval, removed a sentence from article 57 of the RF Constitution, which stated that 'laws introducing new taxes or that are detrimental to taxpayers cannot be retroactive'.91

The leaders of the Federal Union were not informed about the law until 4 February 1997, and therefore had no opportunity to lobby against its passage in the Duma. In fact, it appeared that none of the dozen or so Duma deputies who are advocates took any special interest in it. While all practising advocates opposed the pension law, there was disagreement among advocates about how to respond to it. According to bar leaders, the pension law revisions would decrease the colleges' ability to cover the costs of court-appointed criminal cases and force advocates to curb the amount of free legal assistance they formerly offered indigent clients in the area of civil law. For over three years now, colleges of advocates across Russia have not been compensated by the federal budget for their members' labour in court-appointed criminal cases. For many colleges, these cases make up between 40 and 80% of the total case-load.92

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Bar organisations initially responded in a number of ways to the law. First, in early February 1997 the leaders of the Federal Union sent El'tsin a letter outlining why the new pension law contradicted the existing stipulations about advocates' tax-paying obligations as suppliers of free legal aid.93 Second, on 14 February, advocates held a press conference on the matter; journalists' reporting at this time was generally biased towards the advocates' side.94 The next day the Federal Union called for a nationwide advocates' strike in March.95 The Union requested that advocates refrain from accepting and working on court-appointed cases. In a rare instance of solidarity, advocates appointed an emergency coordinating committee composed of leaders of the International Union, the Federal Union and the Guild. However, during March, few colleges reported going on strike.96 Advocates were concerned about the possible consequences of a strike, such as strengthening their reputation as defenders of the rich. Mosyurtsentr opposed the strike on the grounds that it was illegal and could create enemies in the government.

The long-term strategy for changing the pension law was to appeal directly to supporters on various levels of government. For example, Mosyurtsentr tried lobbying deputies of the Federal, St Petersburg and Moscow Dumas, as well as offices of the federal government, but failed to gather sufficient support to rescind the law.97 Another group of advocates appealed to the Duma Committee. On 13 February the Duma Committee approved a draft amendment to return the level of contribution to the federal pension to 5%. When the amendment finally was voted on in the full Duma, on 18 June, it was rejected.

According to Aleksandr Kligman, the pension law would deprive colleges of their ability to fulfil their legal, constitutional activities, thus destroying 'the moral bases of advocates' activities'.98 In late 1997 a group of advocates, including Kligman, petitioned the Constitutional Court to review the new pension law, arguing that the law violates the constitutional right of citizens to qualified legal assistance (Article 48.1 of the RF Constitution).99 The Court reviewed the petition in February 1998 (see Postscript).

Advocates have not only failed to secure their monopoly over legal services; they have also failed to maintain the colleges' ability to protect the financial well-being of advocates and to convince the public that what they are doing is, in fact, in its best interests. Despite the fact that few advocates formally went on strike over the pension law, members of the general public were left with an even stronger impression that advocates were unable to fulfil their demands for low-cost legal services.100 Moreover, advocates' letters to El'tsin about their opposition to the new pension law and state officials' fears that the re-institutionalisation of the advokatura was out of control may have precipitated El'tsin's recent intervention in the drafting process of a new law on the advokatura. El'tsin's actions may also indicate that he is siding with the Ministry of Justice over the issue of the state's supervisory control over professions.

In the summer of 1997, soon after a new minister of justice, Sergei Stepashin, replaced the scandal-ridden Sergei Kovalev, Prime Minister Chernomyrdin announced a broadening role for the Ministry of Justice in the legal sphere.101 In November El'tsin approved a new proposal that some observers claim will make Minyust 'the supreme federal agency in the legal realm'.102 While these developments focus on the Ministry's role in registering various organisations and real estate transactions,

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drafting federal laws in accordance with requirements of Council of Europe membership, and in supervising the penal system (newly transferred from MVD control), they also involve Minyust's ability to monitor non-governmental organisations and could trigger a response among justice officials to regain control over the advokatura.

Autonomy over legal defence work

In a measured way, advocates have become players in the developmental processes of a host of new civil relations and institutions. They are representing clients in appeals against state officials and agencies, in arbitration courts and business consultations, and in environmental and consumer protection cases.103 Relations between advocates and state officials are shaped more significantly in the criminal sphere of practice than the civil sphere, however, as advocates are consistently positioned directly against the state's interest.

On paper, some improvements in the defence attorney's role in the criminal process have been made. The reforms outlined in the revised RSFSR Criminal Procedure Code (UPK)-the right to represent a client at the time of detention in certain cases, the presumption of innocence, the equality of the sides, the right of habeas corpus and the right to participate in the preliminary hearing in jury trials, to name a few-are significant, at least in theory. They illustrate that certain key actors in government agencies, as well as national legislators, have accepted the proposals of legal scholars and advocates. Therefore, the present talk about additional adversarial elements has begun to replace the Soviet-era emphasis on inquisitorial process and high conviction rates. Moreover, it appears that the new measures actually have brought more advocates into the pre-trial stages. Between 1989 and 1993 the number of advocates taking part during the pre-trial stages who were appointed by investigators and procurators rose substantially. 104

While these advances are noteworthy, the milieu of the criminal justice system has not thoroughly broken away either structurally or attitudinally from its Soviet roots. In instances all too familiar to Soviet dissidents, local law enforcement officials are again arresting human rights activists-and basing those arrests on trumped-up charges.105 The consensus among reform-minded jurists appears to be that procurators' offices are the most conservative political organs in Russia today.106 As one advocate noted, 'one of the indicators of a civilised society is how the advocate is working and living. Presently, for the advocate, it is uncomfortable and discomfort- ing'.107 Thus far in the post-Soviet period, advocates have continued to confront a strong accusatorial bias against their clients, despite the fact that, in theory, new laws expanded their access to the criminal process.

Most of the laws that have been passed in the post-Soviet era only partially redress past defence inadequacies. Advocates have already criticised portions of the RF Criminal Code that went into effect on 1 January 1997. They are concerned about its lack of stipulations for the equal protection of advocates working in criminal cases, its high levels of punishment, and its approach to prosecuting economic crimes.108

Meanwhile, the Duma has not yet adopted a new Criminal Procedure Code. Arguments between legal scholars and officials working on the drafting of the UPK intensified in late 1994, over such issues as an advocate's right to conduct parallel

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investigations, the arrest of advocates for violations of legal procedure, and the proper amount of time suspects may be detained.109 The present draft UPK was drawn up mainly by anti-reform Duma deputies, such as Vyacheslav Kiselev (an advocate who belongs to the Liberal Democratic Party), as well as procuracy and law enforcement officials who have their own interests to defend.110 While advocates admitted that the draft was a marked improvement over the old RSFSR UPK, they criticised it for not more thoroughly protecting defence rights or creating a more adversarial system. Under the draft, investigators would still have the authority to reject advocates' petitions, defence counsel's access to the pre-trial stage would remain limited, and neither the defence attorney's parallel investigation nor the right of a defence attorney to present a client's side of the case separately in court would be established.11' In addition, the draft (Article 490) limits the defence attorney's access to clients who undergo psychiatric examinations. 12

Local law enforcement officials, including procurators, MVD investigators and FSB operatives, still wield a disproportionate amount of control in the criminal process. In dozens of interviews with the author in 1994-95 and 1997 defence attorneys often expressed the opinion that the criminal justice system actually had worsened since 1991. Advocates argue that many judges and law enforcement workers are young and inexperienced, that there is a lack of legal culture, and that El'tsin and the Russian government have issued orders to strengthen the campaign against crime, to the detriment of due process rights.

As in the Soviet period, the ability of advocates to use their expertise effectively is constrained by having to file petitions (khodataistva) that investigators and procurators have the right to reject. Incidents involving investigators' refusal to inform advocates of their client's interrogations and refusal to allow defence counsel to take part in the selection of expert witnesses echo Soviet practice.113 Moreover, investigators' attitudes about the rules of criminal procedure often reflect a deep- seated resentment of lawyers. For example, recently found hanging on a bulletin board in one of the offices of the Moscow Department of Internal Affairs was Lenin's notorious quotation: 'You must rule advocates with an iron hand and place them in a state of siege, for this intelligentsia scum often plays dirty'.114

One of the largest structural impediments to strengthening the rights of the accused and, consequently, the role of defence attorneys in criminal cases has been a series of measures taken by the El'tsin administration to promote law and order. The most damaging measure taken to limit the defence counsel's influence in pre-trial stages of a criminal process, as well as the use of habeas corpus as a complaint against investigatory organs, was decree no. 1226, 'On Urgent Measures for the Defence of the Population from Banditism and Any Manifestation of Organised Crime'.115 Signed by El'tsin on 14 June 1994, the decree gave law enforcement officials wide discretion in gathering evidence and contradicted stipulations in the UPK. It ensured that suspects whose alleged crimes were severe enough to require pre-trial confinement could be held for up to 30 days without being charged.

While this decree was supposed to be applied exclusively to cases involving individuals suspected of belonging to organised crime groups, it was used by law enforcement officials to incarcerate suspects for various crimes. Advocates across Russia considered this decree an impediment to completing their work."16 After three

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years of sharp criticism from domestic and international human rights groups and reform-minded scholars and advocates, El'tsin finally rescinded the decree on 17 June 1997. Now law enforcement agencies are allowed by law to detain suspects without charge only for up to 10 days. A July 1996 decree on fighting crime in Moscow, which allowed law enforcement officials to detain suspects who did not have Moscow residence permits for up to 30 days in special 'social rehabilitation centres', was also annulled in June 1997.117 The cancellation of these two decrees at least indicates that El'tsin is still influenced by public opinion and the criticism of journalists and human rights activists.

The RF Law 'On the Detention of Suspects and Those Accused of Committing Crimes' of 21 June 1995 limits the right of defence attorneys to see their clients in detention centres.118 Like the old Soviet law, this law only allows advocates to visit clients in detention centres upon presentation of a document signed by a procurator or investigator. Unsurprisingly, investigators 'not rarely' are still hindering these meetings.119 They also continue to arrest advocates, sometimes for refusing to act as witnesses. On 16 May 1996 Aleksandr Kligman asserted in his speech at the Second Assembly of the International Union that 'a considerable number of advocates have been arrested'.120

In 1992 legal reformers succeeded in adding to Articles 220.1 and 220.2 of the UPK, equivalent to the right to habeas corpus. The articles allow the defence to file complaints against unlawful arrests and the illegal extension of the time a suspect or the accused remained in custody, and to present them before a judge.121 These two articles have not been as widely used by defence as their drafters had anticipated they would. Part of the reason was that the state intensified its campaign against organised crime groups. Many advocates voiced concern over whether they would be compensated appropriately for their work in pre-trial phases; this concern may also have contributed to their reluctance to use these articles. According to two advocates practising in Petrozavodsk, in the first couple of years after the habeas corpus articles were introduced, local judges satisfied a number of petitions for the release of suspects and the accused from detention centres.122 Minyust reported that the number of appeals rose by one-quarter in 1994; the number of suspects and accused released from detention grew by one-third that year.123 However, these Petrozavodsk advocates claim, judges are more hesitant to satisfy their petitions now.

Attorney-client confidentiality, including the right of advocates not to act as witnesses against their clients, is not a well protected right, although in theory it is established by articles in the 1980 RSFSR Statute (Article 16) and the amended RSFSR UPK (Articles 51, 72). In addition, Article 18 of the RF Law 'On the Detention of Suspects and Those Accused of Committing Crimes' states that meetings of an advocate with an arrested person can be observed visually but may not be heard. In no other way has the right to attorney-client confidentiality been more severely violated than through investigators' widespread use of electronic surveillance, or krossirovka.

The RF Law 'On Operational Investigatory Activity', passed on 5 July 1995, permits telephone surveillance by law enforcement agencies under certain circum- stances. Only under court oversight, according to the law, can electronic surveillance of advocates be conducted. Advocates have noticed a rise in the number of incidents

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of wire-tapping of telephone conversations with clients, as well as conversations with clients in detention centres. In 1995, during a meeting of the MGKA Scholars Council, also attended by the Minister of Justice and Deputy Minister of Justice, participants discussed the abuses special forces (referring to the FSB) had committed in the area of electronic surveillance.124 Advocate publications have also recorded abuses.125 Advocates have argued that this type of wire-tapping is not authorised under the 1995 law because it infringes attorney-client confidentiality. 126

Moscow advocate and former Duma deputy Boris Zolotukhin claims that the 'Law on Operational-Investigatory Activity as it relates to [wire-tapping] has not been used, because advocates are not using their rights and not teaching their clients to use them'.127 According to Igor Petrukhin, citizens and advocates alike would be more willing to file complaints against state agencies' abuse of electronic surveillance if they believed that they had tangible evidence that courts would accept.128 In May 1997 an advocate from Kondopoga, Karelia, did file a complaint against the head of the municipal department of internal affairs for installing a wire-tap on his home telephone line and is suing to receive compensation for moral harm.129

Once criminal cases reach the court, advocates must still justify their motions to judges, who are continuing to act as the main inquisitors. Prosecutors are still automatically granted their petitions, although the 1992 law on the Procuracy removed their right to supervise court procedure (nadzor za protsessom suda).130 As a result of high vacancy rates in the judicial ranks, judges are often overburdened and sometimes are known to resent the petitions and complaints that advocates file.131 Given these conditions, many defence attorneys believe that they are working within a court environment that is at least partially hostile to them. In addition, defence attorneys are often overloaded with court-appointed cases, a problem which has prevented them from preparing thoroughly for each case. There are two developments in defence advocacy, however, that indicate that advocates may be playing a stronger role in some aspects of criminal procedure: the reintroduction of jury trials and the changing nature of political trials.

First, reformers were hoping that jury trials would make criminal procedure more adversarial. Newly reinstituted jury trials, operating in only nine of the 89 subjects of Russia, have in fact strengthened the role of the defence.132 For example, advocates may initiate four peremptory challenges during jury selection (the procurator has only two). Unlike in the regular criminal court procedure, in a jury trial the judge lacks all accusatorial functions related to charging a defendant, dismissing a case, and conducting its prosecution. Instead, these functions are reserved for prosecutors, who must participate in every jury trial. Also, new rules allow the two sides to interrogate witnesses first, after which the judge and the jurors may do the same. Jury trials have consistently had higher rates of acquittal than regular criminal cases.

Unfortunately, it is highly unlikely that jury trials will expand to any more regions of Russia in the near future, owing to opposition in law enforcement agencies and lack of available funding. However, the adversarial skills training used in introducing jury trials, especially the attempts to encourage advocates to play a more active role in the court process, may carry over in some instances to advocates' defence work in regular criminal trials, and thus have a lasting effect.

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While it is still too early to draw strong conclusions, the way political cases are being adjudicated appears to be working more in the defence's favour now than in the Soviet era. Certain characteristics of Soviet political cases were still observable in the mid-1990s-namely the arbitrary actions of investigative organs and the use of contrived trials as ways for those in power to discredit their enemies. However, certain distinctive changes at least mark the beginning of a new era. Advocates now are actively taking part in high-profile political cases and are benefiting from the support of journalists and human rights organisations.'33 Secondly, in a number of political cases, courts are acting as a separate, independent power from the executive branch and taking the rights of the defence seriously.

The Constitutional Court's ruling of 27 March 1996 against the use of security clearances for defence attorneys now provides the accused and advocates with a legitimate instrument for defending their claims.134 This ruling was made on the basis of a complaint filed by four Russian citizens accused of crimes falling under the RF Law 'On State Secrets' of 21 July 1993. They all had been denied the right to choose their own defence counsel.

The case of one of the complainants, retired Soviet Navy officer Aleksandr Nikitin, has received the most media attention. In January 1996 Nikitin was arrested on charges of treason by the FSB for allegedly releasing classified information about the Navy's nuclear polluting of waters off the Kola Peninsula in a publication of the Norwegian environmental group Bellona. The FSB had insisted on only granting him a defence attorney with a special security clearance, although on 26 March 1996, after Norway's Prime Minister formally defended Nikitin and Bellona, El'tsin announced that Nikitin would be able to chose his own lawyer. The next day Constitutional Court justices confirmed El'tsin's announcement with their own ruling on the matter. Nikitin's advocate, Yurii Shmidt, was able to file a complaint asking for his release; Deputy Prosecutor General Mikhail Katyshev granted the complaint and freed Nikitin on bail in December 1996.

Since this time, Shmidt, with the assistance of journalists, human rights groups and even members of the US Congress, has challenged the FSB investigation of his client's case, as well as the constitutionality of the new 'Law on State Secrets'. On 19 June 1997 the FSB announced that it had added new, more severe, treason charges that allow the state to accuse Nikitin of violating a secret state decree. By the autumn of 1997 the deputy procurator general ruled it inadmissible to charge anyone with revealing state secrets on the grounds of information lists issued as classified and never published in the open press. Shmidt has continued to file petitions with the procurator's office to end the case entirely and held a press conference with Nikitin in Moscow in December 1997.135 This and other recent political cases do in fact reveal how Russian defence attorneys are now more regularly and aggressively representing their clients without suffering the same level of consequences that they did in the 1960s and are effectively using various domestic and international contacts in their efforts to apply pressure on state officials.

Conclusion

The founding of the Union of Advocates of the USSR in 1989 represents the point at which the bar began to gain a significant amount of autonomy from the ailing

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Soviet state. The advokatura also secured a stronger role in criminal procedure during the last years of Soviet rule. Advocates' movement away from state control and towards autonomous professional development has hardly been a linear process, though. The advokatura, like many other Russian institutions, is still undergoing considerable flux, but has yet to transcend aspects of its Soviet legacy. The particular hierarchical culture that existed within the late Soviet legal system has not completely disintegrated, nor has 'a cyclical and condescending attitude toward law on the part not only of the public but also of officials' vanished, as Peter Solomon notes. 136

Advocates, despite rhetoric to the contrary, still rely on the state to construct aspects of their professional identity. State officials are imposing brackets inside which advocates may independently pursue their professional programmes. Conserva- tive attitudes in the Ministry of Justice linger, partially due to the perceived need to dominate parts of the legal system. The continuing discretion of law enforcement officials, especially over advocates' access to case files and clients, as well as electronic surveillance of advocates' work and personal telephones, limits advocates' ability to act autonomously in criminal procedure. Moreover, presidential decrees have jeopardised the right to defence, as they have pitted the campaign against crime against the niceties of due process.

Working within the constraints that their complex interactions with state officials impose, advocates have been able to effect specific changes to their corporate organisation and to the way they work. Advocates are communicating with each other via independent publications and openly criticising the Ministry of Justice and law enforcement officials. Notably, there is sufficient pluralism in the bar's organisational structure and approach to practice to make it difficult for state officials to supervise it as they once did. Moreover, nearly all state agencies are financially constrained by smaller budgets, and therefore simply do not have the capacity to coerce as they did even 10 years ago.

To evaluate the extent of progress towards a relatively autonomous profession, we should first take into account the fact that Russia's legal reforms require monumental changes to both institutions and attitudes. These changes are more likely to occur across generations, rather than within them. By using the Soviet legal system as a point of comparison, instead of the still distant Western ideal types, one may reasonably conclude that the advokatura has become more autonomous from state organs. The strengthening of the right to freedom of speech, as well as the weakening of the Ministry of Justice as an executive organ, are two main reasons for this positive trend. Paradoxically, though, the bar has not become more powerful as it has gained autonomy from the state. It, too, is constrained by lack of financial support, as well as by internecine conflict.

Since the late 1980s advocates and state officials have attempted to establish new approaches to regulating the advokatura, in order to match their own revised interests and agendas. How these efforts unfold in the near future will reveal whether state officials are willing to break the patterns of intervention which, in the Soviet era, stymied professional development.

Norwich University, Northfield, Vermont

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Research for this article was supported in part by two grants from the International Research and Exchanges Board (IREX), with funds provided by the National Endowment for the Humanities, the United States Information Agency, and the US Department of State. None of these organisations, nor individuals whom the author interviewed for this article, is responsible for the views expressed. 1 The 'state' and state agencies that have regularly interacted with members of the advokatura are defined slightly differently across the Soviet and early post-Soviet periods. In the Soviet era the relevant parts of the state included the offices and local divisions of the Ministry of Justice (called by other names at certain points); offices of the Procuracy; offices of the Ministry of Internal Affairs (MVD); state organs governing higher education; local governing councils (sovety) and their executive committees; and certain organs of the Communist Party (CPSU). In the early post-Soviet era the relevant parts of the state are the same institutions already mentioned, minus the CPSU and old councils, and including the new State Duma and the President's Main State Legal Administration (GGPU).

2 Professional autonomy is made up of two components, the autonomy of corporate bodies and the autonomy of the individual professional. The former implies the ability of members of a profession to determine their own goals, rules of behaviour, entrance barriers, form of compensation and types of practice. The latter concerns the unbridled use of a professional's expertise.

See Kathleen Thelen & Sven Steinmo, 'Historical Institutionalism in Comparative Politics', in Sven Steinmo, Kathleen Thelen & Frank Longstreth (eds), Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge, Cambridge University Press, 1992), pp. 9 and 27.

4 'Polozhenie ob Advokature SSSR', Sob. Post. SSSR, 1939, 49, item 394; Donald D. Barry & Harold J. Berman, 'The Soviet Legal Profession', Harvard Law Review, 82, 1, November 1968, p.16.

5 Kathryn Hendley, Trying to Make Law Matter: Legal Reform and Labor Law in the Soviet Union (Ann Arbor, University of Michigan Press, 1996), p. 123.

6 Harold J. Berman & Yuri Luryi, 'The Soviet Advokatura: The 1980 RSFSR Statute with Annotations', Soviet Union, 14, 3, 1987, p. 273.

7 Igor Petrukhin, Vam nuzhen advokat (Moscow, Progress, 1993), p. 26. 8 Interview with Moscow advocate, Boris Abushakhmin, 29 April 1995. 9 Eugene Huskey, Russian Lawyers and the Soviet State: The Origins and Development of the

Soviet Bar 1917-39 (Princeton, Princeton University Press, 1979), p. 221. 10 Gordon Smith, 'The Impact of Socialism on Legal Institutions and Procedures', Columbia

Journal of Transnational Law, 23, 1985, p. 323. n See Berman & Luryi, pp. 260-285. 12 Eugene Huskey, 'The Politics of the Soviet Criminal Process: Expanding the Right to

Counsel in Pre-Trial Proceedings', The American Journal of Comparative Law, 34, 1986, p. 102. 13 William B. Butler, Soviet Law, 2nd ed. (London, Butterworths, 1988), p. 89. 14 Peter H. Solomon, Jr, 'The Role of Defence Counsel in the USSR: The Politics of Judicial

Reform Under Gorbachev', Criminal Law Quarterly, 31, 3, December 1988, p. 82. 15 A. G. Toryannikov, Advokat v ugolovnom protsesse (Moscow, 1987), as reviewed by

M. Gofshtein in Sovetskaya yustitsiya, 1989, 21, p. 31. 16 Dina Kaminskaya (trans. by Michael Glenny), Final Judgment: My Life as a Soviet Defense

Attorney (New York, Simon and Schuster, 1982), p. 31. 17 V. Chalidze, To Defend These Rights (New York, Random House, 1974), and Y. Luryi, 'The

Role of Defence Counsel in Political Trials in the USSR', Manitoba Law Journal, 7, 4, 1977, pp. 307-324.

18 Theresa C. Smith, in collaboration with Thomas A. Oleszczuk, No Asylum: State Psychiatric Repression in the Former USSR (London, Macmillan, 1996), pp. 36-38.

19 G. M. Reznik, 'Advokat: prestizh professii', Advokatura i sovremennost'(Moscow, IGPAN, 1987), pp. 62-64.

20 Peter H. Solomon, Jr, 'The Case of the Vanishing Acquittal: Informal Norms and the Practice of Soviet Criminal Justice', Soviet Studies, 39, 4, October 1987, pp. 531-555.

21 Butler, p. 342. 22 Zigurds L. Zile, 'Soviet Advokatura Twenty-five Years After Stalin', in Donald Barry et al.

(eds), Soviet Law After Stalin, Part III (The Netherlands, Sijhoff and Noordlinger, 1979), p. 222. 23 Huskey, p. 109. 24 Hendley, p. 126. 25 Todd Foglesong, 'The Reform of Criminal Justice and Evolution of Judicial Dependence in

Late Soviet Russia', in Peter H. Solomon, Jr (ed.), Reforming Justice in Russia, 1864-1996: Power, Culture, and the Limits of Legal Order (Armonk, NY, M.E. Sharpe, 1997), pp. 282-283.

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26 Pravda, 5 July 1988, p. 3. 27 P. D. Barenboim, 'Puti sovershenstvovaniya advokatury', Advokatura i sovremennost', p. 20. 28 0. V. Orlova & N. N. Deev, 'Advokatura kak institut politicheskoi sistemy', Advokatura i

sovremennost', p. 13; G. V. Roinishvili & K. D. Garibashvili, 'Advokatura i yuridicheskie VUZy', ibid., p. 72.

9On 13 November 1989 the USSR Supreme Soviet revised the 'Principles of Legislation of the USSR and the Union Republics on the Judicial System'. See 'Osnovy zakonodatel'stva SSSR i soyuznykh respublik o sudoustroistve', Izvestiya, 16 November 1989, p. 1. On 10 April 1990 the USSR Supreme Soviet passed a resolution which established the new procedures, rights and responsibilities of defence attorneys. See 'O vnesenii izmenenii i dopolnenii v osnovy ugolovnogo sudoproizvodstva SSSR i soyuznykh respublik', Izvestiya, 15 April 1990, p. 1.

30 As reported by Aleksandr Borin, 'Nishchaya yustitsiya, ili skol'ko stoit pravovoe gosu- darstvo', Literaturnaya gazeta, 23 August 1989, p. 10.

31 One Minyust decree, issued in October 1987, outlined the process of restructuring MGKA, considered the model of the Soviet-era bar. For a translation of this document, see Robert Rand, Comrade Lawyer: Inside Soviet Justice in an Era of Reform (Boulder, CO, Westview, 1991), pp. 127-129.

32 See G. K. Sharov & B. A. Dashchinsky, 'Nekotorye voprosy obshchego rukovodstva advokatury', Advokatura i sovremennost', pp. 14-19.

33 Not all legal specialists considered the Union of Advocates to be independent from the Soviet state. Telephone interview with Professor Yurii Stetsovsky, 17 June 1997.

34 See Eugene Huskey, 'Between Citizen and State: The Soviet Bar (Advokatura) Under Gorbachev', Columbia Journal of Transnational Law, 28, 1, 1990, pp. 97-104; and Pamela A. Jordan, 'Russian Advocates in a Post-Soviet World: The Struggle for Professional Identity and Efforts to Redefine Legal Services', unpublished Ph.D. dissertation, University of Toronto, 1997, pp. 114-119.

35 Michael Burrage, 'Russian Advocates: Before, During, and After Perestroika', review of Comrade Lawyer, by Robert Rand, in Law and Social Inquiry, 18, 3, 1993, p. 583. See also Izvestiya, 8 December 1990, p. 2.

36 This lack of political activism among lawyers was not necessarily the case in all Soviet bloc countries in the late 1980s, however. In the late 1980s in Hungary, for example, private attorneys (equivalent to advocates) played a more visible role in bringing down the old regime. Andras Sajo, 'The Role of Lawyers in Social Change: Hungary', Case Western Reserve Journal of International Law, 25, 1993, pp. 142-144.

37 Advocates were poorly represented in the USSR Supreme Soviet in 1989 (only 2). They have been better represented in the Duma: 12 advocates were elected in 1993, and approximately that many in 1995.

38 E. A. Baru et al., 'Novaya moshchnaya, edinaya ...?', in Igor Petrukhin (ed.), Problemy Rossiiskoi advokatury (Moscow, Spark, 1997), p. 138.

39 See Jordan, Chapter III, 'Russian Advocates in a Post-Soviet World'. 40 Valerii Rudnev, 'Bez zashchity', Izvestiya, 24 February 1992. 41 Interview with Aleksei Rogatkin, 17 May 1995. 42 Stenogramma no. 1 zasedaniya Uchenogo Soveta pri MGKA', in Petrukhin, pp. 22-23.

Henceforth, 'Stenogramma'. 43 Ibid., p. 31. Galoganov was the first leader of the Federal Union of Advocates (formed in

September 1994), which represents the interests of the Soviet-era colleges. Among the former Soviet officials who left their state jobs to join parallels are Valentin Stepanov, former Procurator General of the USSR; former USSR Deputy Minister of Justice, Mikhail Vyshinsky; former Russian Minister of Justice, Nikolai Fedorov; former chief of the Moscow Arbitration Tribunal, Gassan Mirzoev; and former member of the Supreme Economic Council, Aleksei Klishin. On the other hand, the original colleges in Moscow have been regularly admitting former procurators and MVD investigators. In 1996 MOKA admitted 16 former procurators and 17 former MVD investigators. 'Nel'zya ostavit' bez zashchity tysyachi grazhdan', Advokat, May 1997, p. 8. Parallel colleges also admitted their fair share of former law enforcement officials.

44 'Zasedanie prezidiuma MS(S)A' (remarks by Isai Sukharev), Advokat, October 1996, p. 8. 45 Such cleavages are mirrored in at least three national bar associations, the Federal Union of

Advocates, its supporter, the International Union of Advocates (successor to the Union of Advocates of the USSR), and the Guild of Advocates, formed in January 1995, which represents the interests of about 7000 advocates in parallel colleges.

46 Mikhail Vyshinsky, 'Advokatura na rasput'e', Rossiiskii advokat, 1996, 3, p. 2. This journal is a publication of the Guild of Advocates and Mosyurtsentr. Mosyurtsentr, reacting to the negative

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press about parallel colleges, opened an office in Moscow in early 1996 that exclusively serves the legal needs of indigents. Boris Salyukov (head of the Moscow government's Department of Justice), 'V chem on, moskovskii interes?', Rossiiskii advokat, 1996, 2, p. 11. Salyukov supports the existence of parallel colleges.

47 Interview with Gassan Mirzoev, 29 March 1995. 48 Baru et al., p. 140 and Mikhail Barshchevsky, 'Chto mozhno sdelat'?', in Petrukhin, p. 198. 49 'Stenogramma', p. 24. 50

'Nezakonnyi eksperiment zakonchen. Zabud'tel!', Advokat, September/October 1994, p. 6. 51

'Stenogramma', p. 24. 52 For a discussion between members of the MGKA Scholars Council and Minyust officials on

the problems with parallels, see 'Stenogramma', pp. 23-25, 31. 53

Dmitry Ukhlin, 'Russia's Bar Threatens Legal System', Moscow News, 7-13 October 1994, p. 14.

54 In its booklet 'Yuristy nekommercheskogo sektora Rossii' (Moscow, 1996), the Charities Aid Foundation highlights 140 organisations in 23 locations across Russia that render low-cost legal assistance to various types of clients. At most of these non-profits, legal assistance is only one of many services provided. 55 In 1995 Isai Sukharev, head of the Minyust Office on Mutual Activity with the Advokatura, criticised the more than 70 foreign firms in Moscow for hiring Russian jurists as 'farm labourers'. I. Yu. Sukharev, 'Byt'li v Rossii professional'noi advokaturoi?', Rossiiskaya yustitsiya, 3, 1995, p. 41.

56 Jurists who are not advocates may represent clients in civil cases, but are not permitted to represent clients in pre-trial phases of criminal cases. The UPK stipulates that only advocates may represent the accused in preliminary investigations. A Constitutional Court ruling of 28 January 1997 reconfirmed this limitation. See 'Constitutional Court Rules on Legal Representation', Open Media Research Institute (OMRI) Daily Digest Report on Russia and Central Asia, on-line, 28 January 1997, henceforth, OMRI Report.

57 The licences must be extended every three years. Under this resolution, foreign jurists are only permitted to practise law and become licensed if they received a law decree from an accredited Russian law faculty or institute or they are offering legal counsel exclusively on non-Russian laws. However, it appears that foreign lawyers are ignoring this order and continuing to practise as earlier. Jeff Grocott, 'State Limits Practice of Foreign Lawyers', Moscow Times, 26 April 1995, p. 1.

58 In the author's interview with him on 4 June 1997, Aleksandr Kligman, president of the Federal Union of Advocates, said that cooperating with Minyust in the areas of higher education and joint publications was appropriate, but he opposed both Minyust and the courts licensing advocates.

9 Smith & Oleszczuk, p. 170. 60 According to the head of the Department for Licensing Paid Legal Services at the RF

Ministry of Justice, the Tax Inspectorate has more authority in enforcing these regulations than the Ministry of Justice. Interview with Nadezhda Nikiforova, 10 June 1997.

61 But the Association's independence has already been compromised by the participation of justice and MVD officials, who attended its opening congress on 6 December 1996. Olga Fedoskova, 'Rossiiskie yuristy-litsenziaty ob"edinyayutsya', Yurist, 1997, 1, pp. 24-25.

62 Editorial, 'Bud'te bditel'ny!', Advokat, June 1997, p. 2. 63 'Stenogramma', p. 37. 64 'Izbran novyi prezident', Rossiiskaya yustitsiya, 1995, 8, p. 42. 65 For more on advocates' education, see Jordan, 'Russian Advocates in a Post-Soviet World',

pp. 211-213. 66 'Moskovskii Issledovatel'skii Tsentr po Pravam Cheloveka', letters between the Centre and

MGKA, published in Petrukhin, pp. 224-226. 67 Interview with member of the Karelian branch of Sankt-Peterburg college (male advocate in

his early 30s), 30 May 1997. 68 Although a Russian government resolution of 7 October 1993 decreed that advocates were

to receive compensation from the federal budget for their work on court-appointed cases, advocates across Russia have claimed that they have not received anything. Vyshinsky, p. 4.

69 For example, the Council of the Professional Unions of Workers in the Academy of Sciences issued electoral statements in favour of more governmental support and intervention, not a new-style democracy. Harley D. Balzer, 'Conclusion', in Balzer (ed.), Russia's Missing Middle Class: The Professions in Russian History (Armonk, NY, M.E. Sharpe, 1996), p. 307.

70 Interview with Isai Sukharev, 10 June 1997. 71 Tax offices have already conducted financial audits of several college presidiums. 'Zasedanie

prezidiuma MS(S)A', Advokat, October 1996, p. 8. The High Arbitration Court has written resolutions that pronounce all requisitions carried out by tax organs on finances at colleges of advocates to

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be illegal. The Tax Inspectorate indeed has been misusing its authority, not only against advocates but also against any number of organisations and businesses in Russia. The Smolensk oblast' College of Advocates won a lawsuit in arbitration court against offices of the Tax Inspectorate. See 'Arbitrazhnyi sud o nalogooblozhenii advokata', Rossiiskii advokat, 1996, 5, p. 9.

72 Interview with Isai Sukharev, 10 June 1997. 73

'Nel'zya ostavit' bez zashchity tysyachi grazhdan'; interview with Aleksei Rogatkin, 10 June 1997.

74 Interview with Valerii Alpatikov, 5 June 1997. 75 For more on the politics behind drafting a new statute on the advokatura, see Jordan, 1997,

pp. 203-211; and Stephen C. Thaman, 'Reform of the Procuracy and Bar in Russia', Parker School Journal of E. European Law, 3, 1, 1996, pp. 1-29. Other former Soviet republics have passed laws on the advokatura, including Ukraine, Uzbekistan and Belarus. The Ukrainian law provides advocates with more corporate and individual autonomy. In the latter two cases, legal stipulations on state-bar relations have compromised the bar's professional autonomy. According to two leaders of the International Union, the Uzbek law explicitly places advocates under executive (Ministry of Justice) control. Interview with Georgii Voskresensky and Vladimir Lubimov, 3 June 1997. For a text of the Uzbek law, see 'Zakon respubliki Uzbekistan ob advokature', Advokat, January 1997, pp. 4-6. The Belorussian law on the bar was passed in 1993. As originally drafted, the Belorussian advokatura was granted a relatively high amount of autonomy vis-a-vis the state. However, President Aleksandr Lukashenka issued a declaration on 3 May 1997 that granted the executive branch considerable supervisory control over the bar. The International Union wrote in support of the Council of the Union of Belorussian Advocates in the June 1997 issue of Advokat. At least two subjects of Russia, the republics of Bashkortostan and Kalmykia, have passed their own statutes on the advokatura. In addition, the Moscow and Karelian legislatures are working on drafts of a statute on the bar.

76 The majority of Duma Committee members for the 1995-99 session are jurists. 77 In 1992 Minyust lost part of its administrative raison d'etre and was in conflict with the

GGPU over jurisdictional issues. See Eugene Huskey, 'The State-Legal Administration and the Politics of Redundancy', Post-Soviet Affairs, 11, 2, 1995, pp. 115-143.

78 'O sudebnoi sisteme Rossiiskoi Federatsii', Rossiiskaya gazeta, 6 January 1997, p. 3. 79 For example, two members of a parallel college in Vologda argued that Minyust intended

to collectivise the bar again through the use of its draft law. V. Anufriev & S. Gavrilov, 'O "kollektivizatsii" v advokature', Rossiiskaya yustitsiya, 1995, 10, p. 45.

80 G. B. Mirzoev & N. M. Keizerov, Pravovaya kul'tura advokata (Moscow, Serial Moskva, 1996), p. 150.

81 Mikhail Barshchevsky, Organizatsiya i deyatel'nost' advokatury v Rossii (Moscow, Yurist, 1997), p. 103.

82 Interview with Gofshtein, 20 July 1997; telephone conversation with Kligman, 20 June 1997. 83 'Initsiativa rossiiskikh advokatov', Nezavisimaya gazeta, 17 July 1997, p. 1. 84 Telephone interview with Georgii Voskresensky, 28 July 1997. 85 For more on the ethics code, see 'S"ezd advokatov prosit Pravitel'stvo', Rossiiskaya

yustitsiya, 1996, 4, p. 39; and M. A. Gofshtein, 'O kodekse professional'noi chesti advokata', in Petrukhin, 1997, p. 126.

86 Aleksei Rogatkin, 'Advokatura dolzhna byt' nezavisimoi', Advokat, September 1996, pp. 1-3; Rogatkin & Petrukhin, 'Otzyv na proekt Polozheniya o Ministerstve yustitsii RF v chasti, kasayushcheisya advokatury RF', in Petrukhin, 1997, pp. 212-216.

87 This had been Rogatkin's impression, given the way that Kovalev responded to his request. Interview with Aleksei Rogatkin, 10 June 1997.

88 Federal'nyi Zakon 'O tarifakh strakhovykh vznosov v pensionnyi fond RF, fond sotsial'nogo strakhovaniya RF, gosudarstvennyi fond zanyatosti naseleniya RF i v fondy ob"yazatel'nogo med- itsinskogo strakhovaniya na 1997 god', published in Yuridicheskii vestnik, 5 March 1997, middle section on new laws. Typically, advocates must hand over approximately 20-30% of their earnings to their colleges, to cover the costs of overhead, pro bono cases, and social/health insurance funds. Their 28% contribution to the pension fund was in addition to the other percentages and personal income tax.

89 In addition, on 2 June 1991, the then Chairman of the Russian Supreme Soviet, Boris El'tsin, signed a resolution stating that advocates were classified as a category of workers who are only liable to contribute 5% of their salaries to the Pension Fund. 'Postanovlenie "O merakh po sotsial'noi zashchite grazhdan, zanimayushchikhsya advokatskoi praktikoi v kollegiyakh advokatov RSFSR v usloviyakh perekhoda ekonomiki k rynochnym usloviyam', in Barshchevsky, pp. 220-221. See letter from P. I. Agulov, member of the presidium of the Chukotsk Autonomous Okrug College of Advocates, to Advokat, May 1997, p. 7.

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90 Interview with Georgii Voskresensky, 3 June 1997. According to Mikhail Gofshtein, the new law classified advocates as 'rabotadateli', or employers (people who hire others to do work). 'Our clients are the rabotadeli, not us', he pointed out in his interview with the author on 20 June 1997.

91 Vitalii Volkov, 'Ushchemili advokatov? ili konstitutsiyu?', Yuridicheskii vestnik, 1997, 5, March, p. 5.

92 Doklad Prezidenta Federal'nogo soyuza advokatov Rossii Kligman A. V. na Chrezvy- chainom s"ezde advokatov Rossii 15 fevralya 1997 goda', in Petrukhin, 1997, p. 229 (henceforth 'Doklad'). In 1996 court-appointed cases handled by advocates in the Kaluga oblast' college amounted to nearly 100% of their total case-load. In 1996 court-appointed casework performed by MGKA advocates brought a loss of approximately one billion rubles for the college. See Volkov, fn 91.

93 'Doklad', p. 229. 94 'Bespretsedentnyi akt po udusheniyu Rossiiskoi advokatury', Advokat, February 1997,

pp. 1-3. Aleksei Kirpichnikov, 'Advokatura okazalas' pod grozoi likvidatsii', Segodnya, 11 February 1997, p. 2; 'Uslugi advokatov mogut podorozhat' na tret' ', Segodnya, 17 February 1997, p. 1; Igor' Vandenko, 'Dazhe advokaty reshili bastovat',' Izvestiya, 1 March 1997, p. 2. Letter of support from V. Bogdanov, Chairman of the Union of Journalists, Advokat, April 1997, p. 2.

9Chrezvychainyi s"ezd advokatov Rossii', Advokat, February 1997, p. 4. 96 Voskresensky estimated that only five to seven colleges actually went on strike. Interview,

3 June 1997. 97 Interview with Mikhail Vyshinsky, 10 June 1997. 98 'Doklad', p. 231. 99 Telephone interview with Aleksandr Kligman, 5 January 1998.

100 Kirpichnikov, p. 2. According to a jurist who is working at a non-profit legal aid organisation in Moscow, the Centre for Citizen's Rights, most advocates are no longer rendering affordable legal assistance to indigents, and those advocates who are tend to be young and inexperienced. Interview on 13 June 1997.

101 Svetlana Marzeeva & Yulya Ul'yanova, 'Zachem Minyustu tyur'mu?', Izvestiya, 16 August 1997, p. 2.

Natalia Konstantinova et al., 'Russian Officials Finally Realize That Laws Are Just as Crucial to Political Power as Finances and the Army', Nezavisimaya gazeta, 1 November 1997, pp. 1-2, trans. in Current Digest of the Post-Soviet Press, XLIX, 44, 1997, pp. 14-15.

103 For more details on public interest advocacy, see Jordan, 1997, (Chapter Five; and Pamela Jordan, 'Russian Lawyers as Consumer Protection Advocates, 1992-95', Parker School Journal of E. European Law, 3, 4, 1996, pp. 487-517.

104 'Otchety o rabote kollegii advokatov', 1990-94, including delo 07-06, 1990, str. 1; delo 9, 1992, str. 1, delo 07-09, 1992; delo 07-09, 1993; 1994 not yet archived. Archival files of the Otdel advokatury, Russian Ministry of Justice. The number reported for 1994 may be smaller than the actual number, because some colleges did not submit reports or submitted them too late to be tallied by May 1995. Note, however, that the number of criminal cases in courts of the first instance rose from 535 311 in 1990 to 987 023 in 1994. 'Ob"em sluzhebnykh rabotnikov, 1970-94', internal Russian Ministry of Justice document Lev' V. Belorosov lent to author.

105 The Social Centre For Mutual Activity on the Reform of Criminal Justice reported that on 10 June 1997 human rights activist Oleg Pazyur was arrested in Murmansk by five militia officers. According to the Centre, this was the fourth arrest of a human rights defender in the past six months in Russia. Reported in the Centre's June 1997 news release and made available to the public in the library of the Sakharov Museum.

For example, Anatolii Kononov, a member of the RF Constitutional Court, expressed this opinion in a conversation with the author on 29 May 1997. Curiously, Elt'sin proclaimed a special holiday in honour of the Procuracy on 4 January, instead of creating a more general holiday in honour of all jurists. Baru et al., p. 143. For more on the Procuracy, see Gordon B. Smith, 'The Struggle over the Procuracy', in Solomon, 1997, pp. 348-373.

107 Grigorii Langton, 'Kak zashchitit' zashchitnika?', Rossiiskii advokat, 1997, 3, p. 15. 108 'Stenogramma', pp. 77-99. 109 Igor Petrukhin, 'Ostorozhno: Prezidentskoe GPU!', Nezavisimaya gazeta, 15 October 1994,

p. 1; and Inga Mikhailovskaya, 'Tyazhkie budni sudebnoi reformy', Segodnya, 3 December 1994, p. 10. Interview with Sergei Pashin, former head of the Department for Judicial Reform and Criminal Procedure, GGPU, 9 December 1994.

110 Interview with Petrukhin, 16 June 1997; and telephone interview with Stetsovsky, 17 June 1997. Both academics are also members of MGKA.

111 Aleksei Rogatkin & Igor Petrukhin, 'O reforme ugolovno-protsessual'nogo prava RF', in Petrukhin, pp. 100-114.

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PAMELA JORDAN

112 Ibid., p. 110.

113 Data from a study of the investigatory work of 150 advocates in Samara oblast' in 1996 reveal how investigators were still using arbitrary discretion in granting advocates access to clients and materials in pre-trial phases. The study points out that investigators often did not inform advocates when and where experts would be selected, nor did investigators inform them beforehand about searches or line-ups. U. Milova, 'Uchastie advokata v sledstvennykh deistvyakh', Rossiiskaya yustitsiya, 1996, 11, pp. 45-46. For background on how investigators are abusing their power vis-a-vis defence attorneys in the town of Lipetsk, see Vladimir Klimov, 'A vechera zhdem vas v sude', Rossiiskaya gazeta, 10 April 1997, p. 2.

114 Langton, p. 15. 115 'O neotlozhnykh merakh po zashchite naseleniya ot banditizma i inykh proyavlenii organi-

zatsionnoi prestupnosti', Sobranie zakonodatel'stva RF, 1994, Issue No. 8, Item No. 804. On how it conflicted with both the UPK and the Constitution, see Kirill Ratnikov & Christine Strick, 'A Survey of the Rules of Evidence in Russian Criminal Procedure', Parker School Journal of E. European Law, 2, 3, 1995, pp. 322-323.

116 A majority of advocates surveyed by the author in 1995 responded that the decree was negatively influencing the right to a defence.

117 'Yeltsin Rescinds Controversial Anti-Crime Measures', RFE/RL Newsline, 18 June 1997. For more on Decree no. 1025 of 10 July 1996, see Amnesty International Report, 'This Man-Made Hell', on Internet: www.oil.ca/amnesty/ailib/aipub/ 1997/EUR/44600497.htm

118 Zakon RF 'O soderzhanii pod strazhei podozrevaemykh i obvinyaemykh v sovershenii prestuplenii', Rossiiskaya gazeta, 20 July 1995.

9 'O narusheniyakh prav advokata', in Petrukhin, 1997, p. 240. 120 'Vystuplenie nekotorykh delegatov II Assemblei', Advokat, June 1996, p. 9. Editors of

Advokat mentioned how a number of Moscow advocates had been arrested in 1994 in connection with their criminal cases. 'Vo imya prav cheloveka', Advokat, 7, 1994, p. 1. 'O narusheniyakh prav advokata', pp. 245-247, outlines examples of MGKA advocates who were arrested for merely representing their clients in criminal cases.

121 According to article 96, part 1, a suspect can only be detained up to three days without a presentation of the accusation; according to article 97, an accused person can only be detained for up to two months, unless the conditions for holding the accused are amended with the permission of a procurator's office.

122 Interview with male advocate (in his early 50s) and female advocate (in her mid-30s), 30 May 1997.

12 'V Ministerstve Yustitsii RF', Advokat, January 1995, p. 8. In 1994 courts reviewed around 70 000 detentions (out of hundreds of thousands of arrests) and released 19.4% of the claimants. Peter H. Solomon, Jr, 'The Limits of Legal Order in Post-Soviet Russia', Post-Soviet Affairs, 11, 2, 1995, p. 100.

124 'Stenogramma', pp. 10, 16-18. 125 See Rogatkin & Petrukhin, 'Zashchitit' zashchitnika!', in Petrukhin, 1997, pp. 130-135; and

'O narusheniyakh prav advokata', p. 242. 126 Attorney-client confidentiality is protected not only by the 1980 Statute and the 1993 RF

Constitution, but also by a presidential order of 6 March 1997. The order states that information that concerns professional activity, access to which is limited in accordance with the Constitution and federal laws (including advocate's secret and the secret of telephone conversations), is included in a list of information that is designated as confidential. Sergei Kulikaev, 'Krossirovka', Severnyi kur"er, 28 May 1997, p. 1.

'Stenogramma', p. 17. 128 Ibid., p. 18. 129 Kulikaev, p. 2. 130 Such a disproportion between the power of the prosecution and that of the defence exists in

the adversarial as well as inquisitorial approaches, although in the former the defence usually is granted more due process rights. Not until the 1960s in the US, with the Supreme Court decision Gideon v. Wainwright, 372 U.S. 335 (1963), was defence counsel required in cases involving state felonies (where the bulk of felony cases are heard). In other words, mandated limitations on defence were not unique to inquisitorial systems.

131 Interview with Moscow (male) advocate, 2 November 1994. 132 The law of 16 July 1993, 'On the Introduction of Changes and Amendments to the RSFSR

Law "On Judicial Administration" ', the RSFSR Criminal Procedure Code, the Criminal Code, the RSFSR Administrative Violations Code, and the 1993 RF Constitution contain references to jury trials. Defendants in these regions are only eligible to opt for jury trials if their charges were related

790




to terrorist acts, sabotage, banditism, contraband, a number of felonies against the state including state secrets, certain kinds of murders, rape, kidnapping, bribery, or grand theft. According to GGPU statistics, on average only one in five accused was opting for a jury trial. See Valerii Rudnev, 'Prisyazhnye zasedateli-eto ne "dobren'kie dyadi" ', Izvestiya, 16 March 1995, p. 5; and Valerii Rudnev, 'Sud prisyazhnykh vozrashchaetsya v Rossiyu', Izvestiya, 15 December 1993, p. 5. For more on Russian jury trials, see Stephen C. Thaman, 'The Resurrection of the Trial by Jury in Russia', Stanford Journal of International Law, 31, 1, 1995, pp. 61-274, and Sarah J. Reynolds, 'Drawing Upon the Past: Jury Trials in Modem Russia', in Solomon, 1997, pp. 374-396.

133 The case of Vil Mirzayanov, the investigation of which began in autumn 1992, concerned the publishing of allegedly classified military information. Advocate Aleksandr Asnis represented Mirzayanov, despite the fact that Asnis did not possess a security clearance. Only with the help of human rights groups and journalists, Asnis insists, did he succeed in having the case dropped completely before trial. Interview with Aleksandr Asnis, 15 December 1994; and Aleksandr Asnis, 'Kommentarii advokat A.A.', Pravozashchitnik, 1994, 2, pp. 18-19.

134 'Postanovlenie Konstitutsionnogo Suda RF ot 27 marta 1996 g.', Advokat, April 1996, pp. 3-6.

135 See 'Lawyers Protest New Charges Against Nikitin', RFE/RL On-Line Service, 1 July 1997; various 1996-1997 OMRI Reports, and Bellona's web-site: www.bellona.no/e/russia/nikitin/ index.htm for updates.

136 Peter H. Solomon, Jr, 'Courts and Their Reform in Russian History', in Solomon 1997, p. 18.

Postscript

On 24 February 1998 the Constitutional Court ruled that the federal law 'On Rates for Insurance Fees to the RF Pension Fund' violated the constitutional principles of justice and

equality before the law. The Duma has been ordered to revise the law this year, in order to lower the rates to their original levels. The justices determined that the law did not take into account the public obligation of the advokatura to render free legal aid. The ruling marks a

victory for the advokatura, although it does not solve the bar's internal conflict over what the individual advokate's obligation in accepting court-appointed cases is.

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Documents

The Russian Advokatura (Bar) and the State in the 1990s