The ICJ is concerned at the reported improper interrogation as a witness of lawyer Marina Moshko and searches of her apartment and office by investigators of the Investigative Committee of Russia together with officers of the St. Petersburg and Leningrad Region Federal Security Service.
The interrogation was in connection with a criminal case against her client, Natalia Koltsova, related to alleged criminal business activities.
Targeting a lawyer in the investigation of the lawyer’s client runs contrary to international law and standards, and to principles of lawyer-client confidentiality enshrined in both Russian and international law.
The ICJ therefore calls on the law enforcement authorities to refrain from any measures which obstruct access to a lawyer and the right to an effective defence, including improper interrogation of lawyers as witnesses, and searches of lawyers’ premises.
The Russian authorities must uphold Russian law and the country’s international legal obligations on this matter and must take steps to ensure that lawyers are effectively protected against any form of harassment or improper interference.
During the searches, authorized by the Basmannyi District Court of Moscow, the files Marina Moshko’s clients were examined and photographs were taken of one file, which contained evidence in the same criminal case in which Marina Moshko is acting for the defence (see additional information below).
In addition to the searches of the lawyer’s premises, the investigators conducted a “confrontation” (a form of investigatory interview) between the lawyer and her client’s mother.
Marina Moshko was thereafter excluded from representation of her client as she was herself considered to be a witness in the case.
This case is hardly the first of its kind.
In a recent report entitled Towards a Stronger Legal Profession in the Russian Federation, the ICJ expressed concern at “cases of interrogations of lawyers in order to exclude them from representing a party to the proceedings”.
The report concluded that “[i]nterrogation of a lawyer as a witness constitutes a serious interference with the work of lawyers in clear contradiction to Russian legislation and international standards on the role and independence of lawyers.”
The ICJ recalls that the Russian Federation Code of Professional Ethics of Lawyers prohibits lawyers from making witness statements about any facts known to him or her in the context of professional activities (Article 6 (6)).
Both the Law “On advocates’ activities and advokatura in the Russian Federation” (Article 8 (2)) and the Russian Criminal Procedure Code (article 56 (3)) prohibit summoning lawyers as witnesses in cases in which they represent clients.
Furthermore, searches of lawyers’ premises and interference with clients’ files are contrary to international law and standards on lawyer-client confidentiality, which is an element both of the right to respect for private life, and of the right to a fair trial.
In particular, the UN Basic Principles on the Role of Lawyers, in Principle 22, stipulate that: “[g]overnments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential”.
The UN Human Rights Committee has also underscored that such practices may breach the obligation of States to ensure the right to a fair trial under the International Covenant on Civil and Political Rights (ICCPR), particularly where “lawyers are released from their obligation of professional confidentiality and obliged to testify or face the risk of imprisonment”
This case apparently represents such an instance in which a lawyer is excluded from representing a party, and lawyer-client confidentiality is breached, through questioning her as a witness. Such exclusions interfere with a defendant’s access to effective legal representation and may damage the effectiveness of the defence, contrary to the right to fair trial protected, inter alia, by Article 6 of the European Convention on Human Rights and Article 14 of the ICCPR.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay@icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov@icj.org
Additional information:
Marina Moshko represents Natalia Koltsova, a suspect in the case on a criminal group allegedly created by Dmitry Zarubin, owner of the Cartier boutique. Dmitry Zarubin was arrested in autumn 2015 and charged with creation of an organized criminal group which brought expensive electronic goods as cheap building materials. Natalia Koltsova is charged with heading one of the units of the alleged criminal group. These searches are reportedly related to the representation of Natalia Koltsova.
The ICJ understands that the Council of the Chamber of Lawyers of Leningrad Region has addressed a letter to the Prosecutor General of the Russian Federation regarding this problematic case of the searches of lawyers.
Read also ICJ’s Report Towards a Stronger Legal Profession in the Russian Federation
Russia-Marina Moshko statement-News-Web story-2016-RUS (story in Russian, PDF)