How advocates fight for the right to meet with clients in pre-trial detention centers
9 April 2021
Advocate Gennady Okolov sued the administration of the pre-trial detention center of the Novgorod region for two years for the opportunity to meet with the client on any day and at any time, except at night. The administration is against it.
The advocate’s position
In 2019, Okolov filed a lawsuit in which he demanded to cancel the order of the head of the pre-trial detention center, limiting the time of visits of the suspect with an advocate. Until 12 January, 2019, the investigative offices where such meetings take place were open daily until half past nine in the evening. Then the chief issued a new order, which prohibited meetings on Sunday, and on other days the hours were reduced — at 16.40 advocates had to leave the building of the detention center. Lunch time is also unavailable for meetings — almost 1.5 hours.
Okolov considered such a restriction of visits unjustified. The court of first instance did not satisfy his claim, but on appeal this decision was overturned and sent for a new hearing.
As a result, the court ordered the administration of the pre-trial detention center to cancel the approved schedule of visits between the advocate and the prisoners. But what did the head of the institution do? He simply approved a different schedule that continued to restrict the advocate’s right to see his client.
The advocate was forced to file an administrative claim with the court again. In the claim, he demanded that the client’s meetings with the advocate should be allowed daily at any time except at night (from 22.00 to 6.00)
On 7 October, 2020, the Novgorod District Court rejected Okolov’s claim as well. The advocate appealed the decision to the regional court, which on 17 February, 2021, overturned the decision of the first instance and ordered the pre-trial detention center to eliminate the violations identified by the plaintiff.
The position of the administration of the pre-trial detention center
The representative of the administration in court did not recognize the claim, saying that the existing schedule did not limit the rights of suspects to meet with the advocate. According to the defendant, the schedule is developed on the basis of departmental regulations, so the plaintiff should be refused.
The Administration believes that the absence of time limits for visits will, on the contrary, violate the rights of detainees. For example, the right to lunch.
Defenders ‘ problems with admission and the position of the courts
In May 2017, the advocate Marina Moshko was not allowed to visit her client in the Moscow pre-trial detention center, because she did not have permission from the investigator. By this time, amendments to the Criminal Procedure Code had been in effect for about a month, according to which an advocate is no longer “allowed” to the case, but “enters” into it. That is, to meet with the client, the advocate no longer needs to ask permission from the investigator. Marina Moshko pointed out these amendments to the head of the colony, but he still did not allow her to pass. Through an appeal, the advocate was able to prove the illegality of this ban in a retrial. And then she said that she was satisfied with the result and hoped that in the future the management of the detention centers would not violate the rights of advocates.
Despite this, employees of colonies and pre-trial detention centers continue to create obstacles.
In March 2019, “The advocate’s newspaper” published a discussion on whether the toughening of the punishment for the non-admission of advocates to their clients would help to correct the situation. The author of this opinion believes that it is not so important to toughen the punishment as its inevitability. It is important that every employee of the institution who obstructed access to the prisoner is brought to justice, which will discipline the employees of the Federal Penitentiary Service.
The very fact that this discussion continues in the legal community indicates that the problem is not solved.
In March 2020, during the first wave of the COVID pandemic, the administration of the colony in Mordovia, referring to the decision of the sanitary doctor, did not allow the advocate to meet with the client. He was in a serious condition after a recent stroke, so it was necessary to communicate with him personally, otherwise he might not understand something. The advocate was not allowed to see his client even on the eve of the trial. Thus, the administration of the institution created an obstacle to the discussion of the legal position on the eve of the trial.
The advocate filed a lawsuit and won: the court declared the ban illegal. After that, he said that there was no practical need to file a lawsuit, since the prisoner had already been released, but he wanted this refusal to be recognized as illegal.
Not only advocates, but also other people who have the right to provide legal assistance face an obstacle in terms of access to prisoners in places of deprivation of liberty. According to Article 49 of the Criminal Procedure Code of the Russian Federation, along with an advocate, the court may allow a defense lawyer who is not an advocate (often they are relatives of the defendant or professional lawyers), who is not required to have a higher legal education (Article 49 of the Criminal Procedure Code) to participate in the process. Such a defender will have all the rights that the defense has in court proceedings. On 30 January, 2019, the Supreme Court of Russia issued a cassation ruling, which considered the complaint of Sergei Marin from the Republic of Mordovia.
At the end of 2017, Marin wanted to go to the territory of the penal colony in Mordovia, where three of his clients were serving their sentences. In the statements addressed to the head of the colony, it was stated that the meeting was necessary for the prisoners to obtain powers of attorney for filing complaints to the ECHR. The administration of the institution refused admission to the convicts, the applications were returned without any notes from the head of the colony about the reasons for the refusal.
The trial of the case in the court of first and second instance ended not in favor of the defender and his clients. The defender did not agree with such conclusions and appealed them to the Supreme Court. The Supreme Court in its ruling indicated that in the case materials there was evidence that Marin was a defender of the convicts, a meeting with whom he sought. This was confirmed by the protocol decisions of the courts.
The Supreme Court of Russia takes the side of defenders in the issue of visiting their clients in the review of judicial practice.
At the end of 2018, in such a review, the Supreme Court of the Russian Federation indicated that public defenders (representatives of a prisoner without a legal education) have the same rights to visits in places of detention as advocates.
In April 2019, the Supreme Court declared illegal the ban on bringing recording equipment to a meeting with a convicted person.
Co-chairman of NGO “Man and Law” Sergei Poduzov:
– Access to legal aid for prisoners in places of incarceration is a guarantee of the right to a fair trial. We see that advocates periodically face problems with access to their clients. There are quite a lot of such situations in Russia. We can take the situation that occurred a year ago in Angarsk, the Irkutsk region – a conflict between prisoners and employees of the institution IK-15, when advocates under the agreement were faced with non-admission to their clients. We do not even touch the issues of the conditions of visits between the defender and the prisoner in the pre-trial detention center or the penal colony, how the prisoner can freely maintain contact with the advocate, what quality of video communication should be during the process, whether there is a possibility of a confidential conversation between the defender and the prisoner. In this material, we show only one small aspect — the availability of free access to a prisoner to see an advocate. The inability of the prisoner to communicate with the defender in places of incarceration suggests that the state has a systemic problem – excessive barrier in the prisoner’s access to the court.