Thursday 28th October 11:00am (1:00pm Moscow time) :

Sergei Golubok - Russia

Sergey Golubok is a prominent lawyer and a human rights defender. He holds a law degree from the St Petersburg State University, an LL.M. in International Human Rights Law from the University of Essex, and a Ph.D. in International Law and European Law. He is a member of the Human Rights Committee of the European Criminal Bar Association and of the International Criminal Court Bar Association.

In 2004 and 2005 he attended the sessions of the Assembly of States Parties to the Rome Statute of the International Criminal Court as an observer on behalf of the European Law Students’ Association (ELSA). From 2008-2011 Sergey worked for the Council of Europe in Strasbourg followed by several months with REDRESS Trust in London, an organisation aimed at ending torture and seeking justice for survivors worldwide. Since 2011, Dr Golubok has worked as a practicing attorney and member of the St Petersburg Bar Association. He currently serves as a Board Member of that Bar Association. Sergey represents clients in civil rights cases before the Russian courts, including the Supreme Court and the Constitutional Court, as well as before the international institutions, such as the European Court of Human Rights and United Nations treaty bodies in Geneva.

In 2017, Sergey was awarded a prize for human rights litigation by the Moscow Helsinki Group, a leading Russian human rights NGO. In 2018, Dr Golubok delivered a keynote address at the annual conference of the British Association for Slavonic and East European Studies (BASEES) in Cambridge, together with Ms Dalia Leinarte, Chairperson of the Committee on the Elimination of Discrimination against Women. Sergey has authored several articles in English and Russian on international human rights law, constitutional rights, and international criminal law.

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Notes of the pod cast with Sergei Golubok (SG)

28 October 2021

SG opened the pod cast by saying that there had been a major change in Russia’s legal system. There has been a change to the structural power to appoint and dismiss judges. It is important to understand this change because the independence of the judiciary is in issue. Once the independence of the judiciary is raised then mutual legal assistance becomes problematical. The Western press had heralded it as a change that enabled the current president to run for president again in 2024. However, there were other amendments that were made to the constitution which had been overlooked. One of these was amendments granting new powers to the president in relation to article 83 of the Russian constitution which enabled him to petition the upper chamber to remove any senior judge. This change has tarnished the dignity and honour of the judge. The power given to the president does not require any specific event to justify such a petition and the president does not have to specify any failure or act by the judge to justify a petition.

Once the petition is received the upper chamber and decides whether or not the judge will be dismissed. The upper chamber is comprised of appointees of the president. Hitherto the upper chamber had the power to appoint senior judges on the recommendation of the president. They have never refused to do so.

Although the change took place a year ago the power has not yet been used. However it has created a situation whereby judges no that whenever the state is a party to litigation they will be expected to ensure that the state will win. It has a chilling effect upon the judges themselves. Most litigation in the criminal sphere is conducted with the state as the prosecutor. There are a very small number of private criminal cases. Acquittal rate is less than 1%. The psychological effect of these changes on judges is to align them with the state and they have now become an arm of the state machinery.

This is important because there are many different proceedings where mutual legal assistance may be requested. Not just in the case of extradition but also enforcements of judgements. There is no MLA treaty between Russia and the United Kingdom and it is currently based on comity. Those seeking mutual legal assistance or receiving a request from Russia for mutual legal assistance should be aware of the changes to the structure and the effect it has upon the independence of judges and should on that basis and on the basis of article 6 of the UDHR refused to engage in mutual legal assistance. These changes will affect not only the United Kingdom but all other countries and the European courts as well.

SG made reference to Poland and its lack of independence in relation to judges and to Turkey where the rule of law does not seem to be present in its legal system. For MLA to be effective the independence of the judiciary must be proven. Russian judges based on the constitution at present do not have independence.

SG made reference to the situation in England between 1066 and the signing of the Magna Carta. Judges were then appointed solely by the King and carried out his business which is why a judge’s court is so-called because it was the court of the king.

When faced with disputes where the state is a party Russian judges are not independent and it is important that lawyers in other jurisdictions appreciate this. SG was asked which of the human rights enshrined in the UDHR is most challenged in Russia at the present time. He responded by saying article 3 the prohibition against torture. There had been a recent development when a massive leak occurred from prisons across Russia the hacker who revealed these leaks has fled to France for protection and is seeking asylum there. He revealed hours of media footage showing’s violence often of a sexual nature being perpetrated against detainees by prison staff. The purpose of prison is to rehabilitate those who have been convicted. The leak shows a general and consistent use of violence against detainees with the obvious intent of making them confess. The whole system demonstrated in these media footages shows that there has been no change since the gulag times. It’s shows clearly that the system of imprisonment is none other than a huge torture machine which is incapable of being justified and which has a knock-on effect to the issue of a fair trial. It is clear that detention on remand is used to enable torture to be applied to extract confessions and on the basis of those confessions conviction is inevitable.

SG said that another issue was freedom of expression which was under constant assault in Russia. For example it is against the law to make any comment about World War II and the role of Russia in that conflict between 1939 and 1941 if the comment puts the Soviet Union in the same position as Nazi Germany. Such a law has a huge effect on truth and historical honesty as well as ensuring that proper investigation and discussion cannot take place.

Rebecca asked to what extent lawyers like SG were able to practice freely without intimidation and prosecution. SG said that there have been isolated instances of lawyers being prosecuted such as the recent prosecution of a lawyer who was supporting Navalny. However you do not need to prosecute or imprison lawyers when the legal system will not allow the lawyer to articulate his client’s case. As a lawyer SG has to explain to the client the limits on what he can achieve and that the conviction rate is 99%. Most often the only viable option available to a defendant is to negotiate with the prosecution to get a lesser sentence. The system is structurally unjust. Lawyers do not have to be political that they have to be realists in what is achievable and communicate that to their clients. Russia simply ignores the judgements of other courts such as the European courts. There is a law in Russia which says that if a judgement goes against the constitution of Russia it can ignore it. The attitude of the Russian state towards the European Court of human rights has reduced it to a small claims tribunal which cannot change Russia because Russia will simply ignore any judgement it does not agree with. There is no enforcement machinery and the powers of the court to award compensation are small. The way in which the legal system is structured causes lawyers to use their authority. SG has to think twice about what he says. Even though the Russian state has no power to diss Bara lawyer the pressure is there and there is no remedy.

Lionel asked about access to clients when they are in prison and the speed of justice from arrest to trial. SG said the criminal law falls under the federal system in Russia but its application varies from one place to another there are 85 constituent areas in the Russian state and there are 85 different jurisdictions. In St Petersburg and the problem is not access to your client being refused but a lack of interview rooms to be able to interview the client. In Moscow and the investigator must authorise a lawyer and give permission for him to see his client. There is no effective challenge against a refusal to allow the lawyer to see his client

Most obstacles in Russia to access to a client in custody relate to the initial period of tension and cause a lack of access. Once the conviction has been achieved there is the not as much pressure and lawyers can generally access their clients. As to the duration of proceedings the authorities want the judiciary to be effective and efficient and consequently the average period from arrest to trial is one year and from conviction to appeal his one year. SG said that the public in Russia do not understand why they need a fair trial.

Sandeep asked about access to clients after conviction and the effect of America ceasing to be the world’s policeman on changes in Russia. SG said that the state was not really interested in an appeal their interest lay in securing the conviction which is why the pre-trial period was the most important of the state in Russia. As to the second point raised he said that he believe that Western powers had made a mistake by disjointed human rights from negotiations with Russia and with other countries with authoritarian regimes such as China and Turkey and Poland. Human rights is not just an addition but an essential feature and the basis upon which negotiations and agreements can be reached there are no effective mechanisms to include human rights issues in negotiations between countries.

See David Aaronovitch of the Times article on independence of judiciary Poland and EU and Putinism HERE