National pressure records / Article
What Should Belarusian Bar Prioritize Over Another Flower-Laying Ceremony
Published on 30 July 2024
Exploring the social media accounts associated with the Belarusian Bar (including the Belarusian Republican Bar (BRCA), regional bars, and the odd Council of Young Attorneys), one might presume that the legal system in Belarus is so stable, the guarantees of attorneys’ professional activities are so inviolable, that the self-governing bodies of the Bar have little to do besides participating in ceremonial events or organizing legal education for schoolchildren and cadets.
However, anyone even slightly familiar with the Belarusian realities of the past four years will recognize that this is far from the case. To those more deeply immersed in the context of the Bar, it is clear that this institution has been significantly undermined, as discussed in many publications from our project and several analytical reports by international experts. Attorneys continue to practice, but they are largely left to fend for themselves, with no one and nothing to protect them. Nonetheless, the structural facade of the Bar remains: (self-)governing bodies are elected, dues are collected, and reporting meetings are conducted.
Does this situation satisfy the current leaders of the Bar? Although it is the result of their own activities, it is likely they too realize that the longer this situation persists, the less needed attorneys, including themselves, will become. Therefore, it is high time to think about how to get out of this situation.
There are numerous pressing issues facing attorneys that require "urgent help," some are longstanding. We have identified those that seem most critical and that might be addressed even under current conditions. Here is what the Belarusian Bar could focus on, if not instead of, then at least between, their flower-laying ceremonies.
However, anyone even slightly familiar with the Belarusian realities of the past four years will recognize that this is far from the case. To those more deeply immersed in the context of the Bar, it is clear that this institution has been significantly undermined, as discussed in many publications from our project and several analytical reports by international experts. Attorneys continue to practice, but they are largely left to fend for themselves, with no one and nothing to protect them. Nonetheless, the structural facade of the Bar remains: (self-)governing bodies are elected, dues are collected, and reporting meetings are conducted.
Does this situation satisfy the current leaders of the Bar? Although it is the result of their own activities, it is likely they too realize that the longer this situation persists, the less needed attorneys, including themselves, will become. Therefore, it is high time to think about how to get out of this situation.
There are numerous pressing issues facing attorneys that require "urgent help," some are longstanding. We have identified those that seem most critical and that might be addressed even under current conditions. Here is what the Belarusian Bar could focus on, if not instead of, then at least between, their flower-laying ceremonies.
Safety of Attorneys in Belarus
In September 2020, the detention of Liudmila Kazak, who spent 24 hours in Okrestina and was subsequently fined administratively by a court, marked an extraordinary event. The media widely covered the incident, and the courtroom was filled with attorneys who attended the trial in a show of solidarity. It was reported that even the then-chairman of the Belarusian Republican Bar), Viktar Chaychits, personally intervened to ensure that attorneys were permitted into the Temporary Detention Facility before the trial commenced (and they ultimately were permitted).
On one day in March 2024, according to various sources, about ten attorneys were detained as part of a certain criminal case. Some were released immediately after interrogation, others after ten days, and some perhaps were not. The details of these cases are scarcely reported, making it difficult to even identify the attorneys involved. This represents the most widespread case of detention, and individual detentions now frequently go unnoticed; occasionally, it is only discovered by chance that an attorney has been detained for several months on criminal charges.
Over the past three and a half years, the detention of an attorney has ceased to be an anomaly and aligns with the broader trends of detaining professionals in the country, now considered a "norm". However, the response of the Bar has noticeably shifted. Whereas there was previously some effort to assist detained attorneys, even if informally, the Bar now appears completely disengaged from attorneys targeted by law enforcement. Following their detention, these attorneys typically receive nothing more than a notification from the Bar management that disciplinary proceedings have been initiated against them.
Why should the Republican Bar and the territorial bars be concerned about it? Beyond their duty and legal obligation to protect attorneys, there is a compelling reason: it is clear that attorneys are detained specifically for performing their professional duties — to effectively remove them from practice. This is evidenced by specific instances, such as the detentions on 20 March 2023. No one would call it coincidence when the attorneys representing prominent political prisoners, who had been isolated from external communications a month prior (a situation that remains unrectified), were detained simultaneously.
On one day in March 2024, according to various sources, about ten attorneys were detained as part of a certain criminal case. Some were released immediately after interrogation, others after ten days, and some perhaps were not. The details of these cases are scarcely reported, making it difficult to even identify the attorneys involved. This represents the most widespread case of detention, and individual detentions now frequently go unnoticed; occasionally, it is only discovered by chance that an attorney has been detained for several months on criminal charges.
Over the past three and a half years, the detention of an attorney has ceased to be an anomaly and aligns with the broader trends of detaining professionals in the country, now considered a "norm". However, the response of the Bar has noticeably shifted. Whereas there was previously some effort to assist detained attorneys, even if informally, the Bar now appears completely disengaged from attorneys targeted by law enforcement. Following their detention, these attorneys typically receive nothing more than a notification from the Bar management that disciplinary proceedings have been initiated against them.
Why should the Republican Bar and the territorial bars be concerned about it? Beyond their duty and legal obligation to protect attorneys, there is a compelling reason: it is clear that attorneys are detained specifically for performing their professional duties — to effectively remove them from practice. This is evidenced by specific instances, such as the detentions on 20 March 2023. No one would call it coincidence when the attorneys representing prominent political prisoners, who had been isolated from external communications a month prior (a situation that remains unrectified), were detained simultaneously.
Everyone’s in the Crosshairs
It is important to recognize that the category of "enemies of the state" extends beyond former presidential candidates to include individuals who have engaged in public and political activities, even on an ad hoc basis. This expansion means that the threat of detention looms not just over a handful of attorneys who have ventured into politics but over a significantly larger number. In an environment where law enforcement operates with absolute impunity — meaning they lack incentives to halt such practices — and in the lack of viable defense mechanisms in place, an overwhelming number of attorneys find themselves in a state of perpetual jeopardy. Under such conditions, when fundamental security is compromised, effective professional performance becomes unattainable. This pervasive sense of vulnerability constitutes a problem not only for “political” clients, but for the broader public, including those government officials who currently remain indifferent to the unfolding situation. Legal assistance is a universal necessity. Although not all decision-makers within the state apparatus are likely to face incarceration for corruption, they — or their relatives and friends — will invariably require legal services to divide joint property, draw up an inheritance, sell a share in the business. Who will they rely on when the time comes?
Consequently, to maintain a functional bar, it is crucial to reinstate at least the basic guarantees that protect legal professionals from prosecution related to their lawful duties. This foundational change is vital not only for the integrity of the legal profession but for the overall administration of justice and civil society’s well-being.
Consequently, to maintain a functional bar, it is crucial to reinstate at least the basic guarantees that protect legal professionals from prosecution related to their lawful duties. This foundational change is vital not only for the integrity of the legal profession but for the overall administration of justice and civil society’s well-being.
What can be done?
There are numerous ways to address this matter. The issue of legal safeguards for attorneys can be resolved through legislative reforms. One approach is to restrict the possibilities for detention and searches by introducing a special procedure that requires authorization and the mandatory presence of a Bar representative. While this might seem ambitious, it’s worth noting that such a procedure was supported by the Constitutional Court in 2018, although it reversed its stance following criticism from A. Lukashenko. Nonetheless, there are positive examples of legislative changes beneficial to attorneys. For instance, after prolonged disputes with investigative authorities — where attorneys referred exclusively to the Constitution — the Criminal Procedure Code was amended to ensure the right of a witness to have legal assistance. Additionally, in 2018, the Constitutional Court issued a ruling on the “Right to judicial protection of interested persons in order proceedings” following an appeal by the Republican Bar, leading to relevant legislative amendments. These examples show that meaningful change is feasible, but it begins with clearly defining the issue at least.
The Bar has underutilized this essential tool: formulating the issue clearly. The precarious situation of attorneys’ security is widely known yet remains publicly understated, which hasn’t led to any improvement. The strategy of silence — hoping for the best by saying the least — has obviously proven ineffective. Instead, the issue should be vocally addressed. The Kazakhstan Bar may serve as a notable example; during a high-profile trial, it declared that attorneys should not be attacked for their professional activities, even if their clients are controversial figures. Similarly, the Belarusian Bar should shift its focus from campaigning against "extremism" to actively promoting in public discourse the principle that an attorney should not be conflated with their client.
The Bar has underutilized this essential tool: formulating the issue clearly. The precarious situation of attorneys’ security is widely known yet remains publicly understated, which hasn’t led to any improvement. The strategy of silence — hoping for the best by saying the least — has obviously proven ineffective. Instead, the issue should be vocally addressed. The Kazakhstan Bar may serve as a notable example; during a high-profile trial, it declared that attorneys should not be attacked for their professional activities, even if their clients are controversial figures. Similarly, the Belarusian Bar should shift its focus from campaigning against "extremism" to actively promoting in public discourse the principle that an attorney should not be conflated with their client.
Access to Defendants
Issues with lawyers' access to detainees have been problematic long before 2020. Notably, queues at the KGB pre-trial detention center were so extensive that prisoners' relatives would save spots for attorneys from early morning, and at times, round-the-clock vigils were organized near the KGB building. There were also arbitrary denials of access to political prisoners in colonies — supposedly because the convict had not submitted a request. Essentially, the right to communicate with an incarcerated client has always been encumbered by various unlawful restrictions.
Since 2020, this issue has manifested in two new but now systematic violations: obstacles in visiting administrative detainees and complications in accessing clients held in colonies. Following the declaration of the COVID-19 epidemic in spring 2020, nearly all detention facilities — from pre-trial detention facilities and centers for isolation of convicts to correctional colonies — implemented a quarantine regime. Although quarantine restrictions were gradually relaxed in 2020, access to administrative detainees in pre-trial detention facilities and centers for isolation of convicts remains restricted more than four years later.
Initially, these restrictions may have been implemented with health protection in mind, although limiting lawyer-client communication for such reasons remains unlawful. However, the pandemic has long passed, and access to administrative detainees has not been reinstated. Today, these continued restrictions are clearly unjustified.
Now appears to be an opportune moment for the Belarusian Republican Bar Association to address this issue. It has both factual support (the pandemic has ended) and legal grounds (the right to communicate with a defense counsel in administrative proceedings remains intact, and restrictions on visits were never legally mandated). Yet, the Bar has shown no initiative in this matter.
The second issue concerns access to colonies. Here, the situation varies: access isn't uniformly restricted for everyone to the same degree. Some prisoners are held incommunicado; access to others is sporadically blocked but occasionally possible; many, probably the majority, face few serious obstacles. However, additional administrative barriers include lack of confidentiality (a longstanding issue now seemingly more pervasive), searches of attorneys, prohibitions on bringing documents, etc.
Currently, these challenges primarily affect political prisoners and their lawyers. However, it would be naive to believe that these practices will not eventually impact other convicts. At present, these restrictive methods are being tested on "political" prisoners, but they will likely be applied more broadly in the future. If today the prosecutor's office and the Department of Corrections overlook such violations, ostensibly excluding "political" cases from their oversight, on what grounds will they address similar infractions tomorrow, even if they concern different individuals?
How can the bar influence this situation? One effective approach is through legislative changes. It's incorrect to view all repressive practices as entirely extra-legal; many are rooted in specific legislative norms. For instance, a common reason for denying attorney visits is the absence of a request from the convicted person, based on the stipulation in part 6 of Article 83 of the Criminal Executive Code, which states: "To receive legal assistance, convicted persons shall be granted visits with lawyers or other persons entitled to provide legal assistance upon their request." This provision has often been pointed out as not necessarily requiring a formal written request. Ideally, if no such request is available, it could be obtained directly from the convicted individual when the lawyer arrives at the colony. Better yet, the lawyer could be called directly to the prisoner to ask whether they wish to meet. Naturally, colonies do not interpret part 6 of Article 83 of the Criminal Executive Code in this way, and there is no expectation that they will spontaneously adjust their practices to prioritize the rights of the convicted. However, if initiated, an amendment to the wording of the Criminal Executive Code could significantly improve the situation for them.
Moreover, if legislative changes seem too complex or time-consuming, modifying departmental acts — particularly internal regulations — could be a viable alternative. After all, the topics for roundtable discussions with representatives from the Ministry of Internal Affairs need not be limited to the "genocide of the Belarusian people" or the fight against "extremism".
Since 2020, this issue has manifested in two new but now systematic violations: obstacles in visiting administrative detainees and complications in accessing clients held in colonies. Following the declaration of the COVID-19 epidemic in spring 2020, nearly all detention facilities — from pre-trial detention facilities and centers for isolation of convicts to correctional colonies — implemented a quarantine regime. Although quarantine restrictions were gradually relaxed in 2020, access to administrative detainees in pre-trial detention facilities and centers for isolation of convicts remains restricted more than four years later.
Initially, these restrictions may have been implemented with health protection in mind, although limiting lawyer-client communication for such reasons remains unlawful. However, the pandemic has long passed, and access to administrative detainees has not been reinstated. Today, these continued restrictions are clearly unjustified.
Now appears to be an opportune moment for the Belarusian Republican Bar Association to address this issue. It has both factual support (the pandemic has ended) and legal grounds (the right to communicate with a defense counsel in administrative proceedings remains intact, and restrictions on visits were never legally mandated). Yet, the Bar has shown no initiative in this matter.
The second issue concerns access to colonies. Here, the situation varies: access isn't uniformly restricted for everyone to the same degree. Some prisoners are held incommunicado; access to others is sporadically blocked but occasionally possible; many, probably the majority, face few serious obstacles. However, additional administrative barriers include lack of confidentiality (a longstanding issue now seemingly more pervasive), searches of attorneys, prohibitions on bringing documents, etc.
Currently, these challenges primarily affect political prisoners and their lawyers. However, it would be naive to believe that these practices will not eventually impact other convicts. At present, these restrictive methods are being tested on "political" prisoners, but they will likely be applied more broadly in the future. If today the prosecutor's office and the Department of Corrections overlook such violations, ostensibly excluding "political" cases from their oversight, on what grounds will they address similar infractions tomorrow, even if they concern different individuals?
How can the bar influence this situation? One effective approach is through legislative changes. It's incorrect to view all repressive practices as entirely extra-legal; many are rooted in specific legislative norms. For instance, a common reason for denying attorney visits is the absence of a request from the convicted person, based on the stipulation in part 6 of Article 83 of the Criminal Executive Code, which states: "To receive legal assistance, convicted persons shall be granted visits with lawyers or other persons entitled to provide legal assistance upon their request." This provision has often been pointed out as not necessarily requiring a formal written request. Ideally, if no such request is available, it could be obtained directly from the convicted individual when the lawyer arrives at the colony. Better yet, the lawyer could be called directly to the prisoner to ask whether they wish to meet. Naturally, colonies do not interpret part 6 of Article 83 of the Criminal Executive Code in this way, and there is no expectation that they will spontaneously adjust their practices to prioritize the rights of the convicted. However, if initiated, an amendment to the wording of the Criminal Executive Code could significantly improve the situation for them.
Moreover, if legislative changes seem too complex or time-consuming, modifying departmental acts — particularly internal regulations — could be a viable alternative. After all, the topics for roundtable discussions with representatives from the Ministry of Internal Affairs need not be limited to the "genocide of the Belarusian people" or the fight against "extremism".
Financial Concerns
Economic issues also remain relevant for attorneys. On one hand, the required contributions that attorneys must pay to their bar are increasing annually. This rise is supposedly mostly justified, given the dwindling number of attorneys, which naturally inflates each lawyer's share of costs for rent and maintenance of legal consultation premises. Essentially, the financial burden on attorneys likely has objective reasons. However, this doesn't negate the fact that for many specialists, such burdens are excessive due to fewer client requests and reduced client solvency. Moreover, a portion of the fees contributes to the maintenance of the Bar's governing bodies, which have shown little efficiency. Given the longstanding unresolved issues and the apparent lack of prioritization of attorneys’ defense by the bar management, one might question what exactly they are paying for. It's doubtful that the average attorney is eager to fund the BRCA delegation's trips to the next regional conference between Belarus and Russia, especially when some may find it ethically questionable.
On the other hand, the state of state-guaranteed legal aid is dismal and has remained largely unchanged for years. No effective modern system has been established. Presently, there are two mechanisms: in civil cases, legal aid is financed by the bars, meaning it comes out of the attorneys’ own pockets; in criminal cases, the attorney’s work is state-funded, but the daily compensation does not exceed 10 dollars. Compounding this are illogical restrictions: if an attorney handles multiple cases in one day, only one is compensated. There’s also no variance in pay based on case complexity. Consequently, the incentive to take on state-funded criminal cases is virtually non-existent; even for novice attorneys without a client base, these cases are seen more as a burden than as an earning opportunity (a topic covered in our research [written in Russian]).
In this challenging environment, the Bar could attempt to modify the current mechanisms for providing "free" legal aid. If not through the enactment of a specialized law and comprehensive system reforms (as has been implemented in many regional states [this material is written in Russian]), then at least by revising the payment procedures for criminal case work funded by the state. Proposals could include increasing the rates, implementing a tariff system based on the case category and duration of assistance, and allowing attorneys to accept multiple paid assignments per day. This change is entirely feasible, recalling that over a decade ago, attorneys were not compensated for assigned work if they had already performed paid contractual work on the same day; this rule was eventually abolished. Such reforms could address several issues: firstly, enhancing the financial condition of attorneys, and secondly, clarifying how the ever-increasing contributions to the bar are being utilized.
In this challenging environment, the Bar could attempt to modify the current mechanisms for providing "free" legal aid. If not through the enactment of a specialized law and comprehensive system reforms (as has been implemented in many regional states [this material is written in Russian]), then at least by revising the payment procedures for criminal case work funded by the state. Proposals could include increasing the rates, implementing a tariff system based on the case category and duration of assistance, and allowing attorneys to accept multiple paid assignments per day. This change is entirely feasible, recalling that over a decade ago, attorneys were not compensated for assigned work if they had already performed paid contractual work on the same day; this rule was eventually abolished. Such reforms could address several issues: firstly, enhancing the financial condition of attorneys, and secondly, clarifying how the ever-increasing contributions to the bar are being utilized.
The Prestige of the Profession
The prestige of the legal profession seems to have emerged as a pressing issue for the Bar, which its leadership has openly acknowledged. Recent years have seen a notable decline in the number of practicing attorneys. More critically, the concern isn't just the reduction per se — there's little lamentation about those who have left (often not by choice) — but rather the absence of corresponding growth and an overall shortage of legal professionals in the field.
A significant factor in this trend is undoubtedly the issue of personal safety previously discussed. However, that alone does not account for the entire problem. Respect for the profession has waned not only among the general public but also among other actors that attorneys interact with.
Historically, there has been a certain level of disregard from state authorities toward attorneys, but it was not always as blatant as it is now. Today, they face unprecedented restrictions; attorneys can be barred from accessing certain places, denied information, and no supervisory body intervenes. Moreover, for vigorously defending their rights, attorneys can encounter pressure from both their own bar and the Ministry of Justice — and that's in the best-case scenario, without facing detention. Thus, potential attorneys are being offered a role that not only lacks rights with the possibility of their enforcement, but also poses risks of suffering.
Compounding these issues is the dwindling trust in the Bar as an institution among the citizenry. There used to be a misconception that "state" attorneys were only those appointed by the state to criminal cases. Now, when seeking to hire an attorney under contract, clients are increasingly wary of whether the attorney might also cooperate with the authorities. This apprehensive attitude is fueled by the repression of attorneys, significantly influenced by the Bar's leadership, and by how the Bar presents itself in the public eye. For instance, there was no public dissent from the Bar regarding the increase in penalties and the introduction of the death penalty for certain offenses in December 2022, despite two attorneys being members of the Council of the Republic — the legislative body at that time. Instead, there appeared to be support for such measures, as exemplified by attorney Laptev.
A significant factor in this trend is undoubtedly the issue of personal safety previously discussed. However, that alone does not account for the entire problem. Respect for the profession has waned not only among the general public but also among other actors that attorneys interact with.
Historically, there has been a certain level of disregard from state authorities toward attorneys, but it was not always as blatant as it is now. Today, they face unprecedented restrictions; attorneys can be barred from accessing certain places, denied information, and no supervisory body intervenes. Moreover, for vigorously defending their rights, attorneys can encounter pressure from both their own bar and the Ministry of Justice — and that's in the best-case scenario, without facing detention. Thus, potential attorneys are being offered a role that not only lacks rights with the possibility of their enforcement, but also poses risks of suffering.
Compounding these issues is the dwindling trust in the Bar as an institution among the citizenry. There used to be a misconception that "state" attorneys were only those appointed by the state to criminal cases. Now, when seeking to hire an attorney under contract, clients are increasingly wary of whether the attorney might also cooperate with the authorities. This apprehensive attitude is fueled by the repression of attorneys, significantly influenced by the Bar's leadership, and by how the Bar presents itself in the public eye. For instance, there was no public dissent from the Bar regarding the increase in penalties and the introduction of the death penalty for certain offenses in December 2022, despite two attorneys being members of the Council of the Republic — the legislative body at that time. Instead, there appeared to be support for such measures, as exemplified by attorney Laptev.
Such a stance, especially considering the context in which these changes are to be implemented, does little to inspire potential clients to seek legal assistance. Furthermore, collective photographs under the plaster bust of Stalin or laying flowers at the monument of pilot Okrestin, a figure whose name is primarily associated with an infamous street in Minsk by the majority of Belarusians*, does not portray the image of an independent legal institution tasked with protecting citizens from state arbitrariness. Thus, an attorney entering this field must be prepared to also play the role of endorsing state narratives, which will invariably shape clients' perceptions of them.
*A notorious pre-trial detention center with detention conditions tantamount to torture is located at Okrestina street in Minsk.
*A notorious pre-trial detention center with detention conditions tantamount to torture is located at Okrestina street in Minsk.
Thus, the legal profession does not present itself as an attractive option, diminishing the likelihood that practicing attorneys and law graduates will eagerly join its ranks.
What can be done to rectify this situation? The Bar must move beyond merely echoing state propaganda and begin to champion its own causes. It needs to openly discuss the challenges it faces, the violations and constraints imposed upon its members, and advocate for the reinstatement and respect for rights (at least those currently enshrined in law).
What can be done to rectify this situation? The Bar must move beyond merely echoing state propaganda and begin to champion its own causes. It needs to openly discuss the challenges it faces, the violations and constraints imposed upon its members, and advocate for the reinstatement and respect for rights (at least those currently enshrined in law).
