Lawyers who choose to continue their work in the occupied territory should not face prosecution for doing so — Svyrydova

In the new episode of the program «Free Our Relatives», we delve into a discussion with Daria Svyrydova, a human rights activist, an expert from the «Ukraine 5 AM» coalition, and a partner at the «AZONES» law firm.

Background: Since the commencement of the Crimea occupation in 2014, Russia has unlawfully extended its legislation to the region, breaching international law. Consequently, so-called «courts,» «law enforcement agencies,» and cases of the first political prisoners, subjected to fabricated trials, emerged on the occupied peninsula. Presently, following the onset of a full-scale Russian invasion, thousands of Ukrainians in the occupied peninsula are held within the Russian penitentiary system. Lawyers operating on the peninsula often serve as the primary means to ascertain a prisoner’s condition, yet they operate within the framework of Russian law.

In our conversation with Daria Svyrydova, we explored the status of lawyers engaged in this challenging field.

What is the status of lawyers in Crimea?

Daria Svyrydova: According to the law, all lawyers in Ukraine must be members of the Ukrainian National Bar Association, responsible for promoting and safeguarding lawyers’ rights while monitoring their adherence to professional standards. However, the issue of lawyers’ work under occupation, particularly in the occupied Crimea, has been largely overlooked by the professional community for nearly a decade, posing a significant problem.

Regarding the status of these lawyers, a decisive step was taken by the state with the enactment of Law No. 1207 in 2014, titled «On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine». This law was subsequently extended to all territories occupied and annexed by the Russian Federation. It stipulates that any bodies, acts, or documents created by the occupier in violation of Ukrainian laws have no legal effect in the occupied territories.

Based on a key provision of this law, it can be concluded that any self-governing structures, including those established in violation of Ukrainian law, are subject to Russian law. While Ukraine does not recognize the consequences of their activities, it acknowledges the establishment of an occupation regime, annexation of the territory, and the establishment of illegal courts and law enforcement agencies by Russia. International missions, Ukraine itself, particularly in criminal proceedings, are documenting these facts and scrutinizing documents that create illegal structures.

Despite this, Ukrainian lawyers persist in working in the territory, including those who were granted the right to practice under Russian law during the occupation. This includes lawyers who, as Ukrainian citizens, were compelled to obtain the right to practice law from Russia and those defending our political prisoners under occupation. These are undeniable facts that cannot be disregarded, and the absence of a clear position on this matter in Ukraine could be detrimental for various reasons.

Firstly, recognizing the efforts of lawyers advocating for our citizens under occupation is crucial. It’s essential to document the facts of violations of their rights in the context of providing such protection. Equally important is the documentation of instances when lawyers, under occupation, act to the detriment of their clients and collaborate with the FSB.

«All Ukrainian lawyers in Crimea were compelled to obtain Russian permits to carry out their activities»

Daria Svyrydova: At the time of the occupation, there were more than 1700 lawyers in Crimea, all of whom were Ukrainian citizens with the status of Ukrainian lawyers. In the years following the peninsula’s occupation, according to human rights organizations, approximately 800 lawyers, who are Ukrainian citizens with the right to practice law under Ukrainian law, remained in Crimea. The rest either discontinued their legal practice or left the territory.

Concerning Russian lawyers, human rights organizations report that about 100 lawyers were transferred from Russia to Crimea during the occupation, constituting around 10% of all lawyers working in Crimea.

Ukrainian lawyers who stayed in Crimea were compelled, first, to obtain a Russian passport (which is not recognized) and, second, to acquire permission from Russia to practice law in Crimea. Failure to fulfill these two conditions meant that any Ukrainian lawyer could not carry out their work under occupation.

Hence, all Ukrainian lawyers currently working in this territory had to obtain a Russian passport and a certificate from Russia allowing them to carry out their activities and engage with Russian structures, including attending occupation courts and interacting with unlawfully created law enforcement agencies. Unfortunately, from the perspective of Ukrainian legislation, this could be seen as a potential criminal offense in the future.

What proportion of Ukrainian lawyers in Crimea are actually working?

Daria Svyrydova: I wouldn’t categorize lawyers as active or inactive. Some lawyers have simply continued their work, much like most civilians under occupation. There are also lawyers who, regrettably, actively cooperate with the FSB. In my view, such lawyers are a minority, and we know about them because the victims themselves report their actions. We have identified these lawyers, and they need to be named.

Additionally, there are lawyers actively working on sensitive and complex cases, primarily involving the prosecution of political prisoners—Ukrainian citizens persecuted by occupation authorities for political reasons, such as their pro-Ukrainian stance, active civic position, or association with a particular national community, like the Crimean Tatar community. This group also includes civilians and prisoners of war detained in the newly occupied territory and transferred to Crimea.

However, the number of lawyers providing defense in such cases is small. This can be easily explained, as lawyers handling such sensitive cases face politically motivated persecution by occupation authorities. They are subject to arrests, illegal detentions, and disbarment. The offices of these lawyers have been attacked repeatedly, and discrediting campaigns have been launched against them in Kremlin-controlled media in the occupied territories, where they are identified with their clients and labeled as «terrorist lawyers» and «devil’s advocates.»

In essence, we document numerous persecutions of these lawyers, who are essentially carrying out their professional activities responsibly and professionally in accordance with standards. Unfortunately, this has a profound chilling effect on any lawyer witnessing their colleagues being harassed, persecuted, and arrested. For instance, in May 2022, during the full-scale invasion, persecution intensified significantly, and three lawyers who came to defend other detained lawyers were arrested for attempting to publicly address the situation with the detainees and their rights. These lawyers, namely Nazim Sheikhmambetov, Ayder Azamatov, and Emine Avamileva (an honored lawyer of Ukraine), received administrative arrests ranging from 5 to 8 days.

These incidents have been documented by international human rights organizations and reflected in UN General Assembly resolutions. However, these facts have not been assessed by the National Bar Association of Ukraine, which is perplexing.

How can we support lawyers in Crimea?

Daria Svyrydova: Considering that lawyers persist in Crimea, it is crucial for us to do everything possible to support them, express solidarity, and shed light on their often unseen work. In reality, it is thanks to these lawyers that we have information about the conditions in which our political prisoners and prisoners of war are held in the occupied territories. In circumstances where international missions and independent journalists lack access to the occupied territories, especially post a full-scale invasion, these lawyers play a vital role. They can reach the prisoners, providing them with protection, including physical protection. An independent lawyer who can challenge the conditions of a prisoner’s detention becomes a tool for the physical protection of the prisoner, unlike one who cannot be visited by anyone.

Several recommendations have been developed that I find important to share:

1. Inclusion in the Agenda of Ukrainian National Bar Association: It is crucial for the Ukrainian National Bar Association to systematically monitor the situation regarding the rights of lawyers continuing to work under occupation. This includes assessing the actions of lawyers violating legal ethics, cooperating with the occupier to the detriment of national interests and their clients.
2. Tools for Restoring the Bar in Liberated Territories: Both the Ukrainian National Bar Association and the state should develop tools and methods to restore the legal profession in liberated territories. Initiatives can include utilizing the UN Special Rapporteur on the Independence of Judges and Lawyers, who can monitor the situation and issue reports for consideration by the UN General Assembly. Ukraine can extend an invitation to this special rapporteur to examine the situation regarding the ability of lawyers to work amid armed conflict.
3. Utilizing Sanctions: The implementation of a sanctions list is another avenue. National sanctions can be imposed on those involved in persecuting our lawyers or those engaged in the so-called integration of Ukrainian lawyers into the Russian bar. Additionally, efforts can be made to seek international sanctions against such individuals.

After the de-occupation, how can we determine which lawyers collaborated with the FSB and which did not?

Daria Svyrydova: It is evident to me, and this should be an official stance enshrined in regulatory acts, that all lawyers who continued their work in the occupied territory should unequivocally be shielded from prosecution solely based on their decision to remain active.

An official position of Ukraine to this effect would provide reassurance to lawyers in Crimea, mitigating the fear and the chilling effect I previously mentioned. Beyond facing persecution from Russia, these lawyers are uncertain about Ukraine’s stance post-de-occupation, given that they were compelled to practice under Russian law.

Furthermore, Ukraine should establish a position on how the actions of individuals who collaborated with occupation structures will be individually assessed. This evaluation should consider the negative implications for the Ukrainian state, national security, potential human rights violations, and any war crimes resulting from a person’s activities.

What steps need to be taken at this moment?

The Bar Self-Government of Ukraine should conduct regular monitoring of rights violations against lawyers in occupied territories. It is essential to evaluate the actions of lawyers openly collaborating with occupiers, which may harm either the state of Ukraine or their clients. The consideration of whether they should be allowed to continue practicing law and retain the title of «lawyers of Ukraine» should be addressed promptly

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Recently, in the temporarily occupied Crimea, the Kyiv District «court» of Simferopol extended the pre-trial detention of the defendants from the «fifth Bakhchisaray group»—political prisoners Remzi Nimetulayev, Eldar Yakubov, Ametkhan Umerov, Abdulmejit Seytumerov, Ruslan Asanov, and Seydamet Mustafayev—until April 2024. This decision was communicated to Crimean Solidarity by the lawyer of the political prisoners, Emil Kurbedinov.

«On January 17, the «court», without acknowledging the defense’s well-founded evidence, prolonged the preventive measure—detention in a pre-trial detention center—until April 2024, citing ongoing investigations», –  he stated. Despite the defense presenting substantiated evidence of the political prisoners’ innocence, the «court» opted to extend their detention in the pre-trial detention center under the pretext of ongoing investigations.

The detention of these political prisoners occurred on the morning of August 24, 2023, when Russian security forces conducted searches in the homes of Crimean Tatars in Bakhchisarai and the Bakhchisarai district of Crimea. Subsequently, FSB officers detained six Crimean Tatars: Remzi Nimetulayev, Ruslan Asanov, Seydamet Mustafayev, Ametkhan Umerov, Eldar Yakubov, and Abdulmejit Seytumerov.

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In times of war, the program «Free our relatives» tells the stories of people, cities, villages, and entire regions that have been captured by Russian invaders. We discuss the war crimes committed by the Kremlin and its troops against the Ukrainian people.

The program is hosted by Igor Kotelianets and Anastasia Bagalika.

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The coverage of war crimes resulting from Russia’s war against Ukraine is made possible by the support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union.

Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government. The contents are the responsibility of the authors.