December 21, 2020 PRELIMINARY REPORT

Belarus: Preliminary Report on the Disbarment of Alexander Pylchenko

The Center finds that Mr. Pylchenko was disbarred in what appears to be a violation of national and international law standards, further undermining the rule of law in Belarus.

Alexander Pylchenko is a former Chair of the Minsk City Bar Association with thirty years of experience as a practicing attorney.

Alexander Pylchenko is a former Chair of the Minsk City Bar Association with thirty years of experience as a practicing attorney.

Photo Courtesy: Alexander Pylchenko

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EXECUTIVE SUMMARY

On October 16, 2020, Alexander Pylchenko was disbarred for speaking to the press about human rights violations in Belarus. Mr. Pylchenko is a former Chair of the Minsk City Bar Association with thirty years of experience as a practicing attorney. [1] Most recently, he has represented several opposition politicians and spoken publicly about Belarus’ obligations to prevent and investigate allegations of torture in detention, among other rule of law issues that have emerged in the wake of the most recent, disputed elections in Belarus. Mr. Pylchenko was disbarred by the Ministry of Justice Qualification Commission (Commission). On November 26th, 2020, the Moskovskiy District Court of Minsk city held a hearing on the disbarment after Pylchenko filed a formal complaint. At that hearing, it ordered the Ministry of Justice to respond to Pylchenko’s argument that he had not committed any offense sufficient to justify his disbarment. The court scheduled the next, substantive hearing in the matter for December 23, 2020.

In its decision to disbar him, the Commission relied exclusively upon its determination that Mr. Pylchenko’s public remarks regarding reported human rights abuses and threats to the rule of law in Belarus were a discredit to the legal profession. In fact, lawyers have a professional obligation to discuss and defend the rule of law, in addition to enjoying the same right to freedom of expression as all other citizens. This severe sanction against a highly regarded attorney is in violation of both the Belarusian Constitution and Belarus’s obligations under international law, as well as other fundamental principles safeguarding the independence of the legal profession and its role defending human rights and the rule of law within a democratic society.

BACKGROUND

The August 9, 2020 presidential elections in Belarus, where incumbent Lukashenko has won every election since 1994, were marred by significant irregularities and were widely condemned as being neither free nor fair. [2] In the wake of widespread and unprecedented protests of the election, there were sweeping arrests and numerous, credible reports that, in response to these protests, law enforcement agencies were employing unjustified violence and torture against civilians. [3]

Mr. Pylchenko is a well-known Belarusian attorney whose clients have included opposition politicians such as Victor Babariko, the potential presidential candidate who was arrested only weeks before the election. On August 14, Mr. Pylchenko was interviewed by local media station TUT.BY. During the interview, Mr. Pylchenko was asked what actions law enforcement officials and the judiciary should take in response to unjustified violence and torture against civilians by law enforcement agencies on a mass scale. [4] Mr. Pylchenko responded that the General Prosecutor should initiate criminal proceedings in relation to reports of torture of civilians in the Minsk detention center and investigate reports of violations of election law in the context of the August 9, 2020 presidential elections. [5] He stated that the Minister of Defense and Ministry of Internal Affairs should disarm and detain military units whose members engaged in beatings, and, together with the militia unit, keep them under protection (pending further review of their actions). [6] He also stated that the President of the Supreme Court should cancel orders that provided for the continued detention of alleged protesters in the Minsk detention center, where there were widespread reports of abusive treatment of detainees. [7] These statements would later form the basis of Mr. Pylchenko’s disbarment. [8]

On September 7, 2020, another well-known opposition figure, Maria Kolesnikova, who had been represented by Mr. Pylchenko, was detained without warrant and effectively disappeared for several days, during which time she was feared kidnapped, before state security confirmed it had detained her as part of an investigation into whether she had “caused harm to national security.” [9] On September 9, 2020, two lawyers who had also represented Mr. Babariko and Ms. Kolesnikova in election matters, Ilya Salei and Maxim Znak, were detained on the basis of charges that they had engaged in “actions aimed at causing harm to the national security of the Republic of Belarus.” [10]

On September 17, 2020, the Minsk City Bar sent Mr. Pylchenko a request for written clarifications regarding the interview he gave with TUT.BY and, after receiving these clarifications, did not take further action. [11]

On October 7, 2020, Mr. Pylchenko received a notice from the Ministry of Justice requesting that he attend an October 15, 2020 meeting of the Commission regarding the revocation of his license to practice law. [12] The Qualification Commission is an organ under the authority of the Ministry of Justice, and, as such, is not an independent body. [13] The Commission’s notice did not contain specific claims against Mr. Pylchenko. [14]

On October 9, 2020, Mr. Pylchenko reviewed the materials to be considered at the Commission’s October 15, 2020 meeting. [15] The materials consisted of: a print-out of the TUT.BY Interview; a print-out of a website page of the governmental TV channel ONT commenting on the TUT.BY Interview; written clarifications Mr. Pylchenko had sent to the Minsk City Bar regarding the TUT.BY Interview on September 17, 2020 in response to their request; and the October 7, 2020 notice mentioned above. [16] There was no explanation as to what aspects of the relevant interview might be under investigation or the nature of the specific claims against him. [17]

Although the Commission considered written statements Mr. Pylchenko submitted regarding his case, the Commission denied Mr. Pylchenko’s request that his counsel attend the October 15, 2020 meeting. [18] The only issue discussed during the meeting was the TUT.BY interview and Mr. Pylchenko’s commentary regarding the same issues in another interview that aired on the ONT government TV channel. [19] The Commission concluded that, in light of his purported “actions discrediting the Bar,” it would recommend the Ministry of Justice terminate Mr. Pylchenko’s license to practice law. [20]

The same day, the Commission issued an opinion indicating that Mr. Pylchenko’s statements “are incompetent, mislead the public about the powers of state authorities, and call for illegal action” and, therefore, constitute a violation of Belarusian rules on professional ethics. [21] The opinion does not contain a detailed justification for such a conclusion, nor does it identify what statements in the TUT.BY Interview were improper. [22]

Based on the Opinion of the Commission, on October 16, 2020, a board of the Ministry of Justice decided to terminate the license of Mr. Pylchenko with immediate effect. This decision did not give reasons. Mr. Pylchenko is currently unable to practice law. [23]

On November 6, 2020, Mr. Pylchenko filed a complaint in the Moskovskiy District Court of Minsk City to appeal the decision to disbar him. [24] Mr. Pylchenko stated in the complaint that the absence of any substantiation for the conclusions of the Commission testifies to their unfoundedness. [25] He maintained that, considering that the applicable legislation does not establish criteria for “actions discrediting the Bar,” the decision of the Ministry of Justice was arbitrary. [26] In the complaint, he also argued that the disbarment procedure conducted by the Ministry of Justice is against the principle of the independence of the legal profession and that revoking his law license as a result of his professional opinions violated his right to free expression. [27]

On November 26, 2020, the court held hearings regarding Mr. Pylchenko’s complaint. [28] The court ordered the Ministry of Justice to submit written explanations by December 10, 2020 setting out the rationale for the contested decision as well as its views on Mr. Pylchenko’s complaint. [29] The court also demanded the Ministry of Justice to provide explanations as to why Mr. Pylchenko’s request for his lawyers’ presence at the Commission meeting was rejected. The principal hearing in the trial is scheduled for December 23, 2020. [30]

ARBITRARY DISBARMENT: VIOLATIONS OF BELARUSIAN LAW

Mr. Pylchenko’s disbarment violated Belarusian law in that the application of the professional ethics provisions against Mr. Pylchenko was arbitrary and that the proceedings against him did not follow the requisite procedure.

Under Belarusian law, a lawyer may be disbarred only for a discrete set of reasons, including “committing offenses incompatible with the title of a lawyer[.]” [31] In this case, the Commission concluded that Mr. Pylchenko should be disbarred because he breached professional ethics by committing “acts that discredit the title of attorney and the Bar.” [32] The Commission concluded that his statements discredited the Bar because they were “incompetent, misled the public about the powers of state bodies and actually called for illegal actions” without any further elaboration nor any indication of which statements were at issue. [33] The Commission also did not address the fact that the Minsk City Bar, of which Mr. Pylchenko was a member, had examined his statements and did not initiate procedures to sanction him. [34] In the absence of any substantive legal explanation as to how Mr. Pylchenko’s statements discredited the Bar or were incompatible with the title of a lawyer, the disbarment was arbitrary.

RIGHT TO FREEDOM OF EXPRESSION

The Constitution of Belarus states: “Everyone is guaranteed freedom of opinion, belief, and their free expression.” [35] Belarus has also committed, through the International Covenant on Civil and Political Rights (ICCPR), ratified by Belarus in 1973, to respect individuals’ rights “to freedom of expression [including] freedom to seek, receive and impart information and ideas of all kinds” and only to restrict them where such restrictions are provided by law and necessary for the protection of the rights or reputations of others, national security or of public order (ordre public), or public health or morals. [36] Moreover, the UN Basic Principles on the Role of Lawyers (UN Basic Principles) emphasize that “lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.” [37]

Mr. Pylchenko’s disbarment is a severe sanction that was, according to the Ministry of Justice, based solely on statements he made in an interview regarding the necessity of certain legal procedures to uphold the rule of law. Neither the Commission nor the Ministry of Justice provided any substantive legal explanation as to how Mr. Pylchenko’s statements ran afoul of professional ethics, nor did they establish that the restriction of Mr. Pylchenko’s rights was necessary for the protection of the rights or reputations of others, national security, public order, public health or morals. [38] As such, the disbarment and loss of his livelihood as penalty for discussing threats to the rule of law in Belarus violated Mr. Pylchenko’s right to freedom of expression.

Mr. Pylchenko’s disbarment violated Belarusian law in that the application of the professional ethics provisions against Mr. Pylchenko was arbitrary and that the proceedings against him did not follow the requisite procedure.

RIGHT TO PRACTICE WITHOUT INTIMIDATION, HINDRANCE, HARASSMENT, OR IMPROPER INTERFERENCE

The UN Basic Principles require that governments ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.” The Principles further require that lawyers “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.” [39]

Further, the first principle of the International Principles on Conduct for the Legal Profession issued by the International Bar Association (“IBA”), is that “[a] lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation.” [40] The IBA justifies this on the basis that [i]t is indispensable to the administration of justice and the operation of the Rule of Law that a lawyer act for the client in a professional capacity free from direction, control or interference. If a lawyer is not guaranteed independence and is subject to interference from others, especially those in power, it will be difficult for the lawyer to fully to protect clients. Therefore, the guarantee of a lawyer’s independence is an essential requirement for the protection of citizens’ rights in a democratic society. [41]

These principles are reflected in Belarus’s Advocacy Law, which provides that “[a] lawyer is independent in his activities” [42] and that “[i]t is prohibited to interfere with the professional activities of a lawyer carried out in accordance with the law, or to obstruct this activity in any way.” [43]

Mr. Pylchenko’s disbarment is a severe sanction based solely on his expression of an opinion regarding the necessity of certain legal procedures to uphold the rule of law. Should his disbarment also have been motivated by his representation of Mr. Babariko and Ms. Kolesnikova, that would constitute intimidation, harassment, and improper interference in breach of the principles above.

RIGHT TO DISCIPLINARY ACTION AND SANCTIONS IN ACCORDANCE WITH LAW

The UN Basic Principles require that all disciplinary proceedings against lawyers shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession. They further require that such proceedings be brought before an independent body. [44]

The provision on licensing that the Commission used to initiate proceedings against Mr. Pylchenko was inappropriately applied in this case. The applicable procedure for disbarment is defined in the Advocacy Law, which establishes that the relevant Regional Bar is the institution to recommend and oversee any disbarment procedures. [45] It appears, therefore, that, under the applicable law, the Minsk City Bar was the only body competent to recommend any disciplinary action against Mr. Pylchenko. [46] Nonetheless, the Commission proceeded to disbar Mr. Pylchenko, [47] in violation of Belarusian law, international standards, and Mr. Pylchenko’s right to an independent tribunal.

RIGHT TO COUNSEL

The ICCPR guarantees the right to counsel, including that of “everyone charged with a criminal offence […] to communicate with counsel of his own choosing.” [48] The Belarusian constitution also provides that anyone has a right to use lawyers’ assistance at any time. [49]

It appears likely that Mr. Pylchenko’s disbarment was, at least in part, related to his representation of Mr. Babariko and Ms. Kolesnikova. This fits a documented pattern of intimidation of lawyers representing opposition figures in Belarus since the recent elections (see above). The disbarment has immediately denied Mr. Babariko and Ms. Kolesnikova’s right to counsel of their choice. It has also further raised the likelihood that other lawyers will refuse to take up such cases in light of the threat to their livelihoods should they proceed, raising concerns for the right to effective counsel for any defendant in a politically sensitive case in Belarus.

CONCLUSION

Mr. Pylchenko appears to have been punished for representing opposition politicians and seeking to uphold the integrity of the democratic process by speaking out against election irregularities and the torture of protestors. Instead of praising him for upholding the highest ideals of the legal profession and the Constitution, he was disbarred in what appears to be a violation of national and international law and standards, further undermining the rule of law in Belarus. The disbarment may also constitute a violation of Mr. Pylchenko’s basic human rights, the rights of his clients, and fundamental, long-standing principles that safeguard the independence of the legal profession.

[1] This report was prepared by staff attorneys and pro-bono experts of the American Bar Association Center for Human Rights and reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this report should be considered as legal advice in a specific case.

[2] Seee.g., Organization for Security and Cooperation in Europe (OSCE), Report under the Moscow Mechanism on Alleged Human Rights Violations related to the Presidential Elections of 9 August 2020 in Belarus, No. 358/2020, Nov. 5, 2020 at https://www.osce.org/files/f/documents/2/b/469539.pdf.

[3] Tanya Lokshina, People are Seeking Change in Belarus. Instead, They’re Being Mercilessly Beaten and Detained, Human Rights Watch (August 14, 2020), https://www.hrw.org/news/2020/08/14/people-are-seeking-change-belarus-instead-theyre-being-mercilessly-beaten-and; BBC, Belarus election: 'Widespread torture' inflicted on jailed protesters (August 14, 2020), https://www.bbc.com/news/world-europe-53773534; Tanya Lokshina, A Carpet of Bodies: One Woman’s Ordeal in Detention in Belarus, Human Rights Watch (August 18, 2020), https://www.hrw.org/news/2020/08/18/carpet-bodies-one-womans-ordeal-detention-belarus; Ivan Nechepurenko and Anton Troianovski, Mass Beatings and Detentions in Belarus as President Clings to Power, New York Times (August 13, 2020), https://www.nytimes.com/2020/08/13/world/europe/beatings-detentions-belarus-lukashenko.html.

[4] Elena Tolkacheva, Lawyer: Prosecutor General must remove from office the head of the Ministry of Internal Affairs, his deputies and the head of the IVS, TUT.BY (August 14, 2020), https://news.tut.by/economics/696651.html.

[5] Id.

[6] Id.

[7] Id.

[8] See Opinion of the Qualification Commission for Legal Practice in the Republic of Belarus (October 15, 2020), No.8 [hereinafter Qualification Commission Opinion].

[9] See Matthew Holroyd, Abducted Kolesnikova 'told she was leaving Belarus dead or alive', Euronews (Sept. 10, 2020), https://www.euronews.com/2020/09/10/abducted-kolesnikova-told-she-was-leaving-belarus-dead-or-alive-.

[10] Euronews, Opposition lawyers Maxim Znak and Ilya Salei reportedly detained in Belarus (Sept. 9, 2020), https://www.euronews.com/2020/09/09/maxim-znak-another-opposition-activist-reportedly-detained-in-belarus.

[11] Aleksandr Pylchenko, Notes on the October 15, 2020 Meeting of the Qualification Commission (on file with author) [herein after Pylchenko Notes].

[12] Id.

[13] For more regarding the role and lack of independence of the Qualification Commission, see Int’l Federation for Human Rights et al., Belarus: Control over Lawyers Threatens Human Rights (September 12, 2018), https://www.osce.org/files/f/documents/3/d/393788_1.pdf.

[14] Pylchenko Notes, supra note 11.

[15] Id.

[16] Id.

[17] Id.

[18] Id.; ABA Trial Monitor notes from November 26, 2020 hearing [hereinafter ABA Notes].

[19] Id.

[20] Qualification Commission Opinion, supra note 8.

[21] Id.

[22] See idSee also Complaint of Aleksandr Pylchenko Appealing the Decision of the Ministry of Justice of October 16, 2020 (November 11, 2020) [hereinafter “Pylchenko Complaint”].

[23] Letter from Ministry of Justice to Mr. Pylchenko on the Termination of Mr. Pylchenko’s License (October 16, 2020). See also Belarusian Telegraph Agency (“БелТА”), Lawyers Levanchuk and Pylchenko lost their licenses due to defamatory actions - Ministry of Justice (15 October 2020), https://www.belta.by/society/view/advokaty-levanchuk-i-pylchenko-lishilis-litsenzii-iz-za-diskreditirujuschih-dejstvij-minjust-411183-2020/.

[24] Pylchenko Complaint, supra note 22.

[25] Id.

[26] Id.

[27] Id.

[28] See ABA Notes, supra note 18.

[29] Id.

[30] Id.

[31] Law of the Republic of Belarus On the Bar and Advocate Activity in the Republic of Belarus 334-З dated 30.12.2011, Article 24(2), https://kodeksy-by.com/zakon_rb_ob_advokature.htm [hereinafter Advocacy Law].

[32] Qualification Commission Opinion, supra note 8.

[33] Pylchenko Complaint, supra note 22.

[34] Id.

[35] Belarus Const. art. 33.

[36] International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, U.N. Doc. a/6316, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR] art. 19.

[37] UN Basic Principles on the Role of Lawyers, adopted by the 8th U.N. Cong. on the Prevention of Crime and the Treatment of Offenders (Sept. 7, 1990) [hereinafter UN Basic Principles], principle 23.

[38] See Pylchenko Complaint, supra note 22.

[39] UN Basic Principles, supra note 37, principle 16.

[40] IBA, International Principles on Conduct for the Legal Profession, approved on 25 May 2019 by the Council of the International Bar Association, 1.1 General Principle.

[41] Id., 1.2 Explanatory Note.

[42] Advocacy Law, supra note 31, art. 16(1).

[43] Id., art. 16(2)

[44] UN Basic Principles, supra note 37, principles 28 and 29.

[45] Advocacy Law, supra note 31, art. 22(4).

[46] Id.; UN Basic Principles, supra note 37, principle 28. See also Pylchenko Notes, supra note 11.

[47] Qualification Commission Opinion, supra note 8. See also Pylchenko Complaint, supra note 22.

[48] ICCPR, supra note 36, art. 14.

[49] Belarus Const. art. 62.