Arseny Roginsky: On Yury Schmidt

15 January 2013 

Source: (info
This speech was given by Arseny Roginsky in Berlin in 2006 at the ceremony awarding Yury Schmidt the Petra Kelly Prize.

Dear friends, 

I have enjoyed a decades-long friendship with Yury Markovich Schmidt. It's a pleasure to talk about my old friend, but it’s also difficult. As an historian it would be easier for me to start off with something less personal, such as the fate and fortunes of Russia's legal profession.

In Russia, the institution of the modern bar emerged only relatively recently, a mere 150 years ago, in the period of reform of the 1860s. One of the most important reforms of that time was the reform of the judicial system. This was the point at which the principles of transparency and the adversarial nature of the judicial process, the institution of trial by jury, and professional bodies like the corporation of sworn attorneys - as lawyers were known back then - first began to operate on Russian soil. Russia was rapidly becoming a European country and judicial reform was the greatest attempt in the country's history to introduce Russian society and the state to European concepts of law. Of course, there were frustrations, failures and retreats; there were long-term relapses into legal barbarism and to the practice of administrative, extrajudicial reprisals against the regime's political opponents. Yet despite all this, by the beginning of the 20th century a new judicial system had firmly taken root in Russian daily life. Alongside this, the bar came to be a familiar and comprehensible institution.

These fifty-some years are rightfully known as the golden age of the Russian bar. Contemporary pillars of the legal profession – lawyers whose court arguments were regularly printed in the country’s newspapers – naturally played an enormous role in establishing this new community. The Russian bar, meanwhile, began functioning on a mass scale. However, out of all jurists it was lawyers, together with doctors, teachers and engineers and, of course, literary men, who became one of the fundamental components of the social estate commonly known as the Russian intelligentsia.

We all know what happened next. While the Bolsheviks did not formally destroy the system of independent legal defence, they reduced its role in the judicial process to practically nil. Among all those involved in the Russian justice system, lawyers were the corporation with the fewest rights and the least power. It was understood that a prosecutor brought charges on behalf of the state and a judge ruled on behalf of the state. But on whose behalf did a lawyer work? His own? On the law’s behalf? Or perhaps in the name of justice, in the name of humanity and mercy? All of these categories were declared insignificant in comparison with the all-encompassing "state interest". The powerlessness of lawyers was a direct consequence of the utter remoteness of this class of jurists from the single source of all power and authority in the country.

However, this isolation had a flip side, its own unique advantage. Lawyers, unlike judges and prosecutors, maintained a weak semblance of independence. They were not considered state servants, and lawyers' collegiums were seen not as non-state institutions but rather as private guilds akin to artistic unions, and to a certain extent, they were. Even under Soviet rule, lawyer communities maintained an intangible spirit of independence and free thinking that had been completely wiped out in other areas of the legal profession. Soviet lawyers never formed part of the ruling elite like prosecutors and judges, but then no one would have thought of a judge or prosecutor as belonging to the intelligentsia. Lawyers, however, remained firm members. The new generations of the Soviet intelligentsia, which were a very poor representation of the period when Russia had almost become a European country, would eye lawyers with at once a dim feeling of recognition and ancestral, genetic reminiscence. The word "lawyer" itself is reminiscent of something almost forgotten but very good, something associated with free thinking, fairness, the law and humanism... Most important is the lingering feeling of belonging to traditions of the legal community.

Of course, none of this would have been possible without the few remaining "torch bearers" of this community. Initially they were sworn attorneys left over from before the revolution, then their students, then their students' students. And when the period of mass murders ended, when part of the intelligentsia - the utterly new, Soviet intelligentsia, often completely disconnected from its older, pre-revolutionary counterpart - once again acquired a taste for freedom, individuals emerged among the country's community of lawyers who ventured to revive one of the main traditions of the Russian bar: to be always on the side of freedom. From this group we can name Boris Zolotukhin, Dina Kaminskaya, Sofia Kallistratova and several other truly distinguished lawyers of the last third of the 20th century, who fearlessly took on the daunting role of defender at political trials and accepted all of the consequences of that choice with dignity, ranging from accepting the impossibility of victory to the professional persecution and political repression which frequently fell upon them as well as their clients.

This cohort of "students' students" also included Yury Markovich Schmidt.

It's true that he did not act as a defender at political trials in the 1960s and 70s, or at the start of the 1980s: to put it bluntly, he wasn't allowed near these cases, although he tried to win the right to defend dissidents like Sergei Kovalev and Anatoly (Natan) Shcharansky. The State Security Committee (KGB) preferred to pre-emptively preclude the possibility of a new dissident lawyer emerging onto the public stage - the KGB knew perfectly well what they could expect from the lawyer Yury Schmidt.

For example, the KGB had certainly not forgotten Schmidt's background. His father, Mark Rakhmielevich Levin, had been a political prisoner for many years. Not an innocent victim of the terror, but a political prisoner in the true sense of the term. Coming from a family of social democrats, from a young age he worked to oppose the Bolsheviks, was first arrested at the end of the 1920s and from then on spent his life in an uninterrupted series of exiles and camps. Yury's mother, Natalya Karlovna Schmidt, had also been a political exile. In the mid-1930s the future lawyer's parents met in a village in Siberia. Fortunately, his mother was allowed to return to Leningrad relatively soon. It was there that Yury was born in May 1937 - two weeks later his father was arrested while still in exile. Father and son first met in 1956 when Mark Schmidt was then 47, having lost 26 years of his life to the Gulag.

I, along with a whole group of my peers, met Mark Schmidt at the end of the 1960s and instantly fell under the charm of his mind, his wit and his transparent and harsh political analysis of current events. He became one of our most important teachers. Yury was fortunate to be the son of such a remarkable man and to have the chance to talk with him on a daily basis. His father was surely one of his strongest influences.

Towards the end of the seventies, Yury Schmidt, having graduated from university in 1960, was already seen as one of the most respected Leningrad lawyers for general criminal cases. How did he achieve this recognition in a country where the dogma of "better locked up than not" was firmly entrenched and where the word "accused" was essentially the same as "convicted"? Schmidt's reputation was based exclusively on the quality of his work and on his personal combination of professionalism and unmissable yet quiet fearlessness. The young lawyer was known not so much for his trenchant speeches as his meticulousness and his fastidious attention to detail which allowed him to skilfully call upon any nuance in a case and go up against investigators, prosecutors or judges without trepidation. Moreover, his willingness to assert his client's rights until all avenues had been exhausted was well-known. Although it was almost impossible to achieve a full acquittal, even if the defendant was actually innocent or when the evidence of their guilt was clearly lacking, Yury was able to facilitate - and did so successfully on more than a few occasions - a lighter, fairer sentence. The trouble this style of defence brought down on the lawyer himself (and there was plenty of it), never stopped Yury Schmidt.

Yet towards the mid-seventies he gained another sort of fame: offering consultative legal assistance. He did this always without gain for himself and often in secret, which only served to make his help more valuable and vital for the many, many people he helped. Everyone from our relatively narrow circle of Leningrad dissidents and numerous emigration activists from the USSR (German as well as Jewish), as well as people culturally close to us, always turned to Schmidt in difficult situations dealing with the authorities. This group included the wonderful poet and future Nobel laureate Joseph Brodsky, who also received significant legal assistance from Schmidt.

It was then in the mid-seventies that Schmidt's article on the ethics of a lawyer's conduct in political trials emerged in samizdat and was widely distributed. The motivation for the article was the ever more widespread practice of the time in which lawyers "cleared" for political trials convinced their clients (at the secret insistence of the KGB) of the necessity of pleading guilty and making a public confession (preferably in the form of a newspaper article), promising them a significantly lighter punishment in exchange - exile or a suspended sentence instead of a camp. The article demonstrated how amoral and professionally bankrupt the practice was, given that the defendants in these cases were entirely innocent.

I believe that both his systematic assistance for people in conflict with the authorities and likely the publication of this article as well, although it was written under a pseudonym, were far from being a secret from the KGB. As such, the State Security Committee had good reason not to clear Schmidt for political cases. Of course, Schmidt and his family, like the majority in our circle, did not escape the searches, interrogations and "chats" with the KGB, although thankfully without any consequences. 

Yury Schmidt and Vladimir Bukovsky Memorial Research Centre, Saint Petersburg 2007. Photo by I. Flige 

As regards his exclusion from defending people charged under political articles of the Criminal Code, twenty years later Yury got even with the Committee after he won a ruling from the Constitutional Court of the Russian Federation acknowledging the illegality of the system of “clearing” lawyers for trial.

Schmidt had the chance to fully realize his civic temperament as a lawyer only in the perestroika years, immediately becoming famous throughout the Soviet Union. This is no exaggeration: not just across Russia, but across the whole Union. Both before and after the collapse of the USSR, he defended people prosecuted for political reasons in many countries in the post-Soviet space. A defining feature of his position in these cases was his refusal to limit his defence to strictly juridical arguments, plainly and publicly unearthing the political subtext of any case. When fighting for his clients' rights, Yury Schmidt wasn't afraid to go beyond the framework of procedural actions; he treated newspaper articles and press conferences, where he explained the significance and essence of an ongoing case to the wider public, as just as much a part of his work as his court appearances. For this reason, Yury Schmidt was more than simply a remarkable lawyer, he was also an outstanding civic activist and the founder and leader of the first independent public lawyers association - the Russian Committee of Lawyers in Defence of Human Rights. It’s a very important organisation, primarily because it is the only organisation of its kind in Russia, and I understand only too well why Yury took up this particular yoke. Unlike many of his colleagues, Yury is not indifferent to the historical fate of his profession and is concerned with restoring the humanist and civic traditions of the Russian bar against a backdrop of total commercialisation of legal practice. In particular, Yury wants to revive the tradition of providing free assistance to those charged in political cases.

I will not go into detail here about all of the major political trials Yury has taken part in; I'll only name the most important ones.

1989 – The case of Arkady Manucharov, one of the leaders of the Nargorno-Karabakh Armenians

1991 – The case of Torez Kulumbekov, where the defendant was accused by the Georgian authorities of Ossetian separatism and provoking mass disturbances.

1993 – The case of Abdumannop Pulatov, an Uzbek dissident who was a political émigré in Russia.

1996 – Assisting the civil action brought by Afghan refugees against Russia's Federal Migration Service.

1997 – The case of Valery Miroshnichenko, a war veteran from Estonia who was unlawfully deported by the Estonian government, which constituted an important episode in the struggle of Estonia's Russian-speaking population against the encroachment on their civil rights.

Finally, the two most important cases to which Yury Schmidt has dedicated the last few years of his legal and human rights career.

This is, firstly, the case of navy officer Aleksandr Nikitin, who was arrested under the astoundingly absurd charge of spying for international environmental organisations and divulging important state secrets. Until recently this had been the most famous case which Schmidt had participated in and where - after five years' of work - he came out with a victory.

And finally, the case he is working on today – the defence of Mikhail Khodorkovsky. I want to go into a little more detail on this topic as this case has demanded not only all of Schmidt's professional talents, but all of his civic courage, and so is fully comparable with the demands put on lawyers who defended dissidents in the Soviet era.

The issue here isn't the judicial question of Mikhail Khodorkovsky's innocence or guilt, nor is it the question of whether this is a criminal case or a political one. It isn't even which of the numerous hypotheses surrounding the true undercurrent of the case are true. What’s at issue here is that the authorities are expressing an blatantly biased and hostile interest, verging on mania, in Khodorkovsky and those who have become involved in his plight; the severe sentences handed down to him and his close colleagues, and the destruction of both the company he once owned and even the non-profit organisation he established and supported; and the sense that there is a systematic and planned "clean-up" of everything connected with this man's name. We can guess whether this seemingly planned and pedantic destruction was a feature of the whole operation calculated in advance, or whether there are some personal grudges and ambitions at play here. In any case, the fact that Schmidt has participated in this case and has taken up a principled and uncompromising position in it is something that he simply couldn't be allowed to get away with. And, of course, he didn't: there were attempts to run him out of the lawyers' union as early as autumn 2005. It hasn't worked so far, but we'll see what happens.

Yury Schmidt has loudly declared to the whole world that his client is innocent and that the case against him is a political lynching. This is not a legal gimmick regularly rolled out in a client's defence. I know Yury well: if he didn’t have full confidence in his own words, he would have found other ways and other arguments to help his client. Consequently, his position in this case is entirely dictated by his professional duty and his own civic temperament.

In general, of all the traditions of the Russian bar, it is this inseparability of a lawyer’s civic and professional duty which has been best displayed in Yury Schmidt's work, as well as in the Russian Committee of Lawyers in Defence of Human Rights which he heads. His profession as a lawyer is inseparable from his role as a civic activist; this may be a cliché in the West, but it is extremely rare in Russia. As a practising lawyer, Yury defends the rights of specific individuals, while as a civic activist he defends freedom itself.

I can recall the turbulent August days of 1991 – the putsch. The country's future was being decided. In Leningrad they waited for the tanks to roll in on the orders of the coup’s leaders. Tens of thousands of people assembled on Palace Square. The city's mayor Anatoly Sobchak called upon Yury Schmidt to speak. Schmidt gave a passionate speech on the topic of freedom, ending it with these words: "As a jurist I can declare this: any resistance to the actions of the putschists will be lawful. Anyone who assists them will be complicit in a crime and will not be able to offer the excuse that he was following orders, as these orders are criminal. The defeat of the junta is inevitable. [...] Long live freedom!"

It was probably no accident that when they started publishing the "Freedom Lawyers" series at the end of the 1990s the first book in the series was on Yury Schmidt.

There's one more thing I must say here. You know that Nazism is rearing its head in Russia and in our own city especially. Murders follow murders and many people suspect that these are not the unrelated acts of skinhead loners, but that they are supported by organised underground groups. Yury Schmidt is famous in Russia for being, among other things, a staunch and relentless antifascist and as one of the initiators and developers of new legal tools for the fight against Nazism. Today Petersburg is completely unsafe, and as such, in addition to his civic courage, Schmidt has also shown extraordinary personal courage.

Dear friends,

the awarding of the Petra Kelly Prize to Yury Schmidt is wonderful and fitting. It recognises Yury's services and offers encouragement to all of us in these complicated times. It is a statement of our unity, our community of many traditions and principal concepts. The name Petra Kelly also represents the concept and tradition which she helped to found: the most important part of this tradition is the recognition of freedom as a fundamental value.

Arseny Roginsky is chair of the board of the International Memorial Soicety