A year without Yury Shmidt

posted 27 Jan 2014, 07:35 by Rights in Russia   [ updated 27 Jan 2014, 07:53 ]
16 January 2014

Source: HRO.org (info
Yury Shmidt left this world one year ago at the age of 76. He was a lawyer, a human rights activist and a man whom people called a “fearless and selfless warrior of truth". 

Yury Shmidt. Extracts from his speeches.

15 August 2012, before the sentencing of the Pussy Riot members

“I believe that this is a huge discredit to our authorities. I believe that this is yet another step on the path towards turning our country into a clerical state instead of a secular state. I believe that this is an injury which Russia is inflicting on itself in an act of self-mutilation. I do not condone what the girls did in the cathedral at all, but I am well aware that a similar stunt elsewhere would not have attracted such attention. The very point they wanted to make was that the Church has already become the ideological wing of the President’s administration and is gaining ever more power, not only in ideological terms but also in many other spheres of life.

Nevertheless, I have to say that I cannot applaud what they did or the way in which it was organised. I completely agree with those who believe that they could have been given some sort of symbolic punishment, or perhaps not even symbolic, maybe even a short prison term. I won’t bother commenting on the fact that they have already been held in prison for six months, and that the public prosecutor has called for them to be given three-year sentences – words fail me! 

Yury Markovich Shmidt. Photograph by Pavel Bednyakov

It is outrageous, cruel, inhumane and unchristian, and it is an absolute disgrace in every respect. I can only hope that they will not be handed down such a sentence of such severity, since I am quite sure that they will be found guilty – that much is clear already.

Cases such as these are not brought with a view to acquitting the defendants, because an acquittal would mean them immediately walking free from the courtroom; it would mean an apology, compensation and all the rest. It would be the kind of failure which our authorities will not of course allow. My only hope is that the sentences are lenient.

I can say with 100% certainty that they will not be given a sentence equal to the amount of time they have already spent in detention, because that would again mean that they would immediately walk free from the courtroom. Our authorities do not want them to be carried out of the courtroom held aloft on the hands of their supporters, or for another stunt to be pulled which would attract public attention and be broadcast around the entire world, because of course there will be huge numbers of journalists present.

I would, however, like to believe that the sentence handed down to them will be something less than a year, with the possibility of early release on parole. I don’t think that we can hope for anything better.

It’s not something that will happen tomorrow or in the very near future, but I am aware that unless we place very strict limits on the Church’s actions and capabilities, limits which are founded on the Constitution and the laws of our country, it will attempt to acquire ever greater privileges for itself. To date there has been no clear evidence that the political authorities are trying to restrict the Church to the role it should play within a civilised society.”

Photo gallery in memory of Yury Markovich Shmidt. To see the photos online, click HERE

On the initiative by the Russian MP Klintsevich to bring back the death penalty 

"Russia is a member of the Council of Europe. When it joined the Council of Europe, it ratified the Convention and the organisation’s other founding tenets, including the prohibition on use of the death penalty. I cannot say that I am surprised that this issue has reared its head in respect of certain spheres of life and certain crimes. During the Soviet era, in Stalin’s day, the death penalty was abolished for a while, but it was subsequently reintroduced. During the reign of Nikita Sergeyevich Khrushchev the death penalty could be handed down for very large-scale theft, for receiving particularly large bribes or for breaking the rules on currency dealing. All restraint was abandoned, in other words; there were probably 15 or so articles in the Criminal Code under which the death penalty could be used, and it was indeed used fairly frequently. 

I do not believe that this law will be adopted or that the Constitution will be amended. 

If this were to happen, however, Russia would have to bid farewell to European civilisation, because not one of Europe’s organisations – neither the Council of Europe nor the OSCE – would allow such a thing. Russia is a fully fledged member of these organisations, but it would of course be immediately ejected from their ranks as a result. I cannot say whether that would be of any benefit to our country.

I myself am categorically opposed to the death penalty, and I am absolutely sure that forms of punishment such as life imprisonment are severe enough alternatives. I entirely agree that there are certain crimes which mean that those who have committed them can never return to normal society.

Yet I believe that the re-introduction of the death penalty in modern, 21st-century Russia would be a step back to Medieval times.

I will be very interested to see whether Klintsevich’s initiative will in fact be examined and what position will be taken in this respect by the Russian Orthodox Church.”

21 June 2011, in Prague, following a speech before the Czech Senate

"It is unfortunately the case that the prevailing mood in Europe today is mainly inspired by concepts such as Realpolitik and political correctness. That is why the leaders of European countries, and the leaders of the West in general, choose to talk to Russia as though it were a normal democratic country, in the belief that it represents a continuation of sorts of the country as it was in the late Gorbachev and Yeltsin eras.

Yet this is very far from the truth. Russia has been completely transformed over the past 10 years, and it is now home to an authoritarian regime which suppresses all fundamental rights and human liberties – I could provide a very long list at this point.

Virtually all of the freedoms which exist and can be exercised according to international agreements are suppressed in Russia to a greater or lesser extent.

Of course the situation is influenced by considerations such as oil and gas, the price of oil and business interests. As Lenin keenly observed, “We shall force the West to sell us the rope with which we shall hang it”. All that matters is that the price is right.

In my opinion, the West is being extremely short-sighted. At some point – and I hope I’m not wrong – it will see the error of its ways, because a new monster is emerging right under its nose, one which can still call itself authoritarian for the time being, but may well descend into totalitarianism in the very near future, a country which has closed itself off to the rest of the world and is starting to pose a threat to its neighbours.

This last point is once which has already been proven.

Mikhail Borisovich hates questions or discussions about his private life, and he categorically refuses to answer questions about how he is feeling. Even we, his lawyers, do not risk asking anything about these topics, and he has specifically requested that we do not share his thoughts and ideas on this subject with anybody we know. I am forced to choose the lesser of two evils, however, and so my solution will be to answer your question without saying a word more than is necessary.

Most importantly, and if you will forgive me, Khodorkovsky is a brilliant man. At my age you don’t use a word like that lightly, particularly not after meeting the people I have met. The first genius I knew was Iosif Brodsky, and I believe that I now know another.

Others have come close, but not close enough. Khodorkovsky is an exceptionally organised and disciplined man. He finds time for everything: time to prepare his defence – and he puts an enormous amount of work into doing so – time to read vast quantities of literature, and time to read the 100 or so periodicals to which I believe he subscribes since he does not have access to the Internet.

He does follow events on the Internet, however, because we tell him every day what people are writing about on blogs and what is being written by the various publications and radio stations which he cannot read for himself.

Maybe you are right that he is unable to appreciate the full emotional impact of what is going on, in spite of his role as a passive spectator of the events in our country and the world at large, and maybe this is why you can see certain shortcomings in his work.

At the same time, however, he has a great deal to say which is extremely interesting, and he makes many extremely interesting predictions, many of which have already come true. I am sad to say that I believe that some of his other predictions will also come true.

In particular, he is likely to be right about what awaits our country if the principles of democracy do not prevail in the very near future and if no one roots out the corruption which has spread like a canker through the entire hierarchy of power built by Putin, from the very bottom to the very top.

A general point I would like to make is that you can hold extraordinarily interesting conversations with Mikhail Borisovich, but they are also extraordinarily difficult, because he insists that his partners in conversation remain at his level. You have to reach up to his level and be alert the whole time, and strain your powers of concentration to their utmost if only to match his capacities in some tiny way.

There is one thing that society must do before all else, and that is to wake up. I can’t remember who first thought up the remarkable saying, “society has chosen between sausages and freedom in favour of sausages,” but Valery Novodvorksy said that, “whoever chooses on behalf of sausages will soon find out that he has sausages as well as freedom.”

Russian society needs to awake from its apathetic torpor and lethargy and turn a sober and attentive gaze on its surroundings. It needs to say what it really thinks of the powers which have ascended from nowhere, as though from some underworld and overturned a huge nation of many peoples, and it needs to tell these powers what they really deserve.”

31 December 2010, following the sentencing of Mikhail Khodorkovsky and Platon Lebedev

"My dear journalists, sometimes I can be brusque when you ask me for comments. Yesterday in particular, after the sentences were handed down, and when I was not in the best of spirits, as you might say, I could not tell you what I needed to tell you, and what Mikhail Borisovich Khodorkovsky had asked me to tell you.

We are very grateful that so many of you, including journalists from the West, gathered outside the courtroom, despite the fact that it is your Christmas holiday. We greatly value your support and we would like to extend our sincere thanks to you. You can always count on our comments, on our good will and on our gratitude.

If a trial is a matter of public interest, it is the job of the press to provide an insight into what is going on, and journalists are obliged to provide an insight which corresponds to their opinion of events. It is quite astonishing to hear allegations about media influence over the court when the highest-ranking of officials, including Mr Putin himself, have not shied away from exerting a direct influence over the court on many occasions, or from voicing their opinions on whether or not a defendant is guilty before a sentence has been handed down and in cases which should not even have been brought before a court.

We need mention only the recent 4.5-hour interview (or monologue) from Mr Putin to the nation, or rather the “special nation”, to give it its usual moniker. At the very moment when the judge had retired to consider his decision, Putin was pontificating about the many billions which Khodorkovsky and Lebedev had stolen and about the murders for which they were allegedly responsible. And the press secretary of the city court talks about media influence!

There was a joke told back in Soviet times which went like this; “How do you fit an elephant into a newspaper?” The answer was that you chose a newspaper containing a speech by Nikita Sergeyevich Khrushchev. Nowadays you could wrap an elephant in a newspaper containing an article by Mr Zorkin. He is already laying the groundwork to ensure that the Russian public agrees to the fact that decisions by the European Court of Human Rights need not be carried out.

An announcement along the following lines would be a brilliant use of Mr Medvedev’s discretionary powers as President of the Russian Federation; “I am aware that Mr Putin, appointed by myself and approved by the State Duma as Prime Minister, allowed himself the liberty of commenting on the Khodorkovsky and Lebedev case a few days ago, even though this is absolutely forbidden for a man in his position, and cannot be interpreted as anything other than an attempt to influence the court, which is prohibited under Article 294 of the Criminal Code ‘Attempts to influence a court and interfere in the passage of justice’, and so I am stripping Mr Putin of his title on the grounds that he has not fulfilled the duties assigned to him and has abused his authority.”

There is and should be nothing else to say about this case. He would have proved himself quite equal to the occasion, but as you know this was not what happened...”

Prepared by Maryana Torocheshnikova, Radio Svoboda

Arseny Roginsky: on Yury Shmidt

Speech given in 2006 in Berlin upon the awarding to Yu. M. Shmidt of the Petra Kelly prize.

Dear friends,

I have enjoyed a decades-long friendship with Yury Markovich Shmidt. 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. 
Yury Shmidt and Arseny Roginsky

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 Shmidt.

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 Shmidt.

For example, the KGB had certainly not forgotten Shmidt'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 Shmidt, 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 Shmidt was then 47, having lost 26 years of his life to the Gulag.

I, along with a whole group of my peers, met Mark Shmidt 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 Shmidt, 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"? Shmidt'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 Shmidt.

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 Shmidt 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 Shmidt.

It was then in the mid-seventies that Shmidt'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 Shmidt for political cases. Of course, Shmidt 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.

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.

Shmidt 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 Shmidt 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 Shmidt 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. 

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

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 Shmidt 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 Shmidt 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 Shmidt'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 Shmidt 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 Shmidt 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 Shmidt'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 Shmidt to speak. Shmidt 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 Shmidt.

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 Shmidt 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, Shmidt has also shown extraordinary personal courage.

Dear friends, the awarding of the Petra Kelly Prize to Yury Shmidt 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 Society