The Ministry of Justice plans to empower itself with the right through court to deprive lawyers of their status and control the relationship of defenders with principals. Now the self-government of the chambers of lawyers protects from such interference, guarantees of attorney secrecy
Yulia Suntsova
More than 800 lawyers signed a public appeal to protect the Russian legal profession from pressure from the Ministry of Justice. This is the reaction of the professional community to the upcoming amendments to the federal law "On advocacy and the legal profession of the Russian Federation", developed by the relevant ministry.
The amendment of the law actually turns the legal profession into an appendage of state bodies, according to the authors of the appeal.
“The volume of the amendments is substantial. They fundamentally change the status of the Bar and the principles of its functioning as an independent institution. The purpose of the bill is to continue the course of eliminating the legal profession as an independent institution for the protection of human rights and freedoms established by the Constitution, to strengthen the levers of state pressure on it, to finally subordinate the legal profession and lawyers to the executive branch represented by the Ministry of Justice”, - the appeal says.
What innovations have sparked the discussion?
Today the bodies of lawyers' self-government - regional chambers independently consider complaints against lawyers and decide on their punishment or release from it. The President of the Chamber initiates internal proceedings, then the case is submitted to the qualification commission, which includes, among other things, representatives of the judicial and legislative authorities, the conclusions of the commission are studied by the Council of the Chamber. He - the Council of the Chamber makes a decision to bring (release) a lawyer to disciplinary responsibility, up to and including deprivation of his lawyer status.
Anyone can complain about a lawyer, even the bodies of the Ministry of Justice. But today the lawyer is protected by the so-called pre-filter. The President of the Chamber first assesses the complaint that has been received and only then decides what to do with it - he may not give it a go at all, not bring it up for discussion, or reject it.
Moreover, the decision of the Council of the Chamber today is final for the author of the complaint. Only the lawyer himself, dissatisfied with the outcome of the proceedings, can challenge him in court, no one else has such a right.
An amendment by the Ministry of Justice to Article 17.1 of the Law prohibits chambers of lawyers from refusing to initiate disciplinary proceedings. Any representation of the ministry and its territorial divisions automatically starts the procedure for considering the complaint. In addition, the Ministry of Justice empowers itself with the right to appeal against the decision of the Council of the Chamber, which it does not like, in court.
The bill turns the legal profession into a structure completely dependent on the Ministry of Justice, one might say, into its own subdivision, the lawyers comment.
"Disciplinary proceedings and disciplinary procedures are changing. Another figure is introduced to the qualification commission - a representative of the scientific community, who is this and why is not explained. The final decision on the professional fate of a lawyer will be made by the court at the request of the Ministry of Justice. Do you know a lot of cases when the court refused to representatives of the state?" - says Ilya Sidorov, a member of the Moscow Bar Association, one of the authors of the appeal "Defend the Russian Bar".
The meaning of advocacy, in serious criminal proceedings, at least is to ensure the adversarial nature of the parties, to oppose the state. The investigator and the prosecutor receive a salary from the state and rightly so - they represent the interests of the state. The lawyer receives a fee from the client, as he protects his private interests, for this reason, the lawyer must always be on the other side of the state, the initiators of the appeal say.
"Lawyers, like investigators, prosecutors, judges, of course, also commit violations, in this sense they are not innocent, and such facts exist, there is even criminal prosecution. But, on the other hand, we all see how today the investigating bodies undermine the very principle for which the legal profession was built and exists. The adversarial principle of the parties. The adversarial principle is increasingly threatened precisely because the investigator and the prosecutor are not satisfied with the active position of the lawyer, the forms of defense that he chooses, and they are trying to withdraw and eliminate this active lawyer from the case. One of the fastest ways is to raise the issue of bringing to disciplinary responsibility up to the requirement to exclude from the lawyer community", - says the former Prosecutor General of Russia (1991-1993), an honored lawyer Valentin Stepankov.
The deprivation of the chambers of the opportunity to preliminarily assess claims against lawyers of preliminary assessment of complaints against lawyers frees the hands of the complainants, allows them to send such appeals often and without thinking about quality. Today's law requires the presentation of justified violations on the part of lawyers.
The Ministry of Justice had all the rights it asked for in the Soviet Union - apparently, it decided to restore it. Why did the officials need additional opportunities again?
"Often appeals to lawyers' associations in territorial bodies are rejected or not satisfied, and it is not always convenient for initiators of appeals to raise the bar", - says Stepankov. - In my opinion, in the future, such requests will go directly to the Ministry of Justice, primarily from the FSB investigators. In Soviet times, the list of articles that belonged to the jurisdiction of the KGB did not exceed a dozen - fifteen articles. Today, the number of articles, the jurisdiction of those types of crimes that the FSB can conduct is over 100 corpus delicti. I think if the bill passes, they will use this channel".
Another controversial amendment is to Article 39.1 of the Law. It obliges the Federal Chamber of Lawyers (FPA) daily and around the clock "to provide, using the information and telecommunications network" Internet "free and direct access of an unlimited number of persons to the information contained in the Integrated information system of the Russian Bar (KIS AR - the abbreviation in Russian, - editor's note)". At the same time, Article 20 of the Law introduces a clause according to which the consent of the principal is no longer required to process his personal data received by employees of the Bar in connection with the provision of legal assistance to him. Clause 3 of Art. 18 of the Law, which previously ensured the protection of confidential information about the principal.
In practice, all this rule-making code means the abolition of the guarantees of attorney secrecy, the speakers explain.
"Integrated information system of the Russian Bar is being developed by Sberbank, a structure affiliated with the state, and we must transfer to it data, which, in fact, constitutes a lawyer's secret. Should we pass on information about a lawyer's private life to her? This is exactly what they are obliged to do. Everything is very similar to the construction of a pen for a lawyer, in which his activities become impossible. And who will go to him if he asks from the doorway to sign that he will not keep the lawyer's secret, that he will transfer all the information told straight to the state?", - asks a rhetorical question by the lawyer, chairman of the Moscow collegium of lawyers "Karabanov and partners" Alexander Karabanov.
The lawyer register is now kept separately by region. They want to unify it and make it the same for the entire territory of Russia. How is the need for a unified database, where information about lawyers and their clients will be stored, is explained? Officials answer us: the register will protect the citizens themselves from impostors. Only lawyers with a serious level of training, proper qualifications and high standards of advocacy will be able to get into it.
Judges, admitting a defense attorney by proxy or by warrant to a particular process, will be able to compare it with the unified register and quickly remove their doubts. Who is on trial? A "quality" lawyer or an adventurer encroaching on the foundations of Russian justice?
What follows directly from the amendments?
"Introduced some kind of automated system Integrated information system of the Russian Bar , the list of data entered there is not specified. Nobody knows what additional filling of the registry is. And most importantly, why give a serious document of a public organization to officials? We, lawyers, at the first order of the Ministry of Justice, forgetting about attorney secrecy, must enter there information about the client. A person who comes to a lawyer allows this to be done with him automatically, simply by the very fact of seeking legal assistance. Apart from deep bewilderment, this requirement does not cause anything", - Ilya Sidorov comments.
Another controversial amendment is about orders. Amendment to Art. 6 of the Law allows the issuance of warrants to bar chambers, which will do so under the supervision of the Ministry of Justice.
"Lawyers are forced to transfer information about the order to the Ministry of Justice. We do not know what information exactly, the bill does not stipulate this. But we saw how this system was previously tested in the Moscow region. Lawyers, for example, were obliged to describe their lawyer's office, and if it was registered at the address of the apartment, it was necessary to transfer the concluded contracts for the premises, information about the family of the lawyer and information about the client who applied. The latter is actually a state secret", - emphasizes Ilya Sidorov.
Warrants were always issued by lawyers' offices. What is the new function of the chambers? Why would they suddenly need to issue warrants?
Lawyers make their assumptions based on a recent example.
“There is a lot of talk about pocket lawyers today. In one high-profile trial, the defendant had his own lawyer, but a stranger was sent to the court. Such an appointment of a lawyer was initiated just through the Bar Chamber by transferring an order. The judge gets information about this order, and accordingly, the lawyer, by agreement, is offered to stand outside the door, since the order from the chamber arrived earlier...", - they say.
"Excessive bureaucratization, formalization. Issuance of warrants by chambers in agreement with the Ministry of Justice complicates, slows down the process, and most importantly makes it difficult for a citizen to access a lawyer in critical situations, when a defense lawyer is needed quickly, when a person is threatened with criminal prosecution, arrest", - says Valentin Stepankov.
A lawyer must be provided with protection when he participates in the process. However, today, while defending a client in court, a lawyer is forced to defend both the client and himself and his powers at the same time. A huge number of cases on bringing lawyers to justice makes us think here and now how to protect ourselves from the administrative machine. Problems become chronic. The law speaks of the right of attorneys to be certified to certain categories of courts, but practice shows that the law is not valid. In recent years, it is necessary to add here departments of the internal affairs bodies, which are simply closed en masse with the bringing in of those detained there during mass demonstrations. Lawyers with their certificates cannot do anything, even a minimum - just get into these offices, the lawyers argue.
"With his human rights activities, the lawyer is fighting the state hydra. One head is the investigative-operational unit, and we see how many violations this direction allows, when they are detained, thrown up and what they just do not do. The next head is the prosecutor's office, which should oversee operational and investigative actions. The third is our independent court. Today, the state is pulling its trump card out of its pocket, trying to expand the powers of the Ministry of Justice and actually deprive lawyers of their status through disciplinary proceedings”, - says Alexander Karabanov, - "Implementation of the proposed initiative - putting on a strict leash for lawyers and creating a pocket regiment that will only be engaged in imitating their work. Lawyers involved in serious cases, of course, now have to think carefully before writing complaints, choose methods of defense - you will do something wrong and lose your job. A natural consequence of this order will be a significant decrease in the quality of the legal profession. So the courts almost never pass acquittals in Russia. The new amendments take away the right to defend from lawyers. A blow to human rights, a blow to civil society".
New amendments to the law "On advocacy and the legal profession in the Russian Federation" were being prepared at an accelerated pace. Only two weeks were allotted for the procedure of public discussion of the bill (December 2-16). Not like the society, the lawyers themselves did not have time to understand anything.
“Many colleagues call us and ask whether everything that is said about the amendments is true or not”, - says the author of the appeal “Defend the Russian Bar”.
Taken together, the new law abolishes the independence of the legal profession, the confidential nature of communication between the lawyer and the client, puts the lawyer in a dependent position on the executive authorities, allowing them, if necessary, to inflict “pinpoint” attacks on individual representatives of the legal community. In recent years, legislation regarding civil rights and freedoms has become significantly stricter. The pressure on civil society and the media increased significantly. Obviously, the number of politically motivated cases has increased. In conditions when the judicial system is, in fact, a structural subdivision of the executive authorities, the institution of an independent legal profession provides the last mechanism for the protection of democratic values and human rights. If the amendments are adopted, the Russian society will be deprived of this last protection, the authors of the appeal summarize.