To date, the legal regulation of the activities of lawyers continues to undergo some changes, new provisions and changes come into force that directly affect the sphere of professional rights of lawyers. This article raises the problems of violations of guarantees for the protection of the rights of a lawyer, as well as measures and ways to protect the professional rights of lawyers. The problems of interference in the legal activities of lawyers and the violation of their professional rights remain relevant today, and they point to the need to strengthen the legal guarantees of lawyers' activities and establish an effective defense mechanism for a lawyer.
Keywords: advocate, advocacy, Russian Federation, guarantees for the protection of a lawyer, measures of responsibility, professional activity.
The problem of interference in the legal activities of lawyers and obstruction of this activity remains relevant to this day. In the scientific community, an active discussion continues on the need to reinforce the independence of a lawyer with specific measures of responsibility. Art. 18 of the Federal Law of May 31, 2002 No. 63-FZ «On Advocacy and Advocacy in the Russian Federation» establishes that interference in advocacy, which is carried out in accordance with the legislation of the Russian Federation, or obstruction of this activity in any way, is prohibited [1].
A comparative analysis of violations of the professional rights of lawyers, based on data from an annual survey conducted in the summer of 2022 by the Federal Chamber of Lawyers of the Russian Federation, showed that the number of violations of the professional rights of lawyers has significantly decreased compared to previous years [4, p. 3]. So, for example, earlier the most serious violations were the illegal actions of investigators against lawyers, which include conducting operational-search measures against them, as well as searches of premises belonging to lawyers. Despite the above, some positive points, violations can be identified, such as:
1) failure to provide copies of procedural documents by the investigator,
2) ban on audio recording of investigative actions,
3) limiting the period of familiarization with the case materials, etc.
There are still cases of “double protection” and problems associated with the payment of lawyers, but, in general, the number of such violations are significantly lower than in previous years [5].
When considering the question of the activity of lawyers in responding to violations of their professional rights, it can be assumed that the activity of a lawyer in defending his rights depends more on the severity of the violation than on how often he encounters such a violation.
Most often, lawyers apply to the commissions of bar associations for the protection of their rights in connection with:
1) summoning a lawyer for interrogation as a witness;
2) conducting a search at the place of his residence and work;
3) inadmissibility to participate in the case;
4) removal of the lawyer from the courtroom.
In this regard, the Decision of the Council of the Federal Chamber of Lawyers of the Russian Federation dated March 22, 2021 approved the Procedure for the Protection of the Professional Rights of Lawyers, which was developed in accordance with the Federal Law “On Advocacy and the Bar in the Russian Federation” [3]. This procedure establishes that a lawyer whose professional rights and interests have been violated may file an appeal with the Commission for the Protection of the Rights of Lawyers to protect their professional rights. After considering this application, the Commission for the Protection of the Rights of Lawyers gives an opinion on it, and at the same time suggests the methods, forms and actions necessary to protect the violated rights. When establishing the fact of a violation, the Commission takes all necessary measures to protect violated rights, performs methodological functions in the field of protecting the professional rights of the lawyer community, including by collecting and analyzing violations of lawyers' rights, developing recommendations to prevent violations of lawyers' rights, counter violations and restore rights lawyers.
As for measures aimed at protecting the professional rights of a lawyer, one of them is the establishment of a ban on bringing a lawyer to any responsibility for the opinion expressed by him in the course of his activities. This rule is enshrined in paragraph 2 of Art. 18 of the Federal Law «On advocacy and advocacy».
A significant place among the measures to protect the professional rights of a lawyer is occupied by measures to protect the personality of a lawyer, members of his family and their property, which are provided for in paragraph 4 of Art. 18 of the Federal Law «On advocacy and advocacy». At the same time, the Law does not contain indications of specific measures that, if necessary, should be taken to implement these legal provisions. It appears that these measures are fully contained in Federal Law No. 45-FZ of April 20, 1995 “On State Protection of Judges, Officials of Law Enforcement and Supervisory Agencies”. The above law establishes a system of measures of state protection of the life, health and property of these persons and their relatives in order to ensure state protection of judges and other persons performing functions, the performance of which may be associated with encroachments on their safety.
Another of the measures to protect the professional rights of a lawyer is the establishment of a special procedure for the criminal prosecution of a lawyer, which is enshrined in paragraph 5 of Art. 18 of the Federal Law “On advocacy and advocacy”, and its procedure is determined by Art. 447, 448 and 450 of the Code of Criminal Procedure of the Russian Federation.
The problematic of this situation lies in the fact that, according to scientists, it is almost impossible to achieve compliance with these legal norms in the absence of real sanctions for their violation. Proposals to establish additional guarantees for the independence of lawyers in the exercise of their professional activities, as well as recommendations to supplement the relevant provisions of the Code of Administrative Offenses and the Criminal Code of the Russian Federation, appeared a long time ago. According to the Human Rights Council, any violation of the Federal Law “On Advocacy and the Bar” should constitute an administrative violation, for example, non-observance of attorney-client privilege, failure to take or untimely adoption of measures to ensure the safety of a lawyer and members of his family. The Council also proposes the introduction of criminal liability for interference in the activities of lawyers carried out in accordance with the law. Such proposals arise in connection with similar sanctions that are already provided for by Russian law, such as Art. 294 of the Criminal Code of the Russian Federation — obstruction of the administration of justice and the production of a preliminary investigation [2].
Violations that lawyers currently face in the exercise of their professional activities continue to point to the need to strengthen the legal guarantees of advocacy, as well as to establish effective mechanisms for the protection of lawyers.
References:
- Federal Law of May 31, 2002 No. 63-FZ «On Advocacy and the Bar in the Russian Federation» // «Collected Legislation of the Russian Federation». — 06/10/2002 — No. 23. — Art. 2102.
- Criminal Code of the Russian Federation: text amended. and additional April 1, 2022 — M.: PROSPECT, 2021. — 784s.
- The procedure for protecting the professional rights of lawyers (approved by the decision of the Council of the Federal Chamber of Lawyers on March 22, 2021, protocol No. 22) // FPA RF. — 2021. — [Electronic resource]. — Access mode: https://fparf.ru/documents/fpa-rf/the-documents-of-the-council/poryadok-osushchestvleniya-zashchity-professionalnykh-prav-advokatov/ (date of access: 12/17/2022)
- The degree of protection of the professional rights of lawyers: A brief summary of the results of the study. — Moscow: Center for Constitutional Studies, 2022.
- On the results of the second survey of lawyers on violations of their professional rights // Advocate newspaper. — 2021. — [Electronic resource] — Access mode: https://www.advgazeta.ru/mneniya/kolichestvo-vopiyushchikh-narusheniy-sushchestvenno-snizilos/ (date of access: 12/17/2022).
