Defend the defenders: join the public discussion

I am writing to you in connection with the draft law submitted for public discussion, which provides for large-scale changes to the regulation of legal practice, including in terms of admission to the profession, the expansion of the powers of the Ministry of Justice of the Russian Federation, and a substantial revision of the principles of court representation.

Notwithstanding the importance of improving legislation in this field, it is necessary to draw attention to a number of provisions of the draft law that give rise to justified doubts and professional concerns.

1. Restriction of access to the profession and the attorney monopoly

The proposed changes to representation in court, which essentially amounts to the introduction of an attorney monopoly on that representation, give rise to the most serious concerns from the perspective of accessibility and quality of legal assistance. While the stated objective of these measures is to improve the quality of legal assistance, in practice they may result in restricted access to justice for individuals and organisations, particularly in socially vulnerable and remote regions.

Since 2014, the legal community and federal authorities have actively discussed the introduction of an attorney monopoly, under which only attorneys would be permitted to represent clients in court. The principal argument traditionally advanced in support of this measure is the improvement of the quality of legal assistance. However, objective data on the dynamics of the number of attorneys in the Russian Federation over the past ten years cast doubt on both the feasibility and the timeliness of achieving this objective.

According to official statistics, as of 1 January 2018 the number of practising attorneys amounted to 73,542. At present, the register of the Ministry of Justice of the Russian Federation contains 75,338 practising attorneys.

Against this background, the idea of sharply narrowing the circle of court representatives exclusively to attorneys, in the absence of a parallel and substantial increase in their number, appears highly questionable in terms of ensuring access to justice.

Given the extremely slow rate of growth and the absence of implemented systemic measures aimed at expanding the legal profession over the past decade, there are well-founded doubts that, within the period remaining prior to the introduction of the monopoly, it will be possible to reach a number of attorneys sufficient to meet the needs of the population, particularly in remote regions.

This will primarily affect persons who cannot afford the services of an attorney, who do not have close relatives with legal education, or who do not employ qualified legal staff. Under these conditions, the introduction of an attorney monopoly may lead to, not an improvement in the quality of legal assistance, but its shortage and increased cost, thereby restricting access to justice.

The prohibition envisaged by the draft law on persons with an expunged conviction for serious or especially serious crimes acquiring the status of an attorney, without regard to the specific circumstances of the offence, the passage of time, and subsequent impeccable conduct, appears excessive. Such an approach undermines the principle of individualisation and effectively deprives a person of the opportunity to pursue a new career in the legal profession, despite rehabilitation.

2. Expansion of Ministerial control over the Bar

Of particular concern is the de facto redistribution of the functions of lawyer self-governance in favour of the executive branch.

In particular:

• submissions by the Ministry of Justice are to constitute grounds for termination of status as an attorney without undergoing a qualification procedure;
• decisions of qualification commissions and councils of bar associations may be set aside without taking into account the position of the bar association itself;
• the draft law allows for interference in personnel and organisational matters, including the early termination of the powers of presidents of bar associations upon submission by the Ministry of Justice;
• the role of the Ministry of Justice is expanded to encompass even internal organisational and technical aspects of legal activity.

Taken together, these provisions signify a weakening of the independence of the bar, which, in accordance with the Constitution of the Russian Federation and international standards, must be an independent institution of civil society ensuring the protection of rights and freedoms.

Adoption of the draft law in its current wording poses a threat to the implementation of such fundamental principles as the independence of the bar, equality and accessibility of legal protection, and the self-regulatory nature of legal activity.

The possibility of direct interference by an executive authority in the activities of the legal community effectively undermines the system of checks and balances and threatens the independence of the legal defence in cases of political or public significance.

Proposal:

Taking into account the above remarks, I request that the draft law be rejected or removed from consideration in its current version. I consider it necessary to ensure a broad public and professional discussion of the key provisions of the draft with the participation of representatives of bar chambers, human rights organisations, independent lawyers, and experts in constitutional and procedural law.

This would help ensure proper observance of the principles of independence of the bar, accessibility of legal assistance, and a balanced consideration of the interests of participants in legal relations.