Mel'nichenko Roman Grigor'evich, "About the immunity of an oral speech of an advocate" // Advocate №9.2005 Translator : Mikhaltsova Alina
Oral speech is a very important tool , which an attorney uses trough doing a juridical skilled service. Attorneys strive for defence or rehabilitation of human rights exactly by making an oral speech.
Freedom of fairy speech as a juridical rank of personality - was established by the Constitution's 29 article. According to this article, noone can be compel to the refuse of expressing its own opinion and conviction. The right of free information's spreading was also guaranteed. However, the freedom of fairy speech , as many other rights and freedoms, follows by the general rule, it est- it functions until a violation of other rights or public interests. It should be noted that limits of action the freedom of fairy speech for juridical ,in particular , for lawyer professions` owners, are somewhat wider than for other subjects.
Potentially, the freedom of fairy speech might inflict a menace to such values as: social, race, national or religious tranquility into society, state or commercial secret and so on. It is known from the analysis law-applications` practice that trough the freedom of sayings` realization often of all right to honour, dignity, good name, business reputation.
Difficult interaction between right to freedom of fairy speech and right to honour and dignity is learned into limits of such rights` category as libel. Libel is violation consisting of doing harm to reputation or dignity of person through pronunciation of words (or their publication), inducing the other people to blame him, produce negative attitude. The problems of libel are learned mainly into the limits of law regulation the media's activity. However, a lawyer as a public profession brings libel problems to the persons having this profession. For instance, barrister in the process of performance in court can commit an a libel's act towards procession opponent. The situations , when a barrister declares about innocence of his client and point out that inquiry bodies prosecute an innocent person to the criminal liability are highly wide-spread. Or, for e[ample, a barrister declares that defendant ( plaintiff, witness) tells a lie. Has the freedom of saying still been acted here or the verge of predominance for rights to honour and dignity been crossed ? Let's try to find it out.
In the advocate's saying it is possible to distinguish two main elements, such as: actual materials` account and his own personal opinions` account.( Such variants- when saying consists of one element are possible, in this case it will be abbreviated. Let's consider these two elements by turns.
The freedom of speaking the personal opinion out. What do law standards order in the case of doing a damage to any persons through the process of speaking personal opinion out? In fact, according to the legal axiom , only thoughts haven't a juridical meaning . Every another, including any expression of these thoughts, can be a juridical fact. Based on the legislation of the most developed states ( in the sense of juridical technique ), international law distinguishes such a legal thesis, as advocate's immunity. As a matter of fact, according to the Basic thesis about advocates` meaning ( adopted in the august 1990 by the 8 Congress OUN about prevention of crimes) an advocate has to possess a criminal and civil immunity against persecution for declaration related to the legal action, made in writing or verbal form through conscientious fulfillment his duty and carrying out professional duties in the court, tribunal or in administrative body. Unfortunately, the majority of Russian lawyers hasn't known this rule until a recent time, therefore opinion was existed among them, that Russian legislation was not excepted a lawyer's liability for a declarations made in courts through the process of defense client's interests in any ways. Actually, it was right, because a straight action of international law's standards in the Russian legal system has been difficult yet. The federal law since 03.05.2002 №62-FL duplicated partially a law standard of the international law after a radical change of legislation, which regulates advocate's activity. To tell you the truth, if the immunity of saying was fixed by the international document generally, then the freedom of expressing personal opinion-one of its elements-by the Law.
The juridical fixation of speaking his own advocate's opinion's immunity principle in the Russian legislation is a positive factor. However , a plenty of questions might came up to a law-user by account of this principle. It should be noted , this legal institute may be diminish by erroneous solution of this questions. Lets try to distinguish existing and possible difficulties in the case of the freedom of expressing advocates` opinion s` realization.
Let's return to the example when an advocate declares in the court that his client's case was forged, it est, about prosecution of innocent wittingly. In this case an advocate might be prosecuted to the civil or criminal liability. Lets immediately make a remark that accordingly to a literally interpretation of the law's 18 article advocate might be prosecute to a civil liability for expressing his own opinion solely if his actions contain a crime's composition. If to talk about such crime's composition as libel, then here might be apply such qualified signs as spreading of wittingly false informations, depraved honour and dignity, contained in the public performance (court) or libel , joined with accusation of person in committing grave or particularly grave crime. Moreover, as if specially for persons who render juridical assistance , Criminal code contains 298 article , which foresee liability for libel against judge, public prosecutor, investigator, preliminary investigator.
Possible advocate's criminal prosecution for expressing his own opinion produces an fear atmosphere , within which an advocate obliged to care of his own safety simultaneously defending a clients` interests. Latter statement makes an advocates defense considerably less effective. The European human rights court marked a fear atmosphere's effect and assert that menace of criminal prosecution punishment might lead to a self-censorship. Applying to a self-censorship of defense pertinently adduce Supreme Court decision's precedent about New York Times v. Sullivan action. Supreme Court of the USA established that "false saying through the process of free discussion inevitably and protection must be provided for them in order to let the freedom of expressing own opinion stay alive, which "may survive only by a definite "free space"" possessing . It should be noted, that the Ukraine's legislation more rigid protects the freedom of expressing opinion : preliminary bodies, investigators, public prosecutor, court are prohibited to pass particular decision with reference to advocate's legal position to the legal action.
We are agree with the authors, who consider that the opinion is a subjective category. Everyone has a right for saying and not obliged to provide every definition with abundant grounds. Especially it refers to those persons, who render juridical assistance . They must not be prosecuted to any liability for saying own opinion even if based on the wittingly false information . One of English precedents fixed a rule that advocate must not be run the risk of become a defendant by a legal suits maked against him in the connection of his sayings in the defense process. " Even the most conscientious advocate may fears of potential suits against him, therefore more correct to give him as much freedom as it possible, even permit a thought that this freedom will be used by unconscientious advocates with deliberate aims". It goes without saying that no one decides to prosecute investigator or prosecutor for expressing their negative opinions with reference to, for example, the defendant.
The freedom of material's account. Presenting wittingly false information by person who renders juridical assistance can't be punished. This refers to rather wide-spread cases, when a person rendering juridical assistance operates a facts receiving from client. Trust to client doesn't mean checking information from a client and consequently an advocate can use this during forming and saying his own opinion.
Thus, during the criminal trial in the Volgograd region court accounting objection-claim, lawyers made a point that according to their client information (she was suspected in committing a murder of her husband) , the lost used an alcohol with chairman-judge B. Chairman took a self-objection, but afterwards initiated bringing an criminal legal action against attorneys. To sum up, criminal legal action against lawyers was ceased. Above-mentioned example is attempt prosecuting lawyers for improper execution their duty to a client.
Moreover, lawyer is prohibited to doubt in trustworthy of clients information by the standards of attorney law. The Code of Professional ethics was adopted by the first All-Russian congress 31.01.2003. According to the Code's 10 article attorney executing a commission must proceed from trustworthy of documents and information, presenting by client. Attorney must not execute supplementary check for trustworthy subject.
It seems to us that attorney in the process is a original his client's second voice . Attorney states any facts on behalf of his client's name, not of his own. Consequently, prosecuting an attorney to a liability is like a biting a stick, which a defended holds in hands.
Not long ago adopted The bar law contains a lot incomprehensible with reference to immunity of lawyer's saying. The law has not so defined more precisely, as brought misunderstanding to principle of freedom of lawyers saying. It cannot but remark thesis "inaction" applying by legislator : it's difficult to imagine a situation when a lawyer can express his opinion (false) by inaction.
In different ways it is possible to interpret other 18 article's statements of The bar law, in particular as a injury for a lawyer activity. Thus, containing in this article stipulation about impossibility of prosecution a lawyer to a liability, if forced court sentence won't be fix his guilty in committing a criminal action (inaction), justice bodies can quite interpret in the sense that it is only necessary a court's will to prosecute a lawyer for saying. As it seems to us, especially according to international documents, this article should be interpret in the sense of prosecution a lawyer to liability for insult( if a person who render juridical assistance express his opinion in obscene form).
To sum up, it should be noted, that any immunity, including immunity of a lawyer's saying must be limited by determined boundaries. It's common knowledge that attempt of creation absolute immunities perniciously affected to those person, first of all, who received this immunity. It refers to diplomatic, presidential, deputy and other kinds of immunity. Which kind of boundaries must be fix , reference to the immunity of lawyer's saying?
Firstly, fact of insult, including the interpretation of Criminal law, i.e. humiliation person's honour and dignity, e[pressing in obscene form, must not be protect by immunity of lawyer's saying.
Secondly, insults of judicial power if contain serious, real, inevitable risk of impossibility to make a justice and connect with lawyer's intent and unconscientiousness.
Thirdly, a lawyer's saying, made solely in a clients interests, cannot be illegal.
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