Melnichenko R. G. Step forward, jump back Interpreter By Galustyan Alina
The federal law from May, 31st, 2002 N 63-FZ "About lawyer activity and legal profession in the Russian Federation" became, perhaps, for all history of Russia, the most democratic, in relation to lawyer community, the statutory act. Changes made to this law were based on a principle of goodwill of the state to lawyers, and were step âåðåä by the way of development of the believed legislation. This partner coexistence of legal profession and the state threatens to end in connection with outlined acceptance of amendments in the Law on legal profession. This project of amendments has been brought by deputies of the State Duma V.V. Grebennikovym, M.V.Yemelyanov, A.V.Mitrofanovym, A.V.Ostrovsky, S.N.Reshulsky (further amendments of Grebennikova).
The administration bill of Grebennikova contains six items which it is possible to name six step backwardses in business of development of institute of the Russian legal profession.
The first amendment - the attorney, and moreover. Amendments of Grebennikova will forbid attorneys to attend enterprise, and also any other, except lawyer, paid by activity. At the analysis of this amendment, the impression is made that legislators suffer such form of disease, as a sclerosis. I will remind, in discussion of various bills about legal profession the question became a subject of heated arguments of experts: whether attorneys can attend to commercial activity? One authors supported an admissibility of a commercial element in lawyer activity, others declared that commerce is impossible the essence of this activity. The law of 2002 has established the following rule:" The attorney has not the right to attend to other paid activity, except for scientific, teaching and other creative activity ". This norm had no big practical importance. Lawyers in a silent way were engaged in commerce as to prove, so, and to punish, it was almost impossible
Having realised it, the legislator has made changes from December, 20th, 2004 to the Law on legal profession, having eliminated an interdiction for the right of attorneys to attend to commercial activity. The project of Grebennikova not only returns this interdiction, but also does by its more rigid.
In the Conclusion of Legal department of the State Duma administration concerning this point of amendments of Grebennikova to be told: «the point, in our opinion, requires additional study" and "the project articles 1, offering to establish additional restrictions on employment by the lawyer by other activity as it hardly will strengthen protection of the rights and interests of the citizens which protection is carried out by the lawyer».
Prospective consequences of introduction of the first amendment «the lawyer, and moreover». Lawyers, after entering of amendments of Grebennikova will not cease to be engaged in commercial activity as civil servants do not cease to be engaged in it, and the state will receive the powerful lever of pressure upon all lawyers, in the form of threat of deprivation of their status because of employment by them «other paid activity».
The second amendment – the lawyer warrant under the state control. The amendment of Grebennikova provides that the warrant form, and also an order of manufacturing, delivery and the account, affirm federal enforcement authority in the field of justice. What order of delivery and the warrant account will define judicial authorities, to predict very easily. Practice has shown that these bodies are inclined to supervise very densely lawyers and their activity. So, in the decision from April, 3rd, 2007 Council of Federal chamber of lawyers of the Russian Federation has noted:« Council regards as obvious excess of powers of the requirement of separate heads of bodies Rosregistratsii (republic Kareliya, the Volgograd region) which, in connection with check, demand to give constituent documents, lists of members of lawyer chambers and lawyer formations, samples of prints of the seals, publications and messages in the mass-media, concerning to activity of lawyer chambers and lawyer formations, etc.» . Without doubts, judicial authorities will establish such order of delivery of warrants on which each warrant which has been written out by the lawyer, will be put under the state account. It, in turn, will be notable blow on maintenance of a mode of preservation of lawyer secret. After all according to the Code of a professional etiquette of the lawyer (further the Code of lawyer ethics), rules of preservation of professional secret extend on the fact of the reference to the lawyer, including names and names of principals. On a new order, in the course of the report under warrants, lawyers will be automatically compelled to give the state the information on the principals.
Prospective consequences of introduction of the second amendment «the lawyer warrant under the state control». Essential belittling of institute of lawyer secret and transition of attorneys from order system of the certificate of the authorities to system of the statement of powers of attorney. Only constituting the power of attorney, the attorney can though somehow to save confidentiality of the principal in the face of the state.
The third amendment – procedure of attraction of the attorney to a disciplinary responsibility.
The code of legal ethics since 2002 contains detailed procedure of attraction of the attorney to a disciplinary responsibility. Duplication of this institute is a classical example, so-called, «excessive íîðìîòâîð÷åñòâà». Following step of deputies can become ïðîïèñûâàíèå in the law of an order of attraction of the child to children's responsibility before parents. The lawyer community, proceeding from an independence and independence principle, itself should advance the basis and an order of attraction of the members to professional responsibility. For this reason it is unacceptable to grant the right to judicial authority to approve position about an order of delivery of a promotion examination and an estimation of knowledge of applicants for assignment of the status of the attorney which is provided by the same amendments. After all these requests are developed for a long time by attorneys, and interference of a state structure in this process of anything, except corruption, there cannot bring.
The fourth amendment – a previous conviction is a label on all life. The amendment asserts that the person, having a previous conviction for fulfilment of a deliberate crime, irrespective of repayment or removal of such previous conviction has not the right to apply for acquisition of the status of the lawyer. This requirement contradicts not only to the international standards in the field of human rights, but also to parts of first and sixth article 86 of the Criminal code of the Russian Federation according to which the person is considered ñóäèìûì (having a previous conviction) till the moment of repayment or previous conviction removal, and repayment or previous conviction removal cancels all legal consequences connected with a previous conviction.
The fifth amendment – legal profession under the state control. In an explanatory note authors of amendments specify:« Acceptance of the specified law will not demand the additional financial expenses covered at the expense of means of the federal budget ». But it is lie, according to amendments, it is given to state structures more than 13 new powers with reference to lawyer activity. For example, now these bodies should conduct not only the register of lawyers of the subject of the Russian Federation, but also the register of lawyer formations and their branches in territory of the subject of the Russian Federation. Amendments create such position at which bodies of lawyer self-management the ÷èõå should inform on everyone to a competent state structure.
At realisation of these new authorities the whole army of officers for the control over attorneys will be created. All it will require significant financial expenditures. In one aspect of amendments – legal profession under the state control - we look through obvious signs on repetition. Initial edition of the Law on legal profession granted the right to judicial authority to direct submission to advice of lawyer chamber about the termination of the status of the attorney. In a case if advice has not made the decision, the judicial authority has the right to address to court. The formulation "has not made the decision" has been apprehended in the sense that if advice of lawyer chamber refuses to judicial authority satisfaction of its submission the last has the right to address to court with the same requests. Changes from December, 20th, 2004 have specified this position. Only if advice of lawyer chamber has not considered judicial authority submission, last can address to court. If advice of lawyer chamber has considered submission and has refused to deprive of the attorney of its status, the judicial authority cannot address now with the same question to court. Amendments of Grebennikova return all in initial position. According to them in case advice of lawyer chamber from the date of receipt of such submission has not made in a month's time decisions, the territorial body of the state registration has the right to address to court.
Prospective consequences of introduction of the fifth amendment «legal profession under the state control». Belittling of institute of lawyer secret. Loss by lawyer corporation of independence. Increase in financial costs of the state at functioning of institute of legal profession in Russia.
The sixth amendment – the qualified majority. As it is known, from 13 members of the qualifying commission at lawyer chamber of the subject of the Russian Federation – seven are lawyers. The law provides that decisions are accepted by simple majority of votes of members of the qualifying commission participating in session. Amendments of Grebennikova provide that the decision is considered accepted if for it has voted not less than two thirds of total number of members of the qualifying commission. The idea of authors is clear, without committee-men not lawyers, the decision cannot be accepted. But authors, probably, have not familiarised with practice of work of the lawyer qualifying commissions. Committee-men who are not lawyers, frequently ignore work of this body. Well, what for, it is asked, to the judge to spend the time for free work? And, for example, in the Volgograd region till today cannot call in for work in the commission of representatives from the subject of federation.
Prospective consequences of introduction of the sixth amendment «the qualified majority». There will be a collapse of work of the qualifying commissions. Ïðîãóëû state employees will make impossible work of this body responsible for such major function, as reception and a conclusion of persons of lawyer corporation.
But, if at the moment of a writing of this article, considered amendments have not entered yet validity jumps back concerning lawyer activity have already begun. The Criminally-remedial law provided special procedure of excitation of criminal case concerning the inspector and the lawyer is a reception of the consent of the judge. Now, according to the Federal Law from June, 5th, 2007 ¹ 87-FZ «About modification of the Criminally-remedial code of the Russian federation and the Federal law« About Office of Public Prosecutor of the Russian Federation »», such order has remained only concerning the inspector. Such major guarantee of lawyer activity as a special order of attraction of the lawyer to the criminal liability, it is simply liquidated.
If the lawyer community and is quiet to observe further of "turning" of main principles of lawyer activity, the democratic institute of legal profession in Russia already now can order a monument.
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