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Expert commentary
The subject of this expert commentary is changes and additions introduced into the Criminal[2], Criminal-Procedural[3], and the Criminal-Executive[4] Codes of the Republic of Uzbekistan, the Code of the Republic of Uzbekistan on Administrative Responsibilities, and the laws of the Republic of Uzbekistan “On the Bar” and “On Guarantees of the Activities of Lawyers and the Social Protection of Lawyers.”
The goal of this expert commentary is to determine the degree to which the changes and additions introduced into the legislation of the Republic of Uzbekistan meet international standards for fair criminal process and the principles for the organization and functioning of the Bar as laid out in international law. This expert commentary does not pretend to be a comprehensive investigation of all issues related to the reform of the Bar in the Republic of Uzbekistan.
General Description of the Changes and Additions Introduced into the CC, CPC and the Code of the Republic of Uzbekistan on Administrative Responsibilities
The law frees witnesses who refuse to testify against themselves from criminal liability. It also introduces important changes in criminal-procedural legislation that significantly broaden the rights of the defense. Among other things, the law replaces the old versions of Articles 46 and 48 of the CPC, which were based on the repressive principles of Soviet jurisprudence. The new versions foresee major improvements in the legal possibilities open to suspects and the accused, including:
- The right to a telephone call or to otherwise inform a lawyer or a close relative of the fact and place of their detention; - The right to have a lawyer from the moment of detention or the issuance of official notification that a person is a suspect, and to meet with the lawyer one-on-one with no limit on the number or length of these meetings[5]; - The right to demand an interrogation not later than 24 hours after detention; - [The right to] refuse to give evidence and to be informed that your testimony can be used as evidence against you in a criminal trial; - [The right to] make copies, at one’s own expense, of materials and documents or in other ways to use technical means to copy the information contained in them.
The procedure through which a defense lawyer becomes involved in a case is also changed. Now, when a person is detained, the lawyer has a right to enter the process from the moment of factual deprivation of the right to freedom of movement.[6] In addition, in cases when the lawyer is provided at the state’s cost, the head of a law firm must provide a lawyer within four hours of being informed by the appropriate state agency that an lawyer should be provided.[7] The law includes a clarification spelling out that a lawyer may participate in a case after producing his identification as a lawyer and the order empowering him to undertake a specific case.
The rights of the defense lawyer are broadened to include the following procedural possibilities:
- To gather and present data that can be used as evidence; - To make, at his own expense, copies of materials and documents or in other ways to use technical means to copy the information contained in them[8]; - To meet with a suspect, accused or convicted person one-on-one without any limit on the number or duration of their meetings without the permission of state agencies or officials responsible for the criminal case[9]; - To apply to the state agency responsible for the trial to call a specialist to provide clarifications.[10]
For the first time, the law makes concrete the legal status of a witness’ lawyer, regulates the procedure for them to provide legal assistance to their clients and details the procedures for interrogating witnesses in the presence of their lawyers.[11]
One of the most important new elements included in this law is the broadening of a defense lawyer’s authority in revealing, corroborating and withdrawing factual information. In accordance with the new version of Article 87 of the CPC, defense lawyers have the right to collect data that can be used as evidence by: questioning individuals who possess information related to the case and receiving, with their agreement, written explanations; requesting and to receiving information, evaluations, clarifications and other documents from state agencies, firms, institutions and organizations. Requests by defense lawyers to include in the case materials gathered in accordance with part two of this article must be approved by investigators and prosecutors.
The law requires that upon detention of a suspect in connection with a criminal case employees of the Interior Ministry and other competent officials explain his procedural rights to a telephone call or to otherwise inform a lawyer or close relative, to have a defense lawyer, and to refuse to give testimony, and that any testimony he does give may be used as evidence in a criminal case against him.[12]
In addition, the Code of the Republic of Uzbekistan on Administrative Responsibility was supplemented by the addition of a section setting out civil responsibility for failure to answer a lawyer’s request, or for taking any type of action against a lawyer designed to prevent his participation in a case or to force him to take a position that contradicts the interests of his client.
The procedure whereby the accused is assured the right to receive legal assistance has also been changed. In accordance with the new version of Article 10 of the CPC, meetings with lawyers may be arranged not only on the request of the accused, but also on the request of the lawyer. Moreover, the law guarantees that these meetings will be one-on-one. A refusal to grant a lawyer’s request for a meeting with the accused in order to provide legal assistance justified by the refusal of the accused to meet with the lawyer must be confirmed after a one-on-one meeting between the lawyer and the accused through a protocol signed by the accused, the lawyer and a representative of the administrative facility where the accused is being held. Lawyers are given the right to lodge complaints and make requests of the administration of such facilities.
Analysis of the Changes and Additions Introduced into the CC, CPC and the Code of the Republic of Uzbekistan on Administrative Responsibilities
Without a doubt, the law’s addition to existing legislation of norms broadening the rights of suspects, the accused and defense lawyers is deserving of praise. The provision of the ability to make a telephone call or to otherwise inform a lawyer or a close relative that one has been detained is an effective guarantee of many other human rights such as: the right to a defense and to qualified legal assistance, the right to file complaints and motions and present evidence, etc. At the same time, the ability to make a phone call protects the suspect from the danger of being held incommunicado and the use of illegal methods to force confessions.
Nevertheless, we feel it necessary to make some recommendations that are essential to guarantee this right under the conditions of post-Soviet criminal procedural practice. It is clear that these new provisions have been borrowed from criminal justice systems in some developed countries, where this right is protected broadly and effectively.[13] However, the practical implementation of this norm in democratic states is guaranteed by well organized judicial supervision, a high level of legal culture, the professionalism of lawyers and other judicial and political means. The criminal process in the majority of the states of Central Asia does not include such means, as they are, unfortunately, little more than lightly modernized versions of the repressive Soviet judicial model in which homage to the independence of the courts and lawyers and faithfulness to international legal principles regarding fair criminal trials are, for the most part, simply window dressing. In accordance with existing traditions in our procedural system, participants’ rights in a trial cease to be mere fictions only when the procedure for realizing a right is made clear in the law and is ensured by a requirement that the appropriate government agency records all activities taken to guarantee the particular right. In other words, the steps taken to explain this right, to make it possible for the detained to take advantage of this right, and the consequences of the actions taken with the goal of implementing this right all need to be reflected in detail in the procedural documents drawn up when a person is detained.
The proposed changes in Article 224 of the CPC regarding the explanation to the detained of their rights are insufficient, as the new version of Article 225 of the CPC does not require that these steps be recorded in the protocol of detention. In this regard, we propose that the law be strengthened by adding a requirement that the following information must be included in the protocol of detention: the fact that the detainee was informed of his right to a make a telephone call or otherwise inform a lawyer or close relative of his detention, the time the call was made, the number called and the results of the call. In addition, we believe it is not useful to limit the range of people detained persons may contact to lawyers and close relatives. It seems to us that the detained should be allowed to decide themselves who in this situation cares about them most. This could be a friend, a spouse or a colleague at work. Therefore, we believe it is a mistake to set forth in the law the legal status of the person who can be informed that a person was detained.
The provision giving people the right to the assistance of a lawyer from the moment of detention or the issuance of official notification that a person is a suspect is another major step forward on the path of liberalizing the criminal process. The inclusion of a concrete, four hour period during which the head of a law firm must name a lawyer also deserves support. Without a doubt, the possibility of consulting with a lawyer before the first interrogation, of agreeing on a line of defense, of receiving from a defense lawyer a detailed description of one’s rights and, most of all, a description of how they can be realized, will demonstrably facilitate the equality of the sides in a criminal proceeding, and will guarantee that important human rights such as the right to refuse to testify and the right to file a complaint are implemented. In addition, the entry of a lawyer into the legal process at this stage is very important as it is an effective means of preventing torture and other illegal treatment of the detained. It will also help the detained to fully realize the possibilities of the procedure of Habeas Corpus by allowing sufficient time to prepare a defense for the court hearing on the sanctioning of arrest.
The Kazakhstani example in implementing analogous legal provisions shows that law enforcement agencies are not, as a rule, interested in the detained availing themselves of this right. Clearly, the presence of a lawyer at such an early stage in the case is a serious obstacle to the active operational and criminological preparation of the suspect. As a result, investigative practice almost always seeks means to remove this obstacle. One such means is, through various means, to get the suspect to refuse in writing to have a defense lawyer. In spite of the legal demand that such a refusal be made in the presence of a lawyer, investigators have not overly concerned themselves with obeying this requirement, and for a considerable time Kazakhstani judges closed their eyes to such violations. It is clear that in order to ensure this right in Uzbekistan, where the judicial process has the same inquisitorial character as in Kazakhstan, judges should take a principled approach not only to analyzing the procedures under which a suspect was detained, but also the process of obtaining initial testimony from the accused and, in particular, that Part 1 of Article 52 of the CPC was obeyed. Only the creation of judicial precedents condemning the practice of producing a refusal to accept a defense lawyer without the defense lawyer being present can guarantee that this right will be fully protected.
Another means by which the right to the assistance of a defense lawyer from the moment of detention is violated is the practice of cooperation between investigators and lawyers, who violate their code of ethics and their professional responsibilities. Colloquially such lawyers are known as “pocket lawyers.” They at times simply sign procedural documents, often backdated, that claim they were present during a procedural step, although in fact they provided no legal assistance. This allows the investigator to claim that they abided by the formalities connected to guaranteeing the right to a defense. Unfortunately, the legal community in many post-Soviet states is not free of members who cooperate with law enforcement agencies even though this damages the interests of their clients. There can be many reasons for such cooperation: participation in corrupt schemes (serving as the middle man in the provision of bribes), recruitment by law enforcement agencies, or simply friendly or other personal relations. In additions to legislative methods to clean the ranks of the legal community of such collaborators, it is possible to implement organizational procedures that would preclude such illegal schemes. For example, it is essential to strengthen both in law and in the statutes of the legal community that lawyers will be appointed at state expense only by the leadership of regional professional organizations of lawyers through a clearly defined procedures and forbidding lawyers to personally cooperate with agencies involved in the criminal process. It is essential to lay out a single set of special orders for participation in cases where a lawyer is being provided at state expense and ensure strict control over their issuance. It is possible that such measures are already in use in some Uzbekistani law firms, but this practice should be spread and unified in all sub-units of the Bar Association. Of course, this will not fully resolve the problem of the fictitious provision of legal assistance by corrupt lawyers. It will, however, allow for better control of the situation and more effectively bring to book those who are guilty of violating the rules of professional ethics.
Provisions broadening of the ability of a suspect to meet with his defense lawyer without limitation of the number or length of the meetings and the right of the lawyer to do this “without the permission of the state organs or officials responsible for the criminal case” are positive. It goes without saying that this norm brings national legislation in this area into accord with the demands of international criminal procedure standards.[14] In our view, the limitation of this right during the period when the question of choosing the method of confinement is being decided is fully justified, as at this point in the process the timeline of the actions of all the participants in the process are fairly tightly regulated and the guaranteed two hours for a meeting can be seen as a perfectly acceptable guarantee of the right to defense and qualified legal assistance.
The creation of a right to demand an interrogation within 24 hours after detention may have been seen by lawmakers as a means of codifying the position of international law under which every person detained should quickly be informed of the charges against him since it is during an interrogation that, in accordance with Article 111 of the CPC, this should be done.[15] It is necessary to note that an analogous norm already exists in Article 110 of the CPC. We believe this clarification does not contradict international standards for fair criminal process and on the whole is designed to guarantee other of the accused’s rights. In addition, this provision indirectly sets out the minimum period during which a defense lawyer should become involved in a case. Thus, according to Part 1 of Article 230 of the CPC, “The first one-on-one meeting between the detained and the defense lawyer should take place before the first interrogation.” If this interrogation should take place no later than 24 hours from the moment of detention it follows that before that point the lawyer should enter the case and hold a first meeting with his client.
The addition in Articles 46 and 48 of the CPC of the right to refuse to testify and to be informed that any testimony could be used against you as evidence in a criminal trial amounts to the incorporation into national law of the principle of testimonial immunity, which is generally accepted in international law. Point g) of Part 3 of Article 14 of the International Covenant on Civil and Political Rights guarantees everyone the right not to be forced to give evidence against themselves or to confessing guilt.[16] This is a welcome change, as it provides an effective guarantee against self-incrimination.
The law clarifies several organizational issues related to the right to a defense. The rights of the accused are expanded to include the right to make copies, at one’s own expense, of materials and documents or by other technical means to record the information contained in them. To a practicing lawyer, this provision seems both timely and positive, as it provides significant practical assistance to the defense in carrying out its work. It is worth noting that at the pre-trial phase, criminal proceedings in most post-Soviet states are carried out in writing, and at this stage the investigative authorities have significantly more rights than the defense. The requirement the parties to a case be equal formally applies only to the trial phase, to which the defense should come prepared in order to put its case competently. In order to do so, it is very important to have access to all information related to the case and to have the ability to use it during the trial. In this connection, this change in the legislation should be fully welcomed. It should be noted that a similar norm has existed in Kazakhstani criminal procedure and has fully proven itself in practice. The provision of the same rights to the sides in civil cases is fully justified as the practice has already proven itself from the point of view of assuring the equality of the parties in criminal proceedings.
Broadening the right of defense lawyers by allowing them to gather and present information that can be used as evidence is another significant change in the legislation. It is possible we are witnessing the first steps in Uzbekistan towards the institution of investigations by lawyers. It should be mentioned that as a carryover from Soviet times, the criminal procedural codes of many post-Communist states include defense lawyers’ formal right to “present evidence.” Nevertheless, because there is no set procedure for doing so, this right remains little more than a judicial phantom that cannot be taken advantage of in practice. It is positive that Uzbekistani lawmakers have increased defense lawyers’ authority in this regard with quite concrete means of gathering evidence, giving them the right to question people who have information related to the case and receive written explanations with their approval, and to file requests for and receive documents from government agencies. Here too, one could add the provision in Article 69 of the CPC giving defense lawyers the right to petition for a specialist to be called to give testimony.
However, there is still the question of how to ensure the credibility and admissibility of the information received, especially in statements by people possessing information about a case. It is also worrisome that the law does not name such people witnesses, which would give them the status of full-fledged participants in a criminal proceeding and thus guarantees that their rights would be protected. In particular, it is not clear if a person being questioned by a defense lawyer should be warned that he faces criminal liability if he provides false statements, has immunity from self-incrimination, or the right to give his statement in the presence of his lawyer. And if it is not necessary to do so, then how can the credibility of the written information provided to the defense lawyer be ensured? For example, the investigator or judge could simply doubt the existence of such a witness. And since the law does not specify a procedure for confirming the identity of the person being questioned, it is possible that all of the testimony presented by the defense lawyer could be ruled inadmissible as evidence. Moreover, it is possible that a person who has already provided information could later declare that the defense lawyer or a relative of the accused forced him to give such testimony. How can a defense lawyer protect himself in such a situation?
In order to deal with such problems in the legislation it is necessary to more precisely regulate in the law the process by which defense lawyers gather factual information. For example, it would be worthwhile to require notarial confirmation of the identity of the deposed or to require that the agency conducting the criminal case re-interrogate the person who provided information to the defense lawyer. In addition, it is necessary to make more concrete in the law the authority of the defense lawyer to name alternative experts, thus guaranteeing the real equality of the sides in the proceeding. Such procedural clarifications would truly facilitate the spread of the principle of equality to the pre-trial phase of the process and turn the defense lawyer from a mere supplicant into a full-fledged fighter in the ring of a criminal proceeding.
In addition to these comments on the changes in criminal procedural legislation, it is also necessary to express satisfaction with the change in the Code on Administrative Responsibilities creating criminal responsibility for failure to respond to a lawyer’s petition. One hopes that this article will have the necessary effect on a defense lawyers’ ability to gather evidence.
The provisions regulating the legal status of witnesses’ lawyers and the procedures for a witness to be questioned in his lawyer’s presence also deserve a positive appraisal. It is clear that the right to a defense and to receive qualified legal assistance should not be guaranteed only in cases when an official indictment has been issued against a specific person, but also in other circumstances that result in a person being brought into the orbit of the criminal justice system. Therefore, these changes in the legislation are both fitting and timely.
The changes in criminal-executive legislation guaranteeing the right to legal assistance are also a positive step. It is positive that the legislators decided to allow lawyers to request a meeting with the accused, as the latter - being under detention -- is often not in a position to make such a request. It is also sensible to allow the accused to refuse such a meeting only during a meeting with the lawyer. One would hope that this procedure will make the human rights situation in the criminal justice system more open to civil society and allow for effective efforts to fight misconduct.
A General Description of the Changes and Additions Introduced in the Laws of the Republic of Uzbekistan “On the Bar” and “On Guarantees of the Activities of Lawyers and the Social Protection of Lawyers”
The changes and additions to the law “On the Bar” clarify the legal status of lawyers and the procedure for achieving that status. In particular, lawyers’ rights were broadened in a way analogous to what was done in the criminal-procedural legislation for defense lawyers. Lawyers’ responsibilities were made more concrete, particularly as concerns their abiding by the ethical rules of the profession and the unallowable nature of conflicts of interest in their work. The law regulates in detail the legal position of law firms, untenured lawyers, and the form and content of agreements for the provision of legal assistance. For the first time, the legal status of the Uzbekistan Bar Association has been codified as a non-commercial organization based on obligatory membership of all lawyers and forming the profession’s only system of self-administration. In addition, changes were made in the provisions for licensing lawyers and more precision was added on issues related to disciplinary procedures.
Provisions were added to the law of the Republic of Uzbekistan “On Guarantees of the Activities of Lawyers and the Social Protection of Lawyers” according to which lawyers may be taken into custody by district (city) criminal courts on the petition of the Prosecutor General of the Republic of Uzbekistan, the Prosecutor of the Republic of Karakalpakistan, regional prosecutors, the prosecutor of the city of Tashkent and other prosecutors of equal rank. The law was strengthened with a provision that bans the requirement for special permissions (other than an order and a lawyer’s identification) or the placement of any barrier in the way of a lawyer performing his functions.
Analysis of the Changes and Additions Introduced in the Laws of the Republic of Uzbekistan “On the Bar” and “On Guarantees of the Activities of Lawyers and the Social Protection of Lawyers”
Most of the provisions noted above were intended to address issues that previously had not been sufficiently clearly addressed in the law. Many of the changes are of an organizational or technical character. Therefore, this section of the analysis will concentrate only on those provisions that, in the authors’ opinion, are disputable from the point of view of strengthening the principle of the organization and functioning of the bar as an independent professional organization of lawyers as laid out in international law.
The procedure for gaining the status of lawyer set forth in Article 3-1 of the law “On the Bar” is, in the opinion of the authors, overly bureaucratic, does not clearly define the authority of the professional community in granting access to the profession, and gives the executive branch of government unlimited possibilities to control this process. According to the provisions of the law, lawyers are licensed by agencies of the Ministry of Justice on the basis of a decision of a qualifications commission after passing a qualifying exam. The law does not regulate the composition or the work procedures of the qualifying commissions or the procedure for the exams. It is clear that these issues are addressed in normative acts that don’t have the force of law and which depend on the desires and preferences of executive branch agencies. In this manner, the Bar does not have any real guarantee that it can participate as a full partner in the process of forming its own membership and remains in a dependant position vis-à-vis the government.
In addition, the process of joining the Bar is unnecessarily involved. Thus, according to parts 4 and 6-8 of the law “On the Bar,” candidates who have passed the qualifying exam must petition within three months to the appropriate agency of the Ministry of Justice to receive a license. If the candidate does not apply within this period, he or she may only request licensing after again passing the qualifying exam. Having received a license, the candidate must take the lawyer’s oath within three months and either form a law firm or join an existing one. It is only after receiving the registration of the law firm or documents testifying to the fact that the candidate has been employed at an existing law firm that the authorities will, within three days, issue a lawyer’s identification document. And it is only after receiving this document that a candidate receives the status of lawyer, about which fact the authorities must inform the appropriate territorial sub-division of the Bar Association within three days. At this point the lawyer finally becomes a member of the Bar.
It is difficult to understand why someone who has passed the qualifying exam should not automatically be issued a license. Why should a candidate be required to apply to the authorities and why should failure to apply within a three month period require that the (quite difficult) qualifying exam be passed again? Why should the authorities issue a lawyer’s identification document and not the professional organization of lawyers itself? The candidate is not applying for the civil service but for membership in a society of free defense lawyers! Taken as a whole, this looks more like a procedure for directing someone to a job or assignment than like the process of joining a self-governing, non-commercial organization. The law says nothing as to whether or not the agreement of the Bar Association is required for accepting a new member. It is clear that no one cares about this acceptance or about the opinion of a new member regarding the charter of the organization or the rules for its activities. These nuances would lead one to doubt the real independence of the Bar Association and speak of the unacceptably strong control the Ministry of Justice exercises over the Bar Association.[17]
The expansion of lawyers’ authority in Article 6 of the law “On the Bar” deserves a positive appraisal. The majority of the expanded rights included in this section repeat those guaranteed to defense lawyers in the modifications to the CPC, and we have already commented on them above. Nevertheless, the procedures for realizing these additional rights need to be spelled out more concretely.
For example, lawyers are given the right, with their clients’ agreement, to question and receive written responses from experts as necessary in order to render legal assistance to their clients. Unfortunately, the procedure whereby lawyers may choose experts in not regulated in the legislation. Institutions where experts work are, for the most part, government offices and by no means are always willing to cooperate with lawyers, particularly in cases involving legal conflicts with state agencies, as is the norm in criminal cases. Therefore, this right needs to be reinforced by additional regulations in criminal-procedural and civil-procedural legislation.
In this same article, lawyers are given the right to insure themselves against malpractice. Such a right is only necessary in countries in which it is normal practice for clients to sue their former lawyers, and in these countries this issue requires special regulation. In most cases, legislation not only gives lawyers the right but actually requires that they be insured against malpractice suits. In the conditions of post-Soviet states, however, making malpractice insurance a requirement would lead to an increase in the cost of legal assistance, as all of the costs would be passed on in the form of higher lawyers’ fees. This would make legal assistance even less accessible, particularly for the poorer part of the population. We therefore think circumstances are not yet ripe for the inclusion of such a provision.
The new text of Article 7 of the law “On the Bar” is also deserving of approval. We believe the legislators succeeded in regulating in greater detail questions regarding corporate ethical rules adopted by the legal community, describing situations in which conflicts of interest might arise and formulating concrete means of resolving these problems. In addition, it seems perfectly legitimate to include among a lawyer’s responsibilities improving his qualifications. We also support the introduction of a special procedure for sanctioning the arrest of a lawyer. This norm, which provides some privileges for lawyers in the criminal process, will increase the status of the profession and creates a small, and perhaps mostly declarative, defense for lawyers against law enforcement agencies at the lowest level of the system.
One of the most controversial new elements of the law is, in our view, the legal status of the Bar Association of Uzbekistan. In accordance with Article 12-1 of the law “On the Bar,” the Bar Association is a non-commercial organization formed on the basis of obligatory membership of all lawyers in the Republic of Uzbekistan, which together with its territorial branches in the Republic of Karakalpakistan, the regions and the city of Tashkent forms the only system of lawyers’ self-administration.
We are concerned about the idea of creating a gigantic, nationwide professional organization of lawyers. Our doubts are only increased by the procedures spelled out in the law for organizing the Association and for its functioning. For example, according to Article 12-3 of the law “On the Bar,” the Convention of the Association elects the Association’s Board. The Ministry of Justice nominates one member of this Board to serve as Chairman. This candidate is then elected by the Convention for a term of five years. The Chairman has the power to appoint and dismiss the leaders of the regional branches of the Association (per Article 12-4 of the law).
In our view, this procedure contradicts Paragraph 24 of the Basic Principles on the Role of Lawyers adopted by the UN in 1990, according to which: “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference [emphasis added].”[18]
The election of the Chairman of the Bar on the nomination of the Minister of Justice turns this process into a fiction, as it allows a government agency to interfere in the election process. The independence and self-governing nature of the Bar supposes that the society of lawyers is able on its own to choose its leaders, without unnecessary supervision by the Ministry of Justice. As Yu.I. Stetsovskiy correctly noted: “…together with the Ministry of Justice the leadership of the Bar is perfectly capable of carrying out the policy of the Communist Party of the Soviet Union, but not of providing qualified legal assistance.”[19]
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