We doubt that simple lawyers will be able to take any real part in the work of the executive bodies of the Bar Association or in any other way oversee their activities. But the Association will have power over them as, according to Part 6 of Article 12-1 of the law “On the Bar,” decisions of the Bar Association and its territorial branches are binding on all law firms and lawyers. We agree with the opinion of the famous Russian scholar S. A. Pashin, who concludes that “such a structure cannot help but become bureaucratized; it will quickly take on quasi-governmental characteristics, and instead of a self-governing organization of lawyers will become an instrument for their financial and professional oppression.”[20]
We believe that in order to ensure its independence, the legal community should be organized by lawyers themselves in each region and the capital. The executive bodies of these organizations should be formed through direct, secret ballot elections at general meetings of all lawyers. Candidates for these elections should be put forward in advance by law firms.[21] The national Bar Association should play a representative role and should not have any power over the regional Bar Associations.
We have doubts about the concept of giving the Ministry of Justice the right to initiate disciplinary procedures against lawyers, or to suspend or revoke their licenses. Such repressive measures should not be in the hands of an agency of the executive branch of government, as they are a direct means of leverage on the Bar and contradict paragraph 16 of the Basic Principles on the Role of Lawyers, which states that governments should ensure that lawyers have the ability to fulfill all of their professional obligations without intimidation, hindrance, harassment or improper interference.[22]
We believe that the power to initiate disciplinary proceedings should be given to the competent professional organization of lawyers. If they find sufficient cause, they should in turn petition the Ministry of Justice to begin a legal case before the courts regarding the revocation of the license of a lawyer who has committed a violation. Similarly, the Ministry of Justice should only suspend licenses upon the request of the regional Bar Associations.
The law of the Republic of Uzbekistan No. 3RU-198 of December 31, 2008 “On the Introduction of Changes and Additions in Several Legislative Acts of the Republic of Uzbekistan in Connection with the Improvement of the Institution of the Bar” requires law bureaus, collegiums and firms already operating on the day the law enters into force and all the lawyers working in them to conform to the requirements of the law regarding their organizational-legal status and individual licenses (Article 7). The text of the article is such that one can assume that firms and lawyers will need to be re-registered and lawyers will be required to take qualifying exams and receive new licenses. We consider such an approach excessively severe as it applies to already practicing lawyers and would consider it more just to convey legal status on already practicing lawyers and already existing law firms.
Conclusions and Recommendations
1. The broadening by the legislation of the rights of suspects, the accused and defense lawyers is positive. Such legislative changes contribute to the humanization and liberalization of practices, the assurance of the right to a defense, the equality of the parties in a criminal proceeding and other generally accepted standards of just jurisprudence.
2. With the goal of effectively guaranteeing the right to a telephone call, we propose to strengthen the law by requiring that the arrest protocol include the fact that the right to a telephone call or to otherwise inform of one’s detention was explained, the time the call was made, the number called, and the results. We do not believe it is appropriate to specify in the law the legal status of the person to whom the call may be made.
3. In order to guarantee qualified legal assistance in all cases in which it is provided at government expense, both the law and the statutes of the Bar should include a single procedure to be used throughout the country to name lawyers upon the decision of the government agency in charge of a criminal case. In this regard, it would be preferable for this question to be addressed only by the management of law firms, forbidding lawyers from personally working with employees of law enforcement agencies and judges on this question. There should also be a special form of orders for participation in this category of cases, and there should be tight control of how appointed lawyers carry out their obligations and abide by the rules of professional ethics.
4. In order to make clear the authority of the defense, we consider it essential to spell out in detail in the law the procedure by which lawyers may gather factual information. It is necessary to work out procedural means to strengthen the testimony given by people deposed by lawyers and also to make concrete in criminal-procedural and civil-procedural legislation the procedures by which defense lawyers name alternative experts and receive their opinions. 5. It is necessary to simply the procedure for receiving the status of a lawyer, leaving this issue to the competence of the professional community and removing unnecessarily bureaucratic obstacles from the process.
6. In order to ensure the independence of the legal community, we propose it be decentralized and based on regional associations formed by lawyers themselves. It is essential that these structures’ executive bodies be created through direct, secret ballot elections at general meetings of all lawyers. The national Bar Association should play a representative role and should have no power over the regional Bar Associations.
7. The power to initiate a disciplinary process should belong to the competent professional organization of lawyers. The Ministry of Justice should only bring to court cases for the suspension or revocation of a lawyer’s license on the request of a regional Bar Association.
8. We propose to recognize the status of currently active lawyers and law forms without the need to pass a new qualifying exam or to undergo re-registration.
[2] Hereafter the “CC”. [3] Hereafter the “CPC”. [4] Hereafter the “CEC”. [5] With the exception of meetings during the period in which the question of sanctioning of arrest is being made. [6] Article 49 of the CPC. [7] Article 51 of the CPC. [8] Analogous rights are provided to the victim and to parties in civil cases. [9] Articles 53 and 230 of the CPC. [10] Article 69 of the CPC. [11] Articles 66-1 and 114 of the CPC. [12] Article 224 of the CPC. [13] The question of introducing an analogous norm into criminal procedural legislation has been fairly actively discussed in the Russian Federation. See: Explanatory Note to the Draft Federal Law “On the Introduction of Changes in Article 5 of the Law of the Russian Federation ‘On the Police.’” Available (password required) at: http://asozd.duma.gov.ru/work/dz.nsf/ByID/35A00DDDECA34377C32573B1003C5BAD
[14] See: The Leadership of International Amnesty on Fair Criminal Process. Moscow, Publishing House “Human Rights,” 2003, p. 41-43. [15] International law does not differentiate between acts of official accusation and formulations of suspicion in regard to a person being held criminally liable. Therefore, the standards for ensuring an individual’s rights in such cases operate in equal measure. [16] The International Convention on Civil and Political Rights, On Human Rights: Handbook of International Documents, Warsaw, 2002, p. 91. [17] It is possible that the implementing decrees issued by the executive branch regarding procedures for licensing and taking the qualifying exam will take a liberal and simple approach. But because these issues have a principled importance for the Bar and determines the degree of its independence and the independence of lawyers themselves, they should be regulated by law and include all the guarantees that are characteristic for the profession. [18] See: Lawyers’ Activities and the Bar. Handbook of Normative Acts and Documents, Edited by E. V. Semenyako and Yu. S. Pilipenko, Moscow, Yurist, 2005, p. 25. [19] Yu. I. Stetsovskiy, The Bar and the State, Moscow, Yurist, 2007, p. 96. [20] Recommendations of OSCE/ODIHR in connection with the draft law of the Republic of Kyrgyzstan “On Lawyers’ Activities and the Bar Association of the Republic of Kyrgyzstan,” accessible on the internet at: http://www.lexkz.net/UserFiles/File/pashin2RECkg2005augLawyers.pdf. [21] A similar method has been quite effectively employed in the Almaty City Bar Association. [22] See: Lawyers’ Activities and the Bar. Handbook of Normative Acts and Documents, Edited by E. V. Semenyako and Yu. S. Pilipenko, Moscow, Yurist, 2005, p. 23.
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