Advocate Vadim Klyuvgant: demand on "pocket" advocates should be tackled. RLIA, 18 April 2018
Vice-President of the Moscow Chamber of Advocates, Deputy Chairperson of the FCA RF Commission for protection of advocates' rights, partner, co-head of the criminal-legal practice of advocates at law Pen & Paper Vadim Klyuvgant comments to the RLIA on illegal pressure on advocates, non-admission of defenders to the state buildings, bureaucratic "roadblocks" and obstacles, confrontation between a strong and a week party in criminal proceedings, necessity to safeguard commercial secrets as a reason to hold a meeting behind closed doors, and credibility of the Bar.
The defender also spoke about the balance between lawmaking and law application, necessity to adopt initiatives of the advocates' community and ways of tackling "pocket" advocates.
- Eight years ago you said that advocates dealing with high profile cases had been under permanent pressure. Is it still the case?
There is a great and painful problem of impediment to the advocate's activity and various kinds of illegal interference in it. It is the main problem for uncompromising advocates. Methods are quite different, not always processual, sometimes heavy-handed or sophisticated and based on deceit in order to limit the advocate's access to a principal. And all this will continue until a norm for responsibility, up to a criminal one, for impediment to advocate's activity and illegal interference in it, appears in the law and is put into practice. There should be an increased responsibility of an official for abuse of power.
Not only advocates, but the Council of the President of the RF for the development of the civil society and human rights tried to initiate the establishment of such a responsibility. Just hidden resistance until now. But it doesn't mean that it can't be overcome. There is a general norm for impediment to the advocate's activity in the FL "On advocate's activity and the Bar", but there are no guarantees of its execution, because there is no responsibility. There is responsibility, a criminal one as well, for impediment to activity of religious organizations and journalists, but it doesn't exist for interference in advocate's activity, though the Bar carries out the most importantss public-legal function: provides everyone with guaranteed by the constitution qualified legal assistance. So, we are talking here mainly not about advocates and their protection, but about the conditions for realization of the citizens' constitutional rights.
We are happy that the Ministry of Justice is backing us at last. At present, the work on formulation of innovative pieces of legislation which were proposed long ago, is going on. I wish these proposals to be realized in the near future.
- An incident with advocate Olga Dinze in August 2017 caused discussion among advocates about the exchange of documents and censoring correspondence between a defender and a principal who is kept in custody. Can this example change the system?
- There are regime restrictions for a person kept in custody including communication ones. There is also a problem in personal contacts with a defender for such a person.
A balance between prevention and securing principal's right for defense is needed to resolve it comprising maintenance of advocate's privilege. Both those things are protected by law and a reasonable compromise between them should be found. It has not been found yet because of the balance shift towards regime restrictions. There are no different opinions on the matter in the advocate's community, but there are different points of view about acceptable actions of advocates in this situation. And all these opinions are correct and actions useful.
An advocate must defend their principal's interests not by any, but by all means which are not banned by the law. We do not appreciate indiscriminate legislative prohibition to pass any written texts and materials directly, bypassing remand administration, during meetings. This fair displeasure does not make the prohibition non-existing. Unfortunately, the Constitutional Court also hasn't disavowed it.
In this situation demonstrative attempts of advocates to default on this prohibition when meetings are under video surveillance, only provoke additional risk of coercive divulging information which is an advocate's privilege. Nevertheless, even now there are ways of legal behavior which do not breach the law but allow to reach the same goals.
That is why the Council of the Moscow Chamber of Advocates in its detailed motivated decision on the disciplinary case underlines that the advocate had the right goal - to safeguard the advocate's privilege, but the way to achieve it was incorrect. By the way, this decision is presented in public domain, but without personal data.
There are different ideas on how to reach the necessary balance of interests, but there is no clever suggestion on how to formulate and fix it in the legislation, yet. The search must go on.
- Vadim Vladimirovitch, there is an initiative to give the identification document of an advocate the status of the document verifying identity of a person. How significant is this initiative to the advocates' community?
- Surely, advocates don't need it to buy airplane tickets. It is about access to different administrative buildings, some law courts as well, for, unfortunately, our bureaucratic reality provides access their only by identity documents. Additional reasons not to admit an advocate, for instance, to the building of the court of law, ministry, FPS establishment, occur, although they come there not as an idler, but to do their job. Public prosecutors and investigators, not to mention judges, pass through special corridors, but an advocate has to undergo not only all procedures as a person from the "street", but always have a passport at hand - otherwise security simply won't let them in. The status of the document should provide an opportunity to realize all the advocate's authority without any obstacles.
There shouldn't be any bureaucratic "roadblocks" and obstacles.
- Witnesses are often interrogated behind closed doors. Thus, Igor Setchin gave evidence in the case of ex-minister Aleksey Ulyukaev in this very way because of the possible disclosure of commercial secrets. What is your attitude to the initiative of legal organizations to fix full and precise definitions of the secrets guarded by the law?
- To my mind, the problem is mainly in manipulating wordings and motives oduring the protection of the secrets guarded by the law. Such petitions often come from a week party and are not satisfied despite legal grounds, and when they come from a strong party, they are satisfied even if their substantiation is doubtful.
There are specific situations when such guarding of a law court meeting is justified, for instance, in order to protect privacy of personal life or juvenile interests. All this is provided by the law, including holding of a process behind closed doors because of the possibility of divulging commercial secrets. A court trial where documents and circumstances really representing commercial secrets are examined, may be partially held behind closed doors. The problem is in the factual substantiation of these decisions.
There is nothing bad in restricted admission to a court trial because of the possible divulgence of commercial secrets. Investors and shareholders may not be interested in publicity. It is their right. But when this is used to do or cover something improper, such as perjury or falsification of written evidence - it is not good, it is an obvious abuse of law.
There is also some uncertainty in terms, e.g. referring to "confidential" or "restricted" information. Advocates often come across such things when they send advocate's requests and get refusals to receive the required information because it is "restricted". And every addressee decides for themselves what this means. It is simply awful and a one more way to disturb the advocate's activity. Such an approach should be excluded. There should be a full information list provided and protected by the law and there shouldn't be any increasing of it on the spur of the moment.
- How is it possible to settle this problem: by legal practice or law making?
-I can't agree with the divisive conjunction "or", and not only in conformity with the solution of this problem. Both these ingredients are equally important. The law should not: contradict other normative acts, breach the Constitution, contain blanks and vague wordings. But, since the law is meant for conscientious application and at the same time regulates more or less universal situations, it is very difficult and sometimes even impossible to foresee initially and bar all possible twists and loopholes for the dishonest application of the law.
Unfortunately, at present in our gloomy reality forced casuistic adding, detailing of the legislation are taking place now because of the dishonest application of the law. It is seen especially in the legal norms for detention. But it is not the way out because three new loopholes appear instead of the closed one. Law and authority shouldn't be used to reach dishonest goals - it must be punished. In particular, they shouldn't be used for discrimination of the defense party or violation of the rights of any weak party. The state and its officials are the strong party a priori. They possess power and authority including the ones to repress. Private persons as well as advocates don't have such powers- they are obviously the week party. The strong party shouldn't create ungrounded benefits for itself.
It is impossible to issue a law for idiots. An idiot will always act as an idiot no matter how detailed a legislative act is, and laws made for them turn lawmaking into profanation and don't reach any positive goals.
What do you make out of the Ministry's of Justice initiative to automize distribution of advocates according to their specialization?
- For everyone who is well aware of the situation in this area, the necessity of excluding the subjective factor - human intervention, and, first of all, the strong party's influence on selection of a certain defender, is obvious and beyond question. A computer program which is well thought-out, available and reliable is a full guarantee which excludes this subjective factor and, in general, a modern and reasonable solution. But it is necessary to make provision for the consequences in case somebody acts contrary to this solution. For instance, an unscrupulous investigator makes a direct telephone call and invites an advocate despite the program. For this reason legislative changes have been made. They provide that the appointment of a defender should be made according to the order adopted by the Council of the Chamber of Advocates and this order should be worked out and brought into practice. Consequently, its observance has become obligatory not only for advocates and bodies of the Bar, but also for investigators and judges.
A failure to follow this order can't be left without such consequences which make its non-observance useless. There is no such a thing in the law yet, but it must be. We may expect sabotage, evasion and other actions on the part of unscrupulous advocates and people who apply law, since there are big interests behind. Therefore proof received with participation of an advocate appointed with breaching or bypassing the established order shouldn't be recognized. Then it will be pointless to breach this order. "Pocket" advocates are in demand for the strong party. This demand should be tackled hard. Evil can be eradicated only if services of these advocates become useless. I would like to emphasize that even now such an unscrupulousness is a gross disciplinary offense and is followed by responsibility up to deprivation of the status of an advocate. Decisions of that kind happen in Moscow and they are regularly published for everyone to know.
- What do you think about the possible increase of the wage rate for advocates by appointment? Will it improve the quality of the legal assistance and increase the people's trust?
- There is a big problem: unfortunately, the state does not carry out a duty provided by the Constitution to secure everyone's right to receive qualified legal assistance when a person cannot afford it. It is neither a favour on the part of the state, nor its good will, but an obligation which, as l have already said, has not been fulfilled properly. Today's prices are an insult and they are beyond the reasonable limit. They can't be compared with the wages for the far less qualified work, than the work of an advocate. But even this money is not paid in good time.
Up to 80% of the criminal cases' defense in the regions is carried out by appointed advocates. I beg your pardon, but how is it possible for an advocate in this situation not only to exercise a qualified work, but just exist without an extra income? They do not get the salary at the cash desk, you know. As you can see, everything is connected and needs to be ordered properly. It is not a request to do a favour, but the next reminder of the obligation of the state which it has to fulfill. Unfortunately, it's a chronic problem which hasn't been solved for many years.
- The Ministry of Justice "suggested that sending information to the state organizations as part of counter action against legalizing criminal incomes and financing terrorism was not breaching the advocate's privilege, but the FCA didn't agree. What is more important: the right of a principal or public interests?
- Let's have a look at the core, not at the interests of separate departments. Advocates have only one task - to defend the rights and legal interests of their principals. Advocates don't fight against crime and terrorism. They fight for the rights of their principals in every case. Therefore advocates shouldn't be involved in activities contraindicated to their profession, such as detection and denunciation. It is unacceptable to make an advocate participate in the procedures meant for authorized state authorities. It is even more unacceptable to demand that an advocate should divulge information which is an advocate's privilege. It ruins the very basis of the profession: the Bar does not exist if there is no trust in an advocate.
There is a professional ban on illegal and immoral actions. The Advocate's Code for professional ethics establishes that the law and morality are superior to the principal's will. It means that under no circumstances an advocate may join an unlawful deal and break professional ethical rules, in the principal's interests and at their request as well. If an advocate does so, he/she bears responsibility for breaking this rule. There is also a disciplinary and, in some cases, criminal responsibility of an advocate for such actions.
Those who perform great zeal for their work and try to make advocates take part in detection had better try the situation on themselves. Would they like the advocate they have trusted with some confidential information to behave in that way? And it is not something abstract, but really topical, for anything may happen to anyone, and we can see such examples every day. These people may need advocate's assistance tomorrow and they will face the consequences of what they have done as officials.
We do not refuse to cooperate. The legal profession is separated from the state, it exists as an institution of the civil society, and it is a necessary guarantee of its independence. Nevertheless, we interact with all state structures and departments and do not give up fundamental values and rules of our profession. It is an axiom for us.
Conversation with Nikolay Merkulov