Pseudo-defense free of charge. "Legal Information Agency", 3 May 2018
Selection of advocates for defense will be automated. Such a system is meant to cut short the practice of imposing defenders favorable to the investigation - the so-called "pocket advocates" - upon defendants. But suggested measures are unlikely to improve the quality of free legal advice.
The Constitution of Russia guarantees the right for qualified legal advice to everyone. Besides, suspects, defendants and the accused have the right to receive defense free of charge. It is carried out by an advocate participating in a criminal case and appointed by an interrogator, investigator or a court of law. Their work is paid from the federal budget. A defender for the accused who cannot afford the one is provided by the International Pact on Political and Civil Rights and the European Convention.
Lucky Case
At the same time any advocate, an appointed one as well, has to perform their duty as a defender honestly and defend exclusively the interests of their clients no matter whether they pay or not. The investigation have no right to participate in the selection of a certain lawyer - the Bar does it itself.
There is no common practice in Russia yet, and selection methods are determined by the chambers of advocates in the regions. In some subjects of the Russian Federation it is the business of specially authorized coordinators or supervisors, there are scheduled duties in others, and there are also centers of subsidized legal assistance, dispatcher services, call-centers and so on. Moreover, the system of carrying out duties does not prohibit investigators to choose an advocate from the limited list though .
The use of specialized computer programs enabling random selection and excluding any outer influence, is supposed to be the best means in the Federal Chamber of Advocates (FCA). Such a system has already been put into practice in seven regions and will also start operating in Moscow from 1 July.
It is suggested that this practice should be spread all over the country. The Ministry of Justice has worked out a draft law which provides corresponding amendments to the current Criminal-Processual Code of the RF (CPC). The department is sure that the use of the automated information system enables to exclude completely the influence of any interested person on instruction distribution between advocates and meets the principle of the Bar's independence. Officials think that "there is still a possibility of such influence" in the system of supervisors and duties.
The Bar confirms that the new law is aimed at "pocket advocates". "The suggested approach will equally distribute work between advocates acting as defenders and appointed by the inquiry, preliminary investigation and law courts. It will eventually help to provide criminal defense of proper quality in cases where advocates commonly known as "pocket advocates" take part", - states the first vice-presidential of the FCA Yevgeny Semenyako.
At the same time he notifies that introduction of the automatic information system will require considerable expenses, while subsidies from the federal budget or other outer sources are not expected. "Interests of the state and Ministry of Justice are clear. I would llike advocates not to be the only ones who pay for these innovations", - states Yevgeny Semenyako.
Choice Error
In order to prevent any abuse the Ministry of Justice also suggests that the norm which excludes recognition of evidence received from a suspect with infringing the established order of appointing a defender, should be fixed in the CPC. "This sanction makes possible breaches of the procedure for distribution of cases between advocates pointless and attempts by "pocket advocates" to step in - hopeless", - explains Yevgeny Semenyako.
Nevertheless, these measures won't prevent other kinds of abuse. You see, the basic wage rate of work of an advocate by appointment is only ₽ 550 for a day of participation in proceedings , in certain conditions (days off and night time) it increases up to ₽ 1100. It is quite obvious that a qualified lawyer won't work for 12-15 thousand roubles per month.There is premium money paid by the professional association out of the money collected from advocates who don't participate in the free of charge assistance, but it can't increase profitability of the appointed advocates substantially. Besides, premium money out of the budget is not paid for preparation to court sessions, topic studying, sending of advocate's requests and other kinds of work necessary for proper defense.
At the same time, the appointed advocate has no right to receive any extra rewards from the clients who do not pay. Such a situation often leads to actual extortion- a lawyer who doesn't want to work for ₽550 a day makes an offer to his/her client, the client's relatives or other people who are close to the client, to enter into a compensatory agreement on legal assistance. Moreover, many of the accused who got into such circumstances say that royalties demanded by the former free of charge advocate sometimes exceed the amount of money charged by the paid lawyer. The leadership of the Bar assures that such actions are qualified as an infringement on professional ethics and are followed by strict disciplinary punishment. Other kinds of abuse by members of the professional community, including those which lead to the conflict of interests, are also tackled. For example, Natalia Barsukova has lost her advocate's status. She made use of the power of attorney, which had been received by her from her client, to recognize a lawsuit brought against that very client in order to levy a debt for legal services. "Unacceptability of actions against principal's legal interests is one of the initial principles, the basics of an advocate's professional activity", - that is stressed in the decision of the Council of the Chamber of Advocates of the Moscow region.
Rouble revaluation
Experts see solution of the problem in increasing state rewards to the appointed defenders. President of the FCA Yury Pilipenko says that the ₽550 basic daily rate is ten times lower than the market prices. The Bar appeals to the President, - "The state does not fulfill its obligations for annual indexation of payment rates, while other participants of criminal proceedings (judges and law-enforcement officers) get their salary rises regularly. Moreover, there are systematic delays in meager payments to advocates - sometimes they exceed half a year in the regions. Such position of the state forms economic unattractiveness of the activity meant to defend citizens' rights and jeopardizes realization of these rights in practice. The current approach actually means refusal to provide the constitutional right of citizens to receive legal assistance free of charge".
Defenders consider ₽3.000 a day or ₽700 an hour to be a fair payment. The FCA leadership agree that additional money from the Federal Exchequer required to fulfill these plans is comparable to the increased expenditure on payments to other participants in criminal proceedings, i.e. Investigators and judges. In the beginning of April Vladimir Putin charged the government to study the issue of "raising payments for the advocate's work". However, indexation is not specified yet.
Stats
73.6 thousand working advocates are registered in the Ministry of Justice. 112 members were expelled for breaching the norms of professional ethics last year. There are 2.8 thousand registered colleges of advocates and also 746 recorded bureaus.
According to the Federal Service of the State Statistics, annual paid legal services provided to the people exceed 100 b roubles.
Almost 915 criminal cases were considered by the law courts in 2017.
Opinions
Vadim Klyuvgant, partner, co-head of the criminal-legal practice of attorneys at law Pen & Paper, vice-president of the Moscow Chamber of Advocates
Rendering advocates by appointment ensures citizens' constitutional right for qualified legal assistance free of charge. Those advocates who are not paid by their clients take part in approximately 80% of cases all over Russia (the situation is different in the capital cities).
Meanwhile, the Code of advocate's professional ethics obliges advocates to defend their clients' interests properly, no matter whether they work by appointment or under contract. Actions of an advocate, an appointed one as well, in the interests of the investigation, but not a client, are regarded as a betrayal. They are punishable and may result in expulsion from the Bar. Minimum professional requirements to the actions which a defender, including an appointed one, must do in every case, are also determined.
It is also important to understand that, in fact, in some cases an advocate needs to hold their own parallel inquiry, invite paid specialists under contract or carry out some other, sometimes costly actions. Unfortunately, our "generous" state doesn't consider this work necessary - an appointed defender is paid only for participation in the legal proceedings and has no right to receive additional reward from a defendant. Such blackmail is also a disciplinary misdeed and may also result in a punishment - up to the termination of the status of advocate. Otherwise, an advocate should conclude a contract with their client or client's relatives and refuse to get royalties from the state - two statuses can't be combined.
Amendments to the CPC suggested by the Ministry of Justice are very important. First of all, the main requirements for the selection procedure for the appointed advocates will be settled on the law level and that excludes any doubts over their binding force on the part of the investigation and law courts. Next, any evidence received from the accused or suspects with participation of a defender appointed with breaching of the established rules, is a priori recognized as unacceptable and that makes the very attempts of infringement meaningless.
Illarion Vasilyev, advocate of the college "Malik and Partners"
Any efforts aimed at tackling "traitors", and this is surely the right word for the so-called "pocket advocates", should be welcomed, especially now, when work by appointment has become an essential part of advocate's earnings due to the lack of money. The beginners and advocates in the regions suffer mostly.
At the same time, a defender may not want to "quarrel" with and confront an investigator. There are also cases of financial interest when an investigator imposes agreement with a particular advocate on a defendant or people close to them. It often seems obvious that a particular advocate "works" with a particular investigator.
None of computer algorithms will prevent such conflicts of interests. It is more important to achieve qualified legal assistance at the early stages of inquiry and preliminary investigation, everywhere. Assistance and control of the professional community are needed. Fledgling advocates should realize the consequences of a compromise with the investigation for themselves and their principals.