Shaikhadenov
R.N.
L.N.Gumilyov
Eurasian National University
Institutional safeguards of the activities of a
lawyer in criminal proceedings of the Republic of Kazakhstan
Recently in Kazakhstan actively discussed the draft of
"On advocacy and legal aid" law that initiated by the Ministry of
justice and according to the developer, considered as the project that is able
to significantly change the regulation of the juristic profession, and as a
consequence, to increase the number of advocates and improve the quality of
their assistance(services).
It should be noted that there is a developed and
well-established advocacy Institute in our country since it gained independence
in 1991. It has a clear, intuitive structure, regional representation
throughout the country, standards of professional and ethical conduct, huge
disciplinary practice, developed
reception arrangements to its members and forms of liability, including
exclusion from its ranks. It has all the attributes that are important for such
an institution as the legal profession.
Familiarization with a dossier on the draft Law "On
advocacy and legal aid", as well as with all related materials: articles,
speeches and opinions of practicing lawyers, legal scholars, legal
practitioners, foreign experts (very reasonable and deserves attention),
clearly gives to understand that the legal community is critically perceived
and does not support the bill.
A concern of the legal community of Kazakhstan attempts to
restrict the rights of lawyers:
1) the establishment of the state of the legal profession,
contrary to the principle of independence;
2) the creation of a legal levers of pressure on lawyers by
using a disciplinary commissions for the judiciary, when throughout the world
the legal profession is self-regulating professional organization;
3) clearly exaggerates the intervention of the public
authority represented by the Ministry of justice and its departments in the
activities of lawyers, which is unacceptable;
4) the laying on of lawyers guarantees the outcome of the
judicial process, which is unacceptable, as justice is administered only by
courts by virtue of article 75 of the Constitution and the lawyer is forbidden
to guarantee the implementation of legal aid;
5) the proposal for the narrowing of the limits of
attorney-client privilege, although it should be absolute;
6)draft law do not include the social security advocates for
the protection of the state attorney, members of his family and their property
[1].
Without dwelling on the issues
(registration fees, compulsory insurance advocacy, Pro Bono, disciplinary
Commission, composition, etc.) that has already been disclosed comprehensively
by authoritative representatives of the legal community, I would like to focus
on the question of the status and position of a lawyer in criminal proceedings
of Kazakhstan in the context introduced in the Parliament of the Republic of
Kazakhstan the bill.
Transient
"pushing" a new bill in the Parliament of the Republic of Kazakhstan
(with the obvious disregard by the Ministry of justice the opinions of the
legal community) leads to a question: "Won’t we suffer the fate of the
lawyers of a neighboring country – the Republic of Uzbekistan?".
To be specific, on may 1, 2008, the President of the
Republic of Uzbekistan issued a decree initiated the reform of the legal
profession in Uzbekistan. The decree was, in principle, not bad. But in the
subsequent Cabinet of Ministers adopted a resolution arising beyond the
requirements of the Decree. The Cabinet of Ministers under the guise of the
decree of the President were submitted to an independent public organization of
the state authority represented by the Ministry of justice. Now the Ministry of
justice of the Republic of Uzbekistan, not worth the effort any fundamental/unwanted
counsel (commissioned by the national security service, Prosecutor's office,
interior Ministry or court), regardless of his diploma, experience,
qualifications, put in place to deny licenses, or, at best, suspended for 6
months. Colleagues of the neighboring Republic hope that the new President of
the Republic of Uzbekistan can be correct this ridiculous mistake of the
Cabinet and return to the lawyers originally inherent in them the status of
independence. Thus ensure and entrust the protection of the rights and
legitimate interests of legal entities and individuals real
lawyers-professionals, not lawyers "to run errands" or lawyers
"intermediate". Here is a depressing state of the legal profession
observed in Uzbekistan after the reforms.
Meanwhile, our other neighbors, there has been progress in
the development of the legal profession. So, for the first time in the history
of Kyrgyzstan, the Kyrgyz Government initiated and instructed the Ministry of
justice to develop legal mechanisms to improve the Institute of advocacy of the
country, where in priority to the protection of the rights and freedoms of
citizens.
A working group under the Ministry of justice, which,
together with the legal profession of the country is developing a draft law on
amendments and addenda to the Law "On advocacy and legal practice",
as well as in the corresponding normative-legal acts, which laid the
possibility of a breakthrough in the development and approval of an independent
bar Kyrgyz Republic. We are talking about the following: cancellation of the
issuance of advocate's license by the state represented by the Ministry of
justice of Kyrgyz Republic, all questions on the regulation of legal profession
to give to the competence of the legal profession.
In addition, there will be no more exceptions to the number
of staff and workers of law enforcement bodies, prosecution, courts,
governments and other bodies included in this list, on the basis of having five
years legal experience received a lawyer's license without examination. These
legal processes in the field of advocacy are being implemented to raise the
status of lawyers in the future, they become one level with the investigators
and the court were really independent in their human rights advocacy throughout
the territory of the Kyrgyz Republic [2].
We have the same in Kazakhstan with the forthcoming adoption
of a new law "On advocacy and legal assistance" progress towards the
advancement and the independence of lawyers is very doubtful. What need of such
haste of this bill?
Posing such a
question due to the fact that recently in the newly adopted laws begin to
change and additions or even begin a discussion of the possibility of their
abolition and the adoption of new legislative acts. Such actions of the authorities
give rise to instability in society and, consequently, undermine the
credibility of the law.
An example of this is the code of Civil procedure of the
Republic of Kazakhstan and other regulatory legal acts (criminal Code, Criminal
procedure code), which, after their adoption and enactment showed their
weaknesses. In this case we are not talking about the shortcomings that
revealed the practice of their application, and their conceptual imperfection
that drew the attention of scientists-lawyers and the practice is still under
discussion [3].
So make the bill
determines the fate of the legal community, have slowly, deliberately and, most
importantly, to prevent strategic mistakes.
21.12.2017 by the President of Kazakhstan N.À. Nazarbayev
signed the Law of Kazakhstan "On amendments and additions to some
legislative acts of Kazakhstan on modernization of the procedural framework for
law enforcement" [4]. This Law provides for significant changes aimed at
increasing of competitiveness and empowerment of lawyers.
One of the fundamental principles of the criminal process is
the principle of competitiveness and equality of the parties. It aims to ensure
equal procedural possibilities of the parties in the investigation, evaluation
of evidence and asserting their legitimate interests. The lack of equality of
the parties in procedural functions entails accusatory nature of the whole
pre-trial and judicial investigation.
Under the law proposed extension of the powers of attorneys
with the development of the attributes of competitiveness. The right to
admission as materials obtained in the course of the advocates of surveys of
citizens, the possibility to oblige the investigator through an investigative
judge to carry out those procedural acts which are necessary for the defense.
This approach will be excluded barriers to justifying picking up the face of
the evidence.
Necessary is the introduction of rules for exchange of
evidence as a progressive element of competition. The exchange will be subject to
all the collected materials: inculpatory and exculpatory. The key principle of
exchange determined that only transferred to a third party materials are
considered acceptable and can be used in court as evidence. The law also offers
side protection to the "concealment" to the court evidence of
particular importance to ensure the protection of the suspect. Will ensure the
equality of the parties in the exploration and evaluation of evidence, methods
of protection and prosecution, the validity of the decision in the case. The
exchange of evidence also exclude the possibility of falsification. Lawyers
will be given the opportunity to build an adequate defense and the prosecution
to objectively evaluate their arguments. In addition, given that the parties examine
the evidence of each other, at this stage they can be recognized as facts,
which are confirmed by the case materials, and in the future will not be
challenged. This will significantly increase the speed and efficiency of the
process. The Prosecutor will see the judicial perspective of the case and
promptly take a decision on its termination and cancellation of the preventive
measure or the direction of the court. Accordingly, significantly reduced the
costs of the defendant to pay a lawyer. Proposed institutions of competition
aimed at ensuring guarantees of protection of constitutional rights and
freedoms of suspects, accused in criminal proceedings [5].
In General, the prospect is promising. But we must not
forget about if a new draft law "On advocacy and legal aid" will be
adopted in the present edition (completely inconsistent with the law and the
law society), the adoption of the Law "On amendments and additions to some
legislative acts of Kazakhstan on modernization of the procedural framework for
law enforcement" as part of the development of the Institute of
competitiveness and empowerment of lawyers will not make sense because the
lawyers can't protect someone effectively, feeling institutionally
defenseless.
In this respect, it
is difficult not to agree with the words of Kazakhstan lawyers Kulykova S. R.,
who noted that "the activities of lawyers is one of the pillars in the
practice of the principle of rule of law and ensuring effective protection of
human rights. This activity is impossible without adequate guarantees of their
independence. Professional rights of lawyers and guarantees of advocacy are not
the personal rights of lawyers themselves. They are rights and guarantees,
above all, their customers. Therefore, introducing new rights lawyers,
developing of professional activities, in fact we are moving in the direction
of expansion of the rights of the citizens of our state.
In modern conditions it becomes obvious that lawyers need
effective assistance from arbitrariness and abuse, and in strengthening
safeguards and the independence of their activities. Resolution of these
problems depends directly on the strengthening of the prestige and
effectiveness of advocacy.
However, current state-level legal restrictions, practical
implementation and protection of professional rights of lawyer is not a cause
for concern. This is due, primarily, to the fact that the existing legal
immunity does not shield attorneys from arbitrariness and abuse by law
enforcement. Continued police interference into advocate's activity.
Restrictions upon the independence of lawyers significantly reduce the
possibility of realization of constitutional rights to protection, quality and
professional legal assistance guaranteed by articles 13, 16 of the Constitution
of the Republic of Kazakhstan, article 14 of the International Covenant on
civil and political rights, article 6 of the Convention for the protection of
human rights and fundamental freedoms" [1].
The arbitrariness and abuse by law enforcement agencies
against lawyers is the fact that modern technologies and social networks did
the work and problems of the lawyers with whom they have to face every day,
available to the public. For example, in social network Facebook there is a
group of "Lawyers of Kazakhstan" [6], where it is possible to observe
how the lawyers not only give each other good advice about the solution of a
legal question, but also to see clear violations of their rights by law
enforcement agencies. And it makes you wonder about how lawyers are vulnerable
in our country.
f the state, on the one hand is trying to empower lawyers to
implement the functions of protection, giving them additional powers in the
sphere of pre-judicial investigation and thereby make the principle of
competitiveness and equality of the parties finally started to work and apply
in practice, as it should be in developed constitutional States, the initiative
of the Ministry of justice of Kazakhstan on the institutional framework of the
bar just did not give the above-mentioned principle is reflected in everyday
practice of lawyers.
What kind of adversarial nature and
equality of the parties the prosecution and the defence in this case can we
talk?
Only such real opportunities to know
what evidence is collected or collected by a consequence, and in parallel
protection and, most importantly, regardless of the pre-trial investigation
body to collect and submit their evidence of innocence or lesser degree of
guilt, will ensure competition and equality of the parties the prosecution and
the defence. Unfortunately, despite the ongoing attempts of the state to
modernize the criminal procedure law, the Declaration, the empowerment of
protection, in fact, the status of the lawyer is reduced to nothing and creates
a deep feeling that the bar want turn into a decorative element of justice
[7].
Discussion of the draft law "On
advocacy and legal aid" have long gone beyond Kazakhstan and aroused the
interest of the European community. Here I consider it appropriate to make
reference to the speech by the lawyer of Almaty city bar Association L.
Ramazanova at the Parallel Civil Society Conference, Vienna (Austria). She
follows drew attention to the coming reform of the legislation on advocacy:
"Maybe the new law "On advocacy
and legal aid" has to be introduced from January 2018, and all lawyers
know that they will lose their freedom to Express an opinion on a particular
matter as lawyers.
Our system is repressive. In Kazakhstan,
as noted by colleagues, only one percent of acquittals. We have problems with
the adversary system in criminal proceedings, because the appeal of the defense
are satisfied 9.9 % of cases, the prosecution in 90.1% of cases. But we will
lose if it adopted a new law "On advocacy and legal aid". Because the
fight for human rights, as we are doing now — will become impossible. In this
regard, please pay attention to the reforms taking place in Kazakhstan, on the
amendment of the criminal procedure law, has a significant effect on the
protection of the rights and freedoms of the individual, leading to washout of
the effective remedies of national law.
The legal profession of Kazakhstan as a
"last Bastion", without which citizens will have limited rights, as
an Institute of advocacy depends on the protection of every person. Yes, of
course, there are cases when, figuratively speaking, we somehow fail, there are
such examples. But these cases do not carry mass, system character and is
currently an independent legal profession capable of protection and is able to
fight for the rights and freedoms of citizens" [8].
Raising the question about the interest
of the European community for reform of law activities in Kazakhstan, it should
be noted that international law clearly requires observance of the principle of
independence in the organization and activities of advocacy. This is specified
in the standards of the UN, Council of Europe and the OSCE, and is the
cornerstone of any judicial, legal system of each member state of the EU.
The draft law "On advocacy and
legal aid" has been submitted for consideration to the Majilis of
Kazakhstan (lower chamber of Parliament). In this regard, the European Union
calls upon all parties to the national parliamentary discussions and
decision-making process do not rush and carefully consider all possible
options, to take account of internationally accepted obligations, as well as
the opinions and recommendations expressed by the OSCE/ODIHR, the Council of
Europe and the International Commission of jurists. It should be borne in mind
that, ultimately, the reform aims to improve the lives not the government and
the legal profession, and citizens and companies of Kazakhstan, companies,
taxpayers of this country who expect that they will be treated confidentially,
they will receive a quality service and who hope that the court of justice [9].
Taking into account the relevant
articles of the European Convention for the protection of human rights
governments should take all necessary measures to ensure freedom in the
implementation of professional advocacy, to protect against any improper
interference in the activities of the lawyer by any governmental authorities or
agencies and to maintain and respect the principle of independence of lawyer
activity [10].
1.
Kulikova S. R. "International norms and requirements on protection of
lawyers". International conference "ACTUAL PROBLEMS OF REGULATION OF
THE LEGAL PROFESSION IN THE REPUBLIC OF KAZAKHSTAN". Astana, 10 October,
2017
2.
Chumakov U. Facebook-a group of Lawyers of Kazakhstan is the publication from
November 13, 2017 available at:
https://www.facebook.com/groups/advocatekz/search
3.
Mukhamedzhanov E. B., Tikhonov E. Private view on the Concept of the draft law
on legal aid. Mode of access:
http://www.zakon.kz/4879378-chastnyy-vzglyad-na-kontseptsiyu.
4.
Official website of the President of the Republic of Kazakhstan. Mode of
access:
http://www.akorda.kz/ru/legal_acts/laws/glavoi-gosudarstva-podpisan-zakon-respubliki-kazahstan-o-vnesenii-izmenenii-i-dopolnenii-v-nekotorye-zakonodatelnye-akty-respubliki-kazahsta-190
5.
The official site The General Prosecutor’s office of the Republic of
Kazakhstan. Enhancement of competitiveness and empowerment of lawyers. Mode of
access: http://prokuror.gov.kz/rus/novosti/stati/povyshenie-sostyazatelnosti-i-rasshirenie-polnomochiy-advokatov
6.
Mode of access: https://www.facebook.com/groups/advocatekz/
7.
Branches I. Improvement of the status of the defender in criminal proceedings.
Speech lawyer Atyrau regional bar Association at the Third annual forum of
lawyers of Kazakhstan. Almaty, 8 December 2017 access Mode:
https://www.zakon.kz/4894843-o-sovershenstvovanii-statusa.html
8.
Official site of the Republican Collegium of advocates. The legal profession of
Kazakhstan as "the last Bastion"... Mode of access:
http://advokatura.kz/advokatura-kazahstana-kak-poslednij-bastion/
9.
Traian Laurentiu Christians. Rasarit guarantees of the independence of the
legal profession. The speech of Ambassador, head of Predstvaitelstva the
European Union to Kazakhstan at the Third annual forum of lawyers of Kazakhstan
"issues of reform of the legal profession of the Republic of
Kazakhstan". Mode of access:
http://advokatura.kz/rasshirit-garantii-nezavisimosti-advokatury/
10.
Nsal Toker. Independent advocacy is key to spravedlivogo proceedings. The
speech of the Deputy Chairman of the Union of bar associations of Turkey at the
Third forum of lawyers of Kazakhstan "issues of reform of the legal
profession of the Republic of Kazakhstan". Mode of access:
http://advokatura.kz/nezavisimaya-advokatura-yavlyaetsya-zalogom-spravedlivogo-sudoproizvodstva/