Presentation on theme: "Legal Profession in Russia Dr. Mikhail Antonov Associate Professor of Law Faculty of Higher School of Economics – Saint Petersburg, Director of Research."— Presentation transcript:
Legal Profession in Russia Dr. Mikhail Antonov Associate Professor of Law Faculty of Higher School of Economics – Saint Petersburg, Director of Research Center for Legal Argumentation, Executive Director of Russian Yearbook for Legal Theory, Advocate The authors position does not necessarily correspond to the official position of National Research University Higher School of Economics Guest lecture at Law Faculty of University of Tartu, 5 th of November, 2012
Legal Education in Russia: Principles, policies, and general structure The Bologna system in Russian legal education and the rests of the previous system. MA and BA, specialist and other Russian degrees, compatibility with LLM and other degrees in law in the EU and the US. PhD and candidate degree; JD, habilitation and doctoral degree. Both candidate and doctoral degrees are delivered not by universities but by the State Qualification Commission. Day, evening and correspondence courses, second education, open universities; priority of the day courses: formally there is no distinction but in fact employers avoid graduates of evening or correspondence courses, and those with the second education (usually two or three years of evening classes with generalized account of the basic legal matters). Law faculties of the top-rank universities and academia of law in Russia; the state policy to decrease low-quality education in law and to promote the academia considered to be the best; difference in financing, merger of universities, suppression of non-profile law faculties. Private and public universities: standards, policies and strategies. Advantages of the public universities, lower quality of education in the private sector. Free of charge education in public universities: who eligible and who wins? Prevailing methods of teaching: lectures and seminars, short internship before graduating. The Unified State standards in legal education, what do they imply and what is to be taught?
Working as a lawyer in Russia The principal jobs for lawyer in Russia JudgesAdvocatesNotary Law enforcement In-house lawyers Every person who has diploma of legal studies (BA, specialist, MA) is considered to be a qualified lawyer. People without diploma also can work as ordinary lawyers (in-house, consulting, other legal services). No obstacles to participate in court proceedings with PoA from clients (except trial cases and the CC RF). Most of the graduates first get employed in the public (state owned) companies or in public organs (such as tax inspection ) Several possibilities which imply getting a stable but not highly paid job in one of the law enforcement agencies. To become investigator, attorney or prosecutor, one needs to have BA or specialist degree in law, one has not to stand any exams. To become notary, one must have BA (MA) or specialist degree in law, to have one year of internship at notarys office after graduating studies, also to stand qualification exams. The territory of Russia is divided into notaries districts, and there can be no more than one notary in one district; to get office the candidates must be inscribed in the list of attendance and wait for a vacant position in their region.
Practicing as advocate Status of advocate – (according to Federal Law from 31.05.2002 63) No difference between advocates depending on their qualification: the Russian advocacy does not know such distinctions as between solicitors, attorneys or barristers; every advocate is formally equal to others. No territorial restrictions: every advocate once admitted to bar can practice in any Russian court. No accreditation at courts – advocate just enters in a case and judge formally is to admit every advocate (except statutory limitations: familial relations with prosecutor, judge or like obstacles). Affiliation to the local bar is purely administrative: advocate pays fees to her regional bar, complaints against advocate are heard at the local bar, the bar distributes the vacant cases between its members, advocate informs her bar about change of office, about organizing or dissolution of a bureau, partnership, and the like events. No specialization: each advocate may participate in any case, no matter if she has experience and professional background in this sphere; judge cannot exclude advocate from proceedings even if the advocate is evidently incompetent (the only remedy is to bring a complaint against the advocate in her regional bar – cf. below). Requirement of independence: no employment in any private or public company or organization, except activities connected with teaching, with research, and with other kinds of creative activities. This independence limitation goes from the Soviet times and has no reasonable explication. Thus, advocates can participate in political parties, stand as candidates in political elections, be deputies, shareholders or owners of business, or arbiters in arbitration courts. Every member-state of the RF has one bar, all the bars are united in the Russian bar association which is independent self-regulating entity.
Admission to advocacy and practicing The following conditions of admission to bar are set forth: (1) higher education in law (BA or specialist), two years of legal experience or one year of internship with an advocate; (2) passing exams before Qualification commission (composed of advocates, representatives of procuracy, of Ministry of Justice, of judiciary, and of local legislature). When admitted to a bar, the advocate must choose between several variants of practicing: establishing a cabinet (own practice, fully independent), participating in a colleguim (advocates sharing costs of accountancy, office rent, the common clients base) ; bureau or partnership (several advocates working together as one consulting entity) ; or consultation (state sponsored office which provides legal services in certain areas or to certain categories of population. After admission, advocate is subject to rules of professional ethics, is liable to pay monthly fees, to file tax and other reports and declarations, and to pay the corresponding taxes and dues. The regional and the federal bars can issue recommendations which have no binding force for advocates but have persuasive force, as the bar can compel the advocate to comply with the recommendations because of possible threat of exclusion from the bar. Every person may bring a complaint against advocate to her bar. Not rarely it is judges and prosecutors who complaint about improper qualification or indecent behavior of advocates. Then the Qualification commission (the same which was formed for exams) studies the complaint, the advocate is invited to forward her objections. As a rule, the complaints are rejected or, even allowed, the advocate receives only warnings and recommendations of due behavior. Cases of exclusion of advocates from their bars are very rare. Decision of the regional bar about exclusion of advocate from the bar can be challenged in a court.
Advocate is free to agree with her client any fee; regional bars from time to time issue the recommended tariffs but they are not obligatory and do not cover all the situations; when agreeing on the remuneration, the only condition is that the fee must not depend on outcome of the court case. There is no advocate monopoly in courts (except trial cases and the CC RF), each person can represent own interests or interests of others. Chief Justice of the Supreme Commercial Court Ivanov and other higher justices expressed their opinion in favor of advocate monopoly in courts, but the CC RF condemned this monopoly as early as in 2004 (Ruling from 16.07.2004 15-П), and new legislation (the draft proposed by the SCC RF now under consideration of the Parliament), if adopted, stands danger of being invalidated as unconstitutional. Though in a recent case the CC RF dissented from its previous opinion and again gave way to discussions on this matter (Ruling from 09.07.2012 17-П). In some situations advocates are paid from the state budget for the trial cases when the accused may not refuse from having advocate (severe punishments, minor delinquents, etc.: art. 51 of Criminal Procedure Code). Also each person accused of crime has the right to a free (paid by the state) advocate (art. 48 of Constitution). In these cases an advocate is appointed by the regional bar – in reality, those advocates are appointed who are friendly with the prosecutors and get from them information about advocateless detainees or the accused persons without legal advice – the bar only formally validates the choice made by the prosecutor (investigator); it is not surprising that in fact such advocates stand rather on the side of prosecution than of the moneyless clients. There are situations where advocates must give free advices – cases connected with pensions, family allocations, etc. – these advices are paid later from the regional budget at fixed rates (Federal Law 324 from 21.11.2011).
Practicing as judge Status of judge (according to Federal Law 3132-1 from 26.06.1992 ) The statutory requirements for the persons willing to become judges are: 1) higher education in law; 2) five years of legal experience; 3) passing exams before Qualification Commission (QC – formed in every region from judges, professors and scholars). If passed the exams, the candidate remains on the list before a vacant position is opened. Since the position is open, the candidate can apply for it to the QC. No uniform standards for selection from the candidates are provided for in the legislation. The QC recommends the best candidate to the president of the court who decides on her admission or rejection. Veto of the president can be surmounted by the majority of 2/3 of the QC members, and he is then to accept the candidate. Justices of the highest instances (the CC RF, the SC RF, the SCC RF) are appointed by Council of Federation (the second chamber of the Parliament) on suggestion of President of Russia. Other judges are appointed by a decree of President of Russia. President (in fact, his Administration) can repudiate any candidate, and there are no remedies for the candidate to argue against this repudiation. Presidents of courts are selected from the judges of the corresponding court, and also are appointed by the Federal President, they can be changed by the President at any time without the Presidential Administration giving any reasons for it. The tacit rule of admission is that former advocates and prosecutors (investigators) are not accepted as judges – naturally, no legislative restrictions officially exist about it. Most of the judges come from court clerks and secretaries, from prosecutors and from procurators office. In-house lawyers and other legal professions are accepted, but rarely.
Execution of the office of judge Judges are appointed for life, maximal age for working as judge is 70 years (except Chief Justice of the CC RF). There is no probation period for ordinary judges, but it still exists for judges of the peace (the first term for them shall not be more than 5 years, then judge can be reelected by the appropriate QC; these elections are purely administrative (studying the dossier), there are no elections through popular vote). Judges must comply with many restrictions in their activities. Art. 3 of Federal Law 3132-1 mentions 14 restrictions, among which are prohibition to be members of political parties, to exercise commercial activities, no employment in any private or public company or organization, except activities connected with teaching, with research, and with other kinds of creative activities (even these activities are allowed under condition that they are not fully financed by foreign states or organizations), no travelling abroad sponsored by thirds (universities and academia inclusive). Judges are not allowed to go on strike. Pursuant to art. 12.1 of Federal Law 3132-1 judges can be dismissed for any single violation of the laws or of the ethics. The CC RF (Ruling from 20.07.2011 19-П) agreed that such strict rule is not fully reasonable, recommended to adopt new legislation on this matter, but the rule was nevertheless held valid,and is applied until now. If a judge is found to have breached the laws or the ethics, the appropriate QC decides on tenure of judge upon request of any person who can appeal against undue behavior or qualification of judge. These appeals are usually first studied by the president of the court where the judge works, if supported by this president the appeal goes to the QC. If the appeal is dismissed, no further remedies to contest this decision. If allowed and the judge is discharged from her office, then the decision of QC can be contested in the Disciplinary Judicial Presence (Federal Constitutional Law 4-FKZ from 09.11.2009). Verdict of the Presence is final.
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