SOME LIMITATIONS IN THE PRACTICE OF ADVOCACY: NATIONAL AND FOREIGN EXPERIENCE
SOME LIMITATIONS IN THE PRACTICE OF ADVOCACY: NATIONAL AND FOREIGN EXPERIENCE
Alibek Matmurotov
Acting Associate professor of the Department Judicial, law enforcement agencies and advocacy, Tashkent State University of Law,
Uzbekistan, Tashkent
ABSTRACT
This article analyzes on the basis of the legislation of foreign countries, in which cases the person who is required to obtain the status of advocate is not allowed to become an advocate, in which cases the person is found to have an impeccable reputation, and gives an idea of the possibilities of introducing their positive experience into the national legislation.
Keywords: incapacitated or limited legal capacity, convicted, incomplete conviction status or expunged conviction status, committed an intentional crime, to have an impeccable reputation.
According to Article 3 of the Law of the Republic of Uzbekistan “On Advocacy” two different categories of persons in Uzbekistan do not have the right to engage in advocacy activity.
The first category includes persons who have been declared legally incompetent or with limited legal capacity, and the second category includes persons whose convictions have not been completed or whose convictions have not been expunged. It should be noted that our national legislation restricts only the practice of advocacy. Today, there is a need to make some changes and additions to this rule in terms of clarification.
It should also be noted that it is necessary to study all of them separately, taking into account the fact that in foreign countries the practice of advocacy is not allowed, and in each country there are specific restrictions.
In the experience of the Russian Federation[1], a person who has been declared incompetent or with limited legal capacity in accordance with the procedure established by the legislation of the Russian Federation, whose criminal record has not been completed or whose conviction has not been expunged for an intentional crime, has no right to obtain status of advocate.
It follows that if a person has committed a crime as a result of negligence, he or she does not have to wait for the conviction for that crime to be completed or removed. A person who has committed a crime as a result of negligence shall have the right to acquire the status of advocate and to practice law in accordance with the procedure established by the current legislation.
The second part of Article 12 of the Law of the Republic of Tajikistan "On Advocacy and Activity of Advocate" does not meet the requirements of the first part of this article, as well as in the manner prescribed by the legislation of the Republic of Tajikistan State bodies, courts, judiciary, prosecutor’s office, bar, other law enforcement agencies, dismissed from military service for committing acts related to criminal offenses or corruption, it is established that the person released from liability is not entitled to the status of advocate and to practice law.
The peculiarity of the legislation of Tajikistan[2] is that if a person is convicted of a crime, he/she is deprived of the right to practice advocate for life, regardless of what crime he committed, as well as whether he committed these crimes intentionally or negligently.
In this regard, the study of Ukrainian legislation[3] revealed that the person has committed what type of crime (serious and very serious), can not be a lawyer for a certain period of time when committing certain offenses.
More precisely, in accordance with Article 6 of the law of Ukraine “On the Advocacy and Activity of Advocate”, a person for the committing serious, extremely serious crime in accordance with the procedure established by law, as well as for a non-grave crime for which a penalty in the form of imprisonment was imposed, the state of conviction, – for two years from the date of the decision to terminate the right to engage in advocate activity, for violation of the oath, for committing a corruption offense, a judge, prosecutor, investigator, interrogator, notary, public service or service of self – governing bodies-it is established that there can not be an advocate for three years from the day of his dismissal.
An applicant for the status of aadvocate in Turkmenistan cannot be advocate for several reasons under Article 8, Part 4 of the Law of the Republic of Turkmenistan “On Advocacy and Activity of Advocate in the Republic of Turkmenistan”. In particular, he/she was released from the court and law enforcement agencies for disciplinary action - for one year from the date of release, A person whose criminal record has not been completed or whose conviction has not been expunged, who has been declared incompetent or incapacitated for a crime in accordance with the legislation of Turkmenistan, who has been expelled from a bar association or deprived of a legal aid license for misconduct the person cannot be advocate.
Unlike other countries, Kyrgyz law[4] imposes certain restrictions on a citizen's ability to obtain a license to practice law. For example, in accordance with the legislation of the Kyrgyz Republic, incapacitated or partially incapacitated, incomplete or revoked conviction, dismissal from law enforcement and other government agencies for a disciplinary offense - from the date of dismissal tiboran for a year, previously deprived of a license to practice law - for five years from the date of revocation of the license, twice deprived of a license to practice law, prematurely dismissed from the post of a judge due to moral misconduct - can not obtain a license to practice law within one year from the date of release.
An applicant for a license to practice law in the Republic of Moldova[5] must have a good reputation. It should be noted that the current Moldovan legislation clearly and concisely describes the cases that are not considered to have an impeccable reputation. In particular, if a person has previously been convicted of a crime, serious crime, or aggravated crime, regardless of the completion of the criminal record, if the conviction for other crimes has not been completed, has been suspended from advocacy on the grounds of compromising or his/her license to provide legal assistance has been revoked, dismissed from law enforcement agencies on the grounds of compromising or dismissed on the same grounds as a judge, notary, legal adviser or civil servant, if an advocate engages in activities that do not comply with the norms of the Code of Ethics, or if his/her conduct does not comply with these norms, the court's decision that a violation of a person's fundamental rights and freedoms is not considered to have an impeccable reputation and is a ground for dismissing his or her application.
According to the legislation of the Republic of Kazakhstan[6], persons or circumstances that cannot be an advocate can be divided into two groups.
In accordance with the second part of Article 32 of the Law of the Republic of Kazakhstan "On Legal Assistance and Advocacy", the first group includes persons whose incapacity or limited legal capacity has not been completed or whose conviction has not been expunged in accordance with the law.
In the second group, there are certain restrictions on a person applying for the status of a lawyer, according to which the person is entitled to 3), 4), 9), 10) and 12 of the first part of Article 35 of the Code of Criminal Procedure of the Republic of Kazakhstan. ) - released from criminal liability on the basis of paragraphs or Article 36 - within three years after the incident, dismissed from public and military service, law enforcement agencies, special state bodies, as well as a judge for negative reasons - within three years from the date of dismissal (dismissal), committed an administrative corruption offense - within three years from the date of the incident, in case of deprivation of a license to practice law on the grounds provided for in subparagraphs 1) and 2) of paragraph 4 of Article 44 of this Law - within three years from the date of entry into force of the court decision, if the chamber is removed from the register of legal advisers for negative reasons - it is stated that it cannot be an advocate for three years from the date of expulsion.
Restrictions on the right to practice law in Belarus are stated as a separate norm. These restrictions are enshrined in Article 8 of the Law of the Republic of Belarus “On Advocacy and Activity of Advocate in the Republic of Belarus”. According to law, when person was found incompetent or incapacitated in the prescribed manner, was expelled (dismissed) from the Bar Association on the grounds of discrediting, as well as dismissed from law enforcement agencies and other bodies and organizations, within three years from the date of the decision to dismiss, the right to practice law shall be restricted when a person has been working in a position in the civil service for the period from the date of application for the qualification examination to the date of obtaining a license.
Article 33 of the Law of the Republic of Armenia "On Advocacy" imposes restrictions on advocacy, according to which a person convicted by a court decision of incapacity or limited legal capacity, as well as convicted of an intentional crime and a person cannot be an advocate if the conviction has not been completed or removed.
The Law of the Republic of Azerbaijan “On Advocacy and Advocates” defines the circumstances that prevent obtaining the status of advocate. According to the current legislation, if the decision on the application of compulsory medical measures has entered into force, the dual citizenship, obligations to another state, in the manner prescribed by law, declared incapacitated or incapacitated, if there is a conviction that has not been expunged for committing a minor, serious or very serious crime, however, the inability to perform the duties of advocate in accordance with the law prevents one from obtaining the status of advocate.
An analysis of Article 10 of the Law of Georgia “On Advocacy” shows that a person previously convicted of an intentional crime must not allowed to be advocate if his conviction is not revoked or expunged in accordance with the law. Also, according to Article 2 of the Law of Georgia “On Conflicts of Interest and Corruption in the Civil Service” if an advocate is an official, he or she will not be entitled to practice law.
In the Republic of Lithuania[7], the term "impeccable reputation" is used in the legislation of the Republic of Belarus and is described as a separate article. Under current law in the Republic of Lithuania, in order for an applicant to be recognized as an advocate, his or her conduct must not be subject to circumstances that do not constitute a person with a good reputation.
In case of conviction for a crime committed intentionally in Article 8 of the law of the Republic of Lithuania “On Advocacy”, the state of conviction is strictly subject to completion, and also if the state of conviction for another crime before the completion of the state of conviction, as well as if the judge, prosecutor, advocate, assistant of advocate, notary, candidate of the notary, representative of the notary, for violation of professional or service activities from the position of the bailiff's assistant, or for gross violation of labor duties, or for dismissal from the position of a civil servant with the application of a career penalty, or for gross violation of labor duties, and not more than three years after the dismissal, psychotropic, drug, toxic or alcohol abuse, If a person does not meet the requirements set forth in the Lithuanian Code of Ethics for Advocates, he or she will not be considered an advocate and will not be recognized as an advocate.
In Poland on 26 May 1982, the law “On the profession of Advocates" was adopted, according to which it was established that if the applicant works, the spouse is a judge, a prosecutor, or if he works in the bodies of the prosecutor’s office, which are included in the competence of the district collegium of advocates, is found to be unfit for permanent labor.
In Finland, the Finnish Law “On Advocacy” was adopted in 1958, and Section 3 sets out the requirements for the position of an advocate. In particular, the person must have a good reputation and person’s lifestyle and other characteristics must be appropriate for the practice of advocacy.
A study of the legal legislation of foreign countries on cases in which the practice of advocacy is not allowed has led to the following conclusions:
first, it is stated that a person is not entitled to the status of an advocate and to practice law in certain foreign countries (Russian Federation, Tajikistan) under the restrictions established by law. In some countries (Ukraine, Turkmenistan, Kazakhstan, Armenia, Azerbaijan, Lithuania) it is not possible to be an advocate, in some countries (Kyrgyzstan, Moldova) it is not possible to get a license to practice law in some countries (Belarus, Georgia) it is stated that it is impossible to practice law;
secondly, the range of subjects who are not allowed to practice law has been expanded, and the circumstances in which it is not allowed to obtain the status of an advocate or to practice law have been clarified;
third, the restrictions on disqualification from practicing law in the foreign countries studied are divided into two groups, namely, temporary restrictions and lifelong restrictions;
fourthly, in some foreign countries (Lithuania, Belarus, Finland) the single term "integrity" is used, and in the current legislation the circumstances that are not considered to have an integrity are clear and fully defined.
In conclusion, the Law of the Republic of Uzbekistan "On Advocacy" should be supplemented with the following article:
“To have a good reputation”
An applicant for the status of an advocate shall be deemed not to have a good reputation and the applicant shall not be entitled to the status of an advocate or to practice law if person:
Has been declared legally incompetent or has limited legal capacity in accordance with the procedure established by the legislation of the Republic of Uzbekistan;
has been previously convicted of an intentional crime or aggravated crime, regardless of whether the conviction has been completed or removed;
if the conviction has not been completed or the conviction has not been expunged for the commission of an intentional socially minor or less serious crime;
if the decision on the application of medical coercive measures has entered into force - one year after the termination of the application of compulsory medical measures;
dismissed from a judge, prosecutor, investigator, inquiry officer, advocate, trainee advocate, assistant advocate, notary, legal adviser, as well as from law enforcement agencies and other state bodies and organizations for violation of labor discipline - two from the date of dismissal years later;
if the person does not meet the requirements set out in the Code of Professional Ethics of Advocates”.
References:
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