Advocacy and notary office. Advocacy: concept, role in society, basic principles (lecture notes)

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Advocacy and notary office. Advocacy: concept, role in society, basic principles (lecture notes)

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LECTURE No. 1. Advocacy: concept, role in society, basic principles

1. Advocacy and its appointment in society

According to Part 1 of Art. 45 of the Constitution of the Russian Federation, the state guarantees the protection of human and civil rights in the Russian Federation. Another constitutional norm (Article 46) establishes guarantees for judicial protection of the rights and freedoms of a citizen. In criminal procedural legislation, these constitutional principles are embodied in a number of norms of the Code of Criminal Procedure of the Russian Federation, in which the main role in protecting citizens, including on a free basis for citizens, in pre-trial and judicial criminal proceedings is assigned to the legal profession.

Traditionally, it was generally accepted that the role of the legal profession in Russia was limited to ensuring the suspect, accused or defendant the right to defense in court, providing advice and representation in civil proceedings. This is how it was for a long time, and this vast area of activity of the legal profession will be discussed below in some detail. However, the activities of the Russian Bar over the past ten years since the self-transformation of this institution in accordance with the trends of new times (early 1990s) have changed significantly.

In accordance with Part 1 of Art. 3 Federal Law of the Russian Federation dated May 31, 2002 No. 63 Federal Law “On advocacy and the legal profession in the Russian Federation” advocacy The professional community of lawyers is recognized as an institution of civil society, not included in the system of state authorities and local governments. This interpretation is the official definition.

The legislator indicated that the legal profession is an institution of civil society. The concepts of “bar” and “civil society” have a very deep constitutional and legal content, despite the fact that these terms themselves are not used in the text of the Constitution of the Russian Federation.

Article 2 of the Constitution of the Russian Federation proclaims human rights and freedoms to be the highest value and establishes that the protection of these rights and freedoms is the duty of the state. Since a critical form of protection of human rights and freedoms is the protection of a citizen from unjustified deprivation of liberty, and criminal prosecution in accordance with Art. 48 of the Constitution of the Russian Federation is carried out with the mandatory provision of qualified legal assistance (i.e., the assistance of a lawyer), the state has the obligation to provide such legal assistance.

Lawyers are united in chambers of lawyers, and together individual lawyers and chambers of lawyers form the legal profession, which today is the only legally recognized institution of civil society. The Constitutional Court of the Russian Federation, in its ruling No. 21-O dated December 2000, 282, indicated that “the activities of lawyers, who are entrusted with the responsibility to ensure the protection of the rights and freedoms of man and citizen, have public legal significance.”

It is not the state, but the author of the Constitution of the Russian Federation - “the multinational people of the Russian Federation” (preamble of the Constitution) - who has endowed the legal profession with the inalienable right to fulfill the obligation to protect the highest constitutional value - human rights and freedoms.

It is no coincidence that it is the lawyer who confronts the state prosecutor in criminal proceedings. Ensuring equality of rights of a lawyer and a state representative corresponds to ensuring equality of the legal profession and the state in protecting human and civil rights.

The fact that the legal profession is named in Art. 3 of the Law on Advocacy as an Institute of Civil Society, emphasizes, on the one hand, the equality of the legal profession and the state in the sense of Art. 19 of the Constitution of the Russian Federation, and on the other hand, the independence of the legal profession from the state and the duty of the state to ensure the independence of the legal profession as a component of ensuring the protection of the rights of citizens, prescribed by Art. 2 of the Constitution of the Russian Federation.

Moreover, in order to implement the provisions of the Constitution of the Russian Federation, according to which Russia is a rule of law state (Article 1), as well as in order to protect the right to free development of a person (Article 7), ensuring ideological diversity and equality of public associations before the law (Article 13) the legal profession is also an institution that has the responsibility to ensure the protection of the rights of civil society, to be its representative and defender in the face of the state in the public legal sphere. Of course, other institutions of civil society can protect human rights and freedoms, but only the legal profession is entrusted with such a duty, supported by the requirement of Art. 48 of the Constitution of the Russian Federation on the provision of qualified professional legal assistance.

These norms of the Constitution relate to the foundations of the constitutional system and include, as a matter of course, the protection of civil society as a component of the protection of human and civil rights and freedoms and, accordingly, the duty of the legal profession as an institution of civil society independent from the state to protect civil society, human rights and freedoms.

2. Basic principles of the advocacy

The Bar realizes its tasks before civil society by implementing the principles of its activities, defined by Part 2 of Art. 3 of the Law on Advocacy. These principles include:

1) legality;

2) independence;

3) self-government;

4) corporatism;

5) equality of lawyers;

6) the moral principles of the profession of a lawyer.

The principle of legality in relation to advocacy, it is expressed in Art. 4 of the Law on the Bar, which establishes that legislation on advocacy and the legal profession is based on the Constitution of the Russian Federation and consists of the Law on the Bar itself, other federal laws adopted in accordance with federal laws, regulatory legal acts of the Government of the Russian Federation and federal executive bodies regulating this activities, as well as from laws and other regulations of constituent entities of the Russian Federation adopted within the powers established by this Federal Law. In addition, legal entities themselves are created exclusively in strict accordance with the law. Lawyers in their activities must be guided by the law and comply with the lawful demands of government bodies and officials (Article 15 of the Constitution of the Russian Federation).

The principle of independence characterized by the fact that the legal profession is not part of the system of state authorities and local governments. A lawyer, when carrying out legal activities, cannot be bound by any orders, instructions or other forms of influence on him from the bodies of the legal community, legal education, or other external factors. He is an independent figure in the choice of forms and methods of defense or other types of legal assistance, based only on the law and the will of his client, if it does not contradict the law. This principle means the economic independence of a lawyer, as well as the difficulty of holding him accountable.

The principle of self-government is that the legal profession (including legal entities) cannot be created, managed or liquidated by state or other bodies, organizations or persons who are not lawyers. All matters of the establishment and activities of the legal profession are handled by the lawyers themselves, directly or through the election of governing bodies, which act on the basis of internal regulations (statutes, regulations, contracts, etc.) adopted only by lawyers. This principle is a consequence of the non-state nature of the legal profession. The most important issues in this area are resolved by legal self-government bodies.

Corporate principle consists in the association and activities of lawyers through their organization (corporation of lawyers), which establishes its own corporate rules of conduct and other norms, resolves issues of liability of lawyers, regulates other issues of legal practice in accordance with the rules of law and the wishes of lawyers. Absolutely all lawyers are required to obey corporate rules. In turn, the corporation guards the rights and legitimate interests of its members, acting as their representative in any government or other bodies and organizations.

The principle of equality lawyers is the absence of caste in the legal profession, the division of lawyers into superiors and subordinates, senior and junior, employers and employees. When solving their internal corporate problems, each lawyer has the right to only one vote, regardless of his length of service, age, or amount of money earned. “Internal labor regulations”, labor discipline requirements and other categories of labor law cannot be applied to lawyers, since their activities are not of the nature of work under an employment contract or of another nature regulated by labor legislation. In accordance with this principle, all lawyers are equal:

1) when acquiring status, the same requirements are applied to all applicants;

2) all lawyers have equal rights and obligations;

3) legislation guarantees equality of status for lawyers, regardless of the time of acquisition of this status. The only exceptions are lawyers of foreign states, who can provide legal assistance in the Russian Federation only on issues of the law of a foreign state, and they are not allowed to provide legal assistance on issues related to state secrets.

The principle of moral principles in the legal profession, it is assumed that a lawyer must be an example of moral purity, impeccable behavior and qualifications. He is obliged to constantly improve his knowledge, raise the level of professionalism and monitor his own reputation.

Author: Nevskaya M.A.

>> Forward: Origin of the legal profession (Organization and functions of the legal profession in the countries of the Anglo-Saxon legal system. History of the Russian legal profession)

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