National pressure records / Article
The Certification procedure as a lever of pressure on attorneys
Published March 4, 2021
In the beginning of March, 2021, information appeared on the Internet that on March 3, seven attorneys were summoned for certification by the Qualification Commission for Advocacy under the Ministry of Justice. Only one of them passed certification. Three more - Andrei Bartashevich, Elena Shinkarevich and Nikolai Yotka - were not certified. This means their law licenses were suspended. The rest - Daria Gorokhovik, Svetlana Konnova and Elena Maysenya - passed the certification "conditionally". In fact, they were put on a six-month probationary period, after which their fate would be finally decided. Failure to pass the certification is considered grounds for the withdrawal of a license.
As the source notes, in March several dozen attorneys were summoned to the commission. The formal reason for the certification can be anything, but the target audience of such "certifications" is predictable - attorneys who are defenders of political prisoners or criticizing the current legal state in Belarus (currently the number of such attorneys is about 200).
As the source notes, in March several dozen attorneys were summoned to the commission. The formal reason for the certification can be anything, but the target audience of such "certifications" is predictable - attorneys who are defenders of political prisoners or criticizing the current legal state in Belarus (currently the number of such attorneys is about 200).
In connection with the information that has emerged, we decided to study the situation with certification deeper and understand the phenomenon of a body for assessing the activities of attorneys, which consists mostly of non-attorneys, as well as ways to put pressure on, intimidate the attorney community and deprive of legal protection those in need of it. This material is based on the report of the International Federation for Human Rights and the World Organization against Torture, with the assistance of the Paris Bar Association, prepared in 2018.
Legal regulation
At the regulatory level, the status of an attorney is regulated by a set of rules that gradually brought the legal profession under the control of the authorities, in particular the Ministry of Justice. Among the regulations governing the issues of re-certification and revocation of licenses, is worth noting the following:
· Law of the Republic of Belarus dated December 30, 2011 No. 334-Z (as amended on January 6, 2021) "On the Bar and Legal Activities in the Republic of Belarus" (hereinafter referred to as the Law on the Bar);
· Resolution of the Ministry of Justice of the Republic of Belarus dated November 30, 2010 No. 105 (as amended on February 28, 2020) "On the implementation of advocacy and the provision of legal services" (together with the "Instructions on the procedure for assessing the compliance of the capabilities of an applicant for a special permit (license) (licensee) licensing requirements and conditions", "Regulations on the Qualification Commission for Advocacy in the Republic of Belarus", "Instructions on the procedure for conducting the qualification exam");
· Resolution of the Ministry of Justice of the Republic of Belarus dated 02.02.2012 No. 34 (as amended on 27.09.2019) "On approval of the Instructions on the procedure for certification of attorneys."
In accordance with Art. 18 of the Law on the Bar, an attorneys is required to undergo certification. Certification of attorneys is carried out by the Qualification Commission for Advocacy in the Republic of Belarus (hereinafter referred to as the Qualification Commission) or, on its instructions, by the territorial bar association.
Attorneys undergo regular and extraordinary certification. The ordinary certification is carried out once every five years, an extraordinary certification is carried out on the basis of a proposal from the Ministry of Justice or the council of the Belarusian Republican Bar Association to conduct an extraordinary certification of attorneys, that is, at any time.
Article 14 of the Law on the Bar defines the functions of the Qualification Commission. According to this article, the Qualification Commission:
· checks applicants for compliance with the requirements provided for by the Law;
· makes a reasoned decision on admission or refusal of admission of the applicant to take the qualification exam;
· takes a qualifying exam from applicants;
· considers applications and (or) other materials on the issuance of a license, amendments and (or) additions to it, suspension, renewal, termination of a license and its cancellation, assesses the compliance of the capabilities of license applicants (licensees) with the license requirements and conditions;
· conducts certification of an attorney or entrusts it to the territorial bar;
· makes a decision on inclusion or refusal to include an attorney of a foreign state in the Register of Attorneys;
· considers other issues of advocacy.
At the regulatory level, the status of an attorney is regulated by a set of rules that gradually brought the legal profession under the control of the authorities, in particular the Ministry of Justice. Among the regulations governing the issues of re-certification and revocation of licenses, is worth noting the following:
· Law of the Republic of Belarus dated December 30, 2011 No. 334-Z (as amended on January 6, 2021) "On the Bar and Legal Activities in the Republic of Belarus" (hereinafter referred to as the Law on the Bar);
· Resolution of the Ministry of Justice of the Republic of Belarus dated November 30, 2010 No. 105 (as amended on February 28, 2020) "On the implementation of advocacy and the provision of legal services" (together with the "Instructions on the procedure for assessing the compliance of the capabilities of an applicant for a special permit (license) (licensee) licensing requirements and conditions", "Regulations on the Qualification Commission for Advocacy in the Republic of Belarus", "Instructions on the procedure for conducting the qualification exam");
· Resolution of the Ministry of Justice of the Republic of Belarus dated 02.02.2012 No. 34 (as amended on 27.09.2019) "On approval of the Instructions on the procedure for certification of attorneys."
In accordance with Art. 18 of the Law on the Bar, an attorneys is required to undergo certification. Certification of attorneys is carried out by the Qualification Commission for Advocacy in the Republic of Belarus (hereinafter referred to as the Qualification Commission) or, on its instructions, by the territorial bar association.
Attorneys undergo regular and extraordinary certification. The ordinary certification is carried out once every five years, an extraordinary certification is carried out on the basis of a proposal from the Ministry of Justice or the council of the Belarusian Republican Bar Association to conduct an extraordinary certification of attorneys, that is, at any time.
Article 14 of the Law on the Bar defines the functions of the Qualification Commission. According to this article, the Qualification Commission:
· checks applicants for compliance with the requirements provided for by the Law;
· makes a reasoned decision on admission or refusal of admission of the applicant to take the qualification exam;
· takes a qualifying exam from applicants;
· considers applications and (or) other materials on the issuance of a license, amendments and (or) additions to it, suspension, renewal, termination of a license and its cancellation, assesses the compliance of the capabilities of license applicants (licensees) with the license requirements and conditions;
· conducts certification of an attorney or entrusts it to the territorial bar;
· makes a decision on inclusion or refusal to include an attorney of a foreign state in the Register of Attorneys;
· considers other issues of advocacy.
And who's to judge?
The Qualification Commission includes:
1) chairman of the Belarusian Republican Bar Association, one representative from each territorial bar association;
2) one representative from the Supreme Court of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, and other government bodies;
3) five representatives from the Ministry of Justice of the Republic of Belarus;
4) two representatives from academic organizations.
The Chairman of the Qualification Commission is the Deputy Minister of Justice of the Republic of Belarus.
It is important to emphasize that information about the representatives of which academic organizations participate in the activities of the Qualification Commission is not publicly available. As noted in the report, both representatives from academic organizations do not have independence, since we are talking about state scientific institutions - these are the dean of the Faculty of Law of the BSU and the director of the College of Law of the BSU.
Thus, today attorneys represent a minority in the Qualification Commission: out of 17 members of the Commission, only 8 are legal professionals, and since Part 2 of Art. 14 of the Law on the Bar allows for the addition of representatives of "other government bodies"; the representation of attorneys in the Commission may at any time turn out to be even weaker.
As noted in the report, the composition of the Qualification Commission (take, for example, the chairmanship of the Commission by the Deputy Minister of Justice) and the powers related to the granting, suspension or cancellation of licenses, conducting certification, completely subordinate the legal profession to the Ministry of Justice (enshrined in Article 38 of the Law on the Legal Profession) and makes the commission one of the most powerful levers of pressure on the legal profession.
The Qualification Commission includes:
1) chairman of the Belarusian Republican Bar Association, one representative from each territorial bar association;
2) one representative from the Supreme Court of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, and other government bodies;
3) five representatives from the Ministry of Justice of the Republic of Belarus;
4) two representatives from academic organizations.
The Chairman of the Qualification Commission is the Deputy Minister of Justice of the Republic of Belarus.
It is important to emphasize that information about the representatives of which academic organizations participate in the activities of the Qualification Commission is not publicly available. As noted in the report, both representatives from academic organizations do not have independence, since we are talking about state scientific institutions - these are the dean of the Faculty of Law of the BSU and the director of the College of Law of the BSU.
Thus, today attorneys represent a minority in the Qualification Commission: out of 17 members of the Commission, only 8 are legal professionals, and since Part 2 of Art. 14 of the Law on the Bar allows for the addition of representatives of "other government bodies"; the representation of attorneys in the Commission may at any time turn out to be even weaker.
As noted in the report, the composition of the Qualification Commission (take, for example, the chairmanship of the Commission by the Deputy Minister of Justice) and the powers related to the granting, suspension or cancellation of licenses, conducting certification, completely subordinate the legal profession to the Ministry of Justice (enshrined in Article 38 of the Law on the Legal Profession) and makes the commission one of the most powerful levers of pressure on the legal profession.
Certification as a way to control attorneys
The Belarusian authorities actively use the Qualification Commission and its comprehensive powers in relation to attorneys representing the interests of protest movement leaders and demonstrators in courts. The precedents that arose in 2020 and 2021, unfortunately, are not the first in the history of independent Belarus.
The authors of the report describe in detail the situation that arose in September 2017, when 8 out of 16 attorneys representing defendants in the White Legion case were forced to undergo an extraordinary certification, which is a kind of oral exam before the Qualification Commission formed by the Ministry of Justice, despite the fact that several months earlier, some of them had successfully passed an ordinary certification by the Certification Commission of their territorial bar association. As a result of this extraordinary certification, out of the eight attorneys, one - Anna Bakhtina - was excluded from the register of attorneys and subsequently lost her license, while the qualifications of the remaining seven attorneys were assessed as not fully complying with the law. After six months, these attorneys had to undergo an extraordinary certification again. At the end of March 2018, they had to prove that they had properly implemented the Commission's recommendations regarding the improvement of their professional qualifications. The purpose of these actions was to put pressure on attorneys and harass them in connection with their professional activities.
This example confirms the fact that, in accordance with current legislation, the state (the Ministry of Justice) can exert constant pressure on attorneys, selectively summoning them at any time to undergo certification to prove their qualifications.
The Qualification Commission may entrust certification to the relevant territorial bar. Then a certification commission is formed, which, unlike the Qualification Commission under the Ministry of Justice, consists of five experienced attorneys (with at least five years of experience). As the attorneys themselves note, the certification commission focuses on the attorney's achievements, and not on the goal of catching them not knowing by heart the provisions of a particular regulatory act, often not even related to the attorney's specialization. However, the conditions for such a delegation are not precisely defined, and based on the information presented in the report, the Qualification Commission often does the "dirty work" of depriving attorneys of licenses on its own.
The Belarusian authorities actively use the Qualification Commission and its comprehensive powers in relation to attorneys representing the interests of protest movement leaders and demonstrators in courts. The precedents that arose in 2020 and 2021, unfortunately, are not the first in the history of independent Belarus.
The authors of the report describe in detail the situation that arose in September 2017, when 8 out of 16 attorneys representing defendants in the White Legion case were forced to undergo an extraordinary certification, which is a kind of oral exam before the Qualification Commission formed by the Ministry of Justice, despite the fact that several months earlier, some of them had successfully passed an ordinary certification by the Certification Commission of their territorial bar association. As a result of this extraordinary certification, out of the eight attorneys, one - Anna Bakhtina - was excluded from the register of attorneys and subsequently lost her license, while the qualifications of the remaining seven attorneys were assessed as not fully complying with the law. After six months, these attorneys had to undergo an extraordinary certification again. At the end of March 2018, they had to prove that they had properly implemented the Commission's recommendations regarding the improvement of their professional qualifications. The purpose of these actions was to put pressure on attorneys and harass them in connection with their professional activities.
This example confirms the fact that, in accordance with current legislation, the state (the Ministry of Justice) can exert constant pressure on attorneys, selectively summoning them at any time to undergo certification to prove their qualifications.
The Qualification Commission may entrust certification to the relevant territorial bar. Then a certification commission is formed, which, unlike the Qualification Commission under the Ministry of Justice, consists of five experienced attorneys (with at least five years of experience). As the attorneys themselves note, the certification commission focuses on the attorney's achievements, and not on the goal of catching them not knowing by heart the provisions of a particular regulatory act, often not even related to the attorney's specialization. However, the conditions for such a delegation are not precisely defined, and based on the information presented in the report, the Qualification Commission often does the "dirty work" of depriving attorneys of licenses on its own.
Certification procedure
For each attorney subject to certification, a character reference is drawn up, which contains a full assessment of his moral and professional qualities, as well as information indicating his compliance with current legislation.
Characteristics for attorneys operating in legal consultations are drawn up by the head of the legal consultation. But attorney who have disciplinary sanctions must obtain a reference from the chairman of the territorial bar association.
Certification consists of a review by the Qualification Commission of the materials submitted to it, including materials on the attorney's fulfilment of legal requirements and other materials characterizing their professional activities, and hearing the person being certified during an oral interview. The qualification commission has the right (but is not obligated) to check the attorney's knowledge of the legislation of the Republic of Belarus during the interview. The commission actively uses this right - at the extraordinary certification in September 2017, the attestees were asked so many questions that it was difficult to answer. The oral part of the certification procedure is not defined by law, which allows members of the Commission to ask questions from any area of law: attorneys who specialize in criminal law are asked questions related to the law regulating banking activities.
An opaque procedure for regular and extraordinary certification gives the Belarusian authorities the opportunity not so much to check the qualifications of attorneys, but to put pressure on the legal community in a completely legal (albeit contrary to the principles of independence of the legal profession) way, in particular, on its individual representatives involved in high-profile cases. The official reason for the expulsion of attorneys is always related to professional misconduct, the commission of an offense incompatible with the title of attorney, insufficient qualifications, etc.
Such wordings can already be observed in the press releases of the Ministry of Justice: "During the inspection, facts of violation by attorneys of the Law on the Bar, the Rules of Professional Ethics of Attorneys were established, violations were identified in the preparation of legal documents, contracts for the provision of legal assistance, warrants. Violations of the law identified during the inspection indicate about the improper performance by individual attorneys of their professional duties, which is the basis for the Qualification Commission on Advocacy in the Republic of Belarus to conduct an extraordinary certification of attorneys."
For each attorney subject to certification, a character reference is drawn up, which contains a full assessment of his moral and professional qualities, as well as information indicating his compliance with current legislation.
Characteristics for attorneys operating in legal consultations are drawn up by the head of the legal consultation. But attorney who have disciplinary sanctions must obtain a reference from the chairman of the territorial bar association.
Certification consists of a review by the Qualification Commission of the materials submitted to it, including materials on the attorney's fulfilment of legal requirements and other materials characterizing their professional activities, and hearing the person being certified during an oral interview. The qualification commission has the right (but is not obligated) to check the attorney's knowledge of the legislation of the Republic of Belarus during the interview. The commission actively uses this right - at the extraordinary certification in September 2017, the attestees were asked so many questions that it was difficult to answer. The oral part of the certification procedure is not defined by law, which allows members of the Commission to ask questions from any area of law: attorneys who specialize in criminal law are asked questions related to the law regulating banking activities.
An opaque procedure for regular and extraordinary certification gives the Belarusian authorities the opportunity not so much to check the qualifications of attorneys, but to put pressure on the legal community in a completely legal (albeit contrary to the principles of independence of the legal profession) way, in particular, on its individual representatives involved in high-profile cases. The official reason for the expulsion of attorneys is always related to professional misconduct, the commission of an offense incompatible with the title of attorney, insufficient qualifications, etc.
Such wordings can already be observed in the press releases of the Ministry of Justice: "During the inspection, facts of violation by attorneys of the Law on the Bar, the Rules of Professional Ethics of Attorneys were established, violations were identified in the preparation of legal documents, contracts for the provision of legal assistance, warrants. Violations of the law identified during the inspection indicate about the improper performance by individual attorneys of their professional duties, which is the basis for the Qualification Commission on Advocacy in the Republic of Belarus to conduct an extraordinary certification of attorneys."
