Advocacy’s history and evolution in the process of reforming. Reform of the RAS – evolution or degradation?

The transcription of the release is available here.

Source of the publication – official site of the Echo Moskvy radio station

Y.ROZOVA: My name is Yana Rozova, hello. I am accompanied by my co-anchor and author of the “Legal Aspect” program Yury Pilipenko, Managing Partner of the Law Firm "YUST" and Vice President of the Federal Chamber of Advocates of Russia.

Y.PILIPENKO: Good afternoon, dear audience.

Y.ROZOVA: We are also accompanied by our guest, an Honored Lawyer of Russia, President of the Federal Chamber of Advocates of Russia, laureate of F.N.Plevako – Evgeny Semenyako.

E.SEMENYAKO: Good afternoon.

Y.ROZOVA: Oh, but why do you say hello in such a modest and quiet way?

Y.PILIPENKO: Speak up, Evgeny Vasilievich. The people should know their heroes.

Y.ROZOVA: Yes, the deal is that we have a new program, and there are very many subjects for discussion within its framework even today. These include the history of advocacy, its evolution within the process of reforms, and discussion of the reform of the Russian Academy of Sciences from the point of view of the law, or, rather, of the advocates. Well, it seems to me that the advocate’s profession in general is rather complicated and ambiguous. Yury?

Y.PILIPENKO: The advocate’s profession is universal. The fact is that nothing happens in our life that can’t get to an advocate sooner or later. Any event of a person’s life brings that person to the advocates, to their embrace, either immediately or in time – maybe in years.

E.SEMENYAKO: (unintelligible) Yury Sergeevich has presented the case in such a way that a meeting with an advocate appears inevitable. I wouldn’t say that everything is so doomed.

Y.PILIPENKO: Still, I believe that an encounter with a good advocate, a professional, always leaves behind some very nice memories for a person, and, what is most important, gives benefits for that person’s relations in life.

Y.ROZOVA: I beg your pardon. I just want to see for myself. Why do we adopt the advocate’s point of view? Why haven’t we decided to invite a prosecutor or a judge?

Y.PILIPENKO: Well, I’ll risk answering this question in the following way. The fact is that this is our first program, and I’d like us to… I am an advocate, after all… To start our first program with the subject of advocacy. First. And second – advocacy starts with an A, and one can hardly think of a fairer order of themes than the alphabetical one. Therefore, we of course start with advocacy today. And I have said already that advocate is a profession that comes to anyone, sooner or later.

DOSSIER.

The first advocates appeared in Ancient Rome, and the corporation of professional court defenders was formed during the Imperial period. For that, the person had to be included in a matricul – an official list of persons with a certain income level. And to pass tests – law exams. Such system became the base for all the subsequent modifications of advocacy, until the modern times.

Y.ROZOVA: Is it true?

E.SEMENYAKO: Yes, it is true. Truly, it appears that we may be proud of the fact that the advocate’s profession is one of the so-called most ancient ones, like journalism and some others that it would perhaps be incorrect to mention today. But I still think that the appearance of advocacy and the people in general, who are called in each language differently, but in essence are all advocates… That is, defenders of rights, activists of rights, attorneys…

Y.ROZOVA: Barristers.

E.SEMENYAKO: Barristers – the main point remains the same. They are professional lawyers, who undertake the task or boldly take it upon themselves to protect the other persons’ interests, rights and liberties. That is to say, they are those who, according to the saying of one Russian character, must battle, according to the rules of the legal war, for the rights of those persons who entrust those rights, their fate and their good name to their protector.

Y.ROZOVA: But back to the Ancient Rome – apparently just anyone could become an advocate there. Anyone – by simply wishing to.

E.SEMENYAKO: You know, I too remember something from the history of advocacy. Perhaps even a bit more than what was said in that dossier. Some instruction in the law sphere was required, after all. What was the most important requirement? Noble background of any significance. This means that even back then it was thought worthwhile to pay some attention to the morals of those people, who were assigned to that occupation. I believe that each epoch has the advocacy that corresponds to the level of development of the legislation, the volume of the legislation (unintelligible) of the so-called Judiciary. And the subsequent development of, say, the judicial system, the law system showed that advocacy is always present. It is an element of that universal law system. However, unlike prosecution and court, advocacy has always had its own destiny, very distinct from all other legal institutions. It has always been a social institution. The current Advocacy Law mentions that advocacy is also an instrument of a civil society.

Y.PILIPENKO: Evgeny Vasilievich, I’d like to ask your opinion on whether any emotion is inherent in our profession. Take me, for example. I am not a young man anymore, but some 15 years ago I used to experience some sentimental fits as an advocate, and I used to inquire with my colleagues – not often, I confess right away – just how manly a profession advocacy is. And one of the Masters, currently deceased, may he rest in peace, told me: “Yura, the profession of protection from birthmarks is manly enough too”. What do you think, does the advocate’s profession have any emotion and male principles?

E.SEMENYAKO: Well, I am convinced that in our profession, just like any other, but ours especially so… I believe there is emotion, and this emotion is that certain boldness is required to become a true fighter for the people’s rights, including those, with whom the advocate actually (unintelligible). One has to have firmness, which would allow the advocate, who will inevitably face the wave of prejudice… The advocate’s profession, you know, is such a profession… Advocates are always in the center of conflicts. When the trial, any trial, is over, at least one party to the trial is entitled to, shall we say, tell unkind words to the advocate, since it is the losing party. And that party finds, so to put it, the natural cause for that loss in the advocate character. Not to mention that the advocate is the guy, who keeps standing up and saying: “And I remind of the presumption of innocence in criminal proceedings”. And we know the attitude of our courts to that presumption. Not tio mention the prosecutor’s offices that are charged with upholding the accusation. But our courts are also talked about as suffering from a light form of strabismus, which is juridically called accusation trend. And you try to resist all this, in such conditions, without enough force of will and character. I am convinced that there is one emotion in our profession. The emotion is that we don’t allow, so to put it, (unintelligible) freedom, if the proof is not enough. We don’t allow, so to put it, doing away with a person only for the reason of someone wanting it, do you understand? Our final stand is that… I certainly understand that that is how our profession should look ideally. Unfortunately, there are many cases, when my colleagues… The word may be incorrect now, taking into account what I want to say further. When those, who are in the advocate’s profession, forget of their professional duty and take unnecessary…

Y.ROZOVA: We are currently digressing too far.

E.SEMENYAKO: Okay, I’ll ready to stop on this side.

Y.ROZOVA: I just want to say that look, if you go to a trial nowadays, it is a glum matter, dull and uninteresting. And we know from the history, literature and cinema that an advocate may alter the course of history.

Y.PILIPENKO: I am ready to chip in. It is true that the situation with the courts in our country has changed significantly if compared to, say, the XIX century. Of course, we all know that many Russian commoners, especially those, who lived in large cities, often visited trial rooms in order to attend a kind of a show, where advocates had the opportunity to show off their eloquence, to get the attention of the audience.

Y.ROZOVA: Well, tell me, how he will (unintelligible).

Y.PILIPENKO: The situation is different now. Nobody visits the trial rooms anymore, the trials are the dullest event available. Everyone goes to commercial and recreational centers nowadays.

E.SEMENYAKO: Then, you understand, I really liked your mention of the cases, when advocates changed history by their speeches. It is not simply nice talk. Take Vera Zasulich’s case, for example. If it were not Advocate Alexandrov but some other less talented person – I am convinced that the case would have a different outcome. And had the outcome be different, the case would have never produced the, so to put it, public…

Y.ROZOVA: Probably you remind us of the case. Not everybody knows that story.

E.SEMENYAKO: It is the case of Vera Zasulich, who was blamed for attempting to, and actually shooting General Trepov – the then Chief of Police of Saint Petersburg. Note that she shot the General trying to protect the, so to put it, innocently punished student Bogomolov. The latter was lashed, as the saying goes, on order of that Tsar’s satrap, for no reason at all. And she acted towards Trepov in such a way for the sake of protecting that student’s human dignity and honor. And Alexandrov delivered such a speech at the trial, explaining the motives of the deed, that 12 jurymen reached the verdict following, take a note, their social conscience. You see, the trial by jury is a very special trial, to which advocacy should be exceptionally grateful. If not for that trial, I am sure that the history of advocacy would be different – especially in Russia. So the jury agreed with the advocate’s reasoning and acquitted Vera Zasulich. After the acquittal, she was carried out of the Court and to the railway station. I think she was able to leave St. Petersburg that same day and thus escaped imprisonment. And take the famous Russia lawyer, Anatoly Fedorovich Koni… He was finally stripped of his position of judge and became a prosecutor, and the trial had other consequences as well. But that was the case, when Russian advocacy acted as, first and foremost, a public stand, from which Alexandrov gave his vision of the entire story to the then Russian society…

Y.ROZOVA: And when did barristers appear in Russia at all?

E.SEMENYAKO: You know, advocacy in Russia has not been too lucky. Our authorities, per tradition, believed that it would be nice if there were no advocates, right? And once there are advocates, and there is no way without them, it is better to keep them on a short leash somehow. There was a short, very short really, 50-year period in the Russian history…

Y.ROZOVA: Historically, it is nothing, of course.

Y.PILIPENKO: Well, we will celebrate 150 years next year, after all.

E.SEMENYAKO: I mean 50 years of the Russian pre-revolution barrister advocacy. Only 50 years. And Russian advocates produced a plethora of talents that, I daresay, the world has never seen.

Y.ROZOVA: I will also ask you about the jury trial.

E.SEMENYAKO: And the jury trial appeared pursuant to the Judicial Charter in 1862.

Y.ROZOVA: The first real reform, correct?

E.SEMENYAKO: Yes, the first reform. And, by the way, barrister advocacy appeared simultaneously with the jury trial. One cannot exist without the other you know. Jury trial cannot exist…

Y.PILIPENKO: By the way, Evgeny Vasilievich, there is an opinion that advocates contributed very significantly, inter alia, to the undermining of the former state structure of Russia.

E.SEMENYAKO: They did not know what they were doing.

Y.PILIPENKO: They did not know what they were doing, right.

Y.ROZOVA: Kindly forgive me, we will dwell on that particular subject after the news, all right?

NEWS

Y.ROZOVA: We continue the “Legal Aspect” program. The author of the project Yury Pilipenko, Managing Partner of the Law Firm "YUST" and Vice President of the Federal Chamber of Advocates of Russia, and our guest, an Honored Lawyer of Russia, President of the Federal Chamber of Advocates of Russia, laureate of F.N.Plevako – Evgeny Semenyako. Before the news, yes.

Y.PILIPENKO: Evgeny Vasilievich, before the news started, I asked you a question, a remark concerning the role of advocates in the political life of the Russian Empire and their contribution to the fate that befell out country approximately 100 years ago. What do you think of it? How great or how exaggerated is the influence of advocacy, of advocates, on the destruction of the Tsar’s regime, and on everything that followed in our country.

E.SEMENYAKO: Well, first, I would not burden the entire advocates’ community of that period with the responsibility for the destruction of the old regime, after all. This would be an exaggeration. But the fact is that the then advocates’ community and barristers in general still opposed the Tsar’s regime, and many of them took part in various political trials. Shall we remember…

Y.ROZOVA: Well, they influenced the others.

E.SEMENYAKO: Yes, certainly. It would be enough to remember, well, the case that was quite a landmark at that time – the so-called case of the 193. That happened when 193 Russian subjects of, shall we say, revolutionary convictions stood on the dock at once. They were defended by advocates, who, as per tradition, provided the defense free of charge. So to put it, nobody had any material aspirations in that case. I must say that the advocates did fairly well during that trial. In general, if we talk about, say, any real cooperation with, for example, the Bolshevik party – a simpler name would have been the Russian Social Democratic Workers’ Party – it included members of the advocates’ community. The fact that such active political activities were then considered incompatible with the profession is another thing. And it is therefore correct. We are, by the way, a bit open nowadays. Today we adhere to the same position, because the advocate’s political views, any views, should not affect his, let’s say, professional…

Y.PILIPENKO: Evgeny Vasilievich, wasn’t it during that period that the authorities and the State became prejudiced towards advocacy as a profession and an order? And doesn’t this prejudice haunt us still?

E.SEMENYAKO: I believe that the prejudice was thus strengthened, but I have already mentioned this today. You see, some strange doom. Well, at least, many consider Peter the Great to be the founder of the Russian state, of the Russian Empire. Well, Peter the Great is famous among the advocates for a well-known phrase of his.

Y.ROZOVA: I will fire him, when I get home.

E.SEMENYAKO: Yes, yes. When he was visiting England, he was told that an advocate was a Member of the Parliament. In response to that, he said: “I have two of them in Russia, and I will certainly behead one, when I return”.

Y.ROZOVA: Look, we have very little time left, and I’d like get back to today. Since we have already mentioned the reform of 1864 that changed the history of the Russian advocacy. So it occurred, and another advocacy reform is coming soon. How many reforms were there anyway?

E.SEMENYAKO: You know, there were in fact several advocacy reforms. First, the year 1917, the first decree of the Soviet power. You have asked me, how the advocates, let’s say, proved themselves to the revolutionary intent and the change of power at all. So to put it, they were quite positive, that is – receptive to those changes. Not only receptive but also active towards those. But the first decree of the Soviet power, it was called precisely the “Decree No. 1”, eliminated the so-call bourgeois Tsar’s courts and what else? The then advocacy.

Y.ROZOVA: It suffered.

E.SEMENYAKO: That was the last day of existence of the Russian barristers. A black day in the history of the Russian advocacy. After that a long period begins, the Soviet period of the Russian advocacy. That period, on one hand, knows simply splendid names of my advocate colleagues. I heve seen and even known some of them. But to imagine the conditions, in which those people worked – those conditions were, to put it mildly…

Y.ROZOVA: Unfit.

E.SEMENYAKO: Unfit for the profession that needs to be, first and foremost, free and independent in order to fulfill its function. Advocacy without independence becomes a joke on itself.

Y.PILIPENKO: Evgeny Vasilievich, and what about today? How would you evaluate the advocacy’s independence today?

Y.ROZOVA: I also wanted to mention the monopoly, because we have little time. This is what concerns the reforms.

Y.PILIPENKO: Right. Well, monopoly is a part of the reform, and I’d like to know the viewpoint of Evgeny Vasilievich.

E.SEMENYAKO: You know, we currently… Or, rather, not just currently but during almost 10 years after Russia created… See, also a historical event, by the way. For the first time in the history of our nation, the entire country’s advocates’ community finally united within a single corporation. This was not possible even, so to put it, in the course of that excellent judicial and law reform of 1861. Nor during the Soviet period. There were regional bar associations, and, finally, in 2002, the advocates’ corporation began to exist as a single professional community. I, at least, am one of those members of the profession, who consider this a great achievement and a huge good for the advocacy as well as for, shall we say, our potential clients, our citizens. This actually permits to improve the professionalism of representatives of the profession, to register the cases, when an advocate breaches standards, first of all – ethical standards of his profession. Still, we have obtained mechanisms of elimination of such unfit people from our ranks.

Y.ROZOVA: It would be useful, of course, to see an opponent of yours, but I think there are many of them, right? To have an argument. It seems to me that is a theme for an altogether separate program, right, Yury?

Y.PILIPENKO: Yes, this is a global theme. We will probably have no time for it today, I’m afraid. Still, Evgeny Vasilievich has given us a very interesting view of the problem. Even though there is probably a lot more to be said on the matter.

Y.ROZOVA: We have three minutes left, and at the start of the program we said that we would discuss the reform of the Russian Academy of Sciences. That news is still topical. As the President has not yet signed the law, it has no legal force. But since the academicians are dissatisfied… Let us listen to a reference first, shall we? And then we go on.

FOR REFERENCE.

The final reading of the draft law on the reform of the RAS included little to no discussion. 331 deputies voted for, and 107 – against. Now, all institutes of all three academies, with the exception of regional divisions of the RAS, are assigned to the newly created agency of managing the property. The Government will approve the limit for the number of the Academy members. A three-year moratorium is imposed on the elections of new academicians.

Y.ROZOVA: Well, in general, this is very brief information of what happened and what the academicians are satisfied or dissatisfied with. But the idea is that the law has no force until it is signed by the President. What would you as advocates recommend the scientists to undertake?

E.SEMENYAKO: The deal is that I’d like here to something… To put it like this, these should be the words of just a lawyer not an advocate and in a greater measure still – of a person who lives in our country. You understand, I’m a bit confused by, I would say, the haste of this reform at all… You see, the Academy has existed for centuries, and the matter of its, so to put it, reform is resolved as if by a cavalry charge. And then again…

Y.ROZOVA: Well, should we apply to a court? Should we claim that it has been done in too much haste?

E.SEMENYAKO: You see, the situation is like this. Here one may only count on resorting to the Constitutional Court afterwards, note, after the signing of the law and its implementation. But the procedure is rather complicated. Besides…

Y.ROZOVA: One minute.

Y.PILIPENKO: And the reasons for that are apparently nonexistent at this point.

E.SEMENYAKO: Yes, they are nonexistent. And I would say even, you know, as the advocate asked us: “Say, and is there any judicial perspective for such…” I’d say there is no perspective.

Y.ROZOVA: Understood. That’s it. Thank you very much indeed.

Y.PILIPENKO: Thank you, Evgeny Vasilievich.

E.SEMENYAKO: I thank you too.

Y.ROZOVA: Yes. I remind you that our today’s guest was an Honored Lawyer of Russia, President of the Federal Chamber of Advocates of Russia, laureate of F.N.Plevako – Evgeny Semenyako. And author of the project Yury Pilipenko, Managing Partner of the Law Firm "YUST" and Vice President of the Federal Chamber of Advocates of Russia.

Y.PILIPENKO: Thank you.