Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido el 14/07/2021 Aceptado el 02/09/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 70 (2021), 607-616
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Problem of lawyer protection:
comparative legal analysis
DOI: https://doi.org/10.46398/cuestpol.3970.36
Vladislav Yu. Turanin *
Alexandra Vl. Gridchina **
Vera P. Kutina ***
Amala A. Umarova ****
Stanislav F. Dolgov *****
Abstract
This article is dedicated to the analysis of a preponderant
institution of Civil Society in Russia such as the Bar Association,
consequently, its role in the implementation of the state
function of providing qualied legal assistance is examined. In
addition, it addresses the criminal defense mechanism of the
Russian legal profession. To achieve the objective of the study,
several general scientic techniques, and methods of scientic
knowledge (analysis, synthesis, deduction, induction, systemic-structural,
formal-logical approaches) and specic scientic methods were launched:
historical-legal, formal-legal, comparative-legal, and interpretative are
employed. Based on the results obtained, it can be concluded that the legal
profession, being an institution of civil society, remains vulnerable in the
legal sense in its interaction with law enforcement agencies. At the same
time, by illegally interfering in promotion, public ocials go unpunished.
There is still no criminal liability for unlawful interference in the activities
of a lawyer. It therefore proposes to introduce specic amendments to the
criminal legislation governing this matter of general interest.
Keywords: lawyers in Russia; criminal liability; legal activities;
comparative analysis; problems of the protection of lawyers.
* Doctor of Law, Belgorod State University, 85 Pobeda Street, Belgorod, 308015, Russia. ORCID ID:
https://orcid.org/0000-0001-7766-8648. Email: turanin@mail.ru
** Doctor of Economic, Moscow Politechnic University, 38 B. Semenovskaya street, Moscow, Russia.
ORCID ID: https://orcid.org/0000-0002-2791-8589. E-mail: gav70@bk.ru
*** PhD in Law, Autonomous Nonprot Organization of Higher Education «Saint Petersburg Juridical
Academy», 114A, Obukhovskoy Oborony street, Saint Petersburg, 192012, Russia. ORCID ID: https://
orcid.org/0000-0003-3586-5605. Email: kutiny@mail.ru
**** PhD in Law, Chechen state University, 32, A. Sheripova, Groznyj, 364024, Russia. ORCID ID: https://
orcid.org/0000-0002-1774-540X. Email: madinaUmma@mail.ru
***** Graduate student, Belgorod State University, 85 Pobeda Street, Belgorod, 308015, Russia. ORCID ID:
https://orcid.org/0000-0001-5926-3452. Email: stasonoch@mail.ru
608
Vladislav Yu. Turanin, Alexandra Vl. Gridchina, Vera P. Kutina, Amala A. Umarova y Stanislav
F. Dolgov
Problem of lawyer protection: comparative legal analysis
Problema de la protección de los abogados: análisis
jurídico comparado
Resumen
Este artículo está dedicado al análisis de una institución preponderante de
la sociedad civil de Rusia como lo es Colegio de Abogados, en consecuencia,
se examina su papel en la implementación de la función estatal de brindar
asistencia legal calicada. Además, aborda el mecanismo de defensa penal
de la profesión jurídica rusa. Para lograr el objetivo del estudio, se pusieron
en marcha varias técnicas cientícas generales y métodos de conocimiento
cientíco (análisis, síntesis, deducción, inducción, enfoques sistémicos-
estructurales, formal-lógicos) y métodos cientícos especícos: histórico-
legal, formal-legal, comparativo-legal e interpretativo se emplean. Con
base en los resultados obtenidos, se puede concluir que la abogacía, al ser
una institución de la sociedad civil, sigue siendo vulnerable en el sentido
jurídico en su interacción con los organismos encargados de hacer cumplir
la ley. Al mismo tiempo, al interferir ilegalmente en la promoción, los
funcionarios públicos quedan impunes. Aún no existe responsabilidad
penal por injerencia ilegal en las actividades de un abogado. Por lo tanto, se
propone introducir enmiendas especícas a la legislación penal que regula
esta materia de interés general.
Palabras clave: abogados en Rusia; responsabilidad criminal;
actividades legales; análisis comparado; problemas de
la protección de los abogados.
Introduction
The Constitution of the Russian Federation establishes that Russia is a
legal state. In this regard, one of the main functions of the Russian state,
as a public-law entity, as well as its duty at the same time, is the protection
of human and civil rights and freedoms. This provision is enshrined in the
article 2 of the Constitution of the Russian Federation. At the same time,
in order to implement and fulll this obligation, the Constitution of the
Russian Federation establishes that everyone is guaranteed the right to
receive qualied legal assistance (The constitution of the Russian federation,
1993). This legal provision directly means that it is the state that is obliged
to realize the specied right of a person and a citizen. The Constitutional
Court of the Russian Federation came to a similar conclusion in its Decision
of 05.02.2004 No. 25-O “On the complaint of citizen Valentina Onoprievna
Ivkina on violation of her constitutional rights by part of the rst art. 45 and
art.405 of the Criminal Procedure Code of the Russian Federation”, which
states that “The provision contained in art. 48 (part 1) of the Constitution
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of the Russian Federation that everyone is guaranteed to receive qualied
legal assistance means the constitutional obligation of the state to provide
everyone who wishes with a suciently high level of any type of legal
assistance provided ...” (Determination of the Constitutional Court of
the Russian Federation of 05.02.2004 No. 25-O). In modern Russia this
obligation does not belong to any of the state bodies, that is, in fact, none of
them, which is in essence a representative of the state, is not empowered to
implement this obligation. But this situation does not mean at all that the
named duty is in no way fullled by our state.
The Russian Federation has delegated the implementation of this
responsibility to such an institution of civil society as the Bar. At the same
time, based on a systematic analysis of the provisions of art. 48 of the
Constitution of the Russian Federation and art. 1 of the Federal Law of
31.05.2002 No. 63-FZ “On advocacy and the legal profession in the Russian
Federation”, it can be unambiguously concluded that the state actually
equates such concepts as “qualied legal assistance” and “advocacy”. At the
same time, this assistance is in no way legal assistance provided by employees
of legal services of legal entities, employees of state authorities and local
governments, participants and employees of organizations providing legal
services, as well as individual entrepreneurs, notaries, patent attorneys,
etc. (Federal Law of May 31, 2002, No. 63-FZ “On advocacy and the legal
profession in the Russian Federation”).
Thus, the Russian state, having delegated to the Bar Association its
responsibility to provide qualied legal assistance, has established a kind
of monopoly, which is connected with the fact that it is the Bar Association
that is capable of competently providing this assistance. This monopoly
is more clearly manifested in criminal proceedings, since under the
current criminal procedural legislation, only a lawyer has the right to act
as a defender of a suspect (accused) (The Criminal Procedure Code of the
Russian Federation of 12/18/2001 No. 174-FZ, 2001). In addition, the
state imperatively established that the legal profession is an institution of
civil society and is not part of the system of state authorities and local self-
government (Federal Law of May 31, 2002, No. 63-FZ “On advocacy and
the legal profession in the Russian Federation”). A similar perception and
attitude towards the legal profession can be traced in a number of foreign
countries including the United States (Parsons, 1966).
In connection with the issues mentioned above, it can be concluded
that the Russian Federation has assigned its duty to provide citizens with
qualied legal assistance to the Bar, thereby endowing it with a public
law function. At the same time, it is assumed that having done this, the
state should create a working mechanism to protect the institution of the
legal profession and ensure the real observance of the professional rights
of lawyers, and not just establish declarative norms. After all, a lawyer
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Problem of lawyer protection: comparative legal analysis
carries out his activities by exercising his professional rights, which must be
protected by the state. A similar situation is observed in the United States
of America where the institution of the Bar is endowed with serious social
guarantees and protection from the state (Hall, 2004).
1. Methodology
The methodological basis of the research is based on the use of various
general scientic techniques and methods of scientic knowledge (analysis,
synthesis, deduction, induction, system-structural, formal-logical
approaches), as well as specic scientic methods - historical-legal, formal-
legal, comparative-legal, and interpretive.
2. Results and Discussion
Let us consider the security of a lawyer and his professional powers
on the example of criminal procedural legal relations when he acts as a
defender in the framework of criminal proceedings.
The current constitution stipulates those legal proceedings are carried
out on the basis of competitiveness and equality of the parties. This
provision is supplemented and developed in the criminal procedural
legislation, according to which criminal proceedings are carried out on the
basis of the adversarial nature of the parties; the prosecution and defense
parties are equal before the court. The above provisions have repeatedly
been the subject of consideration by the Constitutional Court of the Russian
Federation. So, according to the Decision of the Constitutional Court of the
Russian Federation of 04.11.2004 No. 430-O “On the complaint of citizen
Olga Vasilievna Starovoitova about violation of her constitutional rights by
paragraph 1 of part two of art. 42, part 8 of art. 162 and part two of art.
198 of the Criminal Procedure Code of the Russian Federation” it follows
that the parties to the prosecution and defense are provided with equal
procedural opportunities to defend their rights and legitimate interests
(Determination of the Constitutional Court of the Russian Federation of
04.11.2004 No. 430-O).
First, let us analyze how the state protects its direct “representatives”
from the prosecution side which include the prosecutor, the investigator
and the person conducting the inquiry. Thus, the current legislation
establishes criminal liability for interference in any form in the activities
of a prosecutor, investigator, or interrogator, in order to obstruct a
comprehensive, complete and objective investigation of the case (art. 294
of the Criminal Code of the Russian Federation) (The Criminal Code of the
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Russian Federation of 13.06.1996 No. 63-FZ). These provisions mean only
one thing, that no one has the right to interfere, as well as in any other
way to inuence the legitimate activities of these subjects of the charge. A
similar opinion is expressed in foreign literature (Adler et al., 1994).
A reasonable question arises: how does the state protect the legal,
professional activities of lawyers? Unfortunately, at present, there is no
administrative or criminal liability in this regard, that is, a lawyer, namely
his professional activity, in fact remains unprotected against illegal actions
of anyone including law enforcement ocers. The lack of real protection
of the professional activities of lawyers, as equal participants in the trial,
can be traced in a number of CIS countries. This statement is supported by
statistics compiled by the Federal Chamber of Lawyers. So, for the period
from April 2017 to April 2019, 1,281 violations of the professional rights of
lawyers were registered in the chambers of law: in 2017 692 violations were
taken into account, in 2018 - 589. The number of lawyers’ chambers in which
the professional rights of lawyers were not violated, increased from 26 in
2017 to 40 in 2018. 2 lawyers died from criminal encroachments in 2017. In
the same year, 21 lawyers were injured as a result of violence. In two years,
health was inicted on 3 family members of lawyers, 8 cases of damage to
the property of lawyers and their family members were committed.
The number of encroachments on attorney secrecy has increased. Illegal
summons of lawyers for interrogation in 2017 amounted to 168 cases,
in 2018 - 223 cases, the number of illegal searches in the living (oce)
premises of lawyers increased from 34 in 2017 to 40 in 2018. To higher law
enforcement agencies and the courts, lawyers sent 2231 complaints about
violations of their professional rights in 2017, of which 568 complaints
(25.5%) were found justied. In 2018, lawyers led 3,212 complaints, of
which 97 (3%) were deemed substantiated (Report on the activities of the
Council of the Federal Chamber of Lawyers of the Russian Federation for
the period from April 2017 to April 2019, 2019). At the same time, the fact
of recognizing the actions of law enforcement ocials as illegal, in fact,
does not in any way aect the latter, and therefore there is no restoration of
the violated professional rights of lawyers.
The statistics reasonably conrm the position that the professional
activity of a lawyer in criminal proceedings does not have adequate
protection from the state. Although in this legal proceeding, as it mentioned
above, they are equal participants on an equal basis with the prosecutor, the
investigator and the person conducting the inquiry. In this regard, these
persons should have equal guarantees of inviolability and personal safety
in the exercise of their rights and performance of their professional duties.
By itself, obstruction of the professional activity of a lawyer infringes not
only on the rights of a particular lawyer and indirectly on the rights of his
client, but also directly on the interests of justice, on the constitutional right
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F. Dolgov
Problem of lawyer protection: comparative legal analysis
to qualied legal assistance (Ocial site for posting information on the
preparation of draft regulatory legal acts by federal executive authorities
and the results of their public discussion). A similar position is reected in
the American Bar Association’s Model Code of Professional Responsibility
for Lawyers.
The discussion about the need to introduce a criminal law mechanism
for protecting the professional activities of a lawyer has been going on for a
long time. This is due to the really existing problem of violation of attorney
secrecy, the inviolability of the private and professional life of lawyers, and
criminal attempts on their life and health.
For example, in neighboring Ukraine, its Criminal Code contains
art. 397, according to which it is prohibited to impede in any form the
implementation of the lawful activities of a defense lawyer or representative
of a person to provide legal assistance or to violate the guarantees of their
activities and professional secrecy established by law (The Crimean Code of
Ukraine, 2001). The above-mentioned corpus delicti by its legal structure is
formal, that is, when committing illegal actions, there should not necessarily
be any socially dangerous consequences (Bronze, 2016).
In Russia, various options were proposed for the implementation of the
above mechanism, one of which is currently reected in the draft federal
law “On Amendments to the Criminal Code of the Russian Federation
and the Criminal Procedure Code of the Russian Federation (in terms
of establishing additional guarantees for the implementation of the
adversarial principle)”, information about which is posted on the ocial
Internet portal - the Federal portal of draft regulatory legal acts (Ocial
site for posting information on the preparation of draft regulatory legal acts
by federal executive authorities and the results of their public discussion).
The specied draft federal law is posted on the Internet portal
09/01/2020. At present, public discussions have already taken place
regarding the text of the draft normative legal act, an independent anti-
corruption expert examination, and now the formation of the nal version
of the text is being completed with the aim of its subsequent submission to
the State Duma of the Federal Assembly of the Russian Federation.
Let us analyze the proposed changes. Thus, it is proposed to supplement
the Criminal Code of the Russian Federation with art. 294.1, which bears the
following title “Obstruction of the legal activities of a lawyer.” According to
this provision, it is prohibited to interfere in any form in the legal activities
of a lawyer in order to impede the exercise of his professional powers,
provided for by the legislation on advocacy and the legal profession, if this
act entailed causing signicant harm to the rights and legitimate interests
of citizens or organizations or interests of society or the state protected by
law (Turanin et al., 2020).
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Thus, it clearly follows from the disposition of the article that this corpus
delicti is material, that is, for an act to become criminal, the onset of socially
dangerous consequences is necessary in the form of “causing substantial
harm to the rights and legitimate interests of citizens or organizations or
the interests of society or the state protected by law. “. This provision is
seen as not entirely fair and contrary to the principle of competition and
equality of the parties. For example, the same corpus delicti provided for
by part 1, 2 art. 294 of the Criminal Code of the Russian Federation, are
inherently formal and do not require any consequences (Burnham, 2000).
This means that the state a priori protects the professional activities of the
court, prosecutor, investigator, and interrogator, regardless of whether
there have been any consequences from unlawful interference in it or not.
A similar path was once followed by the legislator of the Republic of
Kazakhstan, introducing in the Criminal Code a ban on:
Obstruction of the legal activities of lawyers and other persons to protect
the rights, freedoms and legitimate interests of a person and citizen in criminal
proceedings, as well as the provision of legal assistance to individuals and legal
entities, or other violation of the independence and independence of such activities,
if these acts have caused signicant harm to the rights, freedoms or legitimate
interests of a person and citizen, the rights or legitimate interests of legal entities,
the interests of society or the state protected by law” (The Criminal Code of the
Republic of Kazakhstan, 2014: art. 83).
It is clear from the above norm that obstruction of the lawyers’ legal
activities will become a criminal oense if it has caused signicant harm.
Based on the proposed norm of the above-mentioned law, it follows that,
although the institution of the Bar was brought closer to the fact that in fact
a lawyer will become a more equal participant in the process, there is still a
certain “but” that cannot be agreed with, and it is since the proposed corpus
delicti are going to be made material. At the same time, it should be agreed
that it is necessary to introduce an independent article in the Criminal Code
of the Russian Federation for illegal interference in advocacy, as proposed
by the bill (Burnham, 2000). However, the sanction for committing this
crime, based on the principle of equality and adversarial nature of the
parties, should still be equivalent to the sanction for unlawful interference
in the professional activities of the prosecutor, investigator, or interrogator.
Conclusions
As a result of the theoretical and legal analysis of the institution of the
legal profession and the state’s criminal protection of the professional
activities of lawyers, the following conclusions can be drawn. Firstly, at
present, the legal profession, being an institution of civil society, still
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Vladislav Yu. Turanin, Alexandra Vl. Gridchina, Vera P. Kutina, Amala A. Umarova y Stanislav
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Problem of lawyer protection: comparative legal analysis
remains vulnerable in the legal sense in interaction with law enforcement
agencies. At the same time, by unlawfully interfering with advocacy, civil
servants actually remain unpunished. There is still no criminal liability for
illegal interference in the activities of a lawyer.
Secondly, before submitting the nal bill to the State Duma of the
Federal Assembly of the Russian Federation, it is necessary to correct the
disposition of the proposed art. 2941 of the Criminal Code of the Russian
Federation, making it a formal corpus delicti and excluding the following
wording from it: “if this act entailed causing signicant harm to the rights
and legitimate interests of citizens or organizations, or the interests of
society or the state protected by law ”. In addition, the sanctions proposed
by art. 2941 of the Criminal Code of the Russian Federation, in accordance
with the principle of equality and adversarial nature of the parties, should
be similar to the sanctions contained in part 2 of art. 294 of the Criminal
Code of the Russian Federation (Burnham, 2000). Thus, the right status of
the prosecution and the defense will really equalize.
It is also necessary to develop and supplement the specied article with
additional parts, in which acts committed by a group of persons by prior
conspiracy, by a person using his ocial position, as well as with the use of
violence, should be provided as independent oenses. Provide for a more
severe punishment for the indicated compositions, until and including real
imprisonment.
Conict of Interest
The authors conrm that the information provided in the article does
not contain a conict of interest.
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www.luz.edu.ve
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www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 70
