On violations of the guarantees of the attorneys’ rights and restricting independence of the Advokatura
July 8, 2016 Astana city
The Republican Conference of the Bar Councils’ Delegates notes that in recent times there has been a growing trend of violations of the rights of attorneys and the independence of the Advokatura (the Bar) from the side of state bodies.
Most frequent are the cases of impeding the work of attorneys and encroachment on the attorney-client privilege. For the purposes of throwing the attorneys aside from participating as defense attorneys in criminal cases, they are called in for questioning about the circumstances of legal assistance to their clients: their offices and residential premises are searched and detective and covert investigative measures are conducted with respect to the attorneys.
There is an ongoing trend of restrictions of citizens’ rights to choose an attorney. In addition, lawyers are illegally required to pass security clearance in order to be admitted to defend their clients in cases involving state secrets. This practice has been repeatedly sharply criticized by the UN Human Rights Committee.
Attempts have been made to undermine the right of attorneys to freedom of expression on matters of legality, law reform and observance of human rights, including for the expression of this right in social networks and the media.
There have been facts of discrimination against Advokatura when international conferences and other public events on issues of legal reform were organized.
Certain representatives of the judiciary expressed ideas on the pages of the state juridical publications, which are aimed at undermining the independence of thе Advokatura, by calling for interfering in the legitimate activities of attorneys and making recourse to the use of economic pressure upon them.
Attorneys are required written permission of the administration of detention centers for visits and are required to present identity cards instead of the attorney licenses, the unlawful practice which run counter to the national legislation.
Rules on controlling access in the courthouses approved by the Department for Court Administration under the Supreme Court of the Republic of Kazakhstan and the Ministry of Internal Affairs of the Republic of Kazakhstan introduced the conducting of search of attorneys, including the ban to carry mobile communication devices and computer equipment in the court and law-enforcement buildings.
Such requirements with respect to the attorneys are a flagrant violation of the mandatory provisions of section 5 of Article 17 of the Law of the Republic of Kazakhstan «On Advokatura«, which sets forth that attorney dossier, other materials and related documents, as well as attorney’s property, including mobile communication devices, audio equipment, computer equipment shall not be subject to inspection, search, seizure and examination, except for cases stipulated by laws of the Republic of Kazakhstan.
Officials justify use of such access control measures in respect of attorneys by referring to the Laws of the Republic of Kazakhstan «On Combating Terrorism» and «On the Internal Affairs Bodies» which, however, do not in any way affect the status of the attorneys as special subjects and do not envisage any reasons for infringement of the guarantees of defense lawyers’ privileges.
Under the pretext of combating terrorism, civil rights and freedoms are restricted, public character of the trial is not observed, the rights of citizens to professional legal aid are infringed.
The vast majority of courthouses does not offer rooms for the attorneys. Provisions of the law regarding right of the attorneys to obtain records, references and other documents from the state and local self-government authorities, as well as from non-governmental organizations, are not observed.
Attorney-client privilege, which is the cornerstone of trust of citizens in the institute of Advokatura, is exposed to systemic attacks. The last striking example of such attacks was an attempt of the group of members of the Parliament to include attorneys in the list of special subjects of corruption offences.
Calls continue to be made for the abolition of professional membership fees and establishment of state tariffs for professional legal assistance, which is now is rendered on an open competitive basis.
Encroachment on the fundamentals of justice cannot be regarded by the attorney community as nothing other than gradual formation in our country of a police state, where protection of citizens against arbitrariness and lawlessness is becoming less effective.
The result of these malicious acts will inevitably be the loss of people’s faith in fair justice and possibility for effective protection of the rights and freedoms in the Republic of Kazakhstan.
Named infringements directly contradict international standards recognized by the Republic of Kazakhstan regulating this sphere, in particular, they contradict the international norms, whereby the states shall guarantee to attorneys the rights for carrying out their activities without threats, pressure and undue interference. Such a state of affairs is particularly unacceptable in connection with accession of our country as member of the UN Security Council.
Third Republican Conference of the Bar Councils’ Delegates hereby makes a statement to all state authorities and officials on its their lawful claims:
— to respect guarantees of attorney activity as set forth by international law;
— to strictly observe the requirements of the Law of the Republic of Kazakhstan «On Advokatura» regarding prohibition of inspection of the attorney’s property and seizure of computer and mobile equipment when entering courthouses and premises hosting law enforcement authorities;
— To provide unimpeded access to the attorneys to courthouses, government agencies, institutions of the penitentiary system exclusively upon presenting official identification of the attorneys;
— To abolish practice of illegally summoning of the attorneys as witnesses in criminal cases, in which they called as defense attorneys, and stop illegal searches in the premises of the attorneys;
Our demands are aimed at strengthening the rule of law, ensuring to everyone the right to a fair and humane justice and guaranteeing the protection of their rights and freedoms.
The Advokatura proposes moving away from encroachments on independence and self-governance of the attorney community by establishing constructive dialogue in order to promote the development and improvement of the state of attorney profession as one of the most important institutions of civil society, cornerstone of the rule of law and a democratic state.
Delegates to the Third
of Bar Councils’ Delegates
Astana, July 8, 2016.