Advocacy is inherently one of the tools of civil society designed to protect constitutional rights in relation to legal assistance and protection. However, the status of this profession has repeatedly changed throughout the history of the legal profession in Russia. This is primarily due to the characteristics of the political and economic system in the country.
History of the Institute of the Bar: a summary
The Russian history of the bar can be briefly described as follows:
- Institute of Attorneys of the XV-XVI centuries
- Judicial representation of the XVIII-XIX centuries. (pre-reform period).
- Reform of 1864. Beginning of the formation of the "Western type" advocacy.
- 1864-1917 The development of the sworn advocate institute.
- The period of Soviet power 1917-1991. Adoption of the Basic Provisions on the Advocacy in 1962 and 1980
- Advocacy of the Russian Federation after 1991
Below is a more detailed description of these steps.
Court in Ancient Russia
In antiquity, advocacy as such did not exist. The judiciary was the specific prince, members of his squad and governors. According to the legal norms of Kievan Rus, set forth in the first collection of Russian Pravda in 1016, the trial was accusatory and adversarial in nature. Both sides of the dispute presented themselves to the prince, often came with the whole family or community and presented arguments in favor of their innocence. Often it came to assault.
The methods of the “judgment of God” were also used, when the accused was subjected to various tests and, according to certain signs, was sentenced (a duel of opponents on the same terms, lots, a test by fire and water, and others). Such an approach required only the presence of the plaintiff and defendant, and not the defense counsel.
Attorneys in the XIV-XVII centuries
The first prototype of modern advocacy in the history of Russia can be considered the appearance of judicial attorneys in the Middle Ages. Messages about them are recorded in the legislative documents of the XIV-XVI centuries:
- Pskov judicial certificate (1397-1467) as part of the Vorontsov collection.
- Sudebniks 1497, 1550, 1589
- Novgorod Judicial Charter (1471).
In all these collections of laws, the institution of attorneys is described as a common phenomenon that has existed for a long time. The right to use such services varied. So in the Novgorod Judicial Charter it was allowed to anyone, but in the Pskov - only women, old and sick people, monks. Even then, a provision was fixed that the attorney should not be in the service of the sovereign so that the court decision would not become biased.
The history of the development of the legal profession in Russia during this period is characterized by a low level of judicial and state culture in comparison with other European countries. So, in Spain, lawyers had their own class organization since the beginning of the XIV century.
In the 17th century, the rights of these individuals continued to develop, but professional organizations did not yet exist. Moreover, in the society of that time, attorneys developed a very negative attitude. They were at the lowest social level and sometimes had no education, and their services consisted of writing complaints, which is why they were called yabedniki, the "nettle seed."
The emergence of the term "lawyer"
The appearance of the term “lawyer” in the history of the Russian legal profession is associated with the era of the reign of Peter I. For the first time it appears in the Military Regulations, which formed the basis for reforming the legal system of the empire. However, the attitude towards lawyers remained the same - the sovereign himself equated them with the comrades of thieves and murderers. Peter I considered their activity useless and, moreover, interfering with the work of a judge.
His follower - Empress Elizaveta Petrovna in a decree of 1752 and completely put the activities of lawyers outlawed. Such a tradition of treating advocacy as a harmful and dangerous phenomenon that undermines monarchical foundations has existed in Russia for a long time.
Only in 1832 a law was passed in which the procedure for the selection of persons for judicial representatives and their activities was regulated. In the western (Lithuanian, Ukrainian and Belarusian) provinces, the lawyer was supposed to have a noble rank, estate, and their preparation was carried out under the guidance of patrons - more experienced persons in this matter. But these innovations concerned only commercial vessels.
Reform of the judiciary in 1864
Along with the development of bourgeois society in the 19th century, the need for professional defense in court for representatives of the merchant class and industrialists was finally recognized in the bodies of higher authority. In 1864, the Council of State decided to create an organized advocacy structure.
The introduction of this legislative act is considered a turning point in the history of the emergence of the legal profession. The most educated lawyers were involved in the development of the reform project. Sworn advocacy was now regulated by the Judicial Charter. In 1866 they were put into effect.
The main requirements for the sworn attorneys were as follows:
- higher education in law;
- age - over 25 years old;
- practical experience in the judicial department of 5 years or more (or as an assistant to the sworn attorneys);
- Russian citizenship;
- in the presence of non-legal higher education - work experience in a position of at least grade 7 in the judicial department.
The applicant for the position of a sworn attorney also should not be in the public service, be under investigation, be deprived of class or spiritual rights by a court verdict. His candidacy was finally approved by the Minister of Justice, and the attorney himself took the oath.
The period from 1964 to 1917
After the Judicial Statutes were introduced, the first meeting of the approved sworn attorneys was held. In Moscow there were only 21 people. At the meeting, a Council consisting of 5 members was elected.
Thanks to the meticulously selected composition of attorneys at the Russian Bar, a system of high culture and professional honor has developed. This contributed to a change in the legal awareness of ordinary people and their attitude to the law.
The bar did not receive any support from the imperial authority, and the most important of them were pressured. In journalism, the activities of jurors continued to be shown in a destructive sense. Another negative phenomenon in the history of the institution of the legal profession was the fact that archaic traditions in legal proceedings continued to operate in the hinterland of the country.
By the end of the 19th century, there was a catastrophic lack of lawyers in Russia - about 30,000 people per attorney. By 1910, this ratio improved almost 2 times, but this figure was still very far from European countries. In the UK, at that time he amounted to: 1 lawyer for 684 citizens.
In 1874, a law was passed through which the authorities tried to control the activities of "clandestine" lawyers. Since there was a rather high qualification, many professional intercessors simply could not become members of the legal profession. However, this legislative act did not have a significant effect.
1917 revolution
In 1917, with the advent of Soviet power, the entire judicial system created in previous years was abolished and completely destroyed. In the history of the development of the legal profession, this was a transitional period. In March 1918, an attempt was made to create a new human rights structure. The decree ordered the formation of state sponsored collegiums under local councils.
In November of that year, the All-Russian Central Executive Committee issued the Statute on the People’s Court, according to which advocacy should be carried out by colleges consisting of public servants. They acted as prosecutors or defenders in civil proceedings. Payment of attorney services by clients remained, but now the funds came to the account of the Commissariat of Justice. A feature of this system was that it was impossible to contact a lawyer directly. He was admitted to business only if the board considered it necessary. The limit on the number of lawyers was also established, which led to its sharp reduction.
In 1920, a resolution was approved, according to which all citizens with a legal education are required to register with local labor registration authorities within 3 days. The purpose of this decision was to distribute lawyers who were lacking in institutions. Those who refused to register were accused of desertion and were subject to trial.
The period of the 20s - 30s of the XX century.
In 1922, the Soviet government adopted the Regulation on the Bar. According to this document, advocate groups functioned in the provincial courts, and advocacy was paid for by agreement of the parties. The college of defenders has again become a public entity in which public servants, with the exception of teachers, did not have the right to be. Its leadership was dealt with by the Presidium, whose members were elected at a general meeting.
In 1927, lawyers were banned from conducting private practice. In subsequent years, this decision was canceled, then introduced again. Professionals of the legal sphere of activity were seen by the workers and peasants as a bourgeois remnant of the past, a counter-revolutionary estate. A negative attitude to the legal profession in the history of the formation of this institution existed throughout the Soviet period.
Regulation 1939
In 1939, a new Regulation on the Bar was issued in the USSR. According to this document, bar associations were created in the subjects of the Soviet Union, the main task of which was to provide legal assistance. They were subordinate to the People's Commissariat of Justice. The scope of their activities included: legal advice, preparation of complaints; protection of the interests of citizens in court hearings.
Persons with higher legal education, with or without experience, but with work experience, were allowed to practice law. By permission of the People's Commissar of Justice, those who were not members of the collegium could be involved in this. In subsequent years, orders were repeatedly issued to control the admission of persons to the bar.
This provision was valid until 1962. However, there was no need to talk about a full-fledged human rights structure in that period - in the 30s. a massive wave of repression unfolded. The legal proceedings against the repressed were carried out in accordance with the special procedure for cases of counter-revolutionary wrecking. Lawyers were not allowed to participate in such processes.
During the Second World War, the number of lawyers decreased due to their mobilization to the front, and the military tribunals had the right to make a decision within one day. In the 50s. the situation has improved in this regard, the decisions on the exceptional procedure for conducting court cases in relation to the repressed were canceled.
Regulation 1962
In 1962, a new provision came into force in the RSFSR regulating the activities of lawyers. In accordance with this document, collegiums were defined as voluntary associations providing legal assistance during investigation, trial and arbitration. A practicing lawyer must have had membership in such an organization. The collegiums were under the general control of the Ministry of Justice of the RSFSR. In general, they were self-governing, but decisions on key issues were dictated by the state.
Payment for services was provided according to the instructions approved in 1966. The procedure for admission to the bar has also changed: only those persons who had a higher legal education and practical experience in the position of lawyer for at least 2 years had this right. As an exception, in agreement with the relevant authorities, persons who were not eligible for educational qualifications, but with legal experience of 5 years or more, were allowed.
Soviet authority. Period 1962-1991
In 1977, in the history of Russian advocacy, an article appeared in the Constitution of the USSR for the first time, which enshrined the public position of this institution, and 2 years later the Law on advocacy was adopted. On the basis of the latter, in 1980, the Regulation on the Bar of the RSFSR was developed. It was more advanced than the previous one, but the main points remained the same. The work of lawyers was regulated by this document until 2002.
In each subject of the USSR, one college of lawyers functioned. The main governing body was a conference of board members, and the control committee was the revision committee. The smallest structural unit was a legal consultation led by a manager. Their creation was carried out in coordination with the local administration and justice authorities.
New time. The period after 1991
Despite the transformations of the 80s, the bar associations remained fairly closed organizations. This was due to the political realities of the socialist system in Russia. The provisions of the 1980 Provision of the Bar, consistent with international law, did not really work until 1991.
The new federal law on the bar was adopted only in 2002. According to its provisions, bar chambers that are non-state and non-profit organizations are created in the constituent entities of the Russian Federation. They are established by a collective meeting (conference) of lawyers and are a legal entity with separate property, settlement and other bank accounts. The creation of interregional chambers is not allowed.
The highest body - the meeting of lawyers - is convened at least 1 time per year, with at least 2/3 of the members present. They collectively decide on the election of the audit commission and delegates to the All-Russian Congress, determine the amount of deductions for the needs of the chamber, establish the types of responsibilities and incentives for lawyers, and make other decisions.
Lawyers have the right to provide citizens and legal entities with any legal assistance that is not prohibited by federal law. Thus, this area of activity in Russia is currently brought into line with generally accepted international standards.