Criminal liability for obstructing the legal activity of a defense counsel in court proceedings

Introduction

The rule of law recognizes the rights and freedoms of every person as the highest social value. In order to protect them properly, the rule of law undertakes to improve the socio-political system and to develop public-law mechanisms for the implementation of its obligations to the individual, as well as to create conditions for the professional activities of defense counsels in court proceedings. Legal aid is an integral part of a civilized state and one of the main functions of jurisprudence. The need for legal assistance in resolving conflict cases will always exist, as the majority of people lack all the special knowledge needed to protect their rights in the court of law.

The guarantees for defense attorneys provided under the UN Guidelines on the Role of Lawyers, given their special importance for ensuring everyone's right to defense, require high-quality legal protection and the establishment of means of criminal liability for a number of illegal acts that impede the lawyer's free performance of his professional and procedural duties as well as the exercise of relevant rights. According to the Council of European Bar Associations and Legal Societies, in 2020 there were 112 criminal proceedings related to obstructing the legal activities of defense counsels, which took place in 36 countries. Of these, 12% were murder, attempted murder or death; 51% – arrest, detention, prosecution; 29% – threat, assault, harassment, abuse, travel ban, intrusion, abduction; 8% – deprivation of the right to practice law, attack on the independence of the Bar (Cuomo, 2020, p. 19). Therefore, in view of the abovementioned statistics, with a significant number of facts of actual interference in the legal profession, violations of guarantees of professional activity of defenders, obstruction thereof, few cases of criminal liability worldwide are recorded officially. Therefore, the criminal law protection of advocacy is still not ensured effectively enough, which determines the relevance of the chosen research topic. Thus, the purpose of the article is to determine the criminal law protection guarantees aimed at ensuring the safeguarding the defense counsel’s activities in court proceedings considered in the context of international standards, as well as probing into criminal liability for their violation. To achieve the goal of the article, the following tasks are set: to identify and characterize international guarantees of safe advocacy in court proceedings; to analyze the criminal law of the EU countries in order to establish criminal liability for obstructing the legal activities of the defense counsel in court proceedings; to single out the key problems of applying criminal sanctions to offenders who committed a socially dangerous act in order to ensure safe advocacy and elaborate the ways of addressing them.

Literature Review

The issues of advocacy security and its components, as well as the problems of criminal law protection in the field of justice have been addressed by many scholars. For instance, Chow and Calvard (2021), studying the safety of advocacy in Singapore, noted that morale as an element of the lawyer's professional activity is a partial guarantee of his safe practice. Exploring the theory of vulnerability to advocacy in criminal proceedings, Dehaghani (2021) founds that the defenders’ acquisition of resilience in the practice of criminal justice helps them not to succumb to provocations to obstruct justice. An et al. (2021) considered the professional qualities of a lawyer in the field of advocacy through the lens of evaluating the lawyers’ qualifications. Bingulac and Miljenović (2021) studied the aspects of defense attorneys’ professional independence in relation to state and judicial bodies and noted that the observance of legal secrecy is the basis for building trust between the client and the lawyer's reputation overall. Sherman (2021) analyzed the protection of the defender's activities from the standpoint of the rule of law and recognized that respect for human rights is the basis of the lawyers’ professional activity. Brady and Peck (2021) studied the security of advocacy in terms of Americans' trust in defense attorneys and established a relationship between the society’s legal awareness and trust in counsel.

Martínez Santos (2020) studied international standards of access to justice and established a relationship between non-compliance with their norms and guarantees of safe defenders’ activities. Pivaty and Soo (2019) scrutinized the European legislation on criminal justice and justified the need to establish a single standard of access to justice, which will ensure a proper balance between the interests of clients to adequately protect their individual rights and the defense counsel’s protection.

Considering the problems of criminal law protection of safe activities of defense attorneys, Thornton (2020) emphasizes the provision of sufficient funding at the state level for lawyers in criminal proceedings. Analyzing the Criminal Procedure Code of Croatia, Novokmet (2019) places a special emphasis on ensuring lawyer’s proper access to justice. Murray (2020) studied the notice including that applied to a lawyer in criminal proceedings as an element of ensuring constitutional human rights. Borodinova et al., (2020) note that the advocacy effectiveness in criminal proceedings depends on the courts’ efficient interpretation and application of criminal procedure rules, taking into account the specifics of the particular branch of law.

However, despite quite a wide scope of research on this topic, currently insufficiently addressed are the issues of criminal penalties for obstructing the defense attorney’s legal activity in court proceedings, as well as the reasons for imperfect protection of safe advocacy and ways to tackle them, which determines the relevance of the research topic.

Methods and Materials

The topic of the article was studied in three stages. The initial stage involved the formulation of the topic, purpose and objectives of the study; the second stage – the actual carrying out of the scientific research; the third stage – the analysis and presentation of the study findings. The topic is formulated by reviewing the current state of the problem of safe advocacy and its criminal protection. The purpose and objectives are laid out on the basis of analysis of scientific literature on jurisprudence, legal framework for safe advocacy and work of scholars to combat violations of the legal activities of defense counsel in court proceedings by comparing and criticizing problematic information, summarizing and covering the issue. Scientific research was carried out through the use of theoretical and experimental research. Theoretical research allowed determining the content of safe advocacy through the prism of international law and its criminal law protection. Experimental research based on the provisions of criminal law of Austria, Belgium, Bulgaria, Denmark, Estonia, Spain, Latvia, the Netherlands, Germany, Norway, Poland, France and generalization of the practical application of international and criminal law in the field of advocacy, made it possible to identify the types of crimes against justice, their corpus delicti, as well as criminal liability for such obstruction of justice and its punishment. At the third stage the analysis and registration of scientific research findings was carried out. The general analysis of theoretical and experimental researches, comparison of their results and the analysis of discrepancies outlined the key problems of criminal law protection of maintaining the safe legal activity.

The research into the issue under analysis was carried out through the use of empirical and theoretical scientific methods. From the standpoint of international law and criminal law and legal relations in the field of safe advocacy, empirical knowledge reflects the content of the object of study - criminal liability for violations of justice. Due to the method of comparative analysis, scientific, legal and practical information about advocacy and its criminal protection is analyzed. Theoretical knowledge of criminal law against the violation of the lawful activities of the defender reveals the subject of research from the universal internal, essential connections and patterns, understood by the rational processing of empirical data. The combination of empirical and theoretical methods provides an empirical interpretation of the theory and theoretical interpretation of empirical data, as well as reveals the grounds for criminal prosecution of offenders who have committed socially dangerous acts against justice.

The research sample encompassed such research objects as follows: legal bases of safe advocacy and its international guarantees, as well as criminal penalties for obstructing the lawyer’s activity during the court proceedings and the grounds for criminal prosecution for obstructing such activity. The combination of the study of these objects helped to discern the problems scope of criminal law protection regarding a safe advocacy. The research was carried out on the basis of information retrieval using the global computer network on the Internet as well as scientometric databases.

The basic materials on which the study was grounded are as follows: international legal acts, in particular UN Basic Provisions on the Role of Lawyers, UN General Assembly Resolution 43/173 dated December 9, 1988, European Convention on Human Rights, General Code of Conduct for Lawyers of the European Community, Charter of Basic Principles European legal profession, Directive 77/249/EEC dated 22 March 1977 and Directive 98/5/EC dated 16 February 1998, as well as the EU countries’ criminal law (Council of the European communities, 1977; European economic and social committee, 2006; European Parliament, 1998; Office of the high commissioner for human rights, 1990).

Results

The relevant protection of human rights and freedoms ensures the development in economic, social, cultural, social and political spheres of life and requires that all people have the opportunity to enjoy legal assistance provided by an independent counsel for defense. The UN's basic provisions on the role of lawyers guarantee that all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. States governments take obligation to ensure access to an efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, regardless of race, color, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status. The main UN provisions on the role of lawyers authorize the law enforcement agencies of each state to ensure that everyone is informed about the rights to call upon the assistance of lawyers upon arrest or detention or when charged with a criminal offence.

State guarantees for safe advocacy are presented in Figure 1.

The General Code of Conduct for the lawyers in the European Community defines the general rules applicable to lawyers, both court defenders and legal advisors, dealing with international practice in EU countries (European economic and social committee, 2006). This Code defines the legal status of a lawyer who must act pursuant to the law as a whole as well as in the interests of those whose rights and freedoms they are entrusted to defend, while not only appearing in court on behalf of the client but also providing legal assistance in the form of advice and consultations.

Figure 1. State powers in the field of safeguarding advocacy. Source: author’s own elaboration based on Office of the high commissioner for human rights (1990). Paragraphs 16-20

The core advocacy principles that are necessary for the proper administration of justice, access to justice and the exercise of the right to a fair trial under the European Convention on Human Rights are set out in the Charter of Core Principles of the European Legal Profession. According to the Charter, advocacy is based on the principles of the rule of law, independence of affairs, confidentiality of advocacy, avoidance of conflicts of interest, professional competence, respect for the honor and dignity of the legal profession, fair treatment and self-regulation of advocacy. Self-regulation of the legal profession is vital in buttressing the independence of the practicing lawyer. The principle of independence and freedom of the lawyer in the conduct of the client's case requires from the lawyer political, economic and intellectual freedom in the exercise of their powers, counseling and representing the interests of the client. That is, a lawyer must be independent of the state and other government interests and must not allow his independence to be jeopardized by destructive pressure. Legal support of advocacy is regulated by the standards of the Council of Europe. Directive 77/249/EEC dated 22 March 1977 facilitating the effective exercise by lawyers of freedom to provide services, sets out the basic requirements for the exercise of the profession of lawyer on a permanent basis in the EU and the procedure for the provision of services in the EU (Council of the European communities, 1977). Directive 98/5/EC dated 16 February 1998 on a simplified procedure for the practice of legal practice in another member state in which a qualification was obtained simplifies the conditions for lawyers to pursue their professional activities outside their own country (European Parliament and Council of Europe, 1998).

In the EU, obstruction of a lawyer's legal activities in court proceedings qualifies as a crime against justice, disclosure of legal secrecy and intentional harm to the lawyer's life. However, the composition of such crimes in different EU countries has its own features (Table 1).

Table 1.
Criminal liability for obstructing the lawyer’s activity in court proceedings in EU countries.

Source: author’s own elaboration based on Fuchs (2013); Law 10/1995 (1995); Konarska-Wrzosek (2020); Criminal Law of the Republic of Latvia (2021); Consolidated federal law (2022); Legifrance (1992); Legislationline (2005; 2012; 2017; 2021); Lovdata (2005); Riigi Teataja (2001).

Obstruction of a lawyer's legal activity in court proceedings in France qualifies as criminal offenses against life, health and property, as well as against justice and abuse of power, directed against public authorities. For Sections 2211- 2215-5 of the Criminal Code (hereinafter - CC) of the French Republic, the grounds for criminal prosecution are acts committed against a person who is under special protection of the law: premeditated murder; use of torture or cruelty; violent acts that resulted in death without intent to cause it, or injury, chronic illness or disability; destruction or damage to another person's property. In addition, Section 4321 of the CC of France provides for liability for an act committed by any person who has public authority and who acts in the exercise of his powers, which is expressed in the creation of measures aimed at obstructing the implementation of the law. Crimes against justice (Sections 43424-43434-1) are insults with words, gestures or threats, not made public by texts or images of any kind or by sending any items addressed to any magistrate, juror or any other person who sits in any judicial body and who is performing his or her duties or in connection with their performance, and who seeks to inflict harm on his or her dignity or respect, which must be shown in the position he or she holds. According to these sections of the CC of France, victims are defined as a magistrate (judge or prosecutor), jurors, lawyer, court clerk or other representatives, as well as witnesses, victims or civil plaintiffs (Legifrance, 1992).

Obstruction of a defense counsel activity in Denmark, Estonia, Spain, Latvia, Poland is recognized as a criminal offense. Section 150 of the CC of Denmark imposes criminal liability to a person who while exercising state power or function, abuses their position to compel any person to do, continue, or refrain from doing something (Legislationline, 2005). This provision of the CC of Denmark recognizes as a victim a lawyer, solicitor or lawyer who is forced to perform or not to perform certain actions in connection with the provision of legal assistance to anyone. Section 302–304 of the CC of the Republic of Estonia provide for criminal liability as follows: causing serious harm to a lawyer in order to coerce him or her against the interests of justice or in retaliation for the performance of his or her duties; violence against the defense counsel, as well as other influence on him or her in order to force him or her to act against the interests of justice or in retaliation for the performance of his or her duties; damage to the property of a lawyer in order to force him or her to act against the interests of justice or in retaliation for the performance of his or her duties (Riigi Teataja, 2001). According to the provisions of Estonian criminal law, the victims are defense counsels, attorneys, and lawyers. For Section 464 of the CC of Spain, criminal liability is imposed on persons who by violence or intimidation try to directly or indirectly influence the plaintiff, party to the proceedings or the accused, lawyer, prosecutor, expert, interpreter or witness in the process to change his or her procedural position (Law 10/1995, 1995). Furthermore, the obstruction of a lawyer’s legal activities, a defense counsel’s, a representative’s refers to coercion pursuant to Section 172 of the CC of Spain: obstruction of a person to exercise their rights and freedoms by a qualified coercion to commit certain acts not prohibited by law. Pursuant to Section 231 of the CC of the Republic of Latvia, criminal liability is established for obstructing the activities of a lawyer, and alongside those of a judge, a prosecutor, an official of a pre-trial investigation, a bailiff (Criminal Law of the Republic of Latvia, 2021). In Poland, illegal acts related to the obstruction of the legal activities of a lawyer are considered crimes against the authenticity of documents. So, Section 271 of the CC of Poland punishes officials or other persons authorized to issue a document for entering false information into it about the circumstances of legal implication (Konarska-Wrzosek, 2020).

However, in some EU countries (Austria, Belgium, Bulgaria, Norway, the Netherlands, Germany) there is no criminal liability for obstructing a lawyer, but it is established for the disclosure of legal secrets. According to the Criminal Code of Austria, a criminal offense for disclosing a lawyer's secret is an illegal violation of the secrecy of correspondence, illegal access to other people's documents (Consolidated federal law, 2022). According to Section 259bis of the Criminal Code of the Kingdom of Belgium criminal liability is provided for illegal wiretapping, secret acquaintance, recording of private negotiations, committed by a public official or official (Legislationline, 2021). Pursuant to Section 145 of the Criminal Code of the Republic of Bulgaria, the grounds for criminal prosecution are the use other than for the purposes of criminal proceedings of information obtained using special intelligence tools, including the commission of such an action by an official who received information or got to know it in connection with official activities (Legislationline, 2017). According to Sections 145-145a of the Criminal Code of the Kingdom of Norway, criminal liability is foreseen for encroachment on secrecy in the form of illegal disclosure of other person’s letter or other document to access the content, wiretapping, other conversations, their secret recording, and installation of technical means for recording (Lovdata, 2005). According to Section 272 of the Criminal Code of the Netherlands, punishable is the intentional disclosure of a secret that a person is obliged to keep, in particular, by position or profession (Legislationline, 2012). Under Section 201 of the Criminal Code of Germany, criminal liability is established for committing unofficially spoken words without the permission of a recording on a technical device or eavesdropping with a technical device (Fuchs, 2013).

The grounds for criminal prosecution for obstructing the legal activities of defense counsel in court proceedings are established criminal law penalties for crimes against justice, which are qualified by the presence of all components of such crimes. The composition of crimes for obstructing the legal activities of defense counsel in court proceedings is shown in Figure 2.

Figure 2. Components of crimes for obstructing the defense counsel’s legal activity in court proceedings. Source: author’s own elaboration based on Fuchs (2013); Law 10/1995 (1995); Konarska-Wrzosek (2020); Criminal Law of the Republic of Latvia (2021); Consolidated federal law (2022); Legifrance (1992); Legislationline (2005; 2012; 2017; 2021); Lovdata, (2005); Riigi Teataja (2001).

The victim of crimes for obstructing the legal activities of defense counsel in court proceedings is a person who practices law and a person whose rights are safeguarded. Therefore, offenders who committed a socially dangerous act that contains all the components of a crime provided by criminal law may be held criminally liable.

Discussion

The reasons for establishing criminal protection for the safe activities of defense counsel in court proceedings are related to ensuring compliance with international guarantees for everyone's right to legal aid and to seek assistance to prove their rights and protection at all stages of the trial. Safe advocacy depends not only on the establishment of criminal liability for its obstruction and an effective legal mechanism for attracting offenders, but also on the professional conduct of a lawyer, the proper performance of his or her professional duties, his or her level of qualification as well as their morale.

According to Chow and Calvard (2021), a partial guarantee of safeguarding the defense counsel’s activity in court proceedings are the lawyer’s moral principles, which he adheres to in his or her own professional function. In their opinion, the lawyer’s morals has a mixed form, which changes under the influence of managerial and economic factors and constantly varies between self-interest and commercial interests of clients. Dehaghani (2021) believes that the defense counsel’s resilience and endurance in criminal justice practice helps them not to yield to provocations to hinder their activities in court proceedings. According to Mergaerts (2021), the lawyer's adherence to their own opinion in court may also be a factor in impeding their legal activity.

Another level of qualification of lawyers is another guarantor of safeguarding the defense counsel's activity in court proceedings. The level of qualification is extremely difficult to evaluate, due to the lack of uniform standards for assessing the professional activity of lawyers and the complexity of assessment in terms of jurisprudence of cases conducted by a lawyer (An et al., 2021). The safety of advocacy depends on the qualifications and morals of the lawyer. Examining the professional independence of defense counsel in court proceedings against judges and state bodies, Bingulac and Miljenović (2021) note that such independence builds trust in the relationship between the client and the lawyer. Gaining the trust of the client depends on the proper performance of the lawyer's duty to maintain confidentiality and legal secrets. The rule of law should be a priority in the legal activity of the defense counsel. Adherence to this principle will help to enhance respect for human rights and further avoid various controversial legal controversy (Sherman, 2021).

Probing into the grounds for the defense counsel’s activities in juvenile litigation, researchers concluded that the introduction of the lawyers’ mandatory appointment in such cases will simplify the trial and increase the legal awareness of detained offenders, which in turn will enhance confidence in lawyers in society (Brady & Peck, 2021). In order to improve the safe professional activities of defense attorneys in criminal cases involving minors, researchers offer a lawyer not only to provide the legal assistance to the suspect, but also psychological support (Kokkalera, 2021).

Analyzing the cases of the European Court of Human Rights in which legal aid was denied, the violation of international standards relating the access to justice establishes the relationship between non-compliance and safeguarding the defense counsels (Martínez Santos, 2020). Studying the European legislation on criminal law protection in the field of justice, researchers argue that the establishment of a single standard of equal access of the parties to the proceedings will establish the necessary balance between the interests of clients for the fair protection of their rights and the protection of the defense lawyer’s activity (Pivaty & Soo, 2019).

As a result of the doctrinal analysis of the specified problems of establishment of criminal sanctions for obstruction of defense counsel’s legal activities in judicial process, we can note that scientists see the expediency in further research of the criminal law norms provided for actions against justice, effective recommendations of their practical implementation to seek relevant directions of developing the legal mechanisms of safeguarding legal activity.

Conclusion

The protection of guarantees of safe advocacy related to the practice of defense attorneys, in the absence of a special rule on liability for their violation, is possible only if criminal liability is established for illegal actions aimed at interfering with the defense counsel’s legal activities in court proceedings. It is of the essence of a lawyer’s function that criminal liability for obstructing the defense counsel’s legal activities in court proceedings is a type of legal liability applied to a person who committed the specified criminal offense, to be subject to criminal punishment in the form of a fine, correctional labor, imprisonment or suspension from office.

The grounds for bringing offenders who committed a socially dangerous act against justice to criminal responsibility occur in the presence of all components of the crime provided by criminal law (the object, the subject, the objective side and the subjective side). The object of such crimes is public relations, which provide international standards and guarantees in the field of defense attorney’s safe activities. The objective aspect of these criminal offenses is intentional interference and obstruction of the legal activities of the defense counsel. The basic subject of such crimes is a natural person of a certain age, who at the time of the crime was aware of his or her actions and directed them, and a special subject is a public officer (official person). The subjective side of these socially dangerous acts is the direct intent to commit an act aimed at preventing the defense counsel’s legal activities.

The prospect of further research is to develop mechanisms for the implementation of criminal sanctions to offenders who committed a socially dangerous act against justice in order to ensure safe activities of the defense counsel. Therefore, we see a further perspective in the empirical study and theoretical and methodological justification of criminal law safeguarding of the defense counsel’s professional activities in court proceedings.