For several months now, the country has been actively savoring the details of the "Bishimbayev case." His lawyers, among others, came under a powerful wave of public criticism. Many regard their attempts to obtain a commutation of punishment for their client or even acquittal as something immoral and unacceptable.
Perhaps the suspect in the brutal murder really committed this terrible crime, but that's what the court is for to sort out the case and reach a verdict. And lawyers – should they and have the right, for the sake of some kind of moral responsibility to society, to take a position different from that of the defendant? Or are they obliged to act solely in the interests of their client? We asked well-known Kazakhstani lawyers to clarify the situation.
Tagir Sisinbayev, former Deputy Chairman of the Supreme Court of the Republic of Kazakhstan, lawyer:
"They are obliged to follow the position of the defendant, to justify it in every possible way"
- Let's start with the fact that every citizen, without exception, has the right to judicial protection and to receive qualified legal assistance, according to the Constitution. Even if he refuses it in some cases or is unable to hire a lawyer, the state is obliged to provide him with one. This provision is contained in all sectoral laws, in particular, in the Code of Criminal Procedure, the Code of Administrative Offenses, as well as in the Law "On Advocacy and Legal Assistance".
In addition, according to these laws, a lawyer is prohibited from providing legal assistance if there is a conflict of interest with a client. Even if not in connection with his case, but on other issues. In this case, he must himself refuse to exercise protection before this fact comes to light. If he intentionally undertakes to protect the client, and even more so with the aim of harming him, he will be punished up to the deprivation of a license.
Well, as for your main question. According to the law, a lawyer does not have the right to take a position that contradicts the position of the person who applied to him for help, or may worsen his situation. On the contrary, he must take all legal measures (all legal means) to defend his client's position. It's his job. Therefore, when the public suspects lawyers that they are trying to present certain circumstances in favor of the defendant, it is not entirely correct.
Of course, I understand people who advocate morality and morality, but a person can only be found guilty by a court verdict. And that's it.
I immediately remember the story of an elderly priest, who was defended by the famous lawyer Fyodor Plevako. The defendant confessed everything, and it was already clear that the case was lost. However, Plevako addressed the jury with a speech: "In front of you sits a man who has been absolving you of your sins in confession for thirty years. Now he is waiting for you: will you absolve him of his sin?" The priest was acquitted.
As for the "Bishimbayev case", attacks on lawyers are a natural reaction of citizens. But those have nowhere to go. Since they have undertaken to protect him, first of all, according to the law, they do not have the right to refuse. And secondly, I repeat, we are obliged to follow the position of the defendant, justify it in every possible way, and look for circumstances justifying or mitigating his guilt.
Vitaly Voronov, founder of the Almaty Law Corporation, lawyer:
"The identification of a lawyer and his client is a serious problem"
- Lawyers must strictly follow and comply with the provisions of the Law "On Advocacy and Legal Assistance", as well as the norms of other legislation, including constitutional, criminal procedure, etc.
The relevant law (article 3) lays down principles common to all those who provide legal assistance, including legal consultants. Failure to comply with them entails liability (article 4). In addition, this document prescribes the observance of high professional and ethical standards in the provision of legal assistance based on generally accepted norms of behavior, morality and standards (article 10).
In the context of the question you asked, I would like to note that the lawyer is obliged to perform any actions not prohibited by law to establish factual circumstances aimed at ensuring the rights, freedoms and legitimate interests of the client (article 33). He cannot be provided with legal assistance in the presence of a conflict of interest or circumstances provided for by procedural legislation that exclude the participation of a defender in the case. Plus, it is strictly forbidden to take a legal position on the case that worsens the situation of the person who applied for help, as well as to use their powers to his detriment.
The law (Article 34) also imposes on a lawyer the obligation to comply with professional norms (rules) of conduct, such as: to show good faith in the exercise of their rights and duties; to behave correctly towards authorities and officials; to prevent deliberate delaying of the case, illegal methods of providing legal assistance, deception, forming and limiting their professional conduct in accordance with the rights and legitimate interests of the person who applied for help; to be faithful to the interests of the latter.
As you can see, the relevant law requires a lawyer not only to be faithful to the interests of the client (client), but also to comply with numerous legislative regulations and ethical standards. And when participating in pre-trial proceedings in criminal cases and their trial, he must be guided not only by the above norms, but also strictly comply with the provisions of article 70 of the Criminal Procedure Code of the Republic of Kazakhstan (in legal force it is higher than the relevant law), which prescribes that:
the defender is obliged to use all legal means and methods of defense in order to identify circumstances that refute suspicion, accusation or mitigate the responsibility of the suspect, the accused, and provide them with the necessary qualified legal assistance;
the defender does not have the right to: commit any actions against the interests of the defendant and interfere with the exercise of his rights; contrary to the position of the defendant, admit his involvement in a criminal offense and guilt in its commission, declare reconciliation of the defendant with the victim; recognize a civil lawsuit; withdraw complaints and petitions filed by the defendant; disclose information that became known to him in the in connection with the application for legal assistance and its implementation.
As we can easily see, the above norms do not establish anywhere the moral responsibility of a lawyer to society, for which he can take a different position from the position of the client! On the contrary, if he does this under the so-called pressure of public opinion or refuses to defend himself, he will violate both the norms and principles of the legal profession.
It is important to note one thing here: a very serious problem of our public consciousness is the inherent identification of a lawyer and his client, which is fundamentally wrong and even vicious. If the Constitution guarantees everyone the opportunity to receive guaranteed legal assistance provided by a lawyer, then how to ensure that such a guarantee is respected? After all, doctors provide medical care to anyone who needs it, regardless of the identity of the applicant.
Although, of course, it is easier for lawyers in this regard than for doctors. They do not give a kind of Hippocratic oath and can always find a reason and justification to refuse to cooperate with the client (client). Including for some ethical reasons of their own. But if they decide to take up the provision of legal assistance, then, as they say, there is no way back, and it must be provided qualitatively so that this quality suits the defendant. Only he has the right to refuse a lawyer, and not the other way around.
- What does the world experience say in this regard? What is your personal position on this?
- The world experience is completely different, but I have not seen countries where lawyers are treated with love. The profession is respected, but its bearers are treated in their own way, depending on the result of "cooperation" with a lawyer.
Where open pre-trial and judicial procedures take place, during which it is easy to verify the integrity, professionalism, etc. of a lawyer, our colleagues are well-deserved respect. In closed and significantly corrupt legal and judicial systems like ours, where little depends on a lawyer, respectively, and the attitude towards him is different. From claims about the high cost of his services to accusations of corruption. Although, of course, there are often cases of sincere gratitude from clients for the legal assistance provided to them, which allowed them to preserve their business, good name, freedom, protect and defend other legitimate rights and interests.
My position? Act on the principle: do what you have to do, and let it be as it will be. If you have undertaken to defend, do it honestly and conscientiously, without humiliating or humiliating others, and never breaking the law.
Perhaps the suspect in the brutal murder really committed this terrible crime, but that's what the court is for to sort out the case and reach a verdict. And lawyers – should they and have the right, for the sake of some kind of moral responsibility to society, to take a position different from that of the defendant? Or are they obliged to act solely in the interests of their client? We asked well-known Kazakhstani lawyers to clarify the situation.
Tagir Sisinbayev, former Deputy Chairman of the Supreme Court of the Republic of Kazakhstan, lawyer:
"They are obliged to follow the position of the defendant, to justify it in every possible way"
- Let's start with the fact that every citizen, without exception, has the right to judicial protection and to receive qualified legal assistance, according to the Constitution. Even if he refuses it in some cases or is unable to hire a lawyer, the state is obliged to provide him with one. This provision is contained in all sectoral laws, in particular, in the Code of Criminal Procedure, the Code of Administrative Offenses, as well as in the Law "On Advocacy and Legal Assistance".
In addition, according to these laws, a lawyer is prohibited from providing legal assistance if there is a conflict of interest with a client. Even if not in connection with his case, but on other issues. In this case, he must himself refuse to exercise protection before this fact comes to light. If he intentionally undertakes to protect the client, and even more so with the aim of harming him, he will be punished up to the deprivation of a license.
Well, as for your main question. According to the law, a lawyer does not have the right to take a position that contradicts the position of the person who applied to him for help, or may worsen his situation. On the contrary, he must take all legal measures (all legal means) to defend his client's position. It's his job. Therefore, when the public suspects lawyers that they are trying to present certain circumstances in favor of the defendant, it is not entirely correct.
Of course, I understand people who advocate morality and morality, but a person can only be found guilty by a court verdict. And that's it.
I immediately remember the story of an elderly priest, who was defended by the famous lawyer Fyodor Plevako. The defendant confessed everything, and it was already clear that the case was lost. However, Plevako addressed the jury with a speech: "In front of you sits a man who has been absolving you of your sins in confession for thirty years. Now he is waiting for you: will you absolve him of his sin?" The priest was acquitted.
As for the "Bishimbayev case", attacks on lawyers are a natural reaction of citizens. But those have nowhere to go. Since they have undertaken to protect him, first of all, according to the law, they do not have the right to refuse. And secondly, I repeat, we are obliged to follow the position of the defendant, justify it in every possible way, and look for circumstances justifying or mitigating his guilt.
Vitaly Voronov, founder of the Almaty Law Corporation, lawyer:
"The identification of a lawyer and his client is a serious problem"
- Lawyers must strictly follow and comply with the provisions of the Law "On Advocacy and Legal Assistance", as well as the norms of other legislation, including constitutional, criminal procedure, etc.
The relevant law (article 3) lays down principles common to all those who provide legal assistance, including legal consultants. Failure to comply with them entails liability (article 4). In addition, this document prescribes the observance of high professional and ethical standards in the provision of legal assistance based on generally accepted norms of behavior, morality and standards (article 10).
In the context of the question you asked, I would like to note that the lawyer is obliged to perform any actions not prohibited by law to establish factual circumstances aimed at ensuring the rights, freedoms and legitimate interests of the client (article 33). He cannot be provided with legal assistance in the presence of a conflict of interest or circumstances provided for by procedural legislation that exclude the participation of a defender in the case. Plus, it is strictly forbidden to take a legal position on the case that worsens the situation of the person who applied for help, as well as to use their powers to his detriment.
The law (Article 34) also imposes on a lawyer the obligation to comply with professional norms (rules) of conduct, such as: to show good faith in the exercise of their rights and duties; to behave correctly towards authorities and officials; to prevent deliberate delaying of the case, illegal methods of providing legal assistance, deception, forming and limiting their professional conduct in accordance with the rights and legitimate interests of the person who applied for help; to be faithful to the interests of the latter.
As you can see, the relevant law requires a lawyer not only to be faithful to the interests of the client (client), but also to comply with numerous legislative regulations and ethical standards. And when participating in pre-trial proceedings in criminal cases and their trial, he must be guided not only by the above norms, but also strictly comply with the provisions of article 70 of the Criminal Procedure Code of the Republic of Kazakhstan (in legal force it is higher than the relevant law), which prescribes that:
the defender is obliged to use all legal means and methods of defense in order to identify circumstances that refute suspicion, accusation or mitigate the responsibility of the suspect, the accused, and provide them with the necessary qualified legal assistance;
the defender does not have the right to: commit any actions against the interests of the defendant and interfere with the exercise of his rights; contrary to the position of the defendant, admit his involvement in a criminal offense and guilt in its commission, declare reconciliation of the defendant with the victim; recognize a civil lawsuit; withdraw complaints and petitions filed by the defendant; disclose information that became known to him in the in connection with the application for legal assistance and its implementation.
As we can easily see, the above norms do not establish anywhere the moral responsibility of a lawyer to society, for which he can take a different position from the position of the client! On the contrary, if he does this under the so-called pressure of public opinion or refuses to defend himself, he will violate both the norms and principles of the legal profession.
It is important to note one thing here: a very serious problem of our public consciousness is the inherent identification of a lawyer and his client, which is fundamentally wrong and even vicious. If the Constitution guarantees everyone the opportunity to receive guaranteed legal assistance provided by a lawyer, then how to ensure that such a guarantee is respected? After all, doctors provide medical care to anyone who needs it, regardless of the identity of the applicant.
Although, of course, it is easier for lawyers in this regard than for doctors. They do not give a kind of Hippocratic oath and can always find a reason and justification to refuse to cooperate with the client (client). Including for some ethical reasons of their own. But if they decide to take up the provision of legal assistance, then, as they say, there is no way back, and it must be provided qualitatively so that this quality suits the defendant. Only he has the right to refuse a lawyer, and not the other way around.
- What does the world experience say in this regard? What is your personal position on this?
- The world experience is completely different, but I have not seen countries where lawyers are treated with love. The profession is respected, but its bearers are treated in their own way, depending on the result of "cooperation" with a lawyer.
Where open pre-trial and judicial procedures take place, during which it is easy to verify the integrity, professionalism, etc. of a lawyer, our colleagues are well-deserved respect. In closed and significantly corrupt legal and judicial systems like ours, where little depends on a lawyer, respectively, and the attitude towards him is different. From claims about the high cost of his services to accusations of corruption. Although, of course, there are often cases of sincere gratitude from clients for the legal assistance provided to them, which allowed them to preserve their business, good name, freedom, protect and defend other legitimate rights and interests.
My position? Act on the principle: do what you have to do, and let it be as it will be. If you have undertaken to defend, do it honestly and conscientiously, without humiliating or humiliating others, and never breaking the law.