No education – no representation. Russian Constitutional Court decides on legal education requirement for administrative proceedings

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Until quite recently Russian procedural law has had no particular requirements as to parties’ representatives in non-criminal legal proceedings. This situation started to change in 2015 when the Russian Parliament approved the new Code of Administrative Procedure (the “Code“).

These changes, which quickly turned out to be controversial, became part of the larger dispute on the so-called “advocacy monopoly” in litigation (including commercial cases) and were challenged in the Russian Constitutional Court.

While far from establishing a “monopoly”, the Constitutional Court’s position on these cases indicates a significant shift in its position on the constitutionality of similar restrictions and the perspective for possible changes in the regulation of the Russian legal market.

Code of Administrative Procedure

Part 9 of Art. 209 of the Code states that parties to administrative proceedings who have not had a legal education must have a representative qualified by Art. 55 of the Code. Part 1 of the latter Article states that such representatives must be either advocates or other people who have full legal capacity and a higher legal education.  Part 3 of the same Article further reinforces this requirement by demanding the representatives to show proof of having had a legal education to the court.

Criticism

While one part of the Russian legal community welcomed such restrictions as guaranteeing a better quality of legal representation in court, these provisions were also highly criticised by the others. Several Russian parliamentarians pointed out that it would prevent social activists and members of various NGOs from doing pro bono help for Russian citizens as, despite having extensive legal experience, many of them lack a formal legal education.

More importantly, some of its opponents argued that it may contradict Part 2 of Art. 45 of the Russian Constitution stating that “Everyone shall be free to protect his rights and freedoms by all means not prohibited by law.”

In some of its previous decisions, the Constitutional Court has indeed declared unconstitutional similar requirements in the Russian Arbitrazh Procedure Code and in 2002 a similar provision in the Russian Code of Administrative Offences was vetoed by the Russian President.

Challenges

On 27 September 2016, slightly more than a year since the Code came into force, the Constitutional Court resolved four separate challenges of these provisions of the Code. In most cases, parties without a legal education either wanted to represent themselves or simply did not have funds for hiring legal representatives. In one of the challenges, the Russian Human Rights Ombudsman joined the claimant’s application to the Constitutional Court.

In the challenges, the parties alleged that these provisions violated various articles of the Russian Constitution. These included such grounds as breaches of fundamental human rights (Art. 17), the principle of equality of all before the courts and the law (Art. 19), the right of citizens to protect their rights (Art. 45), the judicial protection of human rights (Art. 46), the prohibition of restriction of access to the courts (Art. 47), the guarantee of qualified legal assistance (Art. 48) and Art. 55 limiting the situations where federal law may contradict the Constitution.

Court’s decision

In all cases, the Court upheld the constitutionality of the provisions of the Code. While acknowledging that the parties indeed have the right to protection of their judicial rights, it pointed out that the parties are not free to choose the details of the procedure for engaging it. Federal legislation, such as the Code, should determine these details. The optimisations of the procedures and determination of the requirements for representatives are part of the legislator’s normal discretion and as such are not unconstitutional.

The Court held that there was no uncertainty in these issues and refused to do any further review of this issue.

Advocacy monopoly

Initially, in 2015 the provisions of the new Code were largely seen as part of the wider issue of introduction of the so-called “advocacy monopoly” which at that time was promoted by some members of the Russian legal community, Russian Ministry of Justice and State Duma.

The “monopoly” essentially means restriction of the right to represent clients in courts to only advocates admitted to a bar association. Such restriction is supposed to increase the quality of the legal services and restrict court representation only to professional lawyers admitted to the bar. However, this issue quickly turned controversial as it was often seen as an attempt by the bar association and their members to monopolise a large part of the market of legal services, including most of the commercial cases.

While initially the Ministry of Justice and some of the promoters of the monopoly planned to introduce it within the nearest future, these discussions stumbled in 2015-2016 and are currently far from actual realisation.

Most recently, on 12 October 2016 Pavel Krasheninnikov – recently re-elected head of the Russian Duma’s Committee on Constitutional Legislation and State Building, said that the Duma and the Government had postponed the review of the proposals for the “monopoly”. The main rationale for that is that the “monopoly” would be unfair to a large part of the legal community and could cause significant economic losses for them.

Conclusion

These decisions of the Constitutional Court may potentially indicate significant changes in the regulation of Russian legal services. For the first time the Constitutional Court has acknowledged qualification requirements for court representation in non-criminal cases as constitutional. While this is far from establishing any form of “monopoly”, this will clearly further intensify the debates about this issue.

About the Author:

Ivan Philippov is a Russian lawyer, currently going through a qualification process for becoming a solicitor of England and Wales. He specialises in international commercial and investment arbitration and has experience of working or doing internships in Russia, United Kingdom and Sweden. He is a graduate of the School of International Law of Moscow State Institute of International Relations (University) of the MFA of Russia and School of International Arbitration of Queen Mary, University of London.

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