Let's look into each procedure using examples of cases of disbarred attorneys. Attorneys deprived of their status by the Ministry of Justice
These are those attorneys whose license was terminated directly by the Ministry as the licensing authority, and who, according to the conclusion of the Qualification Commission under the Ministry of Justice, committed "an offense incompatible with the title of attorney." The Ministry of Justice itself acts as an actor and initiator in this procedure. The reasons are reports from any other body or an independent discovery of something by the Ministry of Justice, which may serve as a basis for deprivation. Example: case of Lyudmila Kazak.
It all started with the fact that the attorney defended Maria Kolesnikova, who was kidnapped on September 8, 2020, and after she was found in custody in the pre-trial detention center No. 1, she filed a complaint about the kidnapping, indicating the involvement of specific individuals from the law enforcement agencies. At the end of September 2020, attorney Kazak herself was detained by unknown persons, after which she was taken to the Central District Department of Internal Affairs of Minsk, where a protocol was drawn up against her under Article 23.4 of the Administrative Code (disobedience to the legal demand of government officials). After the night she spent in the temporary detention center on Okrestin St., the court decided to bring Lyudmila Kazak to administrative responsibility. Subsequently, on February 19, 2021, the Qualification Commission for Advocacy of the Ministry of Justice issued a conclusion on the termination of Lyudmila Kazak's license to practice law precisely because of the alleged commission of an administrative offense, and then the board of the Ministry of Justice made a final decision to deprive her of her license.
Most often, attorneys who were held accountable for committing an administrative offense were subjected to this procedure, even if such an offense was a result of the exercise of their legal rights as a citizen and attorney.
Thus, as a result of the opinion adopted by the Qualification Commission, the Ministry of Justice revokes the attorney's license. Attorneys disqualified and deprived of their status as a result of ordinary or extraordinary certification by the Ministry of Justice
We have written about this procedure and its illegality more than once. The Belarusian authorities actively use the Qualification Commission and its comprehensive powers in relation to attorneys representing the interests of protest movement leaders and demonstrators in courts. You can find out why this method of depriving an attorney of a license is not compatible with the principles of independence of attorneys and the legal profession at the link
, but here let's look at the procedure.
The official reason for the exclusion of attorneys is always related to alleged lack of qualifications. The primary actor is again the Ministry of Justice, whose employees draw up lists of attorneys for the ordinary (once every five years) certification, which, at their discretion, can be carried out either in the territorial bar association or in the Qualification Commission under the Ministry of Justice. Now the head of the Department of Advocacy and Licensing of Attorney Activities under the Ministry of Justice is Diana Aleksandrovna Podleskaya, and the Deputy Minister of Justice Nikolai Mikhailovich Starovoitov supervise the activities of the legal profession. Also, the Minister of Justice may issue an order to send an attorney for an extraordinary certification if, as a result of an inspection or appeals from citizens or government bodies, he finds "attorney's improper performance of his or her duties."
When conducting certification, the Qualification Commission considers materials on attorney's fulfillment of legal requirements and other materials characterizing his or her professional activities, and also then hears the certified person during an oral interview. As a result, it makes a decision on "attorney's compliance or non-compliance with the requirements of the law." At the same time, the range of questions asked during the oral exam is not defined and predictable. This allows Commissioners to ask questions from any area of the law, and, for example, attorneys who specialize in criminal law are asked questions related to banking law. When answering, quotation of norms is required, otherwise it may be regarded as an incomplete or incorrect answer.
After a decision is made about the "insufficient level of qualifications" of an attorney, the self-governing body of attorneys comes into play - the bar assiciation to which he or she is a member. Based on the decision of the Qualification Commission, the panel excludes the attorney from its membership. For example, on March 24, 2021, attorney Sergei Zikratsky
did not undergo an extraordinary re-certification (the basis was a number of comments in the media), and on March 31, the Minsk Regional Bar Association expelled Zikratsky due to "the inability to perform his professional duties due to insufficient qualifications, confirmed by the decision of the Qualification Commission on issues of Advocacy in the Republic of Belarus."
After this, the mechanism for terminating the license is activated by decision of the board of the Ministry.
It is precisely because of the multi-stage procedure that in the news you can first see a news story about failure to pass certification, and after a while - another about the termination of the license.
But despite the several stages of this procedure, the decision on non-certification is determinative, and the board will not make a decision other than expulsion of the attorney, and the Ministry of Justice then automatically terminates the license. Attorneys expelled from the territorial bar association by the disciplinary body of the bar itself
The third way to deprive an attorney of the right to practice is expulsion from the territorial bar association by the disciplinary body of the bar itself. If in the procedure described above, exclusion from the bar "automatically" occurs as a result of failure to pass re-certification, then expulsion of an attorney from the territorial bar is an independent disciplinary punishment, which is provided for by law along with a warning and a reprimand.
Since 2021, this procedure has increasingly become initiated by the Minister of Justice, who, having received certain materials (the source of which is often not disclosed), initiates disciplinary proceedings and suspends the attorney from performing professional duties (he has such authority under the Law on the Bar). As a rule, in the order of the minister, the commission of a disciplinary offense by an attorney is already stated as an established fact. This order is sent for consideration to the territorial bar association.
Previously, issues of disciplinary liability were considered by the disciplinary commission of the territorial bar. The disciplinary commissions of the Belarusian Republican Bar Association and territorial bars existed until November 2021, however, after the amendments to the Law "On the Bar and Legal Activities" came into force, their functions were transferred to the councils of the territorial bars and the BRBA (Article 22 of the Law). They are authorized to consider initiated disciplinary proceedings and monitor attorneys' compliance with legislation on the legal profession, the Rules of Professional Ethics of Attorneys, statutes of bar associations, decisions of the BRBA and territorial bar associations.
For a better understanding of the procedure, we will give an example of deprivation of the license of an attorney, Natalya Matskevich,
who defended Sergei Tikhanovsky, Viktor Babariko and other accused in many high-profile cases.
In October 2021, disciplinary proceedings were initiated against N. Matskevich by order of the Minister of Justice, and she was suspended from professional duties from the next day after the order was issued.
Two weeks later, the disciplinary commission of the Minsk City Bar Association decided to apply a disciplinary sanction to her in the form of expulsion from the MCBA, after which the Board of the Bar Assocoation made a decision on expulsion from the territorial bar. At the end of November 2021, the Qualification Commission under the Ministry of Justice issued an opinion on the possibility of terminating the license. In December 2021, the Ministry of Justice terminated the special permit (license) for the right to practice law for Matskevich.
Thus, all three of these procedures,
which, in essence, are tools for eliminating objectionable attorneys from carrying out defense and depriving them of the right to practice, are either administered or controlled by the Ministry of Justice. Each of these procedures reviews the professional actions and professional conduct of attorneys for compliance with the law and rules of professional ethics. However, none of them is independent and fair, which is incompatible with the standards of the legal profession, according to which disciplinary sanctions against an attorney must be considered by an independent body established by attorneys themselves, based on a code of professional conduct adopted by attorneys themselves and according to a fair procedure (Basic principles concerning the role of lawyers, principles 26-29; see also the Consideration of the Human Rights Committee in Ageev vs. Belarus).