The witnesses were questioned in the afternoon of June 6 and June 7.
The main question subject to clarification by witnesses was whether Andrei Mochalov had the right to continue working in the time period between the issuance by the disciplinary commission of the Minsk Regional Bar Association (MRBA) of a decision subjecting him to disciplinary responsibility and adoption of the disbarment decision by Council of the Bar. The position of the prosecution lies precisely in the fact that from the moment of the decision of the disciplinary commission, the lawyer allegedly has no right to practice law.
On May 27, 2021, the MRBA disciplinary commission issued a ruling on bringing Mochalov to disciplinary responsibility. Since Mochalov did not receive any notifications that the MRBA Council had made any decision on the basis of this resolution, he continued to carry out his professional activities and appeared in court on June 18 to defend Olga Sinelyova in a criminal trial. In the course of the hearing, the court received a letter from the MRBA Council stating that on May 31, the Council had decided to exclude Mochalov from the board.
Attorney Sergey Degtyarev, who was a member of the disciplinary commission, did not provide a straightforward answer to the mentioned question, referring to his status as a witness, rather than a specialist, and explained that the disciplinary commission just establishes that a disciplinary offense took place, and the decision to expel an attorney lies within the competence of the Council of the Bar.
The former chair of the disciplinary commission, attorney Maria Korzhevich, stated that an attorney certainly loses the right to practice law only from the moment of the adoption of the Council's decision, which is expressly provided for by the legislation. She also noted that this is the way it had worked in practice: up to three weeks could pass before the adoption of the Council's decision, so an attorney had time for completing his cases, visiting his clients in the pre-trial detention centers.
Lawyer Irina Smirnova (at the time of Andrei Mochalov's disbarment, she was the chair of the Minsk Regional Bar Association) argued in the proceedings that an attorney loses the right to practice law from the moment the disciplinary commission issues its ruling, and the Council's decision on exclusion, in her opinion, is formal. At the same time, Smirnova failed to recall the norms that prohibit an attorney from discharging his duties immediately after the ruling of the disciplinary commission was issued.
On June 7, at the request of the defense, Yevgeny Pylchenko (the attorney expelled from the Minsk City Bar in November 2021 under the same procedure as Andrei Mochalov – that is, for allegedly committing a disciplinary offense), was questioned as a witness in the proceedings. Pylchenko explained that after the disciplinary commission issued a ruling on his expulsion on October 28, he continued to work. In connection with the entry into force of amendments to the law liquidating law firms, on November 1 he moved to the legal advice office No. 2 of the Central District of Minsk; on the same day the head of the legal advice office gave him a new order book, and the management of the Bar (at that time – chairman Alexey Shvakov or his deputy Vera Oreshko) provided him with a temporary statement confirming (until issuance of the new certificate) that Pylchenko is a lawyer of legal advice office and has the right to plead in courts, communicate with investigative bodies and visit correctional institutions. So, he lost the right to practice law only after November 2 – the adoption of the relevant decision by the Council of the Bar and subsequent notification.
Continuing violation of the right to defense
In the course of the proceedings it has also become known that the lawyer, forcibly appointed by the court the day before to defend A. Mochalov instead of Vitaly Braginets, who is serving a sentence, cannot participate in the process, and therefore the court called another duty lawyer (Natalia Krygina). This time, the court immediately gave the lawyer 35 minutes to familiarize herself with the case materials. At the moment, the case comprises two volumes of written materials and about 4 hours of audio transcript of the previous court session, which makes it physically impossible for a new lawyer to familiarize herself with them during the allotted time. The requests of A. Mochalov to refuse the services of the defense, to provide time for delving into the case materials and discuss the line of defense, as well as the request for recusal of the judge were rejected.
We will continue to follow the developments.