Criminal privilege of an attorney and defence lawyer
| Autor | Yulia V. Gracheva - Sergey V. Malikov - Alexandr I. Chuchaev |
| Cargo | Kutafin Moscow State Law University - Kutafin Moscow State Law University - Kutafin Moscow State Law University |
| Páginas | 535-552 |
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 9 - Nº 03 - Ano 2020 Special Edition
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
535
CRIMINAL PRIVILEGE OF AN ATTORNEY AND DEFENCE
LAWYER
Yulia V. Gracheva1
Sergey V. Malikov2
Alexandr I. Chuchaev3
Abstract: The boundaries of the
attorney-client privilege are the main
issue of theory and practice that directly
touches upon the content of the criminal
privilege of an attorney and defense
lawyer. In procedural law branches the
prohibition of their examination is
acknowledged axiomatic. The paper
calls attention to the existing moral and
legal problem associated with preserving
the attorney-client privilege in all the
circumstances without exception,
including the cases when the disclosure
thereof can be justified from the point of
view of protecting the interests of a
person, society and state. The authors
admit the possibility of restriction
thereof provided that the law reflects an
exhaustive list of crimes, the information
on preparation or commission of which
will not fall under the content of the
attorney-client privilege. As a result it is
1 Kutafin Moscow State Law University
2 Kutafin Moscow State Law University
3 Kutafin Moscow State Law University
proposed to eliminate the existing gap in
the criminal legislation of RF that can be
used in the foreign law.
The conclusions made by the
authors are based on analyzing the
judicial practice of the European Court
of Human Rights (ECHR) for a period of
1980-2017; decisions and ruling of the
Constitutional Court of RF made in
2001-2017; published judicial practice
of the RF Supreme Court for 2003-2017;
and results of the survey of 78
respondents (judges, prosecution office
staff, attorneys and teachers of criminal
law and proceedings).
Keywords: attorney-client privilege;
privilege restriction; immunity; attorney
responsibility; refusal to testify.
1. Introduction.
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 9 - Nº 03 - Ano 2020 Special Edition
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
536
Privileges have a long history.
Some historians attribute their
appearance to the emergence and
development of the diplomatic
(ambassadorial) law. In other words,
initially the privileges were conditioned
by the necessity of fulfilling the
representative capacity by certain
persons in interstate relations. Later on
they were established in the national
including criminal legislation. Therefore
the privileges were studied to the fullest
extent possible in the international law.
The criminal law does not give due
attention to them. However it is required
to elaborate a scientifically grounded and
socially acceptable stance on a number
of circumstances, and first of all on
definition of their notion and social
conditioning. Implementation of the
attorney and defense lawyer privilege in
the criminal law is long overdue; in
procedural law branches the prohibition
of their examination is actually
acknowledged axiomatic, established for
centuries, probably from the time of a
more or less formed institute of the bar.
There was every ground for that both in
the past and at present. Moreover, de-
facto judicial practice including that of
the European Court of Human Rights
and RF Constitutional Court recognizes
an absolute privilege of the specified
persons. Upon enforcement of the
privilege, the status of a person and
content of the information that attorneys
and defense lawyers may not disclose
shall be reflected in the law.
The privilege being a complex
legal phenomenon is studied within the
frameworks of a number of branches of
legal sciences. As it was already
mentioned, it is elaborated more
profoundly and in detail within the
frameworks of the international law. The
theory on testimonial privilege was
elaborated rather thoroughly by the
scholars in the criminal proceedings
including the papers devoted to the
activity of the bar. In the criminal law the
privilege was commonly considered
either when analyzing the operation of
criminal law for a number of persons, or
when characterizing the norms on certain
crimes containing the exclusion from the
parties involved reflected in the notes to
the Articles of Particular Conditions of
the RF Criminal Code.
The exceptions are PhD thesis of
Kibalnik A.G. and Elizarova I.A.: the
first one was devoted to the privilege in
the criminal law on the whole (Moscow,
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