INTERNATIONAL BAR ASSOCIATION S HUMAN RIGHTS INSTITUTE. September 2013

Transcription

1 INTERNATIONAL BAR ASSOCIATION S HUMAN RIGHTS INSTITUTE IBAHRI Expert Opinion regarding the new Draft Law of the Republic of Tajikistan on Advocacy and the Bar September 2013 The International Bar Association s Human Rights Institute With a membership of over 50,000 individual lawyers and 203 bar associations and law societies, the International Bar Association (IBA) is the largest global association for the legal profession. The IBA is politically neutral and acts independently for the enhancement of the professional development and education of lawyers, and for upholding the protection of human rights and the rule of law. The International Bar Association s Human Rights Institute (IBAHRI) actively works to safeguard the independence of the judiciary and the right of lawyers to practise their profession without interference. In order to advance its objectives, the IBAHRI undertakes a variety of projects to build capacity, lobby for change and highlight issues of international concern to the public, the media and the legal community. We have spoken out on rule-of-law issues all over the world and provided technical assistance, in countries such as Afghanistan, Ecuador, Malawi, Malaysia, Nepal, Sri Lanka, Swaziland, Turkey, Venezuela and Zimbabwe. Background In early June 2013 (1 7), IBAHRI Director Phillip Tahmindjis and Programme Lawyer Nadia Hardman visited Dushanbe in order to undertake a scoping mission on the needs of the Tajik bar associations. This mission was prompted by a request from the local bars to engage in issues threatening the independence of the Tajik legal profession. As an organisation mandated to safeguard the independence and rights of lawyers, the IBAHRI dispatched a small delegation to undertake a series of meetings with relevant stakeholders in order to examine the situation of the bar associations. Following implementation of this mission, the IBAHRI has produced this expert opinion regarding the proposed new Draft Law of the Republic of Tajikistan on Advocacy and the Bar (the Draft Law ), in order to highlight areas of concern.

2 During the IBAHRI s in-country mission, it met with a range of stakeholders, including: representatives of all six of Tajikistan s bar associations (the Republican Collegia of Lawyers, the Union of Lawyers of Sughd Province, the Tajik National Bar Association (SIPAR), the Khatlon Collegia of Lawyers, the Bar Association of Dushanbe City, and the Khujand City Collegia of Lawyers); the Child Rights Centre; 1 the Bureau of Human Rights and the Rule of Law; the Delegation of the European Union to Tajikistan; the Human Rights Centre; the American Bar Association; the British Embassy Dushanbe; the National Centre of Legislation under the Auspices of the President of the Republic of Tajikistan; the German Society for International Cooperation (GIZ); the Open Society Institute Assistance Foundation Tajikistan; the representative office for the Organization for Security and Co-operation in Europe; and the United Nations Development Program s Access to Justice Project. Methodology This Expert Opinion follows the findings of the IBAHRI s scoping mission to Tajikistan. The IBAHRI has also drawn upon opinions obtained from the IBA s Bar Issues Commission (BIC), which sought comments on the Draft Law from the IBA s global membership. 1 See

3 The Draft Law of the Republic of Tajikistan on Advocacy and the Bar Introduction Following President Emomalii Rahmon s promise 2 to reorganise the legal profession ( advokatura ) in order to strengthen deficiencies perceived in the lack of a coherent, centralised structure, 3 the IBAHRI welcomes efforts to reform this area of law. For the sake of brevity, this expert opinion will concentrate on those issues contained within the Draft Law which are of most concern to the IBAHRI and potentially pose challenges for the future of the Tajik legal profession. This opinion should not therefore be seen as an exhaustive commentary on the proposed law. In general terms, however, the IBAHRI is encouraged by the efforts being made to introduce into law a document which recognises the important role of lawyers in society 4 and which attempts to create a separation between the profession and the State. Qualification Commission Substance The Draft Law will establish a Qualification Commission 5 under Tajikistan s Ministry of Justice. This Commission will have responsibility for conferring and withdrawing a lawyer s status a role of substantial importance. The composition of the Commission will include five representatives from the new Union of Lawyers, two representatives from the Ministry of Justice, one Member of Parliament, one legal academic, and will be chaired by one of the Deputy Ministers of Justice. Analysis The establishment of a Qualification Commission under the auspices of the Tajik Ministry of Justice raises issues of concern to the IBAHRI. It is of fundamental importance that the body charged with deciding who enters and leaves the legal profession is able to discharge its functions independently, with minimal executive interference. It is conceivable that, as currently drafted, the Commission s composition and placement under the authority of the Ministry of Justice could lead to potential interference from the Tajik Executive. The IBAHRI appreciates that the law provides that the Qualification Commission will make decisions regarding examination results via majority voting. 6 However, the fact that the Qualification Commission is housed under the Ministry of Justice 7 grounds the IBAHRI s concern. The relationship between the Ministry and the Commission is not clarified within the Draft provisions and it is therefore not clear that it will operate at arm s length. Additionally, while it is not uncommon for representatives of the Ministry of Justice to sit on a body such as the Qualification Commission, the IBAHRI is concerned that the balance of power might be currently weighted in the Ministry of Justice s favour as the Deputy Minister of Justice will be the Chairperson. 8 2 The President of Tajikistan raised the need to reform the advokatura, in a message to the legislature. 3 See the Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy: E/CN 4/2006/52/Add 4 (Tajikistan, 2005), para Draft Law on The Law of the Republic of Tajikistan on Advocacy and the Bar, Chapter 2, Appendix 1. 5 Draft Law on The Law of the Republic of Tajikistan on Advocacy and the Bar, Art 13, Appendix 1. 6 Article 13, para 7, Appendix 1. 7 Article 13, para 1, Appendix 1 8 Article 13, para 3, Appendix 1.

4 Attempting to direct who should be permitted to practice law and similarly to expel controversial elements of the profession could be an abuse of the powers of the Ministry or the Executive. This would in turn breach Principle 16 of the UN Basic Principles on the Role of Lawyers (the Basic Principles ) 9 which states that Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. Whilst not hard sources of international law, the Basic Principles are cited in international jurisprudence, including the European Court of Human Rights 10 and the UN Human Rights Committee has applied the Basic Principles almost as an extension of Article 14 of the International Covenant on Civil and Political Rights (ICCPR). 11 The potential for interference was noted in Tajikistan s recent consideration of its State Report on its implementation of the provisions of the ICCPR at the 108th Session of the Human Rights Committee (HRC) where it mentioned that lawyers in Tajikistan are frequently subjected to harassment for carrying out their professional duties and are subject to external interference, particularly from the Ministry of Justice. 12 In fact, the HRC went on to note that Tajikistan should also ensure that the procedures and criteria for access to and conditions of membership in the bar do not compromise the independence of lawyers, 13 in apparent reference to the Draft Law s provisions. International law is silent on which body in the legal apparatus of a jurisdiction is to be charged with the important function of licensing the nation s lawyers. However, in 1998 the HRC found that the adoption by Belarus of a Presidential Decree on the Activities of Lawyers which gave competence to the country s Ministry of Justice to license lawyers undermined the independence of lawyers. 14 Furthermore, the UN Special Rapporteur on the Independence of Judges and Lawyers has raised this issue within a number of countries in the past. 15 Recommendation The IBAHRI strongly recommends that the role of the Qualification Commission under the Draft Law be moved away from the auspices of the Ministry of Justice and vested in the new Union of Lawyers (the Union ), established by the Draft Law. As a representative body of lawyers, the Union seems to be best placed to regulate those entering the profession, particularly as under the Draft Law, the Union and its associated Congress (the supreme body of the Union of Lawyers) will be making recommendations on lawyers performance, amongst other responsibilities. 16 As it stands, the Qualification Commission holds considerable powers 17 and it is of great importance that this new body be able to act independently. 9 United Nations Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 (UN Doc A/CONF 144/28/Rev 1, para 118). 10 See Nikula v Finland, judgment of 21 March 2003; Kulikowski v Poland, judgment of 19 May 2009; Elci and Others v Turkey, judgment of 13 November 2003; Kyprianou v Cyprus, judgment of 15 December UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Russian Federation, 24 November 2009, CCPR/C/RUS/CO/6, para 22; and UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Libyan Arab Jamahiriya, 6 November 1998, CCPR/C/79/Add 101, para Concluding observations on the second periodic report of Tajikistan, Human Rights Committee 108th session, 8 26 July 2013 (advanced unedited version). 13 Ibid, para UN Doc GA OR, A/53/40, para See, in particular, A/HRC/23/43/Add 3, para 83 (Maldives, 2013); and E/CN 4/2006/52/Add 3 (Kyrgyzstan, 2005). 16 See Arts 22 and 39, Appendix See provisions concerning the Qualification Commission (Art 13), Conferral of Lawyer s Status (Art 16), Unified Register of Lawyers (Art 17), Lawyer s Certificate (Art 20) and Termination of Lawyer s Status (Art 22), Appendix 1.

5 Qualification exam Substance The new draft law details the examination process required for prospective lawyers to enter the profession, 18 which will comprise both a written and oral exam. Notably, the Qualification Commission has been given the responsibility of developing both the procedure for taking the qualification exam and assessing the level of applicants knowledge. Furthermore, the provisions of the Draft Law will require that all persons wishing to practice as a lawyer in Tajikistan will be required to take the new exam. The Draft Law grants lawyer s status to a person who has been entitled to practice law according to the procedure established by this law 19 which indicates that those who have not attained status through the law must re-qualify. Indeed Article 45 of the draft law grants a transitional period of one year, during which all current advocates may continue to practice, but must take the qualification exam within the specified time frame if they intend to maintain their lawyer s status. 20 Analysis The IBAHRI is concerned that the role of the Qualification Commission, tied as it is to the Ministry of Justice, could potentially interfere with the examination of lawyers and thus entry into the profession. The IBAHRI notes that the law is silent on who will conduct the oral interview requirement of the exam; however, it understands from its meetings in early June 2013 that there is a strong possibility that the Ministry of Justice may preside. If this is not the case and, for example, the lawyer members of the Qualification Commission are designated to oversee the oral interview, the IBAHRI would be less concerned. Whatever the composition of the oral interview panel, the IBAHRI remains concerned that the Qualification Commission will be in charge of setting the procedure for taking the exam and assessing the applicant. The IBAHRI is also concerned by the Draft Law s apparent requirement that all lawyers, and thus current advocates, re-qualify in order to maintain their lawyer status. By virtue of the nexus between the Ministry of Justice and the Qualification Commission (as explained above), the condition that all current lawyers take the qualification exam foreseen in the Draft Law, allows the potential for interference from the Executive, particularly in cases where controversial lawyers might not have their lawyer s status reinstated. The IBAHRI agrees that there is merit in dismantling the previous structure of registration in Tajikistan which established two categories of lawyers, and by replacing it with one comprehensive licencing regime. (Currently, lawyers in Tajikistan are permitted to practice either by joining one of the bar associations in conformity with the Law on the Bar, or by way of obtaining a licence in the Ministry of Justice according to the procedure established by the Law on licensing certain types of activities. 21 ). However, the IBAHRI remains concerned that policy decisions could influence the proposed new system of licensing. The IBAHRI also notes the intention to improve the quality of lawyers, and therefore the Tajik legal profession, by introducing an examination process which will standardise entry into the profession. Nevertheless the IBAHRI finds the decision to implement this via an overhaul of the entire legal body a disproportionate move which allows room for abuse of process. Serious measures to improve the quality of advocacy would be better sought through continuing legal education programmes. 18 Art 15, Appendix 1 19 Art 1, Appendix Art 45, Appendix For a comprehensive background on licensing in Tajikistan, see Mahira Usmanova background report on The Legal Profession in Tajikistan, available at last accessed 20 August 2013.

6 Recommendation The IBAHRI recommends that the Draft Law be amended in order to ensure that the new qualification exam is not retrospective, forcing all current and practising lawyers to re-qualify. In order to improve the quality of the Tajik legal profession, it suggests introducing rigorous continuous legal education programmes. It also recommends that the Ministry of Justice should not preside over the examination procedure. Conclusion The IBAHRI is strongly encouraged by efforts to reform the advokatura in Tajikistan. It marks a positive step towards entrenching the rule of law in the country and lawyers independence. However, the IBAHRI believes that improvements could be made, namely by removing the Qualification Commission from its position under the Ministry of Justice, and cancelling the retrospectivity of the new Qualification Exam. The IBAHRI recommends that the Qualification Commission be established under the new Union of Lawyers. The IBAHRI recognises this is an important moment for legal reform in the country and hopes all steps are taken to entrench important values of legal independence and professionalism before this Draft becomes law. The IBAHRI welcomes the opportunity to discuss the contents of this Opinion further with relevant stakeholders in Tajikistan. For further information, please contact the IBAHRI at hri@int-bar.org. International Bar Association s Human Rights Institute September 2013 International Bar Association 4th Floor, 10 St Bride Street London EC4A 4AD United Kingdom Tel: +44 (0) Fax: +44 (0)

7 LAW OF THE REPUBLIC OF TAJIKISTAN ON ADVOCACY AND THE BAR This Law establishes the legal basis for the advocacy, rights and obligations of lawyers and organization of the Bar. Article 1. Basic terms CHAPTER 1. GENERAL PROVISIONS Basic terms applicable to this Law are as follows: - the Bar an independent professional organization of lawyers united with the purpose to provide legal assistance to physical persons and legal entities; - lawful means and methods - means and methods of providing legal assistance that are not prohibited by applicable laws; - legal assistance qualified and professional assistance provided by lawyers to protect rights, freedoms and the legal interests of physical persons and legal entities using any legal means and methods; - Union of Lawyers of the Republic of Tajikistan (hereinafter - Union of Lawyers) unified, independent, non-state and non-profit organization based on the mandatory membership of lawyers; - local law offices - Union of Lawyers subdivisions in the Gorno-Badakhshan Autonomy, oblasts (administratve regions), Dushanbe city and republican subordination districts; - legal interest - any interest of a physical person or legal entity directly or indirectly acknowledged by applicable laws and norms of international law, or not contradicting their exact meaning; - client any physical person or legal entity seeking legal assistance from a lawyer in the form of consultations or representation, as well as to protect his/her rights, freedoms and legal interests; - warrant standard document established by the Union of Lawyers that confirms the authority of a lawyer to provide legal assistance; - Register of Lawyers - collection of data regarding lawyers, held by the Ministry of Justice of the Republic of Tajikistan, which contains the following information: number on the list, lawyer s last name, first name and patronymic name, date of receipt, suspension and termination of the lawyer s status, information about advanced training and the form of organization of the advocacy business; - client-lawyer privilege - any information associated with providing legal assistance to a physical person or a legal entity by a lawyer;

8 - lawyer s status - legal and social status of a person who has been entitled to practice law according to the procedure established by this Law; - law firm - organizational form for practicing the law; - lawyer's fee remuneration for legal assistance rendered and determined by the lawyer-client agreement upon deduction of related expenses; - lawyer s certificate official document confirming a lawyer s status. Article 2. Advocacy 1. Advocacy means legal assistance provided at a professional level to physical persons and legal entities by persons, who have acquired a lawyer s status according to the procedure established by this Law for the purpose of protecting their rights, freedoms and lawful interests, as well as to ensure access to justice. 2. Advocacy is not an entrepreneurial activity. 3. Legal assistance provided by the following persons shall not be viewed as advocacy: - employees of governmental authorities, as well as township and village local authorities; - employees of legal services provided by departments of legal entities;; - participants and employees of organizations providing legal services, as well as individual entrepreneurs; - patent attorneys, except when a lawyer is a patent attorney; - other persons, specially authorized by the laws of the Republic of Tajikistan to conduct their professional activities. 4. This Law does not extend to the agencies and persons affecting representation pursuant to the laws of the Republic of Tajikistan. Article 3. Lawyer 1. Lawyer means a person who has acquired lawyer s status in accordance with the procedure established by this Law, and therefore entitled to conduct advocacy, and is a member of the Union of Lawyers. 2. A lawyer is an independent professional client s counsel on legal matters. 3. A lawyer may not conduct any other paid activity except for scientific, educational and other creative work.

9 4. The lawyer may combine his/her legal practice and advocacy with leading a law firm, occupying elective positions within the Union of Lawyers and its local offices, as well as public associations of lawyers including international associations. 5. Types of legal assistance, provided by a lawyer: - consults and provides information regarding legal matters in both oral and written form; - prepares claims, complaints, petitions and other documents of legal nature; - represents the interests of physical persons and legal entities in constitutional court proceedings; - participates as a representative of physical persons and legal entities in economic and civil court proceedings; - participates as a representative or defender of physical persons and legal entities in criminal court proceedings and proceedings associated with administrative infractions; - participates as a representative of physical persons and legal entities in arbitration and other dispute resolution proceedings; - participates as a representative of legal entities in international commercial arbitration (court) proceedings; - represents the interests of physical persons and legal entities in the governmental and administrative authorities, local township and village governments, public associations and other organizations and institutions; - represents the interests of physical persons and legal entities in governmental authorities, courts and law enforcement agencies of foreign countries, international judicial agencies, and non-governmental foreign state agencies, unless otherwise specified by a foreign state s legislation, the charted of international judicial institutions and other international organizations, or international treaties of the Republic of Tajikistan; - participates as the representative of physical persons and legal entities in enforcement proceedings; - acts as the representative of physical persons and legal entities in tax matters; - other types of legal assistance that is not prohibited by the laws of the Republic of Tajikistan. 6. Foreign state lawyers may provide legal assistance on the territory of the Republic of Tajikistan regarding legal matters of the foreign state, except for cases that relate to state secrets. Foreign state lawyers are not admitted to provide any other legal assistance. Foreign state lawyers may practice advocacy with regard to the laws

10 of the foreign state on the territory of the Republic of Tajikistan only upon being entered into a Special Register for Foreign state lawyers. Article 4. The Law on Advocacy and the Bar The law on advocacy and the Bar is based on the Constitution of the Republic of Tajikistan and consists of this Law, other regulatory legal acts of the Republic of Tajikistan and international legal acts acknowledged by Tajikistan. Article 5. Principles of Advocacy Advocacy is based on the following principles: - legitimacy; - freedom and independence of advocacy; - equality of lawyers and inadmissibility of their discrimination; - non-interference with advocacy; - requirement of lawyer s membership in the Union of Lawyers; - lawyer s respect and protection of client s interests, rights and freedoms; - prohibition of the refusal by a lawyer obligated to exercise the right of defense, except in cases provided for by the laws of the Republic of Tajikistan; - reasonableness and good faith in exercising their authority. Article 6. The Bar and the State 1. The Bar is an institution of civil society and is not a part of the system of governmental authorities. 2. For the purpose of promoting advocacy and ensuring accessibility of legal assistance to the population, governmental authorities shall provide guarantees with regard to the Bar s independence, provide financial support for the lawyers offering pro bono in cases specified by the legislation of the Republic of Tajikistan, as well as provide law firms with office space and means of communication, as required. Article 7. Utilization of Terms used in this Law 1. Terms, such as the Bar, lawyer, legal consultation or phrases including such terms may not be used as a part of names of physical persons and legal entities. 2. Said terminology may only be used by the Union of Lawyers and its local offices, lawyers and law firms established in the manner prescribed in this Law.

11 Article 8. Lawyer s Authorities CHAPTER 2. FUNDAMENTALS OF ADVOCACY 1. The authority of a lawyer acting as a representative of physical persons and legal entities in the proceedings of constitutional courts, civil justice courts and economic courts, a representative of physical persons and legal entities or a defence lawyer of suspects, as well as of the accused, indicted, or convicted in criminal proceedings, a representative of physical persons and legal entities in legal proceedings on administrative violations, as well as in administrative procedures, shall be regulated by the respective laws of the Republic of Tajikistan. 2. In the course of providing legal assistance and representing the client s rights and legal interests, the lawyer is required to present a lawyer s certificate and a warrant issued by the relevant law firm. In cases stipulated by relevant laws, a lawyer s authority may be acknowledged by a power of attorney. It is prohibited to demand from the lawyer or their client that they provide any legal services agreements which would authorize representative activity. Article 9. Lawyer s Rights 1. In performing his/her professional activities, the lawyer has the right to: - interview persons, allegedly possessing information related to the case in connection with which the lawyer is providing legal assistance, upon their consent; - collect data necessary in order to provide legal assistance, including requesting certificates, references and other documents from the governmental and administrative authorities, local township and village authorities, public associations and other legal entities regardless of their type of ownership. The specified authorities and organizations are obligated to issue requested documents or certified copies thereof in accordance with the procedure established by the laws of the Republic of Tajikistan; - collect and present items and documents, which may be accepted as material and other evidence, in accordance with the procedure established by the laws of the Republic of Tajikistan; - engage on a contractual basis specialists for clarifying questions associated with providing legal assistance; - upon presenting his/her orders and lawyer s Certificate, meet freely with his/her client in private (including at the time of actual detention, at the temporary detention facility, at the investigative detention facility, or at the correctional facility) without limiting the number of visits or duration thereof;

12 - record (including by means of technical tools) information contained in the relevant case files, while maintaining state and other secrets protected by the laws of the Republic of Tajikistan; - perform other actions consistent with the laws of the Republic of Tajikistan. 2. The lawyer may not accept an assignment for providing legal assistance, if: - such assignment is of known illegal nature; - he/she has been providing or has earlier provided such assistance to the persons whose interests contradict with the interests of the person seeking legal assistance in the case; - he/she has his/her own independent interest in the subject of the client s agreement, which is different from this person s interest; - he/she has participated in the case in the capacity of a judge, arbitrator, prosecutor, investigator, interrogator, expert, specialist, translator or interpreter, witness or attesting witness, as well as if he/she has a family relationship with the official conducting investigation or review of the case. 3. The lawyer may not withdraw from assumed obligations concerning defence, except as provided by the laws of the Republic of Tajikistan. 4. The lawyer may not disclose information, communicated by his/her client in connection with providing the client with legal assistance, without the client s consent. 5. The lawyer may not consider his/her client s guilt to be proved, if the client denies his/her guilt. Admission of guilt by the client does not debar the lawyer from disputing such a statement and pleading not guilty due to failure to prove guilt. The lawyer may not make public statements concerning the proof of his/her client s guilt if the client denies it. 6. The lawyer shall always protect the legal interests of his/her client and may not assume a legal position contradicting his/her interests, except for in cases of selfincrimination in criminal proceedings. 7. The undisclosed cooperation by the lawyer with the criminal investigation agencies is prohibited. 8. Participation of a lawyer, who is not a citizen of the Republic of Tajikistan, in cases, containing information relating to state secret, is prohibited. Article 10. Lawyer s Responsibilities 1. When performing his/her professional activities, the lawyer is responsible for:

13 - defending his/her client s rights and legal interests honestly, reasonably and with good faith, according to the laws of the Republic of Tajikistan; - fulfilling the requirements of the law regarding mandatory participation of a lawyer in the capacity of a defender in criminal court proceedings according to the order of interrogator, investigator, prosecutor, judge or according to the court s decision, as well as providing legal assistance to the citizens of the Republic of Tajikistan in other cases stipulated by the laws of the Republic of Tajikistan; - continuously improving his/her knowledge and advancing his/her qualifications; - observing the Lawyer s Code of Professional Ethics and implementing the decisions of the Union of Lawyers and its local offices adopted within the scope of their competence; - making contributions from his/her monthly salary towards the common needs of the Union of Lawyers in the order and amount determined by the Congress of the Union of Lawyers, and for making contributions for supporting his/her own activity in the order and amount determined by the law firm; - maintaining the client-lawyer privilege; 2. For failure to perform or improper performance of his/her professional duties, the lawyer bears responsibility as set out under this Law. Article 11. Client-Lawyer Privilege 1. The subject of the client-lawyer privilege includes the fact of retaining a lawyer, the information regarding the content of oral and written negotiations with the client and other persons acting on his/her behalf, as well as the nature and the result of actions undertaken in the client s interests, and other information related to providing legal assistance and information that becomes available to the lawyer in connection with the performance of his/her duties with respect to the client. 2. The lawyer, his/her assistant and trainee may not disclose or use in his/her own interests or in the interests of other parties any information included in the clientlawyer privilege. Article 12. Acquiring Lawyer s Status CHAPTER 3. LAWYER S STATUS 1. A person eligible for acquiring a lawyer s status in the Republic of Tajikistan must have a higher legal education, received from a state accredited institution of higher professional education, or an academic degree in the legal field. Said person shall also have at least 2 years of work experience in the legal profession or complete an internship at a law firm within the time-frame established by this Law. 2. The following persons are not eligible for acquiring a lawyer s status and practicing advocacy:

14 - officially incapacitated or partially incapacitated persons in accordance with the procedure established by the laws of the Republic of Tajikistan; - persons convicted for the commission of a premeditated crime. 3. The decision regarding conferral of the lawyer s status shall be made by the Qualification Commission under the Ministry of Justice of the Republic of Tajikistan upon successful passage of the qualification exam by the applicant seeking a lawyer s status. 4. The record of service in the legal profession required for acquiring a lawyer s status includes work: - in the capacity of a judge; - in governmental positions requiring higher legal education in governmental authorities and other state agencies; - in positions requiring higher legal education in legal organizational services regardless of their type of ownership; - in positions requiring higher legal education in scientific and research institutions; - in the capacity of a legal discipline instructor at the institutions of higher professional education and postgraduate professional education; - in the capacity of a lawyer; - in the capacity of a legal assistant. 5. The applicant receives the lawyer s status upon being entered into the Unified Register of Lawyers and issued a respective lawyer s certificate. 6. The lawyer is entitled to conduct advocacy in the entire territory of the Republic of Tajikistan without needing any additional permit. Article 13. Qualification Commission 1. The Qualification commission is established under the Ministry of Justice of the Republic of Tajikistan in order to consider the issue of conferring or withdrawing a lawyer s status. 2. The Qualification commission is formed for a period of two years and consists of 9 commission members according to the following representation rules: - from among the deputies of Majlisi namoyandagon of Majlisi Oli of the Republic of Tajikistan one representative; - from the Ministry of Justice - two representatives; - one representative with a degree in legal sciences, engaged in teaching and research work in the legal field;

15 - from the Union of Lawyers - five lawyers elected by the Congress of Lawyers, where the lawyer elected to be a member of the Commission shall have at least 5 years of service record in advocacy. 3. The Chairman of the Qualification commission is one of the Deputy Ministers of Justice by virtue of his/her position. The Deputy Chairman of the Qualification commission is elected from the lawyers, who are members of the Commission; the Executive secretary is elected from the members of the Qualification commission. If the Chairman of the Qualification commission does not take part in the meeting, his/her authority is transferred to the Deputy Chairman of the Qualification commission. 4. Meetings of the Qualification commission take place provided that at least two thirds of the members of the Qualifications commission are present. 5. Meetings of the Qualification commission are convened by the Chairman of the Qualification commission whenever required, but at least four times a year. 6. Decisions made by the Qualification commission shall be recorded in the Meeting Minutes, which is signed by all members of the Commission. If during voting a member of the Qualification commission has a special opinion, different from the one adopted by the majority of votes of the Qualification commission members present at the meeting, such opinion shall be presented in writing and attached to the Meeting minutes. 7. The decisions by the Qualification commission concerning examination results of the persons seeking lawyer s status are made based on a simple majority of votes of the Qualification commission members participating in the meeting by voting using personalized ballots. The ballot form shall be designed and approved by the Qualification commission. Voting ballots along with written answers to the questions shall be attached to the Meeting minutes of the Qualification commission and stored in the archives of the Ministry of Justice as registered high-security forms for a period of three years. The decision of the Qualification commission shall be announced to the applicant immediately after the voting. 8. The lawyers, who are members of the Qualification commission, may combine their work at the Qualification commission with practicing advocacy. 9. During the transitional period, the members of the Qualification commission shall be elected according to the procedure specified in Article 45 of this Law. Article 14. Eligibility to take the Qualification Exam 1. A person complying with the requirements of Parts 1 and 2 of Article 12 hereof is eligible to apply to a local legal authority in order to receive a lawyer s status. 2. As well as the application, the applicant shall submit the following documents to the local legal authority:

16 - copy of personal ID; - biographic information; - copy of employment records or other documents evidencing work experience in the legal profession; - copy of a document of a higher legal education or academic degree in the legal profession; - certificate of a clean criminal record; - other documents where provided for by this Law; - Providing false information may serve as a grounds for refusal in allowing the applicant to take a qualification exam. 3. If required, the local legal authority shall verify the documents and data provided by the applicant within a one month period. In this case, the local legal authority has the right to approach the appropriate institutions and organizations with a request to check or verify the accuracy of said documents and information. Such institutions and organizations shall be obliged to respond with the results of the documents/information check or confirm their accuracy no later than 15 days from the date the request was received. 4. Upon completion of the verification, the local legal authority shall submit a petition to the Qualification commission to allow the applicant to take the qualification exam, or inform the applicant in writing of the refusal to accept the documents. 5. Acceptance of the documents can only be refused based on the reasons specified in this Law. To do this, a non-acceptance decision shall be made. A decision to refuse acceptance of the documents can be appealed to the Union of Lawyers or the court within a period of one month from the date of receiving a copy of the decision according to the terms and procedure established by the Civil Procedural Code of the Republic of Tajikistan. Article 15. Qualification Exam 1. The qualification exam consists of written answers to questions and an oral interview. 2. The procedure for taking the qualification exam and assessing the level of applicants knowledge is developed and approved by the Qualification commission. 3. An applicant who fails the qualification exam, is allowed to retake the qualification exam according to the procedure, established by this Law, no earlier than in six months time.

17 Article 16. Conferral of Lawyer s Status 1. The Qualification commission shall make a decision to confer lawyer s status upon an applicant within two months from the date of receiving a petition from the local legal authority. 2. The Qualification commission may not refuse an applicant who has successfully passed the qualification exam in conferring a lawyer s status, except for in cases of discovering post qualification exam circumstances preventing the conferral of lawyer s status. In such cases the decision to refuse the conferral of lawyer s status may be challenged in court. 3. The lawyer s status shall be conferred for an unlimited term by virtue of the decision of the Qualification commission, which becomes effective upon taking the Oath. Article 17. Unified Register of Lawyers of the Republic of Tajikistan and Special Register of Foreign State Lawyers 1. The Ministry of Justice maintains the Unified Register of Lawyers of the Republic of Tajikistan and the Special Register of Foreign State Lawyers according to the procedure established by this Law. 2. The procedure for maintaining these registers is established by the Government of the Republic of Tajikistan. Article 18. Entering Lawyer s Data into the Unified Register of Lawyers of the Republic of Tajikistan 1. Within three days from the date of making a decision by the Qualification commission to confer the lawyer s status upon the applicant, the lawyer s data shall be entered into the Unified Register of Lawyers of the Republic of Tajikistan. 2. Within one month from the date of conferral of the lawyer s status or reinstatement of the lawyer s status, the lawyer shall inform the local legal authority of the chosen form of advocacy. The local legal authority will pass this information on to the Union of Lawyers of the Republic of Tajikistan. 3. Failure to enter the lawyer s data into the register may be appealed in court according to the procedure and within the terms established by the laws of the Republic of Tajikistan. Article 19. The Lawyer s Oath 1. Upon successful passage of the qualification exam and receiving an abstract from the Unified Register, the lawyer shall take the following oath at the Union of Lawyers Administration: I do solemnly swear to fulfill the lawyer s duties honestly and in good faith, to protect the rights, freedoms and legitimate interests of my clients according to the Constitution of the Republic of Tajikistan, the Law and the Lawyer s Code of Professional Ethics.

18 2. After taking the oath, the lawyer becomes a member of the Union of Lawyers. Article 20. Lawyer s Certificate 4. The Ministry of Justice of the Republic of Tajikistan shall issue the lawyer with a proper Lawyer s Certificate stating the lawyer's full name and registration number in the Unified State Register of Lawyers. 5. The Provision of a Lawyer s Certificate, its form and procedure for covering issuing costs is subject to approval by the Minister of Justice of the Republic of Tajikistan. 6. The Lawyer s Certificate is the only document confirming a lawyer s status and entitling a lawyer to exercise his/her professional authorities and gain unrestricted access to all organizations and state institutions. 7. Failure to issue the Lawyer s Certificate may be appealed in court in accordance with the procedure and within the time frame established by the legislation of the Republic of Tajikistan. The person, whose lawyer s status has been terminated or suspended by the decision of the competent body, shall immediately hand in his/her Lawyer s Certificate to the issuing authority. Article 21. Suspension of the Lawyer s Status 1. The lawyer s status can be suspended in the following instances: - Election of the lawyer to the office of a governmental authority, local township and village government for a period of continuous employment; - inability of the lawyer to perform his/her functions for more than four months; - induction of the lawyer into military service; - declaration of the lawyer as a missing person according to the procedure established by the laws of the Republic of Tajikistan; - based on the lawyer s request, enrollment to part-time or full-time postgraduate or doctoral program at an educational institution within the Republic of Tajikistan or abroad, for a period of study. 8. Should the court decide to administer compulsory measures of a medical nature to the lawyer, the court may consider the possibility of suspending the lawyer in question s status. 9. Suspension of the lawyer s status entails suspension of all the applicable guarantees with respect to the lawyer in question, provided for under this Law, except for the guarantees set forth in Article 23, Part 2 thereof. The person, whose lawyer s status has been suspended, may not practice advocacy or occupy any elective office in the Bar. Violation of the provisions of this Part will result in termination of the lawyer s status.

19 10. The decision regarding suspension of a lawyer s status is made by the Union of Lawyers upon the recommendation of the local legal authority. 11. Upon expiration of the grounds set forth in Parts 1 and 2 of this Article, the suspended lawyer s status shall be lifted by a decision of the Union of Lawyers based upon the lawyer s application, or petition from the local legal authority. The decision of the Union of Lawyers regarding suspension of the lawyer s status or refusal to lift such a suspension may be challenged in court in accordance with the legislation of the Republic of Tajikistan 12. Within ten days from the lawyer s status suspension or reinstatement decision date the Union of Lawyers shall send written notification to the Ministry of Justice in order that it may update the Register; to the person whose lawyer s status has been suspended or reinstated, except for in cases where the lawyer s status suspension falls within paragraph four of Part 1 of this Article; and to the law firm where the lawyer in question has conducted advocacy. 13. Within ten days from receiving the above notification, the Ministry of Justice shall make an entry of the lawyer s status suspension or reinstatement into the Unified State Register of Lawyers. Article 22. Termination of Lawyer s Status 1. The lawyer s status is terminated by the Qualification commission upon recommendation of the Union of Lawyers on the following grounds: - filing of a written application by the lawyer for termination of his/her lawyer s status; - effective court decision recognizing the lawyer as incapacitated or partially incapacitated; - death of the lawyer or effective court decision pronouncing the lawyer dead; - effective court decision on finding the lawyer guilty of committing a premeditated crime; - occurrence of the conditions provided for in Article 12, Part 2 of this Law. 2. The lawyer s status may be terminated by the decision of the Qualification commission upon the recommendation of the Union of Lawyers and the opinion of the local office of the Union of Lawyers under the following circumstances: - failure to perform or improper performance by the lawyer of his/her professional duties with respect to the client; - violation by the lawyer of the Code of Professional Ethics;

20 - lawyer's failure to comply or properly comply with the decisions made by the Union of Lawyers agencies which are within the competence of the latter; - finding evidence of inaccurate information provided to the Qualification commission according to the requirements of Article 14, Part 2 of this Law; - no information provided to the local agencies of the Union of Lawyers regarding the form of advocacy selected by the lawyer within four months from the date of occurrence of the circumstances referred to in Article 18, Part 2 of this Law. 3. A lawyer s status is considered terminated as of the moment the decision is made by the Qualification commission. The person, whose lawyer s status has been terminated, may not conduct advocacy, as well as occupy any elective positions in the institutions of the Union of Lawyers. Violation of these provisions will result in liability in accordance with the laws of the Republic of Tajikistan. 4. Within ten days from the date of the decision made in accordance with the provisions of Parts 1 and 2 of this Article, the competent authority shall notify the person, whose lawyer s status has been terminated, in writing, except for the case when the lawyer s status was terminated on the basis of the provision set forth in paragraph three of Part 1 of this Article. 5. The decision of the Qualification commission, made on the basis of Parts 1 and 2 of this Article, may be challenged in court. Article 23. Lawyer s Independence Guarantees 1. Any interference with advocacy conducted in accordance with the law or any prevention of such activity by any means is prohibited. 2. No legal action can be brought against a lawyer (including after suspension or termination of the lawyer s status) in connection with his/her opinion expressed when conducting advocacy, unless found guilty of criminal action by a court decision that has gone into effect. The above limitations do not extend over the lawyer s civil and legal liability to the client under this Law. 3. Forcible disclosure by a lawyer, law firm personnel and the Union of Lawyers, of any information related to providing legal assistance in particular legal cases is not permitted. 4. Pursuant to the laws of the Republic of Tajikistan, the lawyer, his/her family members and property are under state protection. In the event of any threat to his/her life, health and property, the law enforcement authorities shall take necessary measures to ensure the safety of the lawyer, his/her family members and their property. 5. A criminal case against the lawyer, if the committed crime is related to conducting advocacy, shall be opened by the Prosecutor General of the Republic of Tajikistan, his/her deputies, Prosecutor of the Gorno-Badakhshan Autonomous Province, regional prosecutors, city of Dushanbe prosecutor, Transportation Prosecutor of the Republic of Tajikistan, city, district and equal-status prosecutors, while a preliminary

21 investigation shall be conducted by the criminal investigators of the prosecutor s office. 6. It is prohibited to call upon and question the lawyer or his/her legal assistant as witnesses with regard to their knowledge gained in connection with providing legal assistance. Article 24. Lawyer s Liability Risk Insurance The lawyer may maintain insurance of his/her professional and property liability for violating the terms and conditions of the legal assistance agreement with the client in accordance with the Law. Article 25. The Bar Organizational Forms CHAPTER 4. THE BAR AND LAW FIRM 1. In accordance with this Law, the Bar organizational forms of activity shall include the following: legal office, lawyer s office, college of lawyers and legal clinic. 2. The lawyer shall have the right to use his/her discretion to decide on the organizational arrangement and the place of conducting advocacy. The lawyer must inform the local office of the Union of Lawyers of the selected organizational arrangement and the place of conducting advocacy in writing within one month from the date of receiving his/her lawyer s status. 3. The registration of the advocacy forms shall be realized in accordance with the provisions of the Law of the Republic of Tajikistan On State Registration of Legal Entities and Individual Entrepreneurs. 4. Law firms shall have current and other accounts with banks, a letterhead form, a seal and a stamp bearing their names. 5. The Union of Lawyers and its territorial agencies shall maintain a Register of law firms. Article 26. Law Firm Establishment Restrictions 1. The lawyer may not establish a law firm in partnership with a person who does not possess a lawyer s status. 2. When conducting advocacy, the lawyer may not report to a person who does not possess a lawyer s status. 3. Advocacy may be conducted only within a single law firm provided that the lawyer is registered with only one local office of the Union of Lawyers. 4. Law firms shall be created either as newly established, or as a result of the reorganization of pre-existing forms of advocacy.