The first exam: 4 persons out of 30 are certified
On January 10, 2023, the first meeting of the Commission on Licensing of Legal Services took place, during which an examination of the applicants for the certification was conducted. There is a caveat in the Ministry of Justice press release that "information on the persons in respect of whom the Commission has taken decisions to issue a certificate will be posted on the website of the Ministry of Justice". From this we can draw a preliminary conclusion that the list of those who did not pass the exam will not be published, which shows that the Ministry of Justice understands the role and function of this exam and does not draw attention to the list of those who did not pass it. The following information is circulating in the public domain: only 4 lawyers out of 30 who were appointed on the first day of the exam received certificates. In other words, 26 out of 30 lawyers did not or could not obtain such a certificate for one reason or another.
Failure to pass the exam before 1 July leads to the deprivation of license
The new law introduces an obligatory condition for obtaining a license for legal entities and individual entrepreneurs: a person who will provide legal services must have an examination certificate. The certified employees must be citizens of Belarus and the work for the applicant must be their main place of work. The certificate is issued by the Ministry of Justice based on the results of the attestation exam. The department's plan is to take exams for about 2,000 licensees by July. The plan is to conduct the exams weekly — every Tuesday and Thursday over the next six months.
According to the law, in case of non-compliance with the obligation to abide by the licensing requirements within the established timeframe (passing the exam by 1 July 2023), the license will be terminated by a decision of the Ministry of Justice.
In accordance with the transitional provisions of the law, legal entities and individual entrepreneurs holding a legal services license as of 1 January 2023 must ensure compliance with the licensing requirements stipulated by law by 1 July this year, and submit the relevant information to the Ministry of Justice by 1 August.
The law also provides categories of people who a priori cannot apply for a legal services license. Among them are those who were dismissed from court, law enforcement or other state bodies on the grounds deemed discreditable by the dismissal, or in respect of whom the Ministry of Justice took a decision to terminate the lawyers' license for committing "actions discrediting the title of a lawyer and the Bar" (within three years from the date of dismissal or the date when the decision was taken). A former attorney who has been the subject of a court decision to terminate his/her license or who has committed a "grave breach" of the legislation on licensing, will also not receive a license. A separate paragraph prohibits the issuing of a certificate to provide legal services to applicants who are on the lists of those engaged in extremist or terrorist activities.
Before the decision to grant or refuse the license is made by the Commission, information may be provided to the applicant by a government agency or other organization or person which may indicate that the applicant "does not meet the licensing requirements, the licensee does not meet the licensing requirements". It seems that the reference is to a characteristic which, in the current context, indicates the applicant's civic position.
Who are the judges?
The exam is administered by the Ministry of Justice's Commission for Licensing of Legal Services. Its members include:
- representatives of the Ministry of Justice;
- one representative from the Presidential Administration, Supreme Court, other state bodies — each;
- representatives of academic institutions (in particular, the Belarusian State University);
- representatives of the Bar;
- representatives of the notary.
As it can be seen, even the lawyers controlled by the Ministry of Justice are in the minority in this Commission, thus the unbiased nature of the Commission's decisions is highly questionable.
From the Constitution to the Criminal Code
The syllabus of the certification examination is a list of legal branches from constitutional law to criminal one. It should be noted that as of today, the very range of services provided by lawyers in Belarus is very limited and boils down to extra-judicial actions (naturally, legally restricted). Since January 1, the circle of debtors, from whom licensees may collect debts within the frames of rendering legal services, has also been narrowed: from now on, only legal entities and individual entrepreneurs will be allowed to be contacted, while individual debtors are no longer available.
Information on the procedure, date, time and place of the exam and the issuing of the certificate is posted on the Justice Ministry's website. Each applicant admitted to the examination shall be notified by telephone by the secretary of the Commission about the date, time and place of the examination.
The examination takes place in written and oral forms. The written part is a computer-based test: one has to answer 20 questions that are chosen individually for each candidate. If the candidate obtains 15 points he/she is allowed to pass the oral part of the exam (if not, he/she will not take the oral examination and may retake it not earlier than in 6 months). In view of the deadline for completing the license requirements, a failure leads to automatic ban on the provision of legal services for a certain period of time, even if he/she passes the exam at a later date.
The oral form of the exam is an answer to the examination questionnaire which includes one question from the syllabus of the qualification exam. The Commission shall not limit itself to the syllabus of the examination and the procedure of the examination shall also provide for the possibility to ask additional questions on the Rules of professional ethics of persons rendering legal services and the Rules for Conducting of Legal Services.
Each member of the Commission shall score from 2 to 5 points for his/her oral answer to the examination questionnaire. A candidate shall be deemed to have passed the examination with an average score of 4 points. Those who successfully pass the examination shall be issued a certificate for five years.
The examination as a violation of the principle of non-interference in legal activities
The Belarusian authorities actively use the Qualification Commission of the Ministry of Justice for reprisals against attorneys who represent the interests of participants of protest movements, opposition leaders and simply people who disagree with the actions of the authorities in courts. Dozens of attorneys have already been stripped of their right to the profession as a result of the certification procedure. It seems that the exam will become for lawyers-licensees what the certification for attorneys is.
Principle 16 of the Basic Principles on the Role of Lawyers states that it is the duty of the government to ensure that lawyers are able to perform all their professional duties in an environment free from threats, hindrance, intimidation or unwarranted interference; not subject to prosecution and judicial, administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics, or threats of such prosecution and sanctions.
The examination in this case could be regarded both as an interference with the profession by a public authority and as a sanction for excessive "activism" by a lawyer, although the decision to withdraw the license would not look like a punishment for the position but for the alleged "incompetence" revealed by the examination. It should be reminded that a similar "examination" in the Bar was not passed by the Ph.D., lawyers with various professional awards, and specialists widely known in Belarus and abroad.
The principle of independence of the legal profession is not even mentioned in the new Law as a factor to be taken into account during its implementation. However, the right of each person to legal assistance depends directly on the independence of lawyers in their work. If lawyers lose the opportunity to carry out their work in an environment free from threats, obstacles, restrictions and inappropriate and unjustified interference, the rights of their clients remain unprotected.
Looking at the whole situation, it turns out that since 2020 almost 600 lawyers have either been forcibly expelled from the Bar or have left it due to pressure and conditions hindering their work. Some of them continued to work as licensed lawyers. Recall that almost half of the frequent toppers of the international legal guides have left the legal profession. Now, by all indications (4 persons that passed the exam out of 30 applicants), the authorities will take up the task of finally destroying the last bits of independence within the legal profession. Legal education has long been subordinated to the ideological component, active repression in the legal profession has been going on for the third year, so it is difficult to see other reasons in the appearance of the same mechanism of repression against the lawyers-licensees, except to "normalize" this part of the legal community as well. Unfortunately, squeezing highly educated professionals out of the profession in favor of loyalty to the authorities will have really severe and long-lasting consequences for the future.