Introduction
The current reform of the Bar is characterized by the need to rethink its functional purpose in the context of the introduction of restorative approaches in the judicial system. This requires a deeper analysis and clarification of the conceptual framework, as well as the boundaries of the Bar’s lawful activities, and a re-evaluation of the relationship between legal requirements, the level of professionalism and the ethical principles of legal practice. Particular attention should be paid to the development of effective criminal law mechanisms to protect the professional activities of an attorney. These issues should be considered in two interrelated areas. The first is in the context of guarantees to prevent interference with the legitimate legal practice and to ensure the proper administration of justice, with the participation of a defence counsel or representative. Another area is the protection of clients’ rights and interests from violation by defence counsel (representatives) of fundamental principles and legal requirements in the field of legal aid (Krupnova Reference Krupnova2020).
These two areas are reproduced in the presence of other significant problems that require a theoretical and legal rethinking. This concerns the place (nature) of the acts that infringe upon the professional and personal interests of the attorneys among all acts that cause harm to justice. This is also about determining the degree of gravity of the acts that encroach on these direct objects and a fair reflection of this gravity in the sanction of the rule. It is also important to make a clearer distinction between related acts and signs of general and special corpus delicti of criminal offences that infringe on the procedure for the exercise of professional legal practice. National legal systems are characterized by a wide variety of approaches to specifying the types and forms of obstruction, as well as violations of the guarantees of the practice of law and the principle of professional secrecy. The category of “obstruction” typically encompasses a wide range of forms of influence, including threats and intimidation, encroachment on fundamental personal rights, and certain manifestations of actual violence aimed at exerting psychological and, in some cases, physical pressure on the victim. The necessity to establish legislative limits to the extent of criminal law in relation to the protection of individuals’ and legal entities’ rights and interests from unlawful acts by an attorney or a legal aid representative is an essential issue.
Additionally, it is essential to identify the fundamental and secondary characteristics of such acts. It is particularly noteworthy that the legislative experience has been positive, thus confirming the need to implement international legal standards for the protection of confidential relations between an attorney and a client, in particular the prevention of conflicts of interest. Bandurka (Reference Bandurka2022) in the legislation of certain countries, this issue is regulated through the concept of “limitation of protection” (United States; USA) or “professional malpractice” (Spain). These categories encompass actions involving the illegal use of information obtained in the course of providing legal aid, destruction or damage to documents, representing persons with opposing interests and harming the client’s interests, among others. The subjective aspect of such offences may be manifested in both the form of intent and negligence.
The criminal legal protection of the practice of law today remains insufficiently developed, both in legislation and in scientific doctrine. Despite the significant role of the attorney in exercising the right to defence, in practice there is a low level of criminal law guarantees for the inviolability of professional activity and vagueness in determining the status of the attorney as a potential victim in criminal proceedings. The absence of a clear systematization of acts that encroach on the attorney in connection with their official activities in the legislation leads to an ambiguous interpretation of the norms, legal uncertainty and, as a result, to an insufficient level of protection. In comparison with other participants in justice (e.g., judges or law enforcement officers), attorneys often remain less protected, despite the equal procedural importance of their role.
A comprehensive study of the legal models of criminal legislation in different countries is necessary to identify potential areas for improving the national legal framework. This requires analysing how the legislation of countries belonging to the continental legal tradition and the Anglo-Saxon system regulates issues such as the legal status of an attorney, the criminalization of attacks, and the definition of special corpus delicti or qualifying circumstances. The study examines examples of countries where the attorney is directly recognized as a person entitled to enhanced criminal legal protection (in particular, France, the Czech Republic and Azerbaijan), as well as those where protection is provided indirectly through general rules applicable to officials or participants in the judicial process (Poland, the USA and Spain). The analysis of these approaches enables the identification of effective legal mechanisms that can be adapted to Ukraine’s national context of legal reform.
Literature Review
The international, theoretical and legal aspects of the Bar and the practice of law in Ukraine are the subject of a significant number of specialized professional publications. These publications focus on the implementation of international legal standards and the international rules of attorneys’ ethics in Ukraine, the importance of European foreign legislative experience in this area, the impact of globalization processes on the formation of the legal status of attorneys and the Bar, and other related topics. Biryukova (Reference Biryukova2018) and Sviatotska (Reference Sviatotska2021) analysed the general legal and theoretical problems of human rights protection activities of the Bar in any area of justice.
Merkulova (Reference Merkulova2023) examined the criminological and criminal law aspects of the effectiveness of criminal law measures to ensure guarantees of professional activities of defence counsel or representatives of a person, the boundaries and content of the structural components of the concept of lawful activities of a defence counsel and the specifics of the composition of relevant criminal offences. An analysis of prevailing trends in the legal doctrine of the Bar and the practice of law in Ukraine suggests that the scope of the Bar remains extensive and necessitates more precise legal regulation, along with modifications in legal theory, legislation and law enforcement, particularly in the area of criminal law.
Scientific publications concerning the criminal law protection of the practice of law have drawn attention to the fact that the concept of “obstruction” may cover various forms of influence, ranging from threats, intimidation and encroachments on fundamental personal goods, to certain types of physical violence aimed at exerting psychological or, in some cases, physical pressure on the victim. A separate place in the scientific discourse is occupied by studies on the expediency of legislative definition of the limits of criminal law protection of the rights and legitimate interests of individuals and legal entities from unlawful actions of a lawyer or a legal representative providing legal aid. The experiences of nations, including Spain, the USA and France, are especially valuable in this regard. These countries have legislated approaches to protecting confidential relations between attorney and client, outlined the boundaries of the conflict of interest and provided for sanctions for professional dishonesty on the part of an attorney.
In the process of reforming Ukraine’s criminal legislation, it is essential to consider international legal standards. The adoption of documents by the United Nations (UN), the European Union (EU) and the Council of Europe, which systematize approaches to the criminal legal protection of the practice of law, has made valuable contributions to this area. The UN Congress provisions are crucial in this regard, emphasizing the protection of the confidential nature of the attorney–client relationship and the obligation of states to ensure the protection of attorneys.
Thus, the analysis of the literature reveals a multidirectional approach to the issue of criminal legal protection in the practice of law, which is based on the idea of protecting both the attorney and the client from any form of unlawful interference or professional dishonesty. This aspect of the issue requires not only the adaptation of current legislation to modern international standards, but also a deeper scientific and theoretical understanding of the functional purpose of the Bar in the justice system.
Materials and Methods
Criminal law in many countries does not provide for special provisions to protect the life, health or property of a defence counsel or their close relatives. The criminal code of one of the European states that is a member of the EU common legal space does not contain provisions that recognize assault on an attorney as an aggravating circumstance in general articles on crimes against life, health or property. This indicates a general approach in which the defence of the attorney is not considered a separate object of protection within the justice system.
The methodological basis of the study was the application of comparative legal, systemic, logical–semantic, historical–legal and analytical methods. The comparative legal method allowed for a comprehensive study of the criminal legislation of 16 countries selected according to the following criteria: geographical location (Eastern and Western Europe, Central Asia, North America), level of legal development, presence or absence of special provisions on the protection of the practice of law, and participation of the country in international human rights mechanisms. The countries studied include Lithuania, Poland, Bulgaria, the Czech Republic, France, Spain, Azerbaijan, Kazakhstan, Uzbekistan, Tajikistan, Georgia, Moldova and the USA (for example, Arizona). The provisions of the draft Criminal Code of Ukraine were further analysed, allowing for a comparison of the current regulatory framework with the anticipated changes.
The selection criteria for the comparison were based on several important provisions. These include the existence of separate articles on liability for violence or threats against attorneys. The inclusion of attorneys in a special list of persons in respect of whom the acts should be qualified as aggravated offences was also considered. In addition, the inclusion of attorneys in the provisions on crimes against justice, as well as the specifics of the qualification of bodily harm, murder, threats and attacks on property, was also considered. The systematic approach enabled the identification of the internal links between the provisions of national legislation and international legal standards, including the UN Basic Principles on the Role of Lawyers (United Nations Congress 1991), the European Convention on Human Rights 1950 (European Court of Human Rights and Council of Europe 2021) and the Common Code of Practice for Lawyers of the EU (Council of Bars and Law Societies of Europe 1988).
The concepts of “defence counsel”, “professional activity”, “official duties”, “encroachment”, “violence” and “threat” in different legal systems were compared within the framework of the logical and semantic analysis. This made it possible to assess the depth of the attorney’s legal status and the limits of criminal law intervention in the event of unlawful influence. The historical and legal method enabled us to trace the dynamics of the legal regulation of attorney protection in post-Soviet countries (Azerbaijan, Kazakhstan, Moldova, Tajikistan and Ukraine) and to assess the degree of norm unification in the EU legal systems. The research period covers the current versions of the criminal codes as of 2023–2024. The analysis included official translations of the criminal codes, or, in the absence of such translations, English versions from publicly available official sources. Scientific and practical commentaries, doctrinal sources, case law and recommendations from professional Bar organizations were also used.
The countries were typologized according to the level of regulatory detail of the protection of the practice of law. The following groups were identified: countries with special provisions for the protection of attorneys, countries where attorneys are specifically mentioned in general criminal law provisions as a subject of crime, and countries where liability is based solely on general provisions without mentioning attorneys. This approach not only allowed for the identification of common features but also revealed gaps in legal protection.
The legislation of certain European countries pays considerable attention to the professional status of an attorney. In the legal system of one of these countries, the professional affiliation of the victim is explicitly stated as a qualifying feature that increases the level of liability for crimes against life, health or property. This approach is based on a multi-level system of classification of offences that includes not only the object of the offence, but also the form of guilt and the social role of the victim. The comprehensive interdisciplinary analysis made it possible to systematize approaches to criminal legal protection of the practice of law, identify existing models of legal regulation and formulate recommendations for the Ukrainian legislator based on the best international practices.
Results
International legal instruments are of particular importance in ensuring guarantees of the rights and legitimate interests of a person, and therefore contain a significant number of provisions defining the content of recommendations on the activities of an attorney as a person who protects the rights and legitimate interests of individuals and legal entities, public authorities and local self-government bodies. The formation of domestic standards for the professional activities of attorneys is impossible without analysing and taking into account international legal standards (including European) and studying international legal experience in this area.
The content of certain international legal acts (both general and regional) containing the relevant standards is provided below. The Universal Declaration of Human Rights considers the defence provided by lawyers on a professional basis to be an integral part of judicial proceedings and, thus, lawyers are full participants in the judicial process alongside judges and prosecutors (United Nations Congress 1948). Therefore, the state must provide the necessary conditions for the quality performance of professional functions and duties by attorneys and protect them from external pressure and interference.
The basic provisions on the role of attorneys adopted by the Eighth UN Congress on the Prevention of Crime contain several substantive theses that should be considered as separate standards for ensuring the proper professional activity of attorneys (United Nations Congress 1991). It should be emphasized that, against the background of the statement that all people should have effective access to legal aid provided by an independent legal profession, considerable attention is paid to the need for governments to ensure the confidentiality of relations between lawyers who provide advice to citizens and their clients within the framework of professional relations. The author emphasizes the issue of attorney security in the performance of their professional duties, which the authorities should adequately protect.
Regarding regional international legal standards, the Common Code of Practice for Lawyers of the European Community (Council of Bars and Law Societies of Europe 1988) is also worthy of consideration. It contains provisions that highlight the importance of the rule of law and professional ethics, particularly in light of the unique role of the attorney within any legal system. The principle of confidentiality is recognized as fundamental to establishing trust between attorney and client. Furthermore, the legal profession is subject to the obligation to maintain insurance against claims arising from professional negligence. This is widely recognized as a form of professional liability insurance, a practice common in most European countries.
Due to the need to formulate uniform standards to ensure the effective and efficient functioning of the Bar, the standards of criminal legal protection of this sphere of society in Ukraine are equally important. The state should not only create the conditions for attorneys to fulfil their professional duties and functions but also ensure safe conditions for their realization. It should also protect them from external interference, violation of professional and personal rights of attorneys, threats against them and direct use of violence. The rights of the client should be the subject of criminal legal protection, and the client should expect high-quality and professional legal services from the defence counsel, a person who provides legal aid on a professional basis.
The current Criminal Code demonstrates the legislator’s special attention to the formulation of signs of acts that directly infringe upon the personal and professional rights of a defence counsel, a representative of a person in justice and contain a threat of violating the client’s rights to proper legal aid. Under the current criminal legislation of Ukraine, Chapter XVIII, “Criminal Offenses Against Justice”, contains several articles that should be considered specific measures of criminal law protection of the lawful practice of law in criminal proceedings. The provisions contained in these norms, which define the content of the main objective and subjective features of criminal offences encroaching on a specific area of criminal law relations, provide grounds for classifying these norms into three groups. The criterion for their separation is the direct object of encroachment. The absence of criminal law provisions relating to the protection of clients’ rights from the unprofessional and dishonest activities of defence counsel (at least at the level of misconduct) is considered a discrepancy between criminal law and the main directions of reforming criminal justice and law enforcement agencies.
There is a need to identify the specifics of foreign legislation in this area. This refers to criminal liability for interference with the legitimate legal activities of a defence counsel (primarily an attorney) or a representative of a legal aid provider. It is also important to consider criminal law measures to protect the rights and interests of individuals and legal entities from illegal actions of an attorney or a representative of a legal aid provider. A separate aspect is the approach of a foreign legislator to the criminal law protection of life, health or property of a defence counsel or representative, as well as their close relatives. The criterion for the analysis may be the presence (or absence) in the criminal legislation of foreign countries of signs of acts that constitute obstruction or interference with legitimate legal activities. The characteristic features of the relevant regulation are determined on this basis.
The Criminal Codes of Bulgaria, the Czech Republic and Poland do not have such provisions at all. Since the Criminal Code of the Republic of Bulgaria, in Chapter III “Crimes against Justice”, includes specific articles without a title, it is possible to determine the direct object of the offence only by analysing the content of the provision (Korotyuk and Stanich Reference Korotyuk and Stanich2024). This content indicates that this section does not contain any criminal provisions at all that would indicate the separation of such a sphere of criminal law protection as obstruction of the activities of a defence counsel or a legal representative providing legal aid (incidentally, as well as other subjects of criminal proceedings). The Criminal Code of the Czech Republic, in Chapter 4, “Other Interference with the Activities of Public Authorities”, contains Article 337, “Obstruction of the Administration of Justice” (Korotyuk Reference Korotyuk2020). The list of actions that constitute the objective side of the offence is not relevant to the protective functions of criminal proceedings. Articles 232 to 251 of Chapter XXX, “Crimes against the Administration of Justice”, of the Criminal Code of the Republic of Poland do not contain grounds for criminal liability for interference with the lawful legal activities of a defence counsel (primarily a lawyer), a legal representative providing legal aid or other participants in criminal proceedings (Stanich and Menchynskyi Reference Stanich and Menchynskyi2016).
The basis for liability in some countries (mostly in the post-Soviet countries) is only external influence on the activities of the court, prosecutor’s office and pre-trial investigation bodies. The Criminal Code of the Republic of Azerbaijan, Chapter 32 “Crimes against Justice”, Article 286 “Obstruction of the Administration of Justice” defines criminal liability only for interference with the activities of a court, prosecutor, investigator or pre-trial investigator (Stanich, Rudenko, and Menchynskyi Reference Stanich, Rudenko and Menchynskyi2016b). The Criminal Code of the Republic of Kazakhstan in Chapter 17, “Criminal Offenses Against Justice and the Execution of Sentences”, in Article 407 “Obstruction of the Administration of Justice and Pre-trial Investigation” defines the grounds for liability for interference in any form with the activities of a court, prosecutor or person conducting a pre-trial investigation (Stanich et al. Reference Stanich, Rudenko and Menchynskyi2016b).
In the Criminal Code of the Republic of Uzbekistan, the victims of interference in the investigation or resolution of court cases (Chapter XVI “Crimes against Justice”, Article 236 of the Criminal Code) are also only judges, inquirers, investigators and prosecutors (Stanich Reference Stanich2019b). A similar situation is observed in Tajikistan (Stanich Reference Stanich2019a). The peculiarity of Georgian criminal law is that the list of victims also includes jurors (Rudenko and Korotyuk Reference Rudenko and Korotyuk2021). The Criminal Code of the Republic of Moldova in Chapter XIV, “Crimes against Justice”, contains Article 303 of the Criminal Code “Interference with the Administration of Justice and Criminal Prosecution”, which uses the rather broad categories of “national judicial authorities in the administration of justice” and activities of criminal prosecution bodies, but does not provide a specific list of victims of this type of encroachment (Stanich, Rudenko, and Menchynskyi Reference Stanich, Rudenko and Menchynskyi2016c).
The Criminal Codes of Lithuania and France may be considered examples of criminal legislation in which the personal and professional interests of an attorney (defence counsel, representative of a person) are subject to criminal legal protection on an equal footing with those of other participants in criminal proceedings. The criminal law of the Republic of Lithuania contains a rather generalized provision (compared to domestic legislation) that defines the grounds for criminal liability for obstructing activities related to the investigation and consideration of a criminal, civil or administrative case by a judge, prosecutor, pre-trial investigation officer, lawyer or bailiff (Menchenia and Korotyuk Reference Menchenia and Korotyuk2021; Stanich Reference Stanich2017). The sanction provides for various types of punishment (community service, fine, restriction of liberty, imprisonment for up to two years). A qualifying circumstance is the use of violence and other coercion, which increases the severity of the maximum penalty of imprisonment for up to four years (Chapter XXXIV, Article 231). Consequently, it should be noted that the legislator, in formulating the signs of the main corpus delicti, uses a rather broad concept of “obstruction” without specifying the forms of its manifestation. The use of real physical impact in a qualified form is considered a manifestation of the extreme form of obstruction. Both the basic and qualified corpus delicti contain signs of an act that is considered a minor crime according to the national classification.
Analysing French criminal law from the perspective of interference with the legitimate legal activities of a defence counsel (primarily a lawyer), a legal representative for the provision of legal aid, first, it should be noted that the category of “obstruction” is used in Chapter IV, “On Attacks on the Process of Justice”, repeatedly: in the titles of Section 1, “On Obstruction of Prosecution” and Section 2, “Obstruction of Justice”. Chapter 2 contains Article 434-8 of the Criminal Code, which defines liability for a certain type of obstruction of the activities of an attorney (in addition to other participants in the administration of justice), any threat or any act of intimidation committed to influence the behaviour of an attorney in the exercise of their functions. The penalty is three years’ imprisonment and a fine of €45,000. In this case, the main element of the offence specifies the signs of the objective side, such as any manifestations of threats and intimidation. What matters is the direction of such behaviour, which should be considered as manifestations of psychological pressure to exert external influence on the professional behaviour of the victim.
The approach of Spanish legislation is specific. In Chapter VII, “On Obstruction of Justice and Professional Misconduct”, of the Spanish Criminal Code, the socially dangerous acts that should be considered as types of behaviour aimed at obstructing justice directly include real manifestations of not only psychological but also physical influence (Stanich, Lishevska, and Menchynskyi Reference Stanich, Lishevska and Menchynskyi2016a). The following are considered as such: violence and intimidation of a lawyer (except for a plaintiff, accused, prosecutor, expert, interpreter, witness) in order to change the procedural position (part 1 of Article 464 – maximum punishment from one to four years of imprisonment and a fine from six to 24 monthly rates); if the perpetrator has achieved his goal (changed the procedural position), the punishment must be absolute, without alternative (part 1 of Article 464 of the Criminal Code – four years of imprisonment and a fine of 24 monthly rates); encroachment on the life, integrity, freedom, sexual freedom, property of the above-mentioned participants of justice (lawyers) for their actions in the trial, in revenge for these actions, also entails no alternative punishment.
The analysis of the specifics of the content of criminal law provisions which define the grounds for criminal liability for interference with the administration of justice and with the activities of an attorney (as one of the parties to criminal proceedings), in particular, shows that these grounds are quite different in nature and are reflected in different concepts and categories: “obstruction” (without specifying the types of behaviour); “threats and intimidation” (as a type of psychological pressure); and “intimidation and violence” (a psychological and actual physical influence). This demonstrates that in some foreign countries, the legislator assigns a broad interpretation to the concept of “obstruction” (interference), specifically, encroachment on the professional and personal rights and legitimate interests of the attorney.
Criminal law measures to protect the rights and interests of individuals and legal entities from illegal actions of an attorney or a representative of a person providing legal aid are reflected in the content of the provision defining the grounds for liability for actions that in some way constitute forgery of official documents important for the administration of justice. The objective aspect of the offence is the provision of false information by a person’s representative about their powers, or the failure of the attorney to include in the necessary documents the data on the restriction of their powers. Thus, the legislator found it necessary not only to limit itself to general wording on forgery of documents, but also to clarify the content of these actions. As already mentioned, the draft Criminal Code does not address this issue.
Discussion
The study of the specifics of foreign legislation in this matter reveals a significantly different stance on the part of the legislator. There is a significant number of countries in which there is only a general criminal law provision that defines the grounds for liability for forgery of a document (with or without specification of its official nature). The assessment of the gravity of this act is quite different. For example, the criminal law of the Republic of Lithuania (Chapter XLIII, Article 300; Menchenia and Korotyuk Reference Menchenia and Korotyuk2021) and that of the Republic of Bulgaria (Chapter 9, Article 308; Korotyuk and Stanich Reference Korotyuk and Stanich2024) contain only a general rule that defines the grounds for liability for the production, forgery or use of a forged document, among other offences. These actions carry a maximum penalty of up to three years’ imprisonment (a misdemeanour).
The Bulgarian Criminal Code emphasizes the official nature of the manufactured and forged document. The Criminal Code of the Czech Republic, in Chapter 4, “Other Interference with the Activities of Public Authorities”, contains a general provision (Article 348) that defines the grounds for criminal liability for forgery and alteration of official documents (Korotyuk Reference Korotyuk2020). The penalty for such behaviour is much more severe: imprisonment for a term of one to six years (a serious crime). The Criminal Code of the Republic of Uzbekistan also holds defence counsel liable for forgery of official documents under the general provision of Article 228 of the Criminal Code, “Production, Forgery or Use of Documents”. According to the classification of the typical gravity of acts in Ukraine, it should be considered a misdemeanour, as it does not provide for imprisonment (Stanich Reference Stanich2019b).
In Poland, criminal liability for the fact of forgery of official documents, entering false information in these documents regarding circumstances of legal significance, use of such a document, etc., is provided for by general rules (Articles 270 and 271 of the Criminal Code) contained in Chapter XXXIV, “Crimes against the Reliability of Documents” (Stanich and Menchynskyi Reference Stanich and Menchynskyi2016). The maximum sentence of imprisonment is up to five years. The Criminal Code of the French Republic, in Chapter IV “On Offenses Against Public Trust”, in Chapter 1. “On Forgery”, Part 1 of Article 441-2 of the Criminal Code, also contains general criminal law provisions on the grounds and scope of liability for forgery (false misrepresentation of the truth committed in any written text or other medium) of a document issued by a public authority to confirm any right. The offence is punishable by up to five years in prison and a fine of €75,000. This wording of the sanction indicates its absolute nature (Stanich Reference Stanich2017).
Similar regulations are enshrined in the criminal codes of Kazakhstan (Stanich et al. Reference Stanich, Rudenko and Menchynskyi2016b), Tajikistan (Stanich Reference Stanich2019a) and Moldova (Stanich et al. Reference Stanich, Rudenko and Menchynskyi2016c). The Georgian legislation (Rudenko and Korotyuk Reference Rudenko and Korotyuk2021) has a more differentiated approach: liability for falsification of evidence depends on the gravity of the act. The penalty can range from five to six years in prison, depending on the classification of the offence (less serious, serious or especially serious crime). This two-tiered system can also be attributed to the criminal law of Arizona (USA), which, along with general criminal law provisions defining the grounds for liability for forgery of a written document (creation, alteration, knowing possession of a forged document, etc.), contains special provisions (Arizona Criminal Justice Commission 2002). They are outlined in two articles of criminal law.
An example of specifying the actions of an attorney that may constitute an encroachment on a client’s rights is found in the criminal law of Spain. Chapter II of the Criminal Code (Article 390) provides for the liability of officials for forgery of essential documents, which is punishable by imprisonment for up to six years. In addition, Chapter VII, dedicated to obstruction of justice and professional dishonesty, contains articles that directly regulate the professional liability of lawyers (Stanich et al. Reference Stanich, Lishevska and Menchynskyi2016a). These include failure to appear in court without a valid reason, abuse of power by destroying or concealing documents, disclosure of procedural secrecy, representation in a case with a conflict of interest, and causing damage to a client by actions, omissions or gross negligence. The sanctions for such violations include imprisonment, fines and a temporary ban on holding certain positions.
Ukraine’s criminal law protects attorney–client confidentiality and prevents conflicts of interest, regardless of the nature of the offence. The penalties are primarily fines and disbarment, with rare instances of imprisonment for up to two years. The main goal is to ensure liability for professional misconduct. The introduction of professional liability insurance for lawyers will help protect clients and compensate for losses. Intentional violations of the principles of confidentiality and impartiality by a lawyer that cause significant damage to clients should be punishable by criminal law. The European Court of Human Rights and the Council of Europe (2021) highlight the lack of sufficient guarantees regarding the quality of legal services, which should be taken into account when reforming legislation. Foreign practice divides countries into two groups: those where the protection of injured attorneys is based only on general rules; and those where there are special criminal rules in the sections on justice. The criminal legislation of the first group of countries should be differentiated depending on whether the general rules define the professional (official) characteristics of the victim as a qualifying feature. To understand these differences, we propose referring to the specific content of criminal law provisions in individual countries.
The criminal law in many countries does not provide for special provisions to protect the life, health or property of a defence counsel or their close relatives. For example, the criminal code of one of the European states that is a member of the EU’s common legal space does not contain provisions recognizing attacks on defence counsel as an aggravating circumstance in general articles on crimes against life, health or property. This indicates a general approach in which the defence of the lawyer is not considered as a separate object of protection within the justice system (Krupnova Reference Krupnova2020).
In other countries without special rules on legal aid representatives, the victim’s duties may be considered as an aggravating circumstance. The legislator does not always distinguish between public officials and lawyers, sometimes lumping them together in the general category of persons performing public functions or facilitating the administration of justice. These circumstances affect the severity of the punishment, depending on the legal tradition, but the details vary significantly between countries (Shandula Reference Shandula2022).
A separate group includes jurisdictions in which the law explicitly recognizes the professional activities of participants in the trial, including witnesses, experts, interpreters or lawyers, as an aggravating factor in the qualification of a crime. In such cases, not only the status of the victim, but also the connection between the crime and the performance of their procedural duties, is of particular importance. The concept of an official also applies to public defenders in some American states, particularly those with a developed judicial system (Vilchyk and Sviatotska Reference Vilchyk and Sviatotska2019). The criminal provisions on violence or assault state that the enhanced liability occurs when the crime is committed in the course of or in connection with the performance of official duties. Thus, regardless of the existence of a separate article, the very logic of law enforcement ensures the protection of the lawyer.
The legislation of certain European countries pays considerable attention to the professional status of an attorney. In the legal system of one of these countries, the professional affiliation of the victim is explicitly stated as a qualifying feature that increases the level of liability for crimes against life, health or property. This approach is based on a multi-level system of classification of offences that considers not only the object of the offence, but also the form of guilt and the social role of the victim. There are also countries in which special criminal law provisions are included in the sections on crimes against justice. The provisions specifically state that victims may include persons administering justice, conducting preliminary investigations and defence counsel. These provisions encompass both threats and actual use of violence, with the severity of the punishment varying according to the nature of the harm (Parliament of Ukraine 2015).
Some states formulate special corpus delicti, but the main consequences are death, bodily injury or destruction of property. These consequences remain the subject of general criminal provisions. Thus, the special provisions are mainly aimed at prevention rather than at a separate qualification of the consequences. The concept of special protection for participants in justice is implemented in some European and Asian countries, including post-Soviet states, through a combination of general provisions and references to professional status. This is often manifested in articles on crimes against justice, which explicitly state that a defence counsel may be a victim in the case of threats or violence related to his or her procedural role.
The absence of a unified approach to the criminal legal protection of attorneys in most countries indicates that existing trends are gradually recognizing the need for additional guarantees. This is reflected in the consideration of professional status in the qualification of crimes, the expansion of the scope of special protection and the clarification of the relationship between the act and the performance of official duties. This approach enables the adaptation of general criminal provisions to the specific needs of legal practice, without creating an excessive number of highly specialized provisions, while ensuring the effective protection of defence counsel in criminal proceedings.
In many countries, criminal law does not provide special provisions to protect the life, health or property of a defence counsel or their close relatives. For example, the criminal code of one of the European states that is a member of the EU’s common legal space does not contain provisions recognizing attacks on defence counsel as an aggravating circumstance in general articles on crimes against life, health or property. This indicates a general approach in which the defence of the attorney is not considered a separate object of protection within the justice system.
The concepts of “defence counsel”, “professional activity”, “official duties”, “encroachment”, “violence” and “threat” in different legal systems were compared within the framework of logical and semantic analysis. This made it possible to assess the depth of the attorney’s legal status and the limits of criminal law intervention in the event of unlawful influence. The historical and legal method helped trace the dynamics of the legal regulation of attorney protection in post-Soviet countries (Azerbaijan, Kazakhstan, Moldova, Tajikistan and Ukraine) and assess the degree of norm unification in EU legal systems.
The research period covers the current versions of the criminal codes as of 2023–2024. The analysis included official translations of the criminal codes, or, in the absence of such translations, English-language versions from publicly available official sources. Additionally, scientific and practical commentaries, doctrinal sources, case law and recommendations of professional Bar organizations were used. The countries were typologized according to the level of regulatory detail of the protection of the practice of law. The following groups were identified: countries with special provisions in the field of attorney protection; countries where attorneys are specifically mentioned in general criminal law provisions as a distinct subject of crime; and countries where liability is based solely on general provisions without mentioning attorneys. This approach not only allowed for the identification of common features but also revealed gaps in legal protection.
The formation of a national policy in the field of criminal legal protection of attorneys should consider not only the regulatory context, but also the social and psychological factors related to the professional vulnerability of defence counsel. The constant risk of physical or psychological pressure, conflict situations with representatives of the parties in court, as well as indirect threats arising from participation in high-profile cases, create additional challenges for such persons. These circumstances necessitate not only the improvement of legal norms, but also the development of institutional guarantees, including mechanisms of Bar self-government, professional defence systems and relevant case law. All these measures can ensure the effective realization of the right to defence.
Conclusion
The analysis of the fundamental international legal standards and their content regarding guarantees and state protection of lawful legal practice of law, the specifics of the current national criminal law regulation of this area, the prospects and trends of its further reform, and also the positive foreign legislative experience in terms of determining the direct object of an attack on justice, makes it possible to outline certain patterns. It is advisable to determine the grounds for criminal liability and the specifics of criminal offences encroaching on the legitimate legal activities of a defence counsel, primarily an attorney or a representative of a person providing legal aid, and to analyse the status and forms of criminal law protection of the rights and interests of individuals and legal entities against unlawful actions of such persons and their violation of the basic principles and legal requirements.
These patterns include the fact that international legal standards have a special place for provisions on the particular importance of ensuring the state’s right to defence in criminal proceedings, the need for equal protection from external interference and violence for all participants in the proceedings, and state guarantees of the provision of quality legal aid by an attorney and the observance of the principle of confidentiality in relations with a client. Comparison of the current national criminal legislation with the Draft Criminal Code of Ukraine provides the basis for identifying a specific problem, namely, narrowing the scope of protection of the client’s legal rights. The absence of criminal law provisions relating to the protection of clients’ rights from the unprofessional and dishonest activities of defence counsel (at least at the level of misconduct) is considered a failure of the criminal law to comply with the main directions of reforming criminal justice and law enforcement agencies.
The criminal law experience of those countries which clearly regulate the scope of criminal law protection of the lawful activities of an attorney (defence counsel, representative of a person, etc.) from external influence, as well as clarify the content and essence of such categories as “obstruction of justice” and “obstruction of the Practice of Law” directly within the criminal law provision, should be considered positive. In the legislation of such countries, the concept of “obstruction” covers various forms of influence, including threats, intimidation, encroachment on fundamental rights, as well as certain cases of physical violence aimed at psychological or physical pressure on the victim. At the same time, there are various approaches to specifying the types and forms of such influences, as well as to determining violations of the guarantees of the practice of law and the principle of professional secrecy.
The experience confirms the effectiveness of implementing international legal standards in protecting confidential relationships between attorneys and clients. In the legislation of some countries, the relevant acts are covered by the concept of “limitation of protection” (USA), while in others, they are covered by the concept of “professional malpractice” (Spain). These concepts include actions such as the illegal use of information obtained during the defence, destruction or damage to documents, representing persons with opposing interests and harming the interests of the person defended by the attorney, among others. The forms of guilt in committing such acts may be both intentional and negligent.
Competing interests
The authors declare that there are no competing interests.
Valentyna Merkulova is a PhD in Law and Professor at the Odesa State University of Internal Affairs, working within the Department of Criminal Law Disciplines of the Institute of Law and Security. Her research focuses on areas such as the interaction between the public and criminal justice bodies.
Viktor Konopelskyi is a PhD in Law, Professor and Head of the Department of Criminal Law and Criminology, Odesa State University of Internal Affairs, Odesa.
Iryna Chekmarova is a PhD in Law, Associate Professor, Professor of the Department of Criminal Law and Criminology, Odesa State University of Internal Affairs, Odesa.
Hanna Reznichenko is a PhD in Law, Associate Professor at the Department of Criminal Law Disciplines, Odesa State University of Internal Affairs, Odesa.
Viktor Yarosh is a PhD in Law, Associate Professor at the Department of Criminal Law and Criminology, Odesa State University of Internal Affairs, Odesa.
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