The Rules of Professional Conduct for Attorneys set forth a number of ethical standards governing an attorney’s relationships with participants in court proceedings. In particular, Article 44 of the Rules of Professional Conduct for Attorneys stipulates that when practicing in court, an attorney must be of good character, conduct themselves honestly and with dignity, and uphold respect for the legal profession. A lawyer must respect the procedural rights of the lawyer representing the opposing party and must not engage in conduct that grossly violates those rights. Article 45 of the Code of Professional Ethics for Attorneys states that, in relations with other participants in court proceedings, an attorney must: be restrained and courteous; respond to improper actions or statements by these individuals in the forms prescribed by law, in particular through statements, motions, complaints, etc.; and exercise tact when questioning defendants, victims, parties in civil proceedings, witnesses, and other individuals. In this regard, a natural question arises regarding the possibility of evaluating—including critically—the legal position of another participant in court proceedings.

After all, one must take into account that, for example, in criminal proceedings, a lawful and well-founded objection to an investigator’s motion to impose a preventive measure, a motion to return the indictment, pointing out its deficiencies, an opening statement outlining the defense’s position and highlighting the weaknesses of the prosecution’s case, an objection to an appeal or cassation petition, a motion to declare evidence inadmissible, an objection to motions by the prosecution, and a motion for recusal—are, a priori, an assessment and criticism of the prosecution’s position. However, such criticism cannot be considered a violation of Articles 44 and 45 of the Code of Criminal Procedure if it is not expressed in an offensive manner and does not target the prosecutor or investigator personally.

This approach does not conflict with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. As previously noted, in public procedural and non-procedural statements—including those concerning the legal profession—the practice of the European Court of Human Rights (ECHR) under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms must be taken into account (in particular, the judgments in “Morice v. France,” “Kudeshkina v. Russia,” “Hajibeyli and Aliyev v. Azerbaijan,” “Čeferin v. Slovenia,” “Nikula v. Finland,” and “Steur v. The Netherlands”)[1].

In particular, the judgment in “Morice v. France” (29369/10) states that freedom of expression also applies to attorneys. It encompasses not only the substance of the ideas and information expressed but also the form of their expression. Consequently, lawyers have the right, in particular, to comment publicly on the administration of justice, provided that their criticism does not exceed permissible limits. These limits are determined by the usual restrictions applicable to the conduct of members of the bar, as set forth in the Ten Guiding Principles established by the Council of Bars and Law Societies of Europe, with particular reference to “dignity,” “honor,” “integrity,” and “respect for… the fair administration of justice.” These rules help protect the judicial system from unjustified and unfounded attacks, which may be motivated solely by a desire or intention to ensure that judicial proceedings are conducted through the media, or by a desire to settle scores with the judges presiding over a particular case. The issue of freedom of expression is linked to the independence of the legal profession, which is of key importance for the effective functioning of the fair administration of justice. Only in exceptional cases can a restriction on a lawyer’s freedom to express his or her opinion—even through the imposition of a mild criminal penalty—be considered necessary in a democratic society. However, one must recognize the difference between statements made by a lawyer in the courtroom and those made elsewhere. With regard, first and foremost, to the issue of “conduct in the courtroom,” since a lawyer’s freedom of expression may raise questions about the client’s right to a fair trial, the principle of justice favors a free and even passionate exchange of views between the parties. Lawyers are obligated to “vigorously defend the interests of their clients,” which means that they will sometimes have to decide whether to object to or challenge the court’s conduct. Furthermore, the European Court takes into account the fact that the contested remarks are not repeated outside the courtroom, and this changes the situation depending on the person’s position; for example, a prosecutor, who is a “party” to the proceedings, must “tolerate substantial criticism… from the defense,” even if some of the remarks are inappropriate, provided they do not concern his general professional or other qualities[2]. In the case of “Čeferin v. Slovenia” (40975/08), in which the applicant was prosecuted for criticizing experts and the prosecutor,  the ECHR noted that the statements were made in the context of legal proceedings and were heard only in the courtroom—as opposed, for example, to public criticism in the media. Furthermore, undermining confidence in the existing experts was the only way to obtain new expert opinions regarding the defendant. And since the scope of permissible criticism of public officials may be broader, this encompasses criticism of both the prosecutor and the experts, who are public officials. “Although the statements in question had a negative, and at times hostile, connotation, they were recognized as evaluative judgments concerning certified experts and the prosecutor’s performance of his duties in the proceedings against the applicant’s client. The court finds that these judgments cannot be regarded as personal attacks or as intended to personally insult the experts, the prosecutor, or the court,” the ruling states. Following its review of the case, the court found that holding the attorney liable for contempt of court due to his criticism of the experts and the prosecutor constituted a violation of the right to freedom of expression.[3]

Thus, the procedural evaluation and criticism (in the courtroom or in procedural documents) of the prosecution’s position (documents, motions, oral statements, arguments, expert opinions, etc.) constitutes a proper and conscientious fulfillment of the defense attorney’s professional duties, provided that it does not concern the general professional or other qualities of the prosecution’s representatives and does not contain insults. It should be noted, however, that the text explicitly refers to “general” professional qualities, since criticism of the professional qualities of experts in the context of a prepared expert opinion was not found to be a violation by the ECHR in its decision in the case of “Čeferin v. Slovenia” (40975/08) was not deemed a violation, even though the statements regarding the expert were as follows: “assertions devoid of any meaning,” “professional weakness of the experts,” “the psychiatrist used psychological methods that he did not understand at all,” and “the psychologist applied outdated methods from the Stone Age of psychology and unscientific psychodynamics” (para. 51); regarding the prosecutor—that he concealed the results of a polygraph test (para. 52), and regarding the trial as a whole—that it is an ongoing judicial farce (para. 52).

Thus, the application of Articles 44 and 45 of the Code of Criminal Procedure must be carried out, in particular, in criminal proceedings, taking into account the relevant case law of the European Court of Human Rights and the fact that a procedural assessment and criticism of the prosecution’s position cannot be interpreted as a violation of the Code of Criminal Procedure, unless directly offensive statements have been made regarding the general professional qualities and character of the prosecution’s representatives.