"Letter of the Law": Minister of Justice answered questions of internet users during online conference held by «Aleinikov & Partners» law firm
20 Nov 2012
What is the role of the Ministry of Justice as viewed by the internet users? Has there been any “bureaucratic hell” in the field of registration of public associations? Are we protected against bad faith realtors? What is to be done if the director does not need any collective agreement? Will all lawyers become attorneys? These issues and some more…
Special guest of “Letter of the Law” – Minister of Justice of the Republic of Belarus Oleg Slizhevsky (Олег Слижевский) answered the questions of the internet users live on TUT.BY- Television. Denis Aleinikov, Senior Partner of «Aleinikov & Partners» law firm (Argument®) as project moderator.
Aleinikov: Oleg Leonidovich, after it had been announced that the Minister of Justice would be ready to be on-line and on air answer the questions of the internet audience, we have got not just the astonishment and gratitude comments, but also a huge number of particular questions the internet users interested in. Those questions refer to different spheres, in which the civil society contacts with the law, so I would like to start our dialogue with the audience with the basic question asked by one of the users: Dear Oleg Leonidivich, I am individual entrepreneur and I have applied to the Ministry of Justice for several times with the request to clarify some particular entrepreneurial activity legal acts. And I always got one and the same reply: The Ministry of Justice has no competence to clarify any legal acts. Meanwhile, a friend of mine, who is also an individual entrepreneur, has also applied to the Ministry and got a particular reply. Please, explain, whether it is within the Ministry’s terms of reference to clarify the legal acts and give direct answers to people?
Slizhevsky: When studying the questions of the internet users, I noted that the Ministry of Justice appears in the sense of a wide range of citizens like a global legal consultant. Issues which have been accepted by this live programme are very diverse and deal with all activity fields. About a half of the questions, unfortunately, do not come in touch with the Ministry of Justice’ frame of reference. The Ministry of Justice is a functional ministry, which, on the one hand, solves a wide range of state issues: management of the notarial system, civil status registration departments’ activity, material, human resource and organizational support of the courts’ activity, execution of court decisions, issue of statements upon the draft legal acts and the investment agreements to be concluded by the Republic of Belarus and some other issues.
On the other hand, activity of the Ministry of Justice does not substitute and shall by no means substitute the lawyers’ or the attorneys’ work in the field of legal consulting. We often receive appeals from the citizens, legal entities, and commercial organizations: We have got such a real life experience… Certain measures have been applied to us… Tell us, whether we are right or not? In point of fact, they apply to us as to the legal consultant with the aim we could help them solve some particular real life situations. This is not the task of the Ministry of Justice.
It also shall be noted, that according to the effective laws, the body issuing any regulation shall be entitled to interpret this or that legal provision. The Ministry of Justice is entitled to interpret normative acts in its activity field within the frames of legal normative acts the ministry itself adopts. On the whole, it is out of competence of the Ministry of Justice to clarify the legislation, so much the more, when the issue has to do with particular legal relations.
The author refers to the fact that his friend has got such a reply. In exceptional cases, when we see that the question refers to a wide range of citizens and entities, and is of controversial nature, and there is an assignment of higher authorities, for example, of the government, then we can bring out our opinion. But it won’t have a nature of official interpretation.
Aleinikov: Oleg Leonidovich, what cars do you prefer? What car do you drive?
Slizhevsky: The service car is Japanese, my personal car is German.
Aleinikov: There is an interesting question put by the Japanese car fan club members. “We are fan club members of a Japanese model. We have decided to come to the official level and take active part in public life, implement any events, arrangements, visits orphan homes. We thought to establish a public association and faced that we had to come through all circles of bureaucratic hell. Particularly we were inspired by such points like presence of the legal address and an accountant. We are very enthusiastic, we are car fanatics. Do we really need to establish a public association for a car fan club in order to become legalized?”
Slizhevsky: As far as I understood this question, amateurs of a particular Japanese car do not just meet and discuss breakdowns taken place, the ways to improve the visual configuration of a car and its technical properties. Certainly, this communication has come to a higher level, when it is supposed to take part in some joint events, which implies a certain activity arrangement. According to our laws, in order to acquire the form of a legal entity and to position you as the entity and have the ability to apply to the state authorities, it is required in this event to register a public association.
As far as all circles of hell is concerned… I believe, not enough efforts were made to establish a public association. Proceeding from the question, I don’t see any need in establishing a republican organization. We have several levels of public associations. In order to establish a local organization, 10 founders shall be enough. For the republican organization - 50 and more shall be needed. If you have at least 10 like-minded persons, you can apply to the Minsk City Administration of Justice, hold a meeting of founders, prepare a documents set and submit it for registration. Bikers, for example, in their turn, registered such an organization and then could jointly effect all the arrangements.
Aleinikov: And what should they do with the legal address, is there any possibility to rent administrative premises?
Slizhevsky: Pursuant to the general rule, there should be certain administrative premises, but there are also exceptions from this rule in the laws: a single-family blocked residential building or a part of the blocked residential building may be used as the legal address. But you should get a corresponding agreement of the local executive and distributive authority. There is an administrative procedure for getting such an agreement: 15 days are given for it and it is free of charge.
Aleinikov: So, there is no any bureaucracy, isn’t it?
Slizhevsky: It seems to me, initiators of this organization have worked insufficiently to accomplish their initiative.
Aleinikov: It has been often discussed in the Internet that it is extremely difficult to register a public association or a political party in Belarus. What do you think about it? Are there any obstacles in that respect today?
Slizhevsky: How can one say that it is extremely difficult to register a public association, if 15 political parties, 998 party organizations, 37 professional associations and 23 thousand trade union organizations, 2402 public associations, among which 230 international, 682 republican and 1490 local organizations have been registered by January 1, 2012? 36 875 organizational structures of public associations have been registered and kept record of over the whole territory of the republic.
I cannot say herewith that all the public associations shall be registered. There is a certain order stipulating the procedure of establishment of a public association. There are some requirements for the documents to be submitted for registration. Unfortunately, those who establish a public association often keep records of their documents irresponsibly. In effect, they reveal whether the meeting has been hold or not. If we see that the information recorded does not correspond to the real facts, it shall be double-checked. The decision on refusal shall be made due to the absence of the fact of establishment. No resolution on establishment was taken, and the stipulated procedure was violated. There is often lack of good faith in preparing documents. We see that the facts in the submitted documents are from time to time intentionally falsified. But the refusal ratio among the documents under consideration is insignificant.
Aleinikov: Thank you for a comprehensive reply. The second actively discussed issue in the forum is the problem of “simulated” real estate services in the sphere of accommodation rent. I suppose, most students and young families are well familiar with the problem. “Dear Oleg Leonidovich! I wanted to rent a flat. Looking through the applications I found the right option. I called and I got a reply that it was Realtibel Agency LLC. Indeed, they offered that flat, but in order to get the telephone number of the flat owner, I needed to come to the office and sign a Real Estate Services Agreement upon prepayment basis. I did it, I came to the office, talked to the agent, and he called the flat owner and said that the flat was available. Then I paid money and after that I could neither get through the owner, nor the real estate agents. In the end, the money paid, no flat, no one picks up the phone”. How can you comment upon this activity? What is the way to fight against it?
Slizhevsky: I am personally filled with indignation at such facts, because you may not say that the real estate services are cheap today. The people providing such services for money shall do it with adequate quality. This situation demonstrates that the company was just intended to get its money without making any special efforts to provide the services. I should say that it was flat rent applications peak submitted by the real estate agencies from the midsummer, consequently more and more complaints about their activity has been received since then. In particular, the complaints were referred to improper services and failure to comply with the agreements, despite the money had been taken from the citizens. In this regard we were to carry out inspections upon a number of complaints, which resulted in license termination for some of the real estate companies.
In regard to this example I can say that several applications with complaints about the activity of that Realtibel LLC were submitted by the citizens in October. The inspection upon those complaints revealed a whole number of law violations, and today’s situation puts the question mark in front of the issue of consideration of that company by the legal services licensing commission. This commission has been established at the Ministry of Justice.
The Ministry of Justice’ actions in respect of the unfair real estate agencies shall have fundamental nature, because accommodation is one of the most important issues for people. Any violation in this part shall be prevented in a cardinal way.
Aleinikov: Oleg Leonidovich, the new Law on Advocacy has been adopted, and starting from April next year only attorneys shall provide assistance to their clients in courts. Evidently, business lawyers providing their legal services to clients in courts today shall need to pass to the advocacy. Here is the question from them: “Dear Oleg Leonidovich! I and my colleagues are attested lawyers and we would like to pass to the advocacy according to the procedure stipulated by the new law on advocacy. As you know, we need to have a training course as attorney-trainee. We applied to Minsk City Bar Association for the purpose of getting training there. However, we got a refusal and we were told that a trainee shall be paid money at the expenses of the bar, and since there is no money, they are not able to accept us for training. It turns out that pursuant to the law we are entitled to become attorneys, on the other hand, we are not able to do that. Please, tell us, what shall be done in the situation? Are we able to get a training for free? Sorry, we don’t sign this application for the known reasons.” What is your answer?
Slizhevsky: Proceeding from the letter of the law on advocacy and legal practice in the Republic of Belarus, certain requirements shall be complied with in order to undertake the training. Firstly, the application shall be submitted directly from the person seeking to undertake this training. Secondly, the decision to provide the applicant with training shall be made by the council of the corresponding territorial bar association. Thirdly, for the purpose of making such a decision, an application of respective associations, legal consulting bureaus, attorney bureaus or attorneys performing their activity individually, shall be submitted. The complex of those factors allows undertaking the training.
I cannot say why certain persons were not able to undertake training. I shall study this issue further. When the law came into force, we appealed to the business lawyers not to set aside the passing procedure up to the deadline. In respect of the part of the question, whether it is possible to undertake training refusing payment aspect, I would say: “No”. The Law on Advocacy and Legal Practice stipulates the employment relations between the trainee and the person, providing the training, in other words, legal relations of the employee and of the employer. They always imply payment for work. In this connection there should be at least minimal salary paid and this is a financial burden of the bar association.
Aleinikov: Wouldn’t this financial burden become a technical barrier for business lawyers passing to advocacy? All business lawyers having less than five year-experience as attested lawyer need to undertake training, don’t they? Wouldn’t it happen that by means of that technical (financial) barrier we will cut off the new generation of lawyers from passing to the advocacy?
Slizhevsky: It should not happen anyway, since the spirit of the law and the concept on the whole were absolutely different. There was no any objective to cut anyone off; on the contrary, it was intended to draw even more young blood, skilful business lawyers to the advocacy. If there is a technical problem which appeared and created some temporal difficulties in this regard, I can just say that it will be solved.
Aleinikov: One more question from the user: “Oleg Leonidovich, I appeal to you on behalf of the majority of the private companies’ employees. We don’t have any collective agreement. We came to the director with that problem and he answered that there was no need to have a collective agreement. Does he have right to give such an answer? What shall be done?”
Slizhevsky: As far as it goes to the state organizations and enterprises, I think, collective agreements are effective practically at each of them. They stipulate additional social benefits for the employees of the labour collective. Indeed, private companies face such a problem. Not everybody is willing to have a collective agreement in the enterprise, in which it would be required to stipulate additional benefits for the employees. There is a procedure in this regard, when the employees suggest to their employer to make a collective agreement, which shall be carried out by the representative body of the employees. According to our labour laws, such representative body is a trade union. I.e. a respective trade union organization shall come to the employer with the initiative on establishment of a special committee to prepare a draft collective agreement. Then the commission shall submit the draft collective agreement to the employer for approval. In the event of refusal of the employer the procedure determined by the laws shall be applied.
Aleinikov: A question from a different field: “Is it always supposed in considering a criminal case that the accused shall be provided with the attorney free of charge? Is the court able to make a decision upon the criminal case without evidence given by the accused and in his absence, if he cannot appear before the court on valid reasons due to his location abroad?”
Slizhevsky: For the accused located far abroad, there is no encouraging information which would be of interest for them. It is just one of the two cases when the criminal case may be considered in the absence of the accused: when the accused is located outside the territory of the Republic of Belarus and avoids attending the court sitting. If the accused has made up his mind to hide abroad and hopes that it will be impossible to consider the case without him, he is wrong. He can be drawn to the criminal responsibility even in the event he avoids being present in court.
The second case, when the criminal case may be considered in the absence of the accused is when the person accused of committing a crime (if the crime does not pose any significant risk to the public or is a misdemeanor), pleads guilty and applies for consideration of the case in his absence.
The law on advocacy and legal practice provides for the cases, when the suspected person or the accused shall be provided with the legal assistance at the expenses of the local budget. First of all, in the cases when the inquiry, pretrial investigation, court proceeding shall be conducted upon the assignment through the territorial bar association on the request of the body conducting the criminal procedure, the attorney may be available free of charge.
This assignment shall be made upon the application of the suspect or the accused. Secondly, for getting by the suspect or by the accused of the legal consulting at the expenses of the local budget - before the first interrogation in the event of detention or applying such measure of restraint as taking into custody. Thirdly, in cases when participation of the defendant upon the court records and the criminal case is mandatory, and the suspect or the accused has no any defendant. There is one more case, that is when the defendant chosen by the suspect or by the accused is not able to participate in the first interrogation of the suspect or the accused latest 24 hours from the moment of acquiring the status of the defendant, or in case of his failure to appear within the same time for participation in performing investigation and other procedural actions.