Doctor of Juridical Science, lawyer
I. Malynovskyi Institute of Law
The National University of Ostroh Academy
Absenteeism of a lawyer: theory, legislation and case law
Abstract: The article describes some procedural and legal aspects of occupational absenteeism of a separate entity - a lawyer. The decisions of the Committee on Human Rights of the UN, the European Court of Human Rights and the legislative practice of settlement of absenteeism in legal support in European countries were analyzed and universal signs of absenteeism in advocacy were found in this research.
The advocacy was reviewed in the context of such types of absenteeism as conscientious, unconscionable, explicit and hidden. The considerable attention was paid to the absence of a barrister in a court or while participating in an investigation as it was thought to be the most common form of absenteeism.
It was proved that absenteeism of a barrister closely correlates with the effectiveness of protection in criminal proceedings. In the article the cases of lawyers’ absenteeism are regarded in the context of practical providing of human right on the effective legal support, which is an integral part of a fair trial according to the Art. 6, p. 3 of the European Convention on Human Rights and Fundamental Freedoms.
In the paper it was considered the problem of advocacy independence and the possibilities of a state influence onto the lawyer in a case of his/her failure to comply her/his professional duties. In the case of obvious, fast and loose absenteeism of lawyers the state has the responsibility to intervene in order to ensure the right to qualified and effective legal assistance. Under such circumstances a court, pretrial investigation bodies or prosecutor have the right to change the barrister or to force him/her to perform her/his duties conscientiously or to take any other measures like to postpone a hearing. The lawyer has to be responsible only in the case of deliberate absenteeism that has led to non-providing of human rights to a viable defense.
The article deals with absenteeism as well as tactical defense.
Based on the research of judicial precedents and European legislation there were found some problems and gaps in the mechanism of providing of the conventional human right to defense in general.
Key words: absenteeism, a lawyer, а barrister, the European Court of Human Rights, a judicial precedent, an advocacy.