An interview with Tomáš Sokol, Laywer
Admitting Mistakes Is Not Very Popular Here
Last June, the best known advocate in the Czech Republic, Tomáš Sokol, former Minister of the Interior, and one of the most distinctive representatives of Czech advocacy, founded the Union of Czech Lawyers with his colleagues. Why, according to him, are advocates often demonized? And what are the disadvantages of his face being known to the public? In his interview for Leaders Magazine Prague, Tomáš Sokol claims that politics is like a drug. “I am happy that I was thrown out before it grew addictive,” he admits. He also explains why he had problems after the revolution, when he wanted to prosecute the communists.
Dear Dr. Sokol, according to the latest surveys, the crime rate in the Czech Republic went down last year. Did you also notice this trend firsthand?
“No, and I guess there is no reason that I should. A lower crime rate does not necessarily mean a lower number of accused. It may mean that more crimes are being solved, so even with a lower crime rate, the number of accused may go up. In my opinion, there still are many accused, maybe even too many.”
Recently, we “celebrated” the two-year anniversary of Václav Klaus’ presidential amnesty. Does it surprise you that one-fourth of the prisoners have already returned to prisons? Is this the normal rate of recidivism?
“It does not surprise me. Good pigeons come back. This is always true, and I think it was the same under the “Reds” as well. Do not expect a good explanation from me, this is a problem of another professional field. But it is also a matter of point of view. From my point of view, it is important that most, i.e. three quarters of the pardoned took advantage of their opportunity. However, I was a bit surprised by the lasting level of media hysteria. Below, you can also see my answer to your question, which is what I would add to the Criminal Code. I think it will surprise me all my life how few of my fellow citizens respect common values, act with dignity, and honor a fair process. Look how important it is for them stop a nasty suspect, and to make sure that he doesn’t escape punishment. Even if ten innocents must go down with him.
What are the disadvantages of, for a long period of time now, being one of the best known lawyers here? Don´t your clients sometimes have impossibly high expectations of you?
“I guess such are the expectations for many clients, regarding their advocates. The same goes for patients who expect miracles from their doctors. Expectations may increase over the years of being known like that, but on the other hand, over the years I have also been learning how to face this. Among other ways, I take a merciless, internal approach to each case, and give my best, honest analysis to clients. Just yesterday a client pleaded with me in a letter, begging me not to be so strict with him, regarding his position in his case. From my point of view, it is my priority to explain the clients core of their problem, doing so in a realistic way, and with no bombastic promises, and to offer a reasonable solution. And then I must fulfill that. I believe this is also somehow related to a thing called “being well-known”. Although it´s true, and I’m good at what I do, sometimes the clients come believing I am something like the “Miraculous Virgin of Our Office of Legal Lourdes.’”
Is it harder for an advocate to plead the case of an innocent person or a guilty person?
“On principle, I do not see, nor may I see, a difference there. In a criminal trial, the innocent are often separated from the guilty by the mere extent of convincing evidence. Both the guilty as well as the innocent have the right for a legal and just process. This means a process in which, among other things, all important factors and evidence are considered. My duty, which I still perceive as my mission in life, is to contribute to ensuring this kind of process for my clients. Of course in a case, there may be a big difference between advocating for someone who is judged with twenty pieces of evidence against them, and someone against whom there is no evidence at all. And it is an amazing feeling when finally you liberate someone from their problems, being absolutely sure they are innocent. For some people, an acquittal means a kind of release from previous accusations, and is like returning their lives to them. There are not many cases of admitted guilt, which is revealed to the advocate, but claimed to be innocence to the courts. Usually, the advocate himself does not know what the real story is. He has no reason to not believe his client, however, there is a matter of the quality of the evidence, or its ability to convince a court. And we are back to the just process again. What do I care if the person concerned is guilty, if there is not enough evidence against him? Should the judges have the right to judge based on their feelings in such unclear cases? Or from their crystal ball? And should I have that right even though the client claims he is innocent? Or should I go to report him, if he confesses his sins to me privately? Or just pretend I am advocating for him? The evidence is what I abide by. On the other hand, I am disgusted by those who are able to judge guilt according to somebody´s face, or what rumors there are about him, or that he may have suspiciously too much money. However, quite often, especially with so-called economic crimes, the question is whether the accusation really is a criminal act, or completely legal behavior. Then it becomes a matter of purely legal argumentation related to the client’s behavior, not their guilt. And there are also many cases in which clients are a bit innocent and a bit guilty. Sometimes the truth leans more towards one direction, sometimes towards the other. In such cases, it becomes a question of how you want to perceive the person and what he did. Typically, this happens in cases of traffic accidents. Did the driver drive too fast? Did he drive recklessly? What was the unexpected factor, or even their unlucky occurrence? How would I have been driving in that situation?”
Have you ever been convinced of the innocence of a client, but despite your conviction, the court´s opinion was different? Or has it happened the other way around?
“The first scenario is a bitter reality of my profession. Fortunately, I have not experienced the second scenario yet. However, an ugly similarity is when the advocate assesses the evidence as insufficient to ask for acquittal in court, and although the client believes they are innocent, the advocate convinces the client that the best thing to do is to aim for a light sentence. And so the advocate pleads this way for the client. As we say, he pleads him the sentence. But the court then in fact acquits the client, because the evidence did not convince them. For the client, it sure is nice, and as a person the advocate can also be satisfied, but professionally it is a nightmare. Fortunately, this has not happened to me yet, but it happened to others and I really would not like to have been in their shoes at that moment.”
In June, you and your colleagues in advocacy founded the Union of Czech Lawyers. Why?
“Primarily this was our consensus on perceiving the same problems, finding the same reasons for their existence, and having the same or similar opinions on how to solve them. All of this was in relation to criminal proceedings, defense, and everything that is connected - let´s say professional issues. If I start with my favorite topic, it is a completely inadequate, really glorified idea of what the criminal law can heal. Many people think that it is possible to train adults to behave in ways that others consider proper, by promoting the permanent threat of punishment. Better yet, they will be sent away to prison, since we have already demolished the gallows here. This is very wrong. We also do not agree with how easily, and without considering the facts of a case and its significance, the criminal prosecution is sometimes started. It leads to unnecessary human suffering, sometimes even to personal tragedies. Excessive use of some criminal prosecution procedures, such as wiretapping, is not perceived positively by us either. And there are more and more various problems, typical for advocacy. After discussing all of this for some time with colleagues, sooner or later you realize that it is not as much about discussion, but simply reciting the same problems. At the same time you are convinced that it is not just professional degradation, and the complaints that this brings, until the idea arises for finding a platform to point out the flaws together, with greater conviction. We may even possibly offer solutions. All of this already goes a bit beyond the role of the Czech Bar Association, which is rather a professional association as well as the state administration institution in the area of advocacy. So the Union originated from all of that.”
Have you already succeeded in some ways? For example have the prosecuting authorities admitted their mistakes yet?
“Admitting mistakes is not very popular here. Another thing is that we believe the pressure we are exerting will also force the criticized to “clean up” a bit. However, for example regarding our notice of the fact that in some cases the advocates have problems accessing court files after pressing charges, the chairmen of some courts reacted very positively, assuring us they will make sure this does not happen in their courts. Of course, it is necessary that the voice of the Union is perceived as important. Therefore, we make the effort to have our statements balanced and legally convincing. But that is not just six months of work.”
Is the Union “open” to common citizens as well? Who is its activity intended for?
“No, it is a narrowly professional club. However, with aspirations to improve the overall situation in the field of criminal law, there are wider effects than just for advocates, unlike many so-called non-profit organizations that pretend to be born exclusively for the good of humankind, but which simply work for their own interests.”
Many people have distorted ideas about the work of advocates, and generally about criminal proceedings. Which idea is the “most deeply-rooted”?
“We spoke about that a few moments ago. I see a big problem in the fact that many people are still able to decide somebody´s innocence or guilt just based on what they heard in the media, or in a supermarket queue. And quite logically, such people then consider an advocate a bothersome barrier, standing in the way of the accused going to jail where he belongs, since the street has already passed judgment on him. And guys in the pub say he must be a stinker too. For this same reason, which I mercilessly refer to as stupidity or narrow-mindedness, many people are convinced that an advocate bewitches the court somehow, covers the clear evidence with steam, and thus protects his client from justice. In worse cases, he simply corrupts the court. For me personally, there is one more ridiculous type of theory, i.e. that I collected a bunch of discrediting information on judges when I served as the Minister of the Interior, and now I am blackmailing them. The fact is that at the time of my service as minister, most of today´s judges were just about to reach the peak of their pubescent lives, and the only compro you could get your hands on was about them smoking instead of going to their classes. But these nitwits, who accuse me of blackmail, simply do not realize this. But even quite reasonable people somehow cannot understand that criminal proceedings, in the same way as civil proceedings, work mostly with information coming from the side that bears the burden of proof. In criminal proceedings this means the police and public prosecutor. And the advocate cannot hide this information, carry it away, or possibly tear it from the file and eat it up. That is, both sides play the same cards. True, an advocate may discard the proof; I mean in the proceedings, for example by pointing out that it was illegally tampered with, or illegally acquired. However, this is his duty by law, and the problem, of course, lies somewhere else. It is the problem of the one who acquired such proof. As an advocate, I can also point out the fact that the proofs are contradictory to each other, that they represent a logical contradiction, and I can disprove legal conclusions and argue for a different, more correct interpretation of the law, but always within the frame of the evidence and the legal condition introduced by the defense. I can also suggest the execution of other evidence, produce an expert’s opinion disproving the one produced by the defense, but all of this is again judged by the court. In short, it is quite simple, and at the same time complex work, which is definitely not based on dirty tricks. But who cares. It is too difficult to understand, so most people choose to explain everything their own way. If someone should not be convicted, it is a matter of spells, magic tricks, and the existence of hellish creatures. And the most hellish of them is an advocate.”
If you had the power to remove one guilty act from the Criminal Code right now, which one would that be?
“There are many of them. For example the sanction for graffiti seems funny to me. Or the possibility of prosecution for prostitution “…in the vicinity of a school, school or similar object or place that is reserved or intended for residence or visit of children…”. Not that I personally need to know that, however, it niggles at the back of my mind a bit, how far from a nursery you can do this…Or that an at-home prostitute has to move if they build a school next to the house where she lives and conducts business.”
And which one, on the contrary, would you add to the Code?
“That is simple. See:
(1) One who, if only by negligence, relentlessly blathers about something which he knows nothing of, will be sentenced to prison up to one year or his activity will be banned.
(2) The offender will be sentenced to prison for up to two years, or his activity will be banned, if he commits the crime stated in paragraph 1 through the press, radio, television, publicly accessible internet network or another similarly effective way.
(3) The offender will be sentenced to prison for up to five years or his activity will be banned if he commits the crime stated in paragraph 1
a) in connection to demanding that some action is taken, especially by the public administration authorities, or
b) in connection to promising something to others.
Consequences of such a provision would be similar to a legal nuclear bomb being dropped on the CR. Its first paragraph would hit about half of the adult population. In the epicenter of the explosion, i.e. “hit by the second and third paragraphs” would be many journalists, politicians, and various monsters who somehow believe they are celebrities. For the head of the state, it would be the easiest. He would die on the spot. Deputies and senators would then spend about four months just voting to not turn each other in for this criminal offense, committed in the third paragraph sub lit. b). But the freedom of speech, the important part of democracy, includes the right to say, or as the case may be, even preach whatever nonsense you wish. God help us with that. Or nature. Whatever your faith may be.”
Do you ever think back to the time you were the head of the Czech National Social Party? And was it actually possible to prevent its near collapse?
“It was not. As soon as I realized that, I immediately left.”
Was it your first experience with politics?
“After a year and half in the government of the CR, I already had some political experience. This problem in the party was one of human resources. The people there focused just on their inner aversions and arguments, and that is the end of any community. Every human community always spends part of its energy on solving inner issues. That is the necessary cost. However, if you spend most of your energy on that, it means the end of productivity. I had no choice but to leave.”
After that your political career was relatively short. Did you regret, after some time, that you did not have more space to pursue your ideas?
“No. I am happy with that decision almost every day, and I mean it. Politics is like a drug and I am glad I was thrown out of it before it became an addiction. This is not a cheap criticism of politics. The thing is, you pay a price for taking part in politics in the long term, a price which is too high for me. At the time, I was trying various ways to make my way back there, though I did not realize this, and let me take this opportunity to express my thanks to our citizens and those who did not vote for me, as their votes kicked me you know where. I am sure that thanks to this, I now do much more interesting things, I have a much more colorful and demanding life in my profession. And most importantly, I am not part of that political ghetto which would have surely beaten me, as it does most of the others. And so, my private life is different as well. Besides all of this, I understand that a politician is elected by people whose IQ is not much higher than the temperature in the election room. So, it is necessary to speak to them on their level, and promise things in ways they understand. But after all those years of people coming to me for advice, I somehow would not be able to press someone at an election meeting, or directly from a billboard, the idea that I am a perfect match for the Parliament, that I might be useful there, and that they need me there the same way they need the detergent offered on the adjacent billboard. And with my message delivered so that even a bypassing hamster could understand. I respect many politicians, I know that the Parliament and elections are absolutely essential attributes of democracy, and democracy is one of the top values for me, but my personality somehow does not fit the system.”
Your experience as a prosecutor was relatively short too. Would you ever have the courage to return to the system again?
“It is not a matter of having the courage or not. I would. But there are many other unsurpassable barriers here. However, to be honest, I believe I am working on many cases that would make me untrustworthy for the majority, if I suddenly walked over “to the other side.”
How has the work “for the other side”, public prosecution, changed since the beginning of the 90s?
“Not so much, I would say. It remains a monocratic body with specific functions in criminal proceedings and other areas of public administration. True, it was never drowning in internal problems, and as far as I know, the only one who could complain about political pressure being exerted on him in connection with his working activities, was myself. This happened when I wanted to prosecute communists for supporting an organization oriented toward violations of human rights. However, I don´t think that nowadays the worshipped need for political independency of public prosecutors is motivated by some bitter experience from the past. I admit, I don´t understand this very much and it might even be that difference you are asking about.”
Why did you start teaching in 2011? And why did you choose the CEVRO Institute? Wouldn´t the law faculties fit your experience better?
“Simply because they offered me the position. I was not pondering how much it fits me, or how well I fit there. The school looks decent to me, the colleagues as well, there are many students, and I am teaching them what (hopefully) I know. Nothing more, nothing less.”
When did you last spend a whole day “without thinking about rights”? And can a criminal advocate actually “switch off”?
“To begin, I could say that married men spend many days of their lives without rights. For example, without the right to visit their friends anytime, bring home a new acquaintance from a wine bar, and so on. But seriously. The whole day without law? Do you want to kill me? You are probably right that there are lawyers who never switch off, even though they should, because they simply do not know how. And that is quite dangerous and sometimes it crushes them. There are also others who seem to be switched off basically all the time. Well, not so good either. For me, it is all about having fun, so I am switching here and there but I am not switching off. For a while I think about law, then sports, books, friends, the pub, and more. Plus the family, of course, mingles everywhere. And then the cycle begins all over again. I guess someday it will all switch off by itself, but I am not thinking about that.”
Source: Prague Leaders Magazine
Author: Jaroslav Kramer
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