UNBA opinion on constitutionality of advocates’ monopoly in representation in courts

On 22 January 2016 the Constitutional Court of Ukraine officially published the Opinion, adopted on 20 January 2016, in the case concerning the request made by the Verkhovna Rada of Ukraine regarding the conformity of the draft law “On amendments to the Constitution of Ukraine (on questions of justice)” with the requirements of Articles 157 and 158 of the Constitution of Ukraine. The Ukrainian National Bar Association also expressed its position in the scientific opinion (available in Ukrainian in the materials attached to this news) on the constitutionality of Article 131-2 of the draft law, which guarantees at the constitutional level the independence of the bar and introduces exclusive right of representation by advocates in courts.

The Association considers that the exclusive representation in court by advocates will ensure high quality of legal assistance and will be one of the guarantees of everyone's right to a fair trial. Thanks to the introduced novel provision, the quality of representation of citizens in all courts will increase considerably, as the advocate’s responsibility to a client will be closely monitored by qualification and disciplinary commissions of the bar. In fact, said amendments are set out in paragraphs 1-3 of Article 131-2 of the draft law intended to systematize the constitutional rules governing the relevant legal institutions and are aimed at incorporating the existing legislation into the Constitution of Ukraine.

In its position, the UNBA refers to the European practice - the majority of the European countries are examples of complete or partial monopoly of advocates in the legal market, as well as on the favourable opinion of the Venice Commission on the draft constitutional amendments, certain judgments of the ECHR and the Constitutional Court of Ukraine, in particular, the CCU judgment in the case № 23-рп/2009 of 30 September 2009 (case on legal aid). "This CCU judgment is actually a pointer to the introduction of the monopoly of advocates in the court cases, because the State thus assumes an obligation to guarantee a possibility of providing qualified legal assistance. In other words, one talks about a clearly defined area of responsibility of the State", - reads the UNBA Opinion.

The UNBA experts also refer to the existing positive experience in criminal proceedings, since advocates have actually been working in the complete so-called “monopoly” in respect of defence and representation in criminal cases in the course of the last three years, and have honourably acquitted confidence both on the part of the State and the clients.

At the same time, the phased introduction of representation in the courts and defence from prosecution exclusively by advocates, as suggested in subpara. 11 of para. 16-1 of Section XV "Transitional Provisions" of the draft law, may cause violation of the rule of law. The UNBA considers it appropriate to establish a deferral (moratorium) for a certain time (e.g. one year) of the simultaneous introduction in all courts of representation and defence from prosecution exclusively by advocates.

The UNBA Scientific Advisory Board’s position made in the constitutional proceedings on conformity of Article 131-2 and subpara. 11 of para. 16-1 of Chapter XV "Transitional Provisions" of the draft law “On amendments to the Constitution of Ukraine” with Articles 157 and 158 of the Constitution of Ukraine can be viewed in the news materials (in Ukrainian).

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