The UNBA urges the President of Ukraine to veto unconstitutional amendments to the law on the bar
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Address of the Ukrainian National Bar Association to the President of Ukraine due to unconstitutional changes to the Law "On the Bar and Practice of Law".
On 21 December 2016 the Verkhovna Rada of Ukraine adopted the amendments to the Tax Code of Ukraine. Quite unexpectedly, in breach of a number of constitutional and legislative provisions and requirements of legal technique, the text of the draft law (registration no. 5132) includes changes to the Law "On the Bar and Practice of Law". According to its authors, the draft law was adopted in order to ensure compliance with the Tax Code of Ukraine concerning the annual revision of the rates of certain taxes specified in absolute terms, the need to adopt a balanced budget and adapt the provisions of the European law. In other words, the draft law concerns the tax and budget legislation.
Amendments to the law "On the Bar and Practice of Law" included into this law limit the powers of the bar self-government bodies, including the right of these bodies in their sole discretion to determine the amount and procedure of payment of advocates’ annual membership fees, the cost for the traineeship and the fee for passing the bar exam. In addition, the proposed changes also breach the statutorily defined balanced division of powers between the bar self-government bodies.
The bar of Ukraine is a constitutional institution, whose independence is guaranteed. The principles of organization and activity of the bar and practice of law in Ukraine are determined by law. The real independence of the bar was gained as a result of adoption of the Law “On the Bar and Practice of Law” in 2012, adopted as one of conditions of conclusion of the Association Agreement with the EU. According to this law, the bar is non-State self-governing institution that ensures the defence, representation and provision of other types of legal assistance on a professional basis, and independently decides on its self-organization and activities. The bar self-government exists to ensure a proper practice of law and professional guarantees, to protect advocates’ professional rights and to ensure a high level of professionalism of advocates and their discipline.
Presidential Decree no. 276/2015 "On the Strategy of Reforming the Judiciary and Related Legal Institutions for the Period of 2015-2020" expressly provided “strengthening at the institutional level of the Ukrainian National Bar Association to ensure proper professional activities of the bar, management of the legal profession and representation of collective interests of advocates”.
Ukraine also has international obligations under the Basic Principles on the Role of Lawyers (Adopted by the VIII United Nations Congress on Crime Prevention in August 1990).
The purpose of the Principles is to assist member States in their task of ensuring the proper role of lawyers, which must be respected and guaranteed by governments in developing national legislation and its application by lawyers, judges, prosecutors, members of the legislative and executive branches. According to the Principles, professional associations of lawyers, which maintain professional and ethical standards, protect their members from unwarranted restrictions and infringements, provide legal assistance to anyone who needs it and cooperate with the government and other institutions in order to achieve the goals of justice and the public interest, should play an important role.
The Principles state that professional associations should cooperate with governments in order to ensure that lawyers are able, without undue interference, to assist their clients in accordance with the law and recognized professional standards and ethics.
Accordingly, the way the draft law no. 5132 amending the law "On the Bar and Practice of Law" was adopted, is contrary to the Constitution of Ukraine, special legislation, Presidential Decree which defines the logic of reforms in the judiciary and international obligations, which guarantee the independent status of the bar. In addition, such legislative initiative can be regarded as a breach of the Association Agreement with the EU.
One can speak about a gross interference of the State with the powers of the bar self-government bodies which form the basis of an independent constitutional status of the bar. The proposed changes to the special law will make the independence of the bar a declarative principle.
The current Law "On the Bar and Practice of Law" empowers the congress of advocates of Ukraine to adopt decisions on advocates’ annual membership fees, to determine directions of their use and responsibility for non-payment of such fees (Article 54). Article 55 of the Law empowers the Bar Council of Ukraine to set the amount and procedure of payment of advocates’ annual fees and to manage their distribution and use (if the CAU decided on the payment of annual fees by advocates and determined the directions of their use). Under the law, the BCU also determines the amount of contributions made by qualification and disciplinary commissions of the bar to support the functioning of the Higher QDCB.
In other word, that law and the procedure of its adoption in part of amendments to the Law on the Bar directly contradict the above requirements of national and international law, and negate the purpose of reform of the judiciary. Introduction, consideration and adoption of amendments to this draft law in part of amendments to the Law on the Bar took place within one day, which is also contrary to the Law of Ukraine "On the Rules of the Verkhovna Rada of Ukraine". It is clear that the MPs, authors of that draft law, did not approve such a blatant attempt to undermine the constitutional principles of the bar of the authors with the UNBA.
The UNBA was excluded from this process, despite the fact that it is statutorily authorized to represent the bar in its relations with public authorities, local governments, their officials and employees, enterprises, institutions and organizations regardless of ownership type, public associations and international organizations.
The bar will never agree to such a dramatic turnabout in its reform, as it in an unconstitutional and illegal manner deprives the bar of its key self-government functions. The obvious consequence of this will be a destruction of most of the guarantees and benefits given by a special constitutional status to the bar.
We urge you, Mr President, to veto the Law “On Amendments to the Tax Code of Ukraine to ensure the balanced budgetary revenues in 2017” (registration no. 5132 of 15/09/2016) and to demand to exclude from the text of this law the amendments to the Law "On the Bar and Practice of Law”.
"As the CCBE observer member, the UNBA will inform the Council of Bars and Law Societies of Europe, Venice Commission, United Nations, national bars of Germany, Great Britain, France, Georgia, Canada and the US a serious threat to the European way of Ukrainian Bar.
Lydia Izovitova,President of the Ukrainian National Bar Association, Bar Council of Ukraine
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