The draft law on mediation restricts advocates’ rights - Oleksandr Drozdov

The draft Law of Ukraine "On mediation" (registration no. 3665) approved by the Parliament in the first reading contains restrictions on advocates’ rights. A letter referring to such restrictions was sent to Mr Andriy Parubiy, Parliamentary Speaker, by Mr Oleksandr Drozdov, President of the Union of Advocates of Ukraine and Head of the HQDCB, who is also a member of the UNBA Committee on mediation.

Article 7 of the proposed draft law stipulates that a mediator cannot act as an advocate, representative and/or legal counsel for a party in the mediation. A person cannot be an advocate or a representative of a party in the mediation in the case (proceedings), in which he/she provides/provided services of a mediator. In the opinion of Mr Drozdov, these provisions are contrary to the provisions of the Constitution of Ukraine and the Law of Ukraine "On the Bar and Practice of Law".

Article 59 of the Constitution of Ukraine stipulates that everyone has the right to professional legal assistance. In the cases provided for by law, assistance is provided free of charge. Everyone is free to choose a defender of his/her rights. In turn, Article 131(2) of the Fundamental Law stipulates that the bar functions for the provision of professional legal assistance in Ukraine. The independence of the bar is guaranteed. Only advocate can represent another person in a court or provide defence in criminal proceedings.

Article 4 of the Law of Ukraine "On the Bar and Practice of Law" provides that practice of law is carried out on the basis of principles of the rule of law, legality, independence, confidentiality and avoidance of conflict of interests. Conflict of interests is a conflict between the personal interests of an advocate and her professional rights and responsibilities, the presence of which could affect the objectivity or impartiality in the performance of her professional duties of the advocate as well as her acts or omissions in the practice of law (Article 1 of the Law). It is the advocate who is required to immediately inform the client about the conflict of interest (Article 21 of the Law).

However, Article 21 of the Law of Ukraine "On the Bar and Practice of Law" provides that advocate is prohibited: 1) to use her rights against the rights, freedoms and legitimate interests of the client; 2) without the consent of the client, to disclose information constituting professional secrecy, to use it in her own interests or the interests of third parties; 3) to take position in the case against the wishes of the client unless the advocate is confident in the client’s self-incrimination; 4) to refuse to provide legal assistance, except when required by law.

Accordingly, neither the Constitution nor the specialized law establish a range of grounds under which an advocate can be limited in providing professional legal assistance. At that, ascertaining the presence or absence of such circumstances is made on case-by-case basis taking into account the mentioned criteria, normally between the advocate and the client. Therefore, it is unlikely that the law, other than in connection with the mentioned grounds, can a priori prohibit an advocate to carry out his activities only because he conscientiously realized his constitutional right to provide professional legal assistance to the client.

It is also important that in choosing among other participants of legal relations an advocate as a subject, on whom relevant restrictions are planned to be imposed, the draft law becomes quite vulnerable in view of compliance with standards of fundamental human rights and freedoms in terms of the general prohibition of discrimination, because it inter alia deprives an advocate without proper grounds of the right to exercise use professional skills also in other areas of public relations, for example, to act as a mediator.

At the same time, the proposed draft law on mediation sets the basis for limiting the constitutional right of persons, who in criminal proceedings or other judicial proceedings decided to take part in mediation, to a free choice of a counsel in this alternative (non-judicial) method of dispute resolution and deprive participants of judicial proceedings of professional legal assistance, which will lead to violations of the right of a counsel to provide professional legal assistance and will significantly limit the requirements of Article 131(2) of the Constitution of Ukraine.

Referring to the Law of Ukraine "On the Rules of the Verkhovna Rada of Ukraine", Mr Drozdov requested to inform the VRU specialized committee about the UAU opinion in order to prevent possible restriction of constitutional rights of everyone to receive a professional legal assistance and to a free choice of a defender of their rights.