UNBA informed the US that Bar reform at risk due to derogation from democratic principles

UNBA addressed the US Ambassador to Ukraine Mrs. Marie L. Jovanovitch to inform her that the Bar reform in Ukraine is at risk given that European standards and principles  will be violated as a result of adopting the proposed amendments to the law "On the Bar and Practice of Law". Similar letters were sent to a group of Members of US Congress.

Letters were sent on 26 January 2018.

“We ask you, within the limits of your competence, to support the strengthening of the Institution of the Bar in Ukraine within the framework of democratic and transparent process and to prevent the demise of the Bar as an important component of the justice based on European standards and principles.” – states the letter to H.E. Ambassador.

UNBA informed Her Excellency about state of the legal profession in Ukraine, key provisions of the current Law of Ukraine ‘On the Bar and Practice of Law’, that fully complies with 2011 Joint Opinion of the Venice Commission. UNBA also mentioned about its continuous opposition to the way of preparation of the draft law and concerns expressed by CCBE – the leading professional organization of advocates in Europe.

The letter conveyed the position of BCU that maintains that the process of drafting amendments to the Law ‘On the Bar and Practice of Law’ did not become transparent, inclusive with regard to the official representatives of the advocates’ community and the draft law itself was not offered for an open discussion within the advocates’ community and generally did not comply with principles of democratic governance, publicity and openness of governments’ action. The right of the Bar to be represented in the relations with authorities by the Ukrainian National Bar Association, was not observed, while UNBA was squeezed out in a manifestly manipulative way from participation in the process of drafting the core law, by way of involving certain public organizations and individual advocates.

“We would like draw your attention to the fact that the current law ‘On the Bar and Practice of Law’ was adopted in 2012 as a fulfillment of Ukraine's commitments to the Council of Europe and the pursuant to Roadmap on the Implementation of the 2005 EU-Ukraine Action Plan (urged Ministry of Justice to support amendments to legislation on legal profession concerning creation of a professional association of advocates in Ukraine). One of the key legal instruments that defined the development of Bar self-government in Ukraine for decades to come was the Joint Opinion on the Draft Law of Ukraine ‘On the Bar and Practice of Law’ by the Venice Commission and the Directorate of Justice and Human Dignity within the Directorate General of Human Rights and Rule of Law of the Council of Europe.” – stated in the letter.

This document finally affixed and consolidated one of the basic principles of the independent advocates’ self-government - the creation of a single, integral professional association of Ukrainian advocates. Subsequently, in 2012, this principle based on European standards was reflected in the Law of Ukraine ‘On the Bar and Practice of Law’.

Another point of concern is the conclusion of the report that excessively detailed regulation of advocate's self-government can be justified by significant changes in the structure of the self-government, but after a transition period needed for completion of the legal profession reform, should lean towards to deregulation of self-government. At the same time, the fact that the system of advocates' self-government established on the basis of the current law meets the recommendations of the Venice Commission, as well the law "On the Bar and Practice of Law" itself is not mentioned in the Report. Ignoring this fact raises serious doubts about the validity and objectivity of the said expert assessment.

While preparing the Report, the experts did not analyze the corruption risks that the draft law contains. In particular, there are numerous contradictions between the various articles of the draft law, terminological uncertainty and presence of personal opinions, especially regarding the regulation of access to the profession and disciplinary liability, the distribution of the annual membership fees collected.

The provisions of the draft law concerning possibility for advocates acting as public servants to retain the right to represent clients in courts requires more careful consideration in view of the conflict between this provision and the professional guarantees of advocates’ independence. Given the provisions of the UN Basic Principles on the Role of Lawyers (December 14, 1990), as the Charter of the Core Principles of the European Legal Profession and the Code of Conduct for European Lawyers, the Joint Opinion of the Venice Commission and the Directorate of Justice and the Protection of the Human Dignity of the General The Directorate for Human Rights and Rule of Law of the Council of Europe, PACE resolutions on Ukraine, this situation raises concerns about the sincerity of the proclaimed objectives of the judicial reform. The Bar Council of Ukraine sees risks for the establishment in Ukraine of the rule-of-law principles, the independence of the justice system, the guarantee of the right for every citizen to professional legal services, and observance of key values ​​of the legal profession, which are the independence, self-governance and self-regulation.

This situation is especially worrisome taking into account assessments of the state of human rights in Ukraine. In particular, the global Human Rights Watch report for 2018 notes that Ukrainian authorities deviate from human rights commitments and restrict key rights and freedoms through the adoption of new legislation. The role of the constitutional institution of advocacy in protecting human rights is fundamental. Any attacks on the independence of the Bar, revisiting the European standards of the organization of the profession enshrined in the current legislation, attempts to interference with the system of advocates' self-government by way of law pose a direct threat to the proper protection of human rights.