BCU appealed to the Verkhovna Rada to refrain from adopting the draft law “On the Bar and Practice of Law” No. 9055

Advocacy 14:35 Thu 13.09.18 36 Reviews Print

UNBA sent to the leadership of the Verkhovna Rada, committees and parliamentary factions, individual People's Deputies the Resolution of the Bar Council of Ukraine with an appeal to refrain from adopting the draft law No. 9055 “On the Bar and Practice of Law”.

The letters, signed by the President of UNBA Lidiia Izovitova, are directed to the Chairman of the Verkhovna Rada of Ukraine, Chairman of the Verkhovna Rada Committee on Legal Policy and Justice, Chairman of the Committee on Legislative Support of Law Enforcement, Chairman of the Committee on the Budget, Chairman of the Committee on Preventing and Combating Corruption, Chairman of the Committee on European Integration, heads of parliamentary factions and individual deputies

 BCU insists that this document cannot be the basis for democratic reform of the bar taking into account the violations of international standards in the preparation of the draft law under the aegis of the Judicial Reform Council. UNBA was deprived of representation in the Judicial Reform Council, which was responsible for the implementation of the reform. The right of the bar, which is represented in the relations with authorities by Ukrainian National Bar Association, to participate in the drafting of amendments to the special law was not respected, and the official representation of the profession have been altered in a manipulative way by engaging separate civilian organizations and individual advocates.

In addition, the draft law bears the risk of narrowing the rights and guarantees to practice law. The position of the Bar Council of Ukraine is that inherently any changes to the specific legislation should ensure further approximation of the legal profession to European standards. Priority in this process should be strengthening the protection of the rights of advocates and guarantees to practice law. The Bar Council of Ukraine believes that the adoption of the draft law 9055 would contradict the general logic of the European course of Ukraine, numerous international documents and, in fact, the Strategy for the reform of the judiciary, justice and related legal institutions, approved by Presidential Decree No. 276 dated 20 May 2015.

Instead, the draft law 9055 contains the threat of destruction of institutional guarantees of the independence of the bar — bar self-government and self-regulation of the profession.

A significant disadvantage of the draft law 9055 is that there are many corruption risks. Draft law No. 9055 is full of contradictions between different articles, terminological uncertainty, value judgments, especially with regards to the regulation of access to the profession and holding the advocates disciplinarily liable, distribution of advocates' fees. Such things are unacceptable, since the anti-corruption component must be mandatory for each stage of judicial reform.

The draft law provides for a grace period for simplified access to the bar for judges and investigators, who are allowed to receive a certificate on the basis of the exam for 4 years without an internship. The UNBA has repeatedly insisted that the internship process allows the lawyers to adapt to the practice of law, ethical standards, understanding of the priority of client interests and protection of human rights.

The draft law No. 9055 contains numerous changes to the Criminal Procedural Code of Ukraine, which narrows the guarantees to practice of law. In particular, it is proposed to include the abuse of procedural rights by the defense party in the article 221 of the CPC. The court may include into the category of abuse such actions, as filing a complaint against a specific court decision, and filing the petition (claim) to address specific issues important to the defense, and a statement of withdrawal of court, etc.

In the wording of Art. 211 of the CPC, the draft law number 9055 directly contradicts the provisions of the Constitution of Ukraine, the specialized Decision of the Constitutional Court of Ukraine and numerous decisions of the European Court of Human Rights.

The draft law proposes to simplify the procedure for notifying the individual with the status of a special subject on suspicion, which opens up opportunities for strengthening the prosecution of advocates for their legal position. Currently, this practice is confirmed by official statistics of violations of the rights of advocates and guarantees to practice law. At the same time, the proposed wording of Art. 481 of the CPC stipulates that the suspicion may be given by the investigator, the prosecutor on behalf of the head of the general or the regional prosecutor's office not only to advocates, but to all those special subjects, specified in Part 1 of Article 481 of the CPC. Thus, the status of a special subject in general is devoid of any meaning.

"Taking into account the fact that the clandestinely developed draft law No.9055 contains the aforementioned, as well as a number of other serious threats to the further independent functioning of the Bar, undermines the guarantees of the protection of the rights of citizens, poses risks for the development of Ukraine as a legal democratic state, we urge you to refrain from supporting the draft law No.9055 in the submitted wording and to take into account the position of the bar of Ukraine upon making amendments to the relevant legislation in accordance with European standards, the real needs of the bar community and in the interests of strengthening the constitutional guarantees of citizens' rights" - says the BCU resolution.

It is worth reminding that the draft law “On the Bar and Practice of Law” No. 9055 was submitted to the Verkhovna Rada on September 6, 2018. The draft law was determined by the President of Ukraine as urgent.

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