The advocates of Mykolayiv region urge to withdraw the draft law № 9055
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The draft law of Ukraine № 9055 “On the Bar and Advocacy” was discussed at an extraordinary meeting of the Mykolayiv Region Bar Council on September 21, 2018.
“The advocates of Mykolayiv region address people’s deputies of Verkhovna Rada of Ukraine to withdraw the draft law as it threatens the independence of advocacy, is intended to destroy the bar self-government, deprive lawyers from the opportunities to carry out their professional activities, guided, first of all, by the interests of the client and requirements of the law", - said in the statement.
The participants of the meeting emphasized that, despite there were relevant appeals to the leaders of the country and international partners, the process of drafting the law continued without proper consideration of the proposals of the Ukrainian professions lawyers’ association – Ukrainian National Bar Association (the UNBA). This led to the existence of significant drawbacks in the draft law and contradictions that would make the normal functioning of advocacy in Ukraine as a whole and the performance of professional duties of each lawyer separately as impossible.
According to the participants of the discussion, the draft law does not provide the improvement in the system of bar self-government bodies and strengthening of the guarantees of advocacy independence. «The main purpose of this draft law is evident - to get control over the advocates’ community. That is exactly what an absolute non-regulation of the process of election to bar self-government bodies in the draft law aims at” – stated in the summary statement of the bar council of the region.
According to the participants of the discussion, the urgency of the draft law “is aimed at the sooner “taming” of the lawyers who have the courage to criticize both the executive and the judiciary power, those advocates, who are guided by professional duties and law, and successfully protect their clients”.
Thus, it is unacceptable to reduce the quorum of the competence of the conference of advocates of the region to 10-15 percent of the number of lawyers registered in the region. After all, in this case, approximately 5-8% of lawyers is enough to make the most important decisions. Of course, on such a small amount it’s much easier to carry out administrative intervention and lobby necessary solutions.
Other provisions of the draft law, such as disciplinary liability for abuse of the right to a lawyer’s request, a statement of a knowingly unjustified exclusion or appeal of a decision, which is not subject to appeal, also come as a surprise.
Such “innovations” don’t provide (and couldn’t provide at all) for a clear criteria in the draft law and enable the judiciary to determine, on a subjective basis, the fact of “unlawful” behavior of a lawyer and, thus, exercise pressure on him.
Amendments to the procedural codes, in particular, regarding abuse of rights, also attempt to deprive advocates and advocacy in general of independence.
Thus, there were proposed amendments to the CPC of Ukraine (inclusion of Article 22-1) regarding inadmissibility of the abuse of rights, that can invoke disciplinary liability of a lawyer. At the same time it does not set clear criteria for such abuse and its delineation with protecting a client in a criminal proceeding.
Amendments to Article 53 of the CPC of Ukraine, providing the ability to involve both - a contracted advocate and a public defender - in one case, rise some concerns as it violates inherent right to free choice of an advocate.
“Imperfection, prejudice and threat the draft law poses on protection of the rights and interests of individuals, and the possibilities of advocates to protect them and at the bar community as a whole are evident. This requires the inclusion of advocates to the working group, at least, with regard to some of its most controversial provisions”, - note the advocates of the region.
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