Donetsk Region Bar Council addresses Verkhovna Rada to elaborate the draft law № 9055
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The draft law № 9055 "On Bar and Advocacy", introduced by the President to the Parliament, requires deep, ground and systemic redevelopment. Otherwise, the existence of an independent advocacy of Ukraine can be forgotten.
This is stated in a joint statement of the Donetsk Region Bar Council and Qualification and Disciplinary Bar Commission on the basis of a joint meeting conducted on September 14, 2018.
"The adoption of laws on advocacy without the consent of advocates is a great violation of the rights of each advocate. The current Law of Ukraine "On Bar and Advocacy" was agreed with advocacy community, it was approved by the Venice Commission and corresponds to modern changes in the procedural law. Instead, the drafters of the new draft law violated Ukraine's commitments to the Council of Europe and the terms of conclusion of the Association Agreement with the EU, since the draft law on advocacy was developed without participation of a professional law association," – said in the statement.
"Presidential Draft Law № 9055 initiates a destructive model for the creation of a “submissive” advocacy, which should think and live through circulars that descend from the upper classes," - one of the largest lawyer communities in Ukraine warns.
A thorough analysis of the provisions of the draft law № 9055 in the context of the guarantees of advocacy shows that there is a real threat of the loss of independence by advocates, and, as a result, the deprivation of the citizens of Ukraine of their right to effective protection for years ahead.
"The attack on advocacy should take place, as follows from the text of the draft law, in the following directions: destruction of a single, integrated, independent system of advocates’ self-government bodies, further - through the rigid regulation by the state of these self-government bodies, and then to the artificial limitation of rights and guarantees of the advocates during their human rights activities," - the statement said.
The draft law № 9055, if adopted, will begin the uncontrolled, full of abuses process of mass registration of regional branches as of new legal persons. It established the basis for “cloning” of such organizations enabling the existence of pseudo advocates’ organizations. And this is only one of many possible risks the draft law imposes.
The 3-years term of bar self-government members and prescribed procedure for their election thereof shall require the conduct of countless number of Congresses of Advocates of Ukraine and conferences of the advocates of a region.
To date, Regional Bar Councils, as local bodies of bar self-government, dully cope with obligations undertaken and fully exercise their functions, including the representation and protection of professional rights of advocates of the region, facilitate the professional development of the advocates of the region etc.
The responsibility for abuse of procedural rights, provided for in the draft law № 9055, grants the courts with the great room for reasoning and serious control over advocates. In that regard, there are various procedural actions that may be considered as an abuse of rights, including filling the application for an expert opinion or evidence, defined as groundless by the court, if it can delay the proceedings. The greatest concern rises from the wording "in the absence of new circumstances or evidence", "deliberately unjustified exclusion", which by their assessments create an additional backdoor to restrict the rights of the defense.
Para. 2 of clause 2 of Article 22-1 defines as abuse of procedural rights the non-appearance of defense counsel expressly, although the current Article 324 of the CPC of Ukraine establishes responsibility for non-appearance for both the defender and the prosecutor.
Advocates, taking into account their status, bear the additional risk of liability compared to other participants, because for abuse of procedural rights, violation of procedural obligations or improper performance of professional duties an advocate may be brought to disciplinary responsibility, including deprivation of the right to practice advocacy, on the basis of a separate court order.
Thus, an advocate who actively protects the interests of his client, filing a large number of petitions or complaints, will endanger the prosecution.
"Our special concerns are the rules that restrict the protection and guarantees of advocates' secrecy, violating such principles of advocacy as priority of client's interests and confidentiality," – said in the statement.
New edition of the Law of Ukraine "On Bar and Advocacy", if adopted, will violate the constitutional guarantees for work of persons engaged in advocacy, stipulated by Art. 43 of the Constitution of Ukraine, as well as the narrowed professional rights of lawyers working under an employment contract.
"Under these conditions, Donetsk Region Bar Council and Qualification and Disciplinary Bar Commission are convinced of the devastating nature of the draft law № 9055 "On Bar and Advocacy" (new edition), which will lead to devastating consequences for the system of Ukrainian advocacy as a self-governing human rights institution", - lawyers of the region consider in an appeal to the Chairman of the Verkhovna Rada.
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