Kyiv City Bar Council urges Verkhovna Rada of Ukraine of cancel the draft law № 9055

On September 17, 2018 Kyiv City Bar Council (KCBC) as the regional bar self-government body decided to address Verkhovna Rada of Ukraine, the leaders of parliament fractions and committees, non-sectarian people’s deputies on the inadmissibility of reforming the bar on the basis of the draft law № 9055.

The position of the Kyiv City Bar Council is that, in its content, any changes to existing legislation shall guarantee the further approximation of the bar to the European standards. The priority in this process should be to strengthen the protection of the rights of advocates and guarantees of advocacy.

 «Kyiv City Bar Council believes the adoption of the draft law № 9055 is inconsistent with the overall logic of the European Integration of Ukraine, numerous international obligations and, as a matter of fact, — Strategy for Judicial Reform approved by Presidential Decree № 276  dated of May 20, 2015. Unfortunately, draft law № 9055  submitted to the Parliament may lead to false or obviously harmful legal experiments, creating chaos in the legal regulation of the bar. In particular, the draft law № 9055 nullifies European standards, including standards of independent bar self-government», — as referred to in the Resolution of the KCBC.

The draft law № 9055 endangers the existence of institutional guarantee of independent bar — bar self-government and self-regulation of the profession. «The adoption of the draft law №  9055 will make impossible the protection of the rights, freedoms and interests of persons by the bar, independent of political will», — warns the Kyiv City Bar Council.

The Resolution of the bar self-government body indicated the existence of corruption risks in the draft law. Among them is the transition period for the simplified access to the bar for judges and investigators who are allowed to receive an advocate’s certificate within 4 years only on the basis of a test without an internship.

The draft law № 9055 contains numerous amendments to the CPC of Ukraine, which narrow the guarantees of advocacy. In particular, the proposed Art. 221 concerning the abuse of procedural rights by an advocate. The court may include deem as abuse of procedural right filling a complaint to a court decision, an application for solving a separate important issue or a court dismissal, etc.

In the current wording Art. 211 of CPC of the draft law № 9055 is in direct contradiction with the provisions of the Constitution of Ukraine, the Special Decision of the Constitutional Court of Ukraine and numerous decisions of the European Court of Human Rights.

The draft law № 9055 also provides for amendments to Art. 53 of CPC of Ukraine, according to which an investigator (prosecutor, court), even in the presence of an officially contracted defendant of the suspect (accused), will now have the right, at his own discretion, to involve a public defender in the case and conduct all the procedural actions needed for the prosecution.

The draft law provides for simplification of the procedure for suspicion notification to a person with the status of a special subject, which opens up opportunities for criminal prosecution of advocates for their legal position. Currently, this practice is confirmed by official statistics of violations of the rights of advocates and guarantees of advocacy. At the same time, the proposed wording of Art. 481  of CPC provides for that to the advocates and to all special subjects defined in para. 1 of Art. 481 of CPC to a suspicion may be awarded by an investigator, a prosecutor on behalf of the Head of the General or Regional Prosecutor's office. That is, the status of a special subject basically has no meaning.

Taking into account the fact that the draft law № 9055, which was developed under cover, contains the above, as well as a number of other serious threats for the further independent functioning of the bar, undermines the protection of the rights of citizens, endangers the development of Ukraine as a democratic state governed by law, we consider that the draft law № 9055 can not be adopted in the proposed edition without taking into account the position of the bar of Ukraine when making amending relevant legislation in accordance with European standards, real needs of the bar community and in the interests of strengthening the constitutional guarantees of the rights of citizens.

«We would like to point out to the deputies that the political fate is changeable, but professional legal assistance is needed to all citizens of Ukraine without exception»,  — stated in the Resolution of the Kyiv City Bar Council.

To recap, the draft law of Ukraine № 9055 “On the Bar and Advocacy” was submitted to Verkhovna Rada on September 6, 2018. The draft law was defined by the President as urgent.

The Bar Council of Ukraine opposed the adoption of the draft law. Similar positions were publicly stated by a number of Bar Councils in the regions.