The bar ideology is being substituted by the judicial ideology itself – Maryna Stavniichuk

The Head of the Committee for the Rule of Law Maryna Stavniichuk outlined in her analytic article for the “Dzerkalo Tyzhnya” the main risks of the draft law “On the Bar and Practice of Law” No 9055.

According to her estimates, the draft law violates numerous constitutional norms, encompasses risks of corruption and poses a threat of human rights institutes` total dependence upon the political and personal interests of officials. Even the amendments to the oath of attorney, provided by the draft law, indicate the change of the ideology.

“Comparing it to the current law, the first lacks the provisions on “independence and confidentiality”, “will to discharge ones duties to the best of ones knowledge and ability”. Instead, the new requirements emerged – “to promote the independent and impartial justice”, “to support the respect for the court”. It doesn’t seem serious, but the bar ideology is different from judicial. In that way, advocate becomes directly dependent upon the personal perception of the judge, his concepts of “respect” and “disrespect” for the court. In the case such disrespect occurs, the advocate violates not the procedural norms, but the oath. And this, in return, evokes the secession from the profession. It is dangerous not only for the advocate`s personal conduct, but primarily for the human rights and freedoms”, - the article states.

According to Maryna Stavniichuk, for the evaluation of the draft law “On the Bar and Practice of Law” No 9055, there are three standpoints: access to the advocate`s profession, guarantees of abilities and independence of advocate`s conduct on the matter of human rights protection, issues of the bar self-government. Each block of the draft law was analyzed for pros and cons.

Both advocates` community and human rights activists have criticized the drafty law No 9055. Following are the main points. The main drawback of the draft law No 9055 is the numerous corruption risks. It is unacceptable, since the anti-corruption component is mandatory for each stage of the judicial reform. The draft law is full of controversies between the articles, terminological uncertainty, estimative perceptions, especially in the section of regulation of the access to the advocate`s profession and bringing advocates to a disciplinary liability etc.

Herewith, a certain advantages are present. The Ukrainian Helsinki Group and Kharkiv Human Rights Protection Group believe that in this case the list of people, whose rights, freedoms and legal interests advocate is empowered to exercise, was expanded; the right for advocate to record the procedural actions by all means, not prohibited by law was included; the collection of evidences with violation of advocate`s rights was prohibited; the advocate was empowered to appeal the investigating judge`s refusal to provide the access to pre-trial investigation materials; the list of decisions, actions and inactivity of investigator and prosecutor, which can be appealed during pre-trial investigation, was expanded; advocate gains the right to collect evidences by questioning witnesses under their permission (this guarantee is strengthened also by the fact that liability emerges for providing false testimony not only to the investigator, prosecutor and judge, but also to the advocate); the right of advocate to initiate the investigative (search) activities was regulated, in particular, covert, as well as to take part in them (except for the covert investigative activities); advocates were granted the access to state registers etc.

“Meanwhile, I have to mention, - in current national legal system it is not an option to adopt a number of substantive procedural guarantees only and exclusively in the advocacy legislation. In practice it will lead to the non-compliance with guarantees or even outright ignoring the legal provisions, which will result in the impossibility of legal defense and representation. Neither law enforcement, nor judges should are governed by the specific advocates` legislation. We all understand, how it works”, - the article states.

The full text of the article “Advocacy: without the right of protection” was published in “Dzerkalo Tyzhnya” on October 27^th.