UNBA addressed the Head of the Verkhovna Rada with a resolution of the Congress of Advocates of Ukraine on the inadmissibility of the adoption of the draft law No. 9055

UNBA addressed the Head of the Verkhovna Rada Andrii Parubii and each people's deputy  with Resolution of the Congress of Lawyers of Ukraine of 2019 concerning the inadmissibility of the adoption of the draft Law of Ukraine "On the Bar and Advocacy" No. 9055.

The document was approved by the highest body of bar self-government on February 15.

In the resolution the bar urged the parliament not to support the draft law "On the Bar and Advocacy" (registration No. 9055) and to return the document for revision to the subject of legislative initiative.

"The draft law No. 9055 submitted to Parliament may lead to false or obviously harmful legal experiments, create chaos in the legal regulation of the bar, and alleviate the European standards already adapted into national legislation. In particular, the draft law No. 9055 contains threats to the destruction of the institutional guarantee of independence of the bar - bar self-government and self-regulation of the profession", - the resolution states.

The position of the Congress of Advocates of Ukraine is that, in its content, any changes to the law should guarantee the further approximation of the bar to European standards. The priority in this process should be to strengthen the protection of the rights of advocates and advocacy. The Congress of Lawyers of Ukraine believes that the adoption of the draft law No. 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 and related legal institutions, approved by Presidential Decree No. 276 of May 20, 2015.

«The draft law No.9055 will make impossible the independent functioning of the bar, destroy the guarantees of protection of the entire scope of the constitutional rights of citizens, and as a whole create systemic risks for the development of Ukraine as a legal democratic state. Adoption of the draft law No. 9055 both as a basis and in general will make it impossible to exercise the protection of the rights, freedoms and interests of persons by an advocate independent of political will. We draw the attention of people's deputies to the fact that political fate is often variable, and all citizens of Ukraine without exception are in need of professional protection. By this resolution advocates of Ukraine are once again against the draft law "On the Bar and Advocacy" No. 9055 in the proposed wording and insist on its return to the subject of legislative initiative for revision», - the resolution says.

The Congress of Advocates reminds that the draft law No. 9055 had received two negative conclusions: from Central Scientific Expert Office of the Verkhovna Rada - on the expediency of returning the draft law to the subject of legislative initiative for revision; and from the Committee on Corruption Prevention and Counteraction - on non-compliance with the requirements of anti-corruption legislation and the expediency of finalizing the draft law in order to eliminate corruption-related factors.

At the end of January 2019, the letter of the UN Special Rapporteur on the independence of judges and lawyers, Mr. Diego García-Sayán, on the content of the draft law No.9055 was sent to the President of Ukraine. The letter states that the bill includes a number of provisions that may jeopardize the free and independent exercise of the legal profession and the ability of the Ukrainian National Bar Association as the only professional bar organization to protect the interests of its members and the independence of the profession of advocate as a whole. The UN Special Rapporteur recommends "to revise the draft law "On the Bar and Advocacy" in order to ensure its compliance with the existing international human rights standards regarding the independence of the profession of advocates."

The significant shortcoming of the draft law No. 9055 is the numerous corruption risks, which are indicated in the conclusion of the profile committee of the Verkhovna Rada. The draft law No. 9055 is full of contradictions between the various articles, terminological uncertainty, appraisal judgments, especially as regards to the regulation of access to the profession and the disciplinary liability of advocates, distribution of advocate's contributions to the system of bar self-government. Such things are unacceptable, since the anti-corruption component must be mandatory for each stage of judicial reform.

The draft law provides for a 4-year grace period for easy access to the bar for judges and investigators who are allowed to receive a certificate of the right to engage in advocacy only on the basis of testing without an internship.

The draft Law No. 9055 contains numerous amendments to the Criminal Procedure Code of Ukraine, which limit the guarantees of advocacy. In particular, it is proposed to include in Art. 221 concerning the abuse of the party's procedural rights. To the category of abuse a court may include the submission of a complaint to a court decision, and the submission of a petition (application) for solving a separate important for a defense party issue, and a statement of dismissal of a judge, etc.

In the proposed wording of the draft law No. 9055 Art. 221 of the CPC directly contradicts 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 No. 9055 proposes amendments to Art. 53 of CPC of Ukraine, according to which the investigator (prosecutor, court), even in the presence of the official defendant of the suspect (accused) under the contract, receives the right, at its own discretion, to involve a free defense counsel and to exercise, with its participation, all necessary for the prosecution party procedural actions.

The draft law No. 9055 proposes to simplify the procedure for notification of suspicion to a person with the status of a special subject, which opens up possibilities 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 of advocacy. At the same time, the proposed wording of Art. 481 of the CPC provides that not only advocates, but to any special subject defined in Part 1 of Art. 481 CPC a suspicion may be awarded by the investigator, the prosecutor on behalf of the head of the General or regional prosecutor's office. That is, the status of the special subject in general is devoid of any meaning.

We recall that on September 6, 2018 the draft law of Ukraine "On the Bar and Advocacy" No. 9055 was submitted to the Verkhovna Rada of Ukraine. The draft law was defined by the President of Ukraine as urgent.

Since September 2018, higher and regional self-government bodies, regional bar conferences have repeatedly appealed to the Verkhovna Rada of Ukraine, heads of parliamentary fractions and committees, non-fractional people’s deputies on the inadmissibility of bar reform on the basis of this draft law.