|14:05 Fri 14.09.18|
A new draft law on the bar is a step forward and three steps backwards
Today it is no secret that the laws in the country do not work, and the guarantees of the practice of law, in fact, are declarative.
Against this background, the legislator, as a matter of course, whilst improving the legislation on the independence of professional practice, should have created a mechanism of responsibility of the government for its systematic violations of professional rights of advocates. It is a pity that the draft law "On the Bar and Practice of Law", submitted by the President of Ukraine, was not treated like this.
International standards for practice of law, in particular Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of occupational activity of advocates, adopted by the Committee of Ministers of the Council of Europe on October 25, 2000, to the principles of formation of the Bar includes the right to freedom of opinion and the possibility of influence on the legislative activity.
From the content of European legislation, the bar should initiate its profile law, not the government. In the activities of the bar, the government only provides effective access to justice, and the access of all sectors of society to effective legal aid.
The degree of the government's influence on independent professional activities is also defined by the Basic Provisions on the role of advocates adopted by the Eighth United Nations Congress on the Prevention of Crime in August 1990. The boundary of such influence in these Provisions is defined only in the context of promotion and ensuring access to the profession and its guarantee.
In particular, the fundamental role of professional associations of advocates, which should be independent, self-regulated and protected at the government level, is a part of adequate guarantee of human rights and freedoms.
However, contrary to the aforementioned standards, the relevant draft law No. 9055 was formulated without the participation of a representative of the bar – the Ukrainian National Bar Association.
It is unsurprising that the project is not particularly aimed at protecting the legal profession, but more at the realization of personal interests of certain influential groups, including prosecutors and judges. The last two categories received the privilege of access to the profession, and reinforced tools of influencing the advocates in litigation. Where is the independence of profession in that?
In particular, clause 2 part 3 of article 6 of the draft Law contains a discrimination, where the work experience of a judge and a prosecutor is included in the internship requirement, restricting the rights of other specialists in the practice of law.
Section III - Practice of Law and its guarantees does not withstand any criticism whatsoever. It seems that lawmakers are not aware of total searches of advocates' offices, injuries to health, murders, and the use of physical force against the defenders directly during court proceedings.
Legislators left out the fact that professional law is prejudicial in essence, and therefore the draft law does not formulate its content. Article 20 Professional rights of an advocate identifies them with procedural (actions), and therefore, there is no clear strategy of state protection of the rights of the advocate, a measure of liability for their violation, and how the professional rights of an advocate are assigned to the system of human rights values. The default position only harms the bar, rather than protects it.
However, in Art. 21 the professional duties of an advocate include assisting the implementation of independent and impartial justice in accordance with the rule of law, and showing respect for the court.
The legislator is not going to show respect for an advocate in the context of the rule of law principle, and the same draft law introduces the term "abuse of law" as the basis for holding the advocate disciplinarily liable. The law has not known such a disgraceful attitude to the profession to this date. Moreover, the establishment of the fact of abuse of the right is attributed to the court or the individual who is obliged to respond to the advocate's request. The consequences are clear. If the request is "inconvenient", then the refusal will be connected with the so-called abuse of the right. Then the advocate, who would actually be prevented from exercising their professional right, will spend years in courts trying to prove whether he has abused this right or not.
As for the civil or criminal process, the advocate's strategy, especially in matters relating to credit relations, does not have much procedural abilities to protect the interests of the client, including the submission of petitions, which, for example, the advocate reformulates upon entering a case, when similar had been filed by the previous lawyer, or a motion of disqualification to the judge who indicates their positive attitude towards the interests of the other party. Therefore, the term "abuse of the law" itself is the result of a bank lobby in the project, and not a strengthening of the independence of the profession in any way. For whom was this law written then?
As for the guarantees to practice law, they are mostly declarative.
The legislator did not paid any attention to the mechanism for the protection of information obtained by an advocate in the course of lawful professional activities, and therefore, upon issuing approvals on searches, the judges do not concern themselves on such a ban, and do not bear any responsibility for it, because there is no body or structure that would establish the facts of intervention.
Paragraph 8 of part 1 of article 24 is ridiculous. Who guarantees the equality of rights with other participants, compliance with the principles of competition and freedom to provide evidence? If the legislator involves investigative and judicial authorities, it is sufficient to analyze court decisions for applications to address the prosecution. Basically, the position of the defense is not even mentioned there. When it comes to equality of participants in the process, then the law should, first and foremost, not make declarative statements, but set forth the practical principles of such equality. With equality of rights there can be no "abuse of law", and disciplinary responsibility for it.
The same applies to the lack of a real mechanism to protect the life, health, honor and dignity of an advocate and their family members.
Furthermore, there are a number of similar declarative prohibitions that simply do not affect anything, but are in conflict with other regulations. In particular, the prohibition of interference with the legal position of an advocate does not in any way correlate with their disciplinary responsibility for "abuse of law". To whom should the advocate prove that the so-called abuse is precisely aimed at protecting the interests of the client.
In paragraph 14 of this article, the declaration of guarantees is not in line with the legislative initiatives proposed for the criminal procedural law.
Proposals do not withstand any criticism: "To individuals specified in part one of this article, the suspicion is presented by the Prosecutor General (acting Prosecutor General), their deputy, the head of the regional prosecutor's office within their jurisdiction or on their behalf by the investigator, or by the prosecutor, in the manner prescribed by parts one and two of Article 278 of this Code".
Firstly, the current CPC does not provide for the right of the prosecutor to transfer his powers to another prosecutor.
Secondly, procedural duty, which is assigned to state guarantees, cannot be reassigned, otherwise it is a direct failure to perform them.
Thirdly, the submission of suspicion is a complex procedural act, where the document itself has the status of a procedural decision with procedural implications: procedural notification, selection of explanations, clarification and realization of rights in connection with it. In practice, immediately after the submission of a suspicion, a petition for the selection of a preventive measure is also presented, when the explanations of the suspected individual are no longer of any significance. But this substantially violates their rights, especially when it is a special procedural entity. Therefore, an important safeguard is the interrogation of an individual with a special status, performed by an individual who has taken a procedural decision on suspicion for the possibility of taking a decision on a preventive measure after interrogation of such a person with observance of their right to protection.
The law does not in any way resolve the pressing issue of access to the advocate's belongings and documents by the criteria of procedural necessity and the obligatory reference to why the presumption of the defense of legal privilege is not extended upon these belongings and documents.
It should be noted that the professional rights of advocates are not limited to legal aid provision. According to the European legal structures, the professional rights also include the promotion of personal freedoms (Recommendations No. R (2000) 21), which cannot be restricted by the government.
Any restriction of access should be proportionate to the public need for such restriction. In the conclusion and recommendations on the protection of the rights and guarantees to practice law of the Agency for International Legal Cooperation dated June 9, 2016, such interference in the activities of advocates is considered to be inappropriate.
Given the international practice of regulatory formation of the legislation on the bar and the national law legislation regulating the practice of law, it is possible to conclude the following:
1. The bar does not only serve the function of the governmental human rights protector, but is also a non-governmental professional institution, the framework of which is based on the protection of human rights.
2. In the state, the balance between the freedom to practice law and the interference of the authorities in such practice goes beyond the provision of guarantees to practice law. The initiation and creation of a mechanism for the implementation of the professional legal practice of law is, in accordance with the legislation, the responsibility of the Ukrainian National Bar Association.
3. The draft law of the President of Ukraine, the formation of which excluded the participation of the Ukrainian National Bar Association, may be considered an unjustified interference in the practice of law on the part of the government. The narrowing of the professional rights of advocates as a result of changes in legislation is not acceptable.
4. The international community must stand up for the protection of the bar of Ukraine from undue interference of the Ukrainian government, because such intervention entails the violation of the rights of advocates to freely express their thoughts, including in the legislative process.
That is why I am against this draft law.
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