|11:14 Mon 10.09.18|
Oleksii Fazekosh: The draft law No. 9055 is the destruction of an independent bar. An opinion from Zakarpattia.
On September 7, 2018, the UNBA website has revealed that the Bar Council of Ukraine created a working group on the analysis of the draft law No.9055 "On the Bar and Practice of Law", submitted to the Verkhovna Rada by the President of Ukraine on 6 September 2018. Consideration of this draft law is determined by the President as urgent. However, in accordance with the assessment of the working group, the contents of the draft law No. 9055 are inconsistent with international standards and democratic procedures for the implementation of reforms. In fact, it is proposed to introduce a federal model for the bar that does not meet the contemporary needs of the human and citizen rights protection. Taking into account the fact that this exact point of view has been repeatedly expressed by the leader of the Zakarpattia bar, the chairman of the Bar Council of the Zakarpattia region, Oleksii Fazekosh, we turned to him for his appropriate comment. However, it turned out to be not even a comment, but a great analytical material, wherein the main message is full of anxiety for the future of the bar, which they try to crush and virtually level it down as a human rights institution. Below are the reflections of Oleksii Fazekosh regarding the so-called urgent reform of the bar.
- I never thought that the epigraph of Niccolo Machiavelli's quote, which I used in my article to the "Advocate" magazine back in 2015, would still be relevant. Let me remind you how it goes: "There is no case that would be more complicated, more dangerous and the success of which would be more dubious than replacing the old order with a new one." Unfortunately, in 2018 this applies directly to all advocates of Ukraine, and at the same time to millions of people who need legal protection. The fact is that the draft law 9055, instead of strengthening the protection of the rights of advocates and guarantees to practice law, takes care of a completely different issue - shrinks the bar into feudal principalities, simplifies access to the practice of law to civil servants and representatives of the repressive apparatus of the government, and much more. It is not only a matter of professional interest, but also a matter of protection of the rights of citizens and functioning of Ukraine as a country with the rule of law.
To build something lasting and worthwhile, you should first make sure that foundation is strong enough. But to reform the bar system in Ukraine, the foundation is formed by the independence of the Bar from the government, which prevents any influence on it to be exploited for political purposes, manipulations in criminal proceedings, raiding and other similar intentions. The protection of the professional rights of advocates, the expansion of the competence of advocates, which is referred to as the introduction of an advocate's monopoly, solving social and pension issues, taxation, etc., are important issues of the activity of the legal firm, which can be resolved in the future, provided that it has a real constitutionally defined independence.
Instead, I completely agree with the UNBA's position that "the draft law 9055 submitted to the Parliament may lead to erroneous or evidently harmful legal experiments, creating chaos in the legal regulation of the practice of law, largely servicing the clandestine needs of certain individuals." And these are note just groundless statements, as the proposed draft law 9055 contains the threat of destruction of institutional guarantees of the independence of the bar — bar self-government and self-regulation of the profession. In essence, the bar is reverting in its development back to the Stone Age. Unfortunately, it justified my prediction that behind the desire to hastily amend the relevant law stand illusory ideas of making the bar weak and dependent.
The bar of Zakarpattia immediately expressed its negativity when the news of secret development of a new law on the Bar came up. The text of the draft law was barely seen by anyone before yesterday, but today we saw a lot of things one could not imagine even in a terrible dream.
I will only make a brief comment on separate novels. And then move on to conclusions, which have already been reached by the bar community of the region.
Under the current law, practice of law is an independent professional activity of an advocate regarding the protection, representation and other types of legal aid to a client. It is clear and correct. However, in draft law 9055, this regulation was distorted to the point where it is no longer recognizable, literally mentioning the following: practice of law is an independent professional activity of an advocate in relation to the provision of legal aid to a client and other activities stipulated by this Law. Please note that - just "other activities", which does not in any way relate neither to protection of the rights and freedoms of a citizen nor to legal assistance. Who wants to blur the practice of law to a certain state standard or KVED (Ukrainian Industry Classification System) so desperately? Is it because they want to completely "drown" the bar in corruption risks, having made even more patterns of the type "LLC - advocate - civil servant"?
The following paragraph also looks obviously ridiculous: "The budget of the Ukrainian National Bar Association or the budget of bar self-government of Ukraine - a plan for the formation and use of financial resources necessary to ensure the functioning of national bar self-government bodies." Sorry, but what does "or" mean? Does it mean that the funds will either be allocated in the UNBA, or in some other mythical "bar self-government", because further it describes the "functioning of national bodies". Well, at least they explained that it was referring to nothing more bu 1) the Congress of Advocates of Ukraine; 2) the Bar Council of Ukraine; 3) the High Qualifications Commission of the Bar; 4) the Higher Disciplinary Commission of the Bar; 5) the High Audit Commission of the Bar. One had to try hard enough to come up with referring to the Congress of Advocates as a body, regarding which the UNBA "opens bank accounts, provides cash and other property necessary for performing the activity". But that is exactly what Art. 52 of the draft law says. To say that the project looks sloppy in terms of technical and legal construction is a major understatement.
By the way, the standard technique of rule-making suggests that the legal rules should not contain unnecessary provisions or the definition of generally accepted notions. But look how much somebody wanted to explain to us that "a foreign advocate is an individual who has acquired the right to engage in the practice of law in a foreign state in accordance with the procedure prescribed by the law of a foreign state". I believe that the authors of the draft law, upon developing it, had reasoning somewhere along these lines: "Unique and very important rule, the bar would simply not survive without these changes."
I cannot leave out the implementation of the fiduciary activities of an advocate as well. Under the project, it is the activity of an advocate, an advocate's office or an advocate's association, which lies in the client's property management (money, securities, currency valuables, etc.) on his behalf in connection with the provision of legal aid to the client. Theoretically, it is possible to guess what the authors of this idea wanted to convey with it - when you are, say, in the detention center, you will not be able to manage the business, but here comes the advocate who can sell and buy anything on your behalf. But here's a tricky bit. Understand that as soon as at least one advocate in the whole of Ukraine banally spends the money at his whim (but, of course, "in the client's "interests"", because getting a brand new car for 5 cents is also an interest), then the bar as a whole will be recognized as a fraudulent organization, and then we'll only be jealous of the glory of "black realtors".
Practice of law is carried out on the basis of "loyalty to the client's interests". It is strange how it's just loyalty - why not zeal, fidelity, devotion, or obedience at the very least? Just loyalty - strange. The advocate should indeed protect the client's interests and that's fine. But to be loyal, where does this cult of the king come from?
And back to foreign advocates again. Apparently, domestic ones are just not enough. They have prescribed the following regulation "about nothing": "A foreign advocate practices law on the territory of Ukraine in accordance with this Law, unless otherwise envisaged by an international treaty." Now, a simple question to all: who can name a single international treaty, where at least two words describe "the practice of law by a foreign advocate on the territory of Ukraine"? And therefore, it is yet another deadlocked, meaningless and completely unneeded regulation.
"The government encourages the operation of the bar, including the bar self-government, without interfering in its activities." But no, gentlemen, not at all. Let's open the Academic dictionary and read: "to ENCOURAGE - to positively influence something; to create, evoke the desire to perform a certain action; to appease anyone". To hope for something positive from the government, frankly, is the last thing the advocate has to do, and the words of Nechui-Levytskyi just come to mind: "The old head dissolved the village, and most of all contributed to bachelorhood and virginity." System administrators and programmers have one terrible superstition, which is: "Even if you are persuaded that the system should be updated and it would work better, do nothing – and generally do not tamper with what is well-functioning". So I ask myself, and who exactly is not satisfied with the current regulation: "The state creates proper conditions for the activities of the bar and ensures adherence to the guarantees to practice law"? Apparently someone who is not satisfied with the creation of "proper conditions for activities of the bar", not otherwise.
Section II ACQUISITION OF THE RIGHT TO PRACTICE LAW. THE ORGANIZATIONAL FORMS OF THE PRACTICE OF LAW
Whether the system of admission to the profession is now good or bad is a very specific and controversial matter in certain aspects of it. I heard that in other regions there were "blacklists" for prosecutors and investigators who wanted to become advocates. Indeed, providing access to the bar to someone who humiliated you yesterday, and today wants to become a colleague - that is something worth discussing. Who and how takes the examinations - this is also a more technical and organizational issue (and therefore a bright example - the Concept, suggested by the UNBA a few months ago), but in the draft law 9055 everything was turned upside down. Because it turns out that in order to become an advocate, you only need two years of work experience as the prosecutor (literally the norm reads: "the experience in the field of law – the experience of the individual as a trainee advocate, and (or) at the position of a judge, a prosecutor". I've already heard shameful stories of how separate departments of the Prosecutor's office almost en masse founded new bar associations. But what happens to the bar after accepting such a norm, even I - a longtime fan of science fiction - find it difficult to imagine. But what disturbs me even more, is the hidden humiliation of the bar, because article 8 refers to the fact that together with the application for admission to the qualification examination of the individual expressing the intention to become an advocate, the letter of reference from an advocate is also attached, whose trainee was the person expressing the intention to become an advocate. Oh dear! That is, an advocate has to vouch for the trainee and their specialty, but for a judge or a prosecutor there is no requirement for a certificate at the very least? In other words, it is presumed that the judge and the prosecutor are flawless as future lawyers, but the trainee lawyer is something rather questionable...
I don't even want to discuss the rest of this section, because it is clear that the main purpose of it is simple and straightforward – to let more insiders into the profession, to make it not a professional environment of professional lawyers who are ready to oppose the whole governmental machine of coercion, but simply to change this institution to the point where it is no longer recognizable, so that it can be shaped to one's needs, and as an option - subordinate it to the Ministry of Justice... Or something else.
But perhaps there is one thing to say. Apparently, the authors of the draft law do not understand what do the Regional Bar Councils do, when they prescribe the following: "The text of the Oath of an Advocate of Ukraine shall be signed by the advocate and kept in the Regional Bar Council. The advocate receives a copy of the signed text of the Oath". Without this copy, of course, an advocate is not an advocate at all. And this is despite the fact that the draft law misses an important caveat: it won't be necessary for the advocate to swear "to be faithful to the Oath". Don't get me wrong. The oath is extremely important, but then at least give the original to the advocate and leave a copy to yourself... Otherwise it kind of reminds the absurd situation when brides will not be issued a marriage certificate, but only its copy. In other words, bureaucracy was added in the law, but forgotten a bit to bring along the meaning.
Organizational forms of practicing law seem to be written without errors, but they could not do away without strange regulations here, too. Thus, on the one hand, the law office is a legal entity created by one advocate and acts on the basis of the charter. And just below: "an advocate who practices law in the form of a law office may be the founder of the office or be in labor relations with it." Something does not add up here: either created by one advocate with the indication of his surname, or is in labor relations. But if they are already in labor relations, then what is the fundamental difference from the advocate's association? I simply do not understand the point in complicating something simple.
Articles 15 and 16
And here the authors have outsmarted themselves. On the one hand, there is the concept of "legal assistant" who works along with the advocate, their number is not limited, and they even receive a certificate of the assistant... And on the other hand, it won't help the assistant in any way! Because it turns out that only a TRAINEE advocate can become an advocate. Which seems to be a legal assistant , but the number of which is approved by the Higher Qualification and Disciplinary Bar Commission!! And also the trainees can only be provided to advocates with at least five years of experience!!! This is insanity, and stupidity, and commonplace discrimination. It means that the Higher Qualification and DIsciplinary Bar Commission will somehow know who can have a trainee and how many of them. Young lawyers won't even understand why do they need work as assistants for the "non-five years' advocates." In other words, access to the profession is not simplified, but rather becomes turned into blasphemy. And advocates without the "five years" can simply forget about the assistants, because nobody would agree to work as an assistant for 5 years and only then go through 2 years of training. It is better to become a prosecutor, and without any problems become an advocate after 2 years. That is the real goal of this draft law.
Another regulation: "an advocate, within five working days from the date of change of information entered or to be entered into the Unified Register of Advocates of Ukraine, shall provide a written notice on such changes to the Regional Bar Council at his main workplace, except to the extent that these changes are made on the basis of the decision of the Disciplinary Commission of Advocates of the region or the relevant court decision." It is simply unclear what kind of information should be included int the Register on the basis of a court decision? Without specific guidance, it would be a horrifying regulation.
"An advocate can exercise other activities not prohibited by law." I don't even want to comment that. Just now, this regulation reads: "an advocate may engage in other types of practice of law not prohibited by law." As they say, feel the difference.
And then, in addition, they also introduced an entire Section IV "PRACTICE OF LAW AND OTHER ACTIVITIES". And there is a lot to choose from: "The law may establish special rules for combining the practice of law with other activities" (Article 27), "An advocate who works under an employment agreement (contract) with an individual that is not an advocate's office or an advocate's association, retains the status of an advocate, has the right to represent his employer in court, enjoys the professional rights of an advocate and guarantees to practice law within the framework of such an agreement "(Article 28), "An advocate can combine practice of law with the status of an executive of an economic company or other legal entity"(Article 29), and finally an extraordinary one - "An advocate who works in a government body, another state body or local self-government authority, retains the status of an advocate, may provide legal aid to the body in which he works and represent this body in court". Why would anyone want such a shameful mockery of the status of an advocate, I don't even want to guess.
Upon practicing law the advocate shall be obliged: to help resolve disputes primarily through peaceful means, to the extent possible in the client's interests. In other words, it can be understood that if the advocate won the case in court, he violated his duty? Nonsense? Of course! But the authors of the draft law went even further – among other things, the advocate will be obliged to "facilitate the implementation of independent and impartial justice"! What do they mean by "facilitating"? Or maybe this is just a banal reproduction of the Law "On Judicial System and Status of Judges"?
It is very interesting who exactly is the initiator of introducing this regulation into the article about the legal privilege: "The advocate does not bear disciplinary, administrative, civil and criminal liability for submitting to the central executive body, which implements the state policy in the field of prevention and counteraction to legalization (laundering) of unlawfully obtained income, terrorist financing and the financing of the proliferation of weapons of mass destruction, financial transaction information, even if such actions have inflicted damage on the legal entities or individuals, and for other actions, if he acted within the Law of Ukraine "On prevention and counteraction to legalization (laundering) of the proceeds from crime or terrorism financing, as well as financing proliferation of weapons of mass destruction." What sort of indulgence is this, and what about the "loyalty" to the client's interests?
One of the main tools of the advocate is advocate's request. But not for the authors of the draft law, because from now on they want to introduce liability for "abuse of the right to advocate's request". And who and how will determine this abuse – no one cares.
By the way, speaking of responsibility, the authors of the draft law 9055 went even further on this matter in their desire to humiliate the bar and stipulated the following among the general conditions of disciplinary liability: "Disciplinary proceeding is a procedure for consideration of written complaints and/or a separate court ruling, containing information on the presence of signs of a disciplinary offence in advocate's actions". Honestly, to this day, I have never seen a court ruling containing information "on the presence of signs of a disciplinary offence in actions of the advocate". But, apparently, there will be. And to the grounds of responsibility they added such an abstract, but pleasing for the investigators: "Abuse of the rights granted to them by this Law or procedural law". Do you get how the scheme works now? The advocate actively protects the client, the investigator or judge does not like that, a couple of phone calls – a corresponding court ruling occurs, and then the advocate gets prosecuted for the "abuse". And it's done – an inconvenient advocate is being elegantly, and, most importantly, "legitimately" removed from the process through the threat of deprivation of the license to practice law. This is a banal mockery of the bar.
As for article 40 (types of disciplinary action), it is even hard to tell if it is a joke, sarcasm, or bitter irony. But I will quote: "For committing a disciplinary offense, a monetary fine of up to three living wage for capable individuals may be applied to the advocate"... Until you read to the fact that "the monetary penalty is applied solely for the non-payment of the annual contribution of advocates for the financing of the activities of bar self-government bodies", then all sorts of thoughts pop up in your had about the authors of the draft law 9055. But it's still peculiar, why exactly the judges and prosecutors were not yet regulated by such disciplinary sanctions - are they "not sinful" of anything? Or have they not yet grown to such an "important reform"?
Finally, we reached no less important, the section on the bar self-government. Here, in the draft law 9055 , there are bits of everything - from the copying of Russian expertise with their "lawyer chambers" to the complete misunderstanding of how the bar self-government works. For example, article 51 simply reads: "the Regional chamber of advocates unites all the advocates in the region, whose address of workplace is located in the respective region". How so, all of them? Zakarpattia is not the largest region, but even in Mukachevo or Uzhhorod I won't be able to find room for all the advocates in the region at the same time, and don't even get me started on Kyiv. Or maybe the chamber is not a bar self-government body? Well, let's read on...
The further – the better. Chairman of the Regional Bar Council shall be the chairman of the regional chamber of advocates, administering the property of the Chamber. But at the same time, the Bar Council itself is not a legal entity, because such a legal entity is a regional chamber, which in is not specified as a bar self-government body in the law at all! And finally – the chamber should be formed by the Conference of advocates in the region, which is convened by the Regional Bar Council, which should be created by a Regional Chamber. In the end, the rating form of secret ballot by all members of the bar self-government bodies in practice will give rise to conducting these conferences in 3-4 rounds, I am convinced that in many regions these conferences would be disrupted, consequently it will be impossible to elect delegates and to conduct a full and legitimate Congress of Advocates of Ukraine. As a result, there will be legal bacchanalia and chaos that will lead to devastating consequences for the domestic bar system as a self-governing human rights institution. There is painting by Francisco Goya, called "The Sleep of Reason Produces Monsters". So here is the same picture...
What is the purpose of this? Formally - and in the opinion of the so-called advocate's opposition - it seems that the purpose is to give "freedom" to all advocates. Although, where did the authors of the draft law see the serfs in captivity today – I cannot quite understand. And in fact – everything is done for the destruction of the bar. To ensure that its voice is never getting heard - either at the national level or at the regional level. Because it turns out we have national and regional bar self-government bodies which are not related to each other and can do whatever they please.
And that is how things actually are. Article 55 says that the Conference of advocates of the region is the highest body of the bar self-government in the relevant region. But what is this chamber, then? Not the body – but unifies everything else. Solves nothing, but is a legal entity. The Chairman of this chamber is the chairman of another self-government body. And the property is managed by only one of the five bodies listed as "elements" of this Chamber. What kind of monster is this? "Ward No. 6" - not otherwise.
At the same time, the members of the regional qualification and disciplinary commissions become some kind of secretaries or technical staff, because, for example, "the regional qualification commission of advocates is formed and operates in the relevant region in order to resolve issues concerning the admission of an individual who has declared his intention to become an advocate before the passing of qualifying exam, the organization of qualifying examinations and the inclusion of foreign advocates in the Unified Register of Advocates of Ukraine". And for this we need to elect members of the Board of advocates - so that they would only check the documents and organize the exams? Sorry, but an advocate is a free and independent profession, and it is not necessary to humiliate it like that. However, why was it necessary to create a regulation that "the Chairman of the Regional Qualification Bar Commission manages the funds and property of the Regional Qualification Bar Commission". Interestingly, and on what basis, if the Qualification Bar Commision is not even a legal entity? The same question regarding the Chairman of the Disciplinary Commission...
In other words, the draft law submitted to the Parliament will, if adopted, start an uncontrollable, full of abuse process of mass registration of regional chambers as new legal entities. It will create the grounds for cloning such organizations: countless pseudoadvocates' organizations will be created in the regions. And this is just one of the many risks that are inherent in the text of the draft law.
But there are immutable principles that under no circumstances can be given away!
At one time, in the teleconference addressed to the bar community, which is not so much my individual vision as it is the synthesis of the collective opinion of the advocates of Zakarpattia, I have already emphasized that we can not under any circumstances allow the adoption of a special draft law that has been developed in such a secretive and clandestine way, without virtual discussion of it in the regions by the bar community. After all, this may lead to such a reform, which will destroy the system of Ukrainian bar.
The logic of the development of world democracies shows that even in a society where there are established traditions of democratic values, there are rare cases of attempts by the state to establish control over all spheres of public life, including the legal system. And here the analysis of the draft law 9055 leads to a logical and reasoned conclusion: behind the undisguised desire to change the relevant law stand illusory ideas of making the bar weak and dependent, and advocates — manageable. I assume that this is what's hiding behind the screen of such a pseudoreformation.
It is really necessary to reform the bar system in Ukraine, but also with due regard to the fact that reform should be a part of a comprehensive, fundamental reform of the entire legal system and its approximation to European legal standards. Therefore, in expressing my critical remarks, I believe that the draft law is illogical and conceptually undemocratic in terms of the provisions that define the principles, procedure and mechanisms for electing the bar self-government bodies and access to the practice of law, as well as new "guarantees". As a result, in this relation the draft law is not aimed at improving the state of affairs in the Ukrainian bar and can generate conflicts that are not specific to the bar environment. I still hope that we will be able to prevent the direct destruction of domestic bar as a result of the introduction of such a pseudoreformation, in order to consolidate the efforts of the entire bar community, to show that we, as a self-governing and professional organization, have the force, which is dynamic, independent and has its own point of view and is capable of standing its ground and therefore preventing the adoption of such a wording of the relevant draft law, demanding it to be sent to the Venice Commission, and NOT ASK, BUT NAMELY DEMAND IT SPECIFICALLY AND IN A CATEGORICAL FORM.
Only a holistic and indivisible bar can take a proper place in the legal system of Ukraine, which fully fits into the doctrinal view of the functioning of this constitutional human rights institution. Therefore, the draft law 9055 requires immediate changes and adjustments, and obtain a modified form before the first reading.
My favorite writers are the Strugatsky brothers, who in one of their works expressed the following thought: "There are somebody's interests behind everythin in the world. And behind those who has these interests, are the Puppeteers that use them in the name of their own interests. You just have to cut the threads binding them, and then nobody's interests are satisfied". Now has come a crucial time for the Ukrainian bar . It is decided whether it will be independent and self-governing, strong, one that occupies a worthy place in the legal system of our state and influences the social processes that take place in it.
This is the Rubicon for the Ukrainian bar.
The article was published on the "Zrada" website
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