|13:01 Mon 17.09.18|
How the new Poroshenko's law will expand the possibilities of pressuring advocates
The Ukrainian Bar can lose the remnants of its independence.
The new draft law introduced by the president will allow to take full control over advocates, which means depriving the citizens of the country - both natural persons and businesses - of their legitimate right to protection in the face of unjust decisions of authorities, competitors, courts and law enforcement agencies.
From January 1, 2019, advocates will finally receive a monopoly on the representation of clients in courts.
No more self-taught advocates, legal advisors and accountants who skimmed through the procedural code in meetings from now on.
On the one hand, this is a "victory", because the processes must become more effective (the judge will initially talk with the advocates "in one language").
On the other hand, access to the "golden" profession must be unequivocally toughened, since the responsibility and importance of advocates increases significantly.
At first glance, it is to this issue, that the new draft law "On the Bar and Practice of Law", which was submitted by the President to the Verkhovna Rada as urgent, is devoted to.
The document does have a number of important points that strengthen the defense of the advocates and expand their rights.
For example, searches and other investigative actions in the premises of an advocate are prohibited without serving them the notice of suspicion. Advocates will have the opportunity to access the Unified Register of Pre-trial Investigations and other previously inaccessible government databases.
The list of types of practice of law is expanding - now we and our colleagues will be able to manage the client's property and mediation.
There is about a dozen of such "perks" moved to the facade of the document. But the "stick", which is attached to this "carrot", negates any positive innovations.
The main goal of the draft law is to gain control over the bar community. The authors of the document approached the task from several directions.
The first facet is a complete reboot of all the bar self-government bodies to obtain loyal administrators, as the result, including heads of disciplinary structures.
Translated into a common language - to control those who will deprive advocates of the right to a profession.
How will it be done? Regional Bar Councils and Qualification and Disciplinary Bar Commissions are being eliminated in the regions, with Regional Chambers of Advocates being created instead of them, as well as separate qualification and separate disciplinary commissions.
Subsequently, a similar reorganization will occur at the all-Ukrainian level. A simple renaming and reformatting of structures will allow "resetting" the governing bodies.
A radical reduction in the quorum for regional conferences of advocates will come to the rescue. They make decisions that will further influence the decisions of the whole community - on the choice of delegates for the all-Ukrainian Congress, on the appointment of members of the controlling bodies, and so on.
Today, the law stipulates that the regional conference is eligible if more than half of the delegates selected by the regional council participate in its work. That is, at least formally, representation of the interests of at least half of the regional bar community is ensured.
Poroshenko's draft law presumes a reduction of this level to 10-15% of advocates registered in the region, depending on the size of the region. That is, these 10-15% do not even need to participate - it's enough to just register.
The Conference decides by a majority of the registered. That is, for making crucial decisions for the whole branch, where 40,000 people work, it is enough to have 5-8% of loyal representatives of the community in each region.
It is these people who, in fact, will appoint loyal leaders of qualification and disciplinary commissions, chambers and councils up the hierarchy.
New grounds for liability
The second aspect of control over the bar community is the new grounds for depriving them of their right to practice law, as prescribed in the draft law of the Presidential Administration. The two most striking items from this list are the repeated over a year abuse of the right to an advocate's request and access to the state registers.
Why did these items appear? According to the current legislation, government bodies are obliged to respond to advocate's requests, while citizens' requests can be almost effortlessly dismissed.
Are there abuses on the part of advocates? Definitely. But now even reasonable requests within the framework of the accompanied case can be considered inadmissible and become a prerequisite for depriving the advocate of the right to practice law.
The same applies to access to the registers. In fact, it will be a "tamed" mechanism of pressure on undesirable advocates: if one of the participants in the proceedings or the third parties finds that the advocate has filed a request without legal grounds or has allowed the disclosure of the requested information (which is easy enough to fabricate) - this can become the basis for depriving of the "badge".
Another item is the "abuse of procedural rights", for example, a statement of a priori groundless recusal or appeal against a decision that is not subject to an appeal.
But then again, the problem is that the "groundlessness" of the recusal is determined by the judge, being guided by his inner subjective assessment.
Today, such moments are simply a part of the working process, but with the adoption of the draft law - they will become grounds for depriving advocates of their certificates.
In fact, any "active" advocate can easily be pinned down with the help of this innovation, accusing them of filing an a priori groundless recusal or petition.
Why is it so urgent?
Main question: why is this document submitted to the Rada as urgent? After all, by and large, there are no radical changes introduced into the legislation, unlike the case with judicial reform or the reform of the prosecutor's office.
I will assume that this is an attempt to "pin down" the undesirable representatives of the bar community, who in one way or another commit actions inconvenient for the government. For example, they "dare" to protect the representatives of the previous regime, officials who were already publicly appointed to be "corrupt" before the court decision and so on.
They can point at the weak points of the investigation, destroy the PR myths of the higher administration, but today it is impossible to simply remove them from the media space, because there is a barrier in the form of bar self-government bodies.
Criminal procedural instruments have long become a way of eliminating political competitors, and the only ones who prevent such abuses today are independent advocates.
When the latter end up under the control of one group of influence, the "wrong" advocates can simply be deprived of their "badges".
Thus, the odious defendants will have to choose only from those loyal to the system. That almost 100% guarantees the necessary result for the state administration.
* * *
Deputies who will consider the draft law should not forget that tomorrow they can become hostages of political struggle.
And, perhaps, they themselves may need an advocate. And not just some advocate, but one who will have the courage to take a stand uncomfortable for the governmental structures and continue defending them no matter what.
But by that time such advocates might already just lose the right to practice law.
Specially for "Ukrainska Pravda"
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