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Valentyn Gvozdiy, the Deputy President of the Ukrainian National Bar Association (UNBA), told Delo.UA about who interferes with the bar independence, how it has become possible to overcome the prosecutorial bias in courts and about new rules of the advocates’ conduct in social networks

Advocates should be given equal rights to that of judges and prosecutors — Deputy President of the Ukrainian National Bar Association

7:25 Sat 01.07.17 Author : Valentyn Gvozdiy 133 Reviews 0 Comments Print

Valentyn Gvozdiy, the Deputy President of the Ukrainian National Bar Association (UNBA), told Delo.UA  about who interferes with the bar independence, how it has become possible to overcome the prosecutorial bias in courts and about new rules of the advocates’ conduct in social networks

 

In Ukraine, the law provides the advocates with the right to participate in the formation of such judiciary structures as the Supreme Council of Justice, the Higher Qualification Commission of Judges, etc. Is this a standard practice?

Yes, and this is pretty much an unparalleled case in the legislation of European countries, nowhere else will you find that. In Ukraine, the bar participates in the formation of a number of key authorities: the Supreme Council of Justice, the Higher Qualification Commission of Judges, and the Higher Disciplinary Commission of Public Prosecutors of Ukraine. The Congress of Advocates elects two our representatives to the composition of these bodies (except for the Commission of Public Prosecutors requiring one representative). After they have been elected and transferred to a permanent place of work, they shall suspend their practice of law to avoid the conflict of interest. This gives the advocates an opportunity to influence the processes of reforming the judicial system and the prosecutor’s office.

 

Nevertheless, these powers have not protected the advocates from pressure.

That is why we have established the Committee on Protection of the Advocates’ Rights at the Ukrainian National Bar Association. There are similar bodies at the regional bar councils as well.

 

What for? What goals have been pursued?

About a year ago there was a powerful wave of an aggressive attacks on the bar — a lot of searches were conducted at the advocates’ premises, many documents were seized, advocates were summoned for interrogation, in a word, let’s say that the advocates were confused with their clients and identified with their defendants. It was believed that if you defend the killer / separatist / drug dealer, then you are of one piece. This opinion exists until the person sharing the said view needs an advocate himself.

 

We have to defend everyone, regardless of their social status, political beliefs, etc. Anyone who addresses us to find protection and who requires it by law. This is the world practice and our constitutional task. So, at some point the situation developed in a way that we have found ourselves unprotected before the state’s invasion, and how can you protect the client well if you are not protected yourself? We did not find sufficient support in Ukraine, in response to our complaints, forwarded to the state authorities, we have received some formal replies only, thus, we decided to raise this problem at the international level.

 

In what way?

At that time we have already become a CCBE member (Council of Bars and Law Societies of Europe) — an international association uniting all European bars. In addition, we also cooperate with IBA (International Bar Association) and many other structures that are now actively protecting us, raising questions about what is happening here at the international level. At the time when our advocates were sledgehammered, these organizations — from the highest level — forwarded their appeals to the international communities and direct letters to the President, Prosecutor General and NABU Director, and, you know, eventually it brought results. We have also tried to build some dialogue. The UNBA leadership met with the leadership of the Prosecutor General’s Office, and we found common ground, in each specific case, discussed the violations of the advocates’ rights, which had never happened before. As a result, the situation stabilized, we stopped the attacks of the law enforcement agencies, but we still have to go a certain way to achieve the desired results.

 

What will happen next? As far as I understand, now there are disputes about the further reforming of the Ukrainian bar.

As we see, the current government wants the Ukrainian bar to get a new law. However, the idea to ‘modernize’ the law was proposed by the UNBA, in 2014 to be precise, right after the Revolution of Dignity. Then we suggested strengthening the effective law, namely, as relates to the strengthening of the advocate’s status. We were supported by the Ministry of Justice, and, to my mind, together with the Ministry and our working group  we have developed a high-quality draft law that was forwarded to the Parliament and submitted for approval to the President’s Administration, where it has got hung up...

 

What changes did you propose?

Up to and including the right of an advocate to carry arms, since if judges and prosecutors have the right to carry arms, why cannot the advocate do this, if we are talking about equality of arms? Furthermore, all cases of murders, threats of violence and physical attacks on the advocates indicate the need for that. Also, the draft law proposed to regulate many issues relating to, for example, the advocates’ requests, responsibility for violating our rights, the procedure for searching the advocates’ premises, etc. But our draft law was pushed into the long grass, and the Reform Council, which has been engaged in reforms for the past four years, says that they have their own vision of what needs to be changed in the law on the bar.

 

What exactly?

Nobody really knows, since the texts of alternative draft laws on the bar are not published, but they gather some manipulative working groups, formed on  the principles we are unable to understand. They are formed of people who understand little about the bar, its work and the problems of advocates. We are afraid that this is done only to introduce rules into the law that would allow the state to influence the bar, limiting its independence. You do not need to reform what has already been reformed, you just need to give the advocates equal rights to those given to other participants in the trial. And we will not allow anyone to encroach on our independence, we will work with the Parliament to prevent belittling the status of the Ukrainian bar. If the state decides to return to the old ‘Soviet model’ of the dependent bar, it will not be a step, but five steps back.

 

Have these ideas of bar redistribution already resulted in something real and specific?

We saw several rough drafts, but they are very raw. All those ideas that I'm talking about were in notes. Although officially these proposals were not yet forwarded to the Parliament. The advocate Oleksii Filatov works at the Presidential Administration (Deputy Head of the Presidential Administration — ed.), and I hope that he will not allow the collapse of the bar. The political activity is not forever, at some point you return back to your profession.

 

At the same time, there is a judicial reform, in particular, the composition of the Supreme Court is radically updated. In fact, it is established anew. What is your assessment of these processes?

I saw the names of judicial candidates to the Supreme Court. Many of them are very decent professionals. There is a hope that the new Supreme Court will work in full force. I do not see it through rose-coloured glasses and I do not believe that tomorrow everything will turn out fine — it will take from 5 to 10 years for the new Supreme Court to play a proper role, since most of those heading for the post today do not have experience in generalizing large amounts of judicial information, judicial expertise, etc. In addition, the volume of legislation is constantly changing, plus they need some time to make a good team.

 

If you look at judicial reform from the point of view of the advocate, for us the main thing is that judges hear us and make decisions that are based exclusively on the law, but not on phone calls, on someone’s instructions or other factors. And to make it possible the judicial system shall be really independent. The high responsibility for violating the law and a decent material reward for honest work will, of course, help to improve the situation.

 

Speaking of improving the situation. How do you think, the prosecutorial bias — got to the court, consequently, will be accused — is still preserved by the Ukrainian courts?

I would disagree with such statements. There is no prosecutorial bias anymore. As of today, the situation has changed dramatically — now the judgment of acquittal is no longer something extraordinary. Moreover, such trends appeared before Euromaidan, when in 2012 we have got a new Criminal Procedure Code. It was developed by the Americans and was successfully implemented. 

Yes, there are still many problems and excesses, but this is nothing compared to the old Ukrainian legislation, not to mention the Soviet Union times. If you look at the statistics of sentences, it is clearly visible that the number of not-guilty verdicts is growing every year — and this is a very good sign for our legal system in general. This means that judges are really becoming independent, that no one puts pressure on them, that they will not be shoot for the judgment of acquittal and nobody will be harmed if the judgment of acquittal is based on the law.

 

And what post-Euromaidan reforms can you mention?

The establishment of such an institution as a business ombudsman, working under the Cabinet of Ministers. The apparatus of Algirdas Šemeta is highly effective. Finally, the business has, since 2014, a structure that can at an appropriate level intervene in the situation of violation of business rights by law enforcement agencies, if such cases occur, and achieve legitimacy and justice. This is something that has been missing in Ukraine before, but now we have this structure.

 

Let's go back to the advocates’ everyday life. What is on the agenda of the All-Ukrainian Congress of Advocates that opens today?

The most important question is the innovations in the Rules of Advocates’ Ethics. We are adopting the world practice of regulating the advocates’ behavior in social networks and on the Internet in general. This is something that we did not have in the Rules at all, but it is now obvious that a resolution is necessary, since we already have many disciplinary cases of this kind. Unfortunately, some advocates take liberties with certain unacceptable things online, since they believe that this is one life, and the real life is another, having other rules.

 

Inadmissible online behavior in relation to other advocates?

In relation to anyone, but also to the judges, to officials, especially to other advocates. We believe that it is urgent to restore order in this field, since you cannot lead two lives: one online and the other in reality. It’s one and the same. And all its parts shall correspond to the distinguished title of a professional legal adviser and advocate.

 

And how do you plan to regulate the advocates’ life online?

We took the rules of the aforementioned CCBE and IBA as a basis, but the final decision on their implementation will be adopted by the Congress.

 

That is, the European bar associations, the rules of which you took as a basis, do not consider such norms of regulation of the advocates’ life online to be an attempt on freedom of speech?

Definitely! It is inadmissible that one advocate insults another advocate in the comments in social network. This is intolerable. We are not going to forbid advocates to say anything, criticize someone and so on. The rules will clearly state that swearing is not allowed in Internet communication, insulting words are forbidden in relation to colleagues or judges. On the Internet one should also behave correctly, as in real life, as in the courtroom. The advocate should be ethically upright in any field of his/her activities: in social networks, in court or when advertising their services. The advocate shall be the advocate at all times and in all places.

Автор публікації: Valentyn Gvozdiy

 

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