The bar community is indignant about the fact that the draft specialized law was submitted for evaluation to the Council of Europe without the consent of the bar self-government bodies. When the Ukrainian National Bar Association requested the Council of Europe to submit the draft for review, the request was rejected referring to the impossibility of such a step without prior agreement with the authors of the document, namely, the Judicial Reform Council. Oleksii FAZEKOSH, the Chairman of the Bar Council of Zakarpattia Region and the Head of Zakarpattia Branch of the Union of Advocates of Ukraine, told us about what exactly the reformers are trying to hide, why they do not want to involve advocates into discussion, how to weed out incompetent advocates from the professional community and what legislative changes are currently important.
Chairman of the Bar Council of Zakarpattia Region Oleksii Fazekosh: “The desire to promptly amend the specialized law is fueled by the ignis fatuus to make the bar weak and dependent”
“Implementing of such a reform will destroy the bar system”
— Oleksii Andriiovych, is it really possible that the Judicial Reform Council prohibit the European expert bodies from something? Isn’t the document a priori open for discussion if it has already crossed the borders?
— On the contrary, this document is a priori closed, almost mysterious. The situation with this draft law can be better described by a quote from the famous work of Strugatsky Brothers: “And the lonely, devious paths stretched”.
First of all, any changes, amendments or new versions of the specialized law should not only be coordinated, but also developed during detailed discussions with the only professional organization representing all Ukrainian advocates, — the UNBA.
In addition, there is the Union of Advocates of Ukraine — an all-Ukrainian public organization that is quite numerous and has long-standing traditions in the legal system of our state. Properly speaking, the thoughts of these organizations have been ignored, and we do not even know the content of the draft. So what can we talk about?
The bar has almost accidentally learned about the existence of this document at the stage of its submission to the Council of Europe experts. It caused a serious opposition from the domestic bar to the system reform in such a behind-the-scenes way. Within one week the regional bar councils expressed their definite position.
— And what was the reaction to the news in Zakarpattia?
— The bar community of Zakarpattia Region was the first to express its position. The regional bar council adopted an appeal to the UNBA, BCU President Lidiia Izovitova. In particular, it states: “We are in need of a consolidated position of the entire Ukrainian bar, based on a clear and principled stand regarding the prevention of the pseudoreforming of the Ukrainian bar institute, which will result in complete destruction of its independence and self-government.
The Ukrainian bar and its supreme self-government bodies should not ask, but strongly demand that the leadership of the state and legislators immediately stop all attempts to destroy the independence of our human rights protecting institution at the legislative level.
There are eternal principles, which under no circumstances can be compromised!
Let’s defend the independence and self-government of the Ukrainian bar!”.
The patriarchs of the bar community of Zakarpattia Region, namely, Vasyl Koshelia, Volodymyr Dumnych and Oleksandr Bondarenko, also made public their positions.
In the televised address to the bar community, which is not so much my individual vision but the synthesis of the collective opinion of the advocates of Zakarpattia, I, in particular, stressed that under no circumstances we can allow the behind-the scenes and secret adoption of this draft law, developed without proper discussions by regional bar communities. After all, this may lead to the reform that will destroy the Ukrainian bar system.
“Strike will result in the paralysis of legal system”
— What exactly the authors of this draft law are trying to hide from the Ukrainian advocates? What amendments might this document provide for?
— I will probably parry your question: what is the main vocation of the bar? Answer: to ensure effective protection of people. And when such an effective protection can exist? Only when the bar is institutionally strong, self-governing and independent. The development logic of world democracies demonstrates that even within a society having well-established traditions of democratic values there are some rare attempts of the state to establish control over all spheres of public life, including the legal system. What can we tell about Ukraine then? I will not analyze things I have not seen, but this fact leads to a logical and motivated conclusion: the desire to promptly amend the specialized law is fueled by the ignis fatuus to make the bar weak and dependent, and put the advocates under control. I assume that this is what is hiding behind the screen of such a pseudoreform.
— What steps are the advocates ready to take to defend their independence? In your video address on Facebook you are talking about strikes. It is well-known that society is scared ofe strikes of transport workers, health-care professionals, etc. And what consequences can the strikes of advocates have?
— Ukraine has chosen the path towards European democratic values of the rule of law. The strike of representatives of an independent human rights protecting institution, which is an integral part of any democratic society, will result in a complete paralysis of the entire legal system of the state. It will also have a wide world resonance. Therefore, I would not recommend provoking it, since its consequences can be fatal. Time will tell how Ukrainian advocates will act and in what way they will defend the independence and self-government of the Ukrainian bar institute. Considering the appeals approved at meetings of the regional bar councils, it is clear that the mood is decisive.
“Ukrainian bar is powerful and strong”
— Don’t you think that the authorities have decided not to involve advocates into the reform process because of the situation within the community? For example, because of constant problems occurring with the advocates of Kyiv City and Kyiv Region, or long congresses the legitimacy of which is being questioned every single time by one of the representatives of the legal profession. Probably, the law drafters believe that advocates are not able to independently bring order into their own realm.
— The legitimate Bar Council of Kyiv City is chaired by Petro Riabenko, and the legitimate Qualification and Disciplinary Commission of the Bar – by Ihor Orlov. If someone wants to present the situation as a crackup in order to achieve their mercantile goals, then they mistake the wish for the reality. There is no split, as demonstrated at the last Congress of Ukrainian advocates. And as for the small and destructively-minded group of Kyiv City advocates, who stubbornly hold pseudo-conferences and various kinds of meetings, they form illusive bodies of the bar self-government, and this not the criminal law field only. There is an opinion that someone should be examined by a psychiatrist. As the Chairman of the regional bar self-government body, I believe that the Ukrainian bar, based on the example of bar community of Zakarpattia Region, having no strife and conflicts, has proved to be powerful, consolidated and strong, which was pointed out at the last year celebration of the Bar’s Day by the Head of Zakarpattia Regional State Administration Hennadii Moskal.
— Certain media say that it is necessary to conduct a so-called re-qualification of advocates by the example of qualification assessment of judges. This might solve the problem of low professional level of Ukrainian advocates. Is it appropriate?
— No, it is not. On the contrary, I can draw a conclusion about distorted vision of the problems of domestic bar by the authors of such publications. This attitude to advocates and the bar community in general is disrespectful.
A strong, independent and self-governing bar is one of the essential components of any democratic society of a law-governed state. In order to be an effective human rights institutions, the advocates shall a priori be self-governing and independent from the state, and all questions about the election of governing bodies, assessment of qualification and skills, funding of the bar self-government bodies, of course, shall be resolved and decided by the advocates themselves.
I believe that the national bar does not deserve such scant regard, since Ukrainian advocates have long traditions of legal profession and their cases, including those conducted in the international courts, deserve respect and recognition.
There is a painting of Francisco Goya called “The Sleep of Reason Produces Monsters”. Here’s the same picture...
Who, according to what criteria, methodology and standards can assess the qualification of national advocates, including the elite, who have been awarded the titles of “Honored Lawyer of Ukraine”, and won cases in the European Court of Human Rights? It’s simply an absurd! This way is inadmissible for a law-governed state, in which it is a priori impossible to intervene in the functioning of a self-governing human rights institution.
Judges or prosecutors are one thing, but advocates – totally another. We already have an ill-fated law on lustration, and now in an uncovered way they try to “steamroll” the bar. I will explain as a lawyer: the consequences of such a re-qualification will be the total satisfaction of complaints, filed with the ECHR, the collapse of the entire legal system of the state, and the complete loss of Ukraine’s international image. This is a false path. At least, because it is a healthy competition that ensures selection and screening-out of nonprofessionals in the legal services market. That is why the Ukrainian bar community has extremely negative perception of these false ideas, and, I am convinced, they will be given an adequate and resolute rebuff.
“We need to improve what we already have”
— What about the effective law? Does it really need any amendments? After all, many advocates consider it to be quite good.
— Basically, the current specialized law is very effective, is in line with the requirements of the European Union, and it has been adopted in a very painful way by discussions in society. I’d like to say that during the five years of its existence, the vertical of the bar self-government has been formed on the basis of this specialized law, and the Ukrainian bar now demonstrates its independence and professionalism, that is, it is institutionally strong. And the aforementioned became possible even taking into account all realities of the Ukrainian legal system.
— What changes should be introduced into the specialized law?
— Those that, in the first place, strengthen the bar, its independence, self-government and efficiency. The effective law and its basic principles require only some amendments. After all, it is progressive by nature. Finally, a self-governing professional organization – the UNBA – has been set up in Ukraine, and this is obviously a positive thing that meets the requirements of the European Union and a progressive vision of the bar institute model.
The hierarchy line of the bar self-government and its managing bodies have proven their effectiveness for the last 5 years. Therefore, all reforms in the field of legal profession should be limited to introducing amendments or changes to the law in order to strengthen the independence of this institute, to make it impossible to influence it, to protect the professional rights of the advocates, to introduce a so-called monopoly, to regulate social and pension issues, taxation, etc. We need to improve what we already have, and not try to carry out chaotic reform.
Only when the bar is truly independent and self-governing it can fully achieve its potential as an effective human rights institution. Therefore, it is necessary to clearly define at the legislative level all guarantees of the bar’s independence, mechanisms for their observance, as well as transparent and democratic procedure for the formation of a system of bar self-government bodies. It is impossible to build the rest of the principles of the bar’s functioning without realization of the basic principles of its independence and self-government. Without guaranteeing the basic principles, other derivative principles will be deprived of their foundation.
We have to realize that bar reform is an integral component of the entire state transformation. From the standpoint of European standards, the existence of a strong democratic society is impossible without an effective legal system in which all governmental institutions and the state are guided not by the law of force, but by the force of law. It is a confrontation with the laws of force and the strengthening of the power of law that shall be the main task of the bar. And the implementation of the aforementioned does not allow any interference with the activities of the bar, in particular on the part of the state.
In one of their works my favorite writers, the Strugatsky Brothers, said the following: “Everything on earth has somebody’s interests behind. And those who have these interests have the Puppeteers behind, who use them for their own interests. All you need is to cut the threads, linking them, and then no one’s interests will be satisfied”.
Now the Ukrainian bar is facing its fateful time. It is now decided whether it will be independent, self-governing and strong, occupying a worthy place in the legal system of our state and influencing the social processes taking place within our country. This is a rubicon for Ukrainian bar.
Article “The desire to promptly amend the specialized law is fueled by the ignis fatuus to make the bar weak and dependent” is published in the online media outlet “Zakon i Biznes” (Law and Business); issue–40 (1338) 21.10—27.10.2017