UNBA, BCU President Lidiia Izovitova: within these 5 years we have defended our independence, but we are prevented from becoming truly powerful

Five years ago the Law “On the Bar and Practice of Law” came into force. It has finally put an end to disputes about which organization should unite the bar community. Pursuant to the Law a single self-governing organization, the Ukrainian National Bar Association, shall be established and act in Ukraine. Today, the UNBA celebrates its first anniversary, and “ZiB” decided to ask the UNBA, BCU President Lidiia IZOVITOVA, what achievements the Bar honors todays and what challenges does the professional community face today?

“Professional development and gaining the maximum possible professional rights came first”

— Lidiia Pavlivna, first of all, let me, on behalf of the whole editorial staff, congratulate the entire bar community on the UNBA's 5^th anniversary. A lot has been written about the difficult 20-year-old way paved by the advocates towards a single professional organization. Why did the authorities and, in particular, the Parliament dared to take such a step in 2012? Indeed, separate uncoordinated unions were a more convenient tool to influence the Bar.

— The year 2012 opened a new page in the history of the Ukrainian Bar. The adopted Law “On the Bar and Practice of Law” fully complied with the European commitments of Ukraine both to the Council of Europe and to the European Union, and took into account all the comments of the Venice Commission. Therefore, the celebration of the UNBA's 5^th anniversary is not only the first serious date in the history of our organization, but also an important event for the entire Ukrainian bar community, which, in essence, has begun a qualitatively different stage of its development.

Regarding the differences in positions of the various public bar organizations at that time, I'm convinced that, in spite of different perspectives and views, the development of an independent bar institution, professional development and gaining the maximum possible professional rights came first. Unfortunately, now the attempts to reform the Bar are not based on a common understanding of the goals.

— Which provisions of the specialized law the advocates are not satisfied with and which provisions the representatives of the authorities are not comfortable with? Overly independent and powerful organization capable of bringing problems for the authorities?

— Pursuant to the Law of 2012, for the first time in Ukraine, the system of bar self-government bodies was established. This is a fundamentally new way of the bar institute organization as compared to the one provided for in the Law “On Bar” of 1992. The key difference is that the Bar has received a full range of powers as a self-governing institution. The Bar has finally freed itself of the influence of the executive branch of power. The self-government model was borrowed from the practice of European countries, since it was explicitly foreseen by international instruments.

Within these 5 years we have defended our independence, but we are prevented from becoming truly powerful. The attempts to intervene in our powers, in particular, the establishment of advocates' contributions at the legislative level, indicate that our State does not need powerful and independent bar organization.

Talking about the advocates, our first priority when amending the Law of 2012 is to strengthen the mechanisms of protection of advocates' professional rights and guarantees. The real situation with the observance of human rights in Ukraine and the statistics of violations of the advocates' rights testify to the unmistakable nature of our approach. The Bar, protected from the pressure and interference on the part of the State, is in the best interests of all citizens of Ukraine, while the stability and independence of our self-governing organization are the best guarantee against such pressure and interference. It is this content that we, as professionals, fit into the reform.

“Bar reform is entrusted to a working group with uncertain status, powers and inadequate representation”

— The Bar Council of Ukraine has very rigidly reacted to the development of amendments to the specialized Law without their agreement with the UNBA. What exactly lies behind such covert law-making? Do you know who develops the draft?

— The Bar Council of Ukraine has twice publicly voiced its opinion on the inadmissibility of the preparation of amendments to the Law “On the Bar and Practice of Law” and the devastating ideas embodied in this document. For the first time, on December 15, 2016 – on the day of approval by the working group of this draft law – in its open statement the BCU drew attention to the “toning up” and substitution of the goals of the Bar reform.

Among other things, we pointed out the significant contradictions and inconsistencies of the draft law, adopted by the working group, with the Presidential Decree No. 276/2015 “On the Strategy for Reforming the Judiciary, Justice and Related Legal Institutions for 2015-2020”. This Strategy, in particular, provides for “strengthening at the institutional level of the Ukrainian National Bar Association to ensure proper professional activities of the Bar, management of legal professions and representation of collective interests of all advocates”, and this document is still valid. At that time the BCU's position was immediately supported by the largest professional bar organization in Europe.

However, the key requirements for attracting UNBA as an official representative of the Bar and publishing the text of the draft law are still not fulfilled. Something strange is going on. In October this year the draft law, in its revised and unknown for us version, was submitted to the Council of Europe international experts for evaluation. The UNBA learned about it by accident from the working letter of the Council of Europe Office in Ukraine. We have no idea who exactly passed such a decision and which text of the draft law was submitted to experts.

It is noteworthy that the one who made such a decision requested to evaluate the draft law for minimal compliance with European standards. That is, the mandate of European experts is rather limited, and it does not foresee an assessment of the process of document development and the rationale for amending the current law.

Imagine that during a meeting with CoE experts we could not substantively discuss the draft law because we did not participate in its development, and the actual text, provided to the experts to work with, was presented to us. Therefore, we have convened the meeting of the Bar Council of Ukraine once again on October 14 this year. The BCU approved a resolution calling for the transfer of this “secret” draft law to the Venice Commission in order to obtain comprehensive conclusions on its compliance with the principles of the rule of law and democracy.

— Did you get acquainted with the text of the document and what, in your opinion, can be regarded as an attack against the UNBA independence?

— Reform of the Bar with the participation of the Bar is an international standard practice. If it is not followed, and after December 15 last year there are no doubts that it is not, then all further steps in the work on the draft law can be regarded as an attack against the independence of legal profession.

How can we perceive the fact that not a single UNBA representative has not been included in the Judicial Reform Council? How can we assess the situation when the Bar reform is entrusted to a working group with uncertain status, powers, inadequate representation, variable composition and covert decisions, for the adoption of which it is not entitled? The reform is carried out in a closed behind-the-scenes regime, in spite of all declarations of democracy and transparency of this process. In these circumstances, there is no compliance with European standards.

— The independence of Ukrainian Bar was supported by the Council of Bars and Law Societies of Europe (CCBE). Can this possibly make the Judicial Reform Council to refrain from the intervention with the UNBA's independence?

— On December 23, 2016 the ССВЕ has sent an intervention letter to the leadership of Ukraine calling to refrain from introducing any changes to the relevant legislation without consulting the Ukrainian National Bar Association. The ССВЕ has clearly argued that the Bar reform with the participation of the Bar is an international standard. The ССВЕ referred to the fact that the independence and self-governance of the legal profession are recognized by the Council of Europe Recommendations of 25.10.2000, and the UN Basic Principles on the Role of Lawyers of 14.12.1990. Moreover, the ССВЕ key documents, such as the Charter of the Core Principles of the European Legal Profession and the Code of Conduct for European Lawyers, recognize the independence of legal profession and its self-governance as key values.

Unfortunately, even this international instrument, and the reputation of ССВЕ did not affect the situation. That is, the voices of the national Bar and the European representative of the legal profession were not heard. This, once again, is the reason for doubts about the European nature of the reform, and about the specific actions of the officials involved in this process.

The ССВЕ delegation visited Ukraine in the middle of November on the occasion of the international conference “Advocates’ Rights and Obligations in Investigative Proceedings” and the UNBA's 5^th anniversary. Hopefully, after this visit we will increase our joint pressure on the authorities. The ССВЕ's another letters to the leadership of the State and the Judicial Reform Council, based on the results of this visit, are already being prepared.

By the way, during the meeting with the coordinator of the Judicial Reform Council our European partners also did not receive any documents regarding the formation and powers of the working group, regarding its decisions or the decisions on the draft law submitted to the Council of Europe. They were promised only that the text of this draft law will be sent to them by e-mail.

“This is one of the mechanisms aimed to deprive the advocates of their independence”

— Recently, another draft law was submitted to the Parliament, which is now briskly discussed by both the advocates and lawyers, — “On Legal Education and General Access to the Profession” (No. 7147). There is a proposal among its provisions not only to streamline the provision of legal education, but also to carry out a kind of lustration of all lawyers by confirmation of the level of their knowledge. Maybe it is really necessary? After all, as it was stated on numerous events, many universities, graduating lawyers, did not reach the required level of accreditation because of the incompetent teaching staff.

— The question of obtaining high-quality legal education is indeed one of the most topical. In my opinion, it is especially important to involve into educational process the practicing lawyers who could share their practical knowledge and skills. However, it is rather difficult to implement this idea due to the extremely low level of remuneration of teachers.

This draft law discriminates those lawyers who are not judges, prosecutors, advocates and notaries. In particular, it provides that these persons are considered to have legal education only for a period of 5 years from the date of entry into force of the new law. The draft law provides also for the radical changes in the legal education system. However, they are by no means secured with financial resources. The document does not contain any legislative proposals relating to the financing of the proposed measures. Therefore, it remains unclear what costs will be used to cover the provisions of this draft law.

For example, a number of requirements are imposed on scientific and pedagogical staff: knowledge of one of the languages of the Council of Europe, teaching activities exclusively in one law school, etc. However, the draft law does not provide for any increase in the remuneration of scientific and pedagogical staff.

— It is not clear why there is a need for re-qualification of lawyers? After all, many more people suffer (in the direct sense of the word) from the poor quality medical services, not to mention the victims of motorists who “bought the car, bought the license, and did not buy the skill to drive”. However, the Parliament does not think about their general checks. Whose thorn in side the lawyers are?

— As for the Bar, I am convinced that the procedures established by the Law “On the Bar and Practice of Law” ensure proper control over the quality of provision of legal aid.

At the same time, any attempts to conduct any additional re-qualification of advocates, primarily by the state bodies, can be regarded as interference with the affairs of the Bar and the bar self-government. This is one of the mechanisms aimed to deprive the advocates of their independence. This mechanism may contain a corrupt component and open the way for outrage upon the unwanted advocates.

“Outsiders can get into the Bar by violating the provisions of a specialized law only”

— At the BCU meetings you have also expressed concern about the fact that there were a lot of casual people in the Bar. Many ideas were put forward, for example, to restrict the access to legal profession to former judges, prosecutors and representatives of the law enforcement agencies. Maybe this law will help to clear the list of advocates out?

— The access to legal profession is governed by the Law in force. It provides for a clear algorithm of certain actions taken by the bar self-government bodies to control the quality of knowledge and skills, professional adaptation of applicants and their inclusion in the Bar. There is no need to amend the Law in this part.

There are clear requirements regarding incompatibility and qualification requirements; moreover, the mechanism of their application has already been duly worked out. Outsiders can get into the Bar by violating the provisions of a specialized law, not by implementing such provisions. For example, by creating fake regional councils and QDCBs, or fake “pocket” registries, data from which cannot be entered into the Unified Register of Advocates of Ukraine.

Regarding the BCU position, we expressed our opposition to the draft law that would facilitate access to the Bar for the law enforcement officers, judges and others who do not have experience in legal profession. There are no grounds for such privileges. For example, the judicial reform has shown that the society's trust in judges is extremely low; many people retired from their offices. How fair is to widely open our doors to these people? Will such mass arrival of people under the simplified procedure strengthen the Bar and its professional level? The answers to these questions are obvious.

— By the way, recently the High Council of Justice has surprised by its decision, which in fact allows the acting prosecutors, civil servants and judges to obtain a certificate of the right to practice law. Alleging that getting a certificate is not the same as practicing the law. And there are several minutes – between the issuance of the advocate's certificate and the inclusion in the register of an entry on termination of the activity – to violate the requirements relating to incompatibility. Is this position correct? After all, nobody will follow this prosecutor and will not check whether he uses his advocate's certificate to mislead witnesses or suspects.

— The Bar Council of Ukraine has adopted a number of decisions to exclude such an interpretation of the Law “On the Bar and Practice of Law”. The procedure for access to the profession is clearly set out in the Law, and it is not necessary to create the loopholes that are not there.

When a person approaches the stage of obtaining a certificate and taking the oath of office, he/she shall make a choice of profession. If the person chooses the Bar, than his/her activities at the law enforcement bodies, civil service or court shall be discontinued. Otherwise, the certificate of right to practice law is considered to be issued in violation of the requirements related to incompatibility.

“The Law provides the advocates with a fair amount of rights and guarantees. But in practice we observe a total violation of these norms”

— Next year the advocates will have exclusive right for representation in courts of appeal. Obviously, the number of dissatisfied lawyers having no advocate's status will rapidly grow, since they will lose this stock in trade. Are there any attempts to expand in some way the circle of people who will be allowed to act as representatives of the parties?

— The introduction of an exclusive right of advocates to represent the clients in courts was always perceived by the UNBA as one of the most progressive Bar reform. We have achieved consolidation of this position at the constitutional level and in full compliance with the practice of European Bars. This reform will be implemented in stages, over several years.

In fact, from the first stage, which began in January this year, the reform was prevented from proper implementation For example, by an attempt to introduce the amount of a minor dispute, which is not subject to the requirements of the Bar monopoly, at the level of several million hryvnias. We immediately understood the true goals of such legislative initiatives. The Bar Council of Ukraine sent an appeal to the Parliament, giving examples of developed European countries, where the insignificant dispute is set at approximately €600.

Now we can predict that further implementation of the exclusive right of advocates to representation in courts will be subject to new barriers and limitations. The grounds for such predictions are envisaged in the methods the Bar reform is conducted, since they are aimed at limiting the rights of advocates in all possible ways.

— Russia is also going to introduce an the advocates' monopoly to represent the parties' interests in courts. But they can go further and from 2023 prohibit receiving money for the provision of legal services by those persons who have no advocate's certificate, with the exception of in-house workers. Should Ukraine reflect on such an innovation?

— The introduction of advocates' monopoly in Ukraine is scheduled by 2020, when the last stage of the reform will be implemented. It is still early to talk about further expansion of this practice. 

— Are our citizens ready to pay not only high court fees, but also high fees for the services provided by advocates? Can this result in a situation where person will be restricted in access to justice due to his/her financial situation?

— The comparison of court fees with advocates' fees is a manipulative technique. In simple terms, of course, the raising of court fees obviously complicates the access of citizens to justice. This is an unjustified decision in terms of both human rights and economic realities.

High advocates' fees are another issue. It is often used in speculations directed against the advocates. I can say that advocates in no way separate themselves from the rest of Ukrainian society and the conditions in which our citizens live. In some regions advocates are sometimes forced to provide legal aid for a chicken, for example, or other products. And they fulfill their professional duty even on such conditions. In addition, the system of free legal aid is strengthening in its institutional capacity and, I hope, in the course of further reforms it will be even more effective and efficient.

— Do the advocates have enough guarantees and rights to resist the authorities in the aforementioned processes? After all, the continuous pressure and searches give an impression that they are not protected from the abuse of power, just as an ordinary person is.

— The Law provides the advocates with a fair amount of rights and guarantees. But in practice we observe a total violation of these norms. This is evidenced by the number of appeals submitted to the UNBA Committee for Protection of Advocates' Rights, the committees at regional bar councils and the regional bar councils, as well as UNBA appeals to the leadership of our State, law enforcement agencies and international partners. The advocates are better protected than the ordinary citizens only due to the corporate solidarity and legal competence.

Full interview of the UNBA, BCU President Lidiia Izovitova is published in specialized online media outlet “Zakon i Biznes” (Law and Business). 

Автор публікації: Lidiia Izovitova

Lidiia Izovitova

President of the Ukrainian National Bar Association and the Bar Council of Ukraine