The work over the draft of amendments to the law "On the Bar and Practice of Law" is completed. During one month the draft law existed in the public formats of the workgroups, meetings with the participation of a small asset from the members of the CJR and a decorative round table in the PA with the representatives of the Regional Bars. On February 16, the Council for Judicial Reform held a final meeting in a mixed (extended) composition. The curtain was dropped in the discussion with the representatives of the advocates' community. This is not the good news. This is a clear message that the game of democracy with 40 thousand of advocates is completed. What's next?
Bar reform: the project completed just to tick the box
The very first impression is that after a year of inaction with the beginning of 2018, the initiators of the draft law hurried so as if tomorrow the Verkhovna Rada is going to evacuate from the country. It looks like the fuss was caused either by the pressure of the international partners, as the reform of the Bar is supervised by the Council of Europe under the Plan for 2015-2017, or by insecurity in their own forces in changing political scenarios. Perhaps the pace was set by the PR strategy of the reformers themselves, forced to rehabilitate themselves after an uncomfortable reputational story with the draft law on Anti-Corruption Court. Because of the rigid timeframe, the discussion could not be full-pledged. The fact that the advocates may have different opinions about the prospects of the profession is normal.
It is difficult to say how the final document looks like after February 16. It is entirely permissible that it will change in the future, but without convening the CJR, without the knowledge of the outside experts and advocates, without publicity in general. There is a high probability that the presidential folder will contain a completely different version of the reform. It is possible that other deputy's draft laws will also appear in the parliament. The conditions for shadow substitution have been already created. After all, because of procedural fuzziness, unstated order of voting, undiscussed rules of the meetings, an uncertain circle of participants with the right to vote, it is unclear if they just consulted with us or we did influence something. And what did we come to as a result? Judging by the posts in Facebook, which the members of the workgroup published following the results of each meeting, the same idea is considered by someone as a victory, and by other - as a withdrawn provision of the draft law.
It happened not only because of the information war between the individual participants of the process, but also because of the terminological and logical embarrassment of the draft law itself, the unannounced procedure of the discussions themselves. When 4 out of 42 CJR members gather in one room, is this considered a meeting of the Council or are they just attracted observers? In whose name is the decision made in their presence? It is significant that Minister Petrenko, as a member of the RSR, did not show any interest in the advocacy reform at all, and the current director of the Legal Aid Center under the Ministry of Justice of Ukraine is not even included in the profile of the Work Group, which is occupied by the former head, not even the advocate. Apparently, the Ministry of Justice decided to award the glory of the reformers to another government body.
But the problem is not that the composition of the Judicial Reform Council has not been updated. The problem is the use of its brand to promote legislative initiatives in the interests of particular groups, rather than institutions of justice.
This draft law, written in full isolation from Ukrainian realities, hastily approved by two experts of the Council of Europe, imposed on the advocate community as a basic one, it contains so many non-working mechanisms that the Bar will not reform but will collapse at the first attempt to implement it in practice. Intent or neglect?
The Ukrainian National Bar Association acted consistently with very this main message about the liquidation of the independent bar. But its competence, legal powers of the representative of the bar in relations with the authorities, five years of experience of the heads of national and regional bodies of advocates self-government were ignored in the race for a quick result.
What were we fighting for? For a greater scope of advocates' rights and mechanisms for their protection in the new procedural legislation. For adequate taxes for advocates engaged in the individual activities. For equal access to the profession, taking into account the growth in the number of wishing because of the advocate monopoly in the courts. For the secured right of every advocate to participate in self-government. For the opportunity to strengthen the unified voice of the profession, the need for which is evident in the conditions of pressure on the bar as an institution and individual advocates, especially in high-profile cases. Seeing the quality of the document proposed for discussion, UNBA provided an alternative law draft on the bar, a package of amendments to the Criminal Procedure Code and the Tax Code. These were real constructive proposals, but they were given the role of bureaucratic formalities.
Obviously, it is explained by the fact that the goals of the reformers and UNBA were different initially. The main aim of our counterparts is to pass a new law. It does not matter what. Just different. The reform is ready, you can tick "done"! Although this law draft is not stipulated in the conditions of cooperation with the IMF, and for the European Union this reform is considered to be completed in 2012 with the adoption of the current law on the bar.
Conceptually, the law draft will not give any tangible improvements for the bar and affect ordinary citizens very indirectly. Briefly, the efforts of the team and the key part of the law draft are aimed at this. It was possible to name fairly - "the Law on abolition of independence of the bar".
We were reproached that UNBA is blocking the reform, because it is struggling to preserve itself, and the real reform is what all people need. And the law draft is for them. Controversial thesis, if you look at the result. The main story is 27 regional chambers of advocates who will take over a significant part of the powers of the unified national association. This is preceded by the liquidation of all the bodies created by the advocates for 5 years throughout the country. In the course of liquidation of legal entities millions of expenses will be paid, naturally, at the expense of the advocates themselves. They are appointed as the creditors of the Bar reform. The democratic nature of this process is questionable, since 5-10% of the advocates in each region will choose the new bar government in the regions.
This is the threshold of the conferences legitimacy and the authors of the law draft do not count on more participants. It is doubtful that someone will try to ensure full turnout of all the paticipants and look for a room to accommodate several thousand people. There is no doubt only that there will be such 5% - conferences in each region, with a further war for legitimacy. There will be a choice - two or three parallel bar councils in the region or none at all.
How does this legalized revolution of advocates' self-government strengthen the protection of the rights of citizens, promote the rule of law? Does it help the advocates, increase their professionalism and independence? If the advocate is a member not only of the national association, but also of the regional chamber, how does such "double membership" make his/her work less risky or more efficient? The advocates have the right to practice throughout the country. If the Kyiv advocate has a court in the Lugansk region, does he/she need to join the Lugansk Regional Chamber in order to get help there and not be perceived as an outsider?
To create the visibility of European standards, the new system is composed of different parts of the Polish and German models. But what is the practical usefulness of blind borrowing of self-government in other countries, if for a day in the Kyiv region there can be more searches of advocates than in all France in a year? Probably, this is not due to an unjust distribution of powers between the bar councils and the disciplinary commissions of the bar. But the reform has other priorities - to complicate the system of advocates' self-government.
And another bonus. Simplified access to the bar for judges and prosecutors. It turns out that the reform of the Bar as the final component of judicial reform should cover the costs of reform of the prosecutor's office and courts. After all, ticks have been put here long ago. It remains to deal with the consequences and find a place for the dismissed, lustrated and underqualified co-workers in the bar on preferential terms.
P.S. If the authors of the reform were attentive not only to the wishes of prosecutors and judges to obtain an advocate's certificate in an easy way, but also to the wishes of some advocates to go to the judiciary, they would offer a single qualification exam for all professions, and then let each internship pass where it plans to realize oneself - in the bar, the prosecutor's office or the court.
The article is published in the "LB"