The independence of advocacy excludes the participation of external experts in the elections of the UNBA, - international lawyers

Involving international experts in the selection process for bar self-government bodies is a direct interference in the independence of the constitutional institution of advocacy. Lawyers themselves should decide who to elect to leadership positions in bar self-government bodies.

This was emphasized by international lawyers during a recent event organized by the EU Project «Pravo-Justice» as part of thematic workshops on the Roadmap on the rule of law.

One of the panels was devoted to the self-regulation of advocacy and the professional development of advocates. Representatives of government bodies, in particular the Office of the President, the Ministry of Justice of Ukraine, the Verkhovna Rada of Ukraine, the Supreme Court, the Constitutional Court of Ukraine, the High Council of Justice, the High Qualification Commission of Judges, the State Judicial Administration, the Office of the Prosecutor General, as well as public organizations and academics were invited to participate in the thematic workshops. However, representatives of advocacy, whose issues were directly discussed at the events, were once again not invited.

Instead, the DEJURE Foundation was invited, and their representative Yaroslav Kuzyishyn, expressed the opinion that a key element of reforming the advocacy should be the involvement of international experts to verify the integrity of candidates for leadership positions in the bar self-government bodies. This should become the supreme disciplinary body responsible for a unified exam for advocates.

«We are now seeing the effectiveness of the High Anti-Corruption Court, the High Council of Justice, and the High Qualification Commission of Judges, which are very vivid examples of how the process of selecting and vetting candidates by international experts works in practice», - said Y. Kuzyishyn.

The representative of the DEJURE Foundation also proposed changing the mechanism for selecting candidates for positions in advocate self-government bodies. He believes that the current system, whereby delegates to the Ukrainian advocate congress are elected at regional advocate conferences, is not effective.

These proposals were met with counterarguments from international lawyers. Maria Slenzak, former president of the Council of Bars and Law Societies of Europe (CCBE) and the European Association of Lawyers (AEA-EAL), emphasized that in Europe there is no single document that explains how elections to bar self-government bodies should take place.

Some aspects are regulated by the norms set forth in the Basic principles on the role of advocates, adopted by the UN in 1990, Recommendation N R (2000) 21 of the Committee on the freedom of professional activity of advocates, and the recently adopted Council of Europe Convention on the protection of the profession of advocate.

«And the first point is that elections must be organized and monitored independently of the government and external influence. In this case, if the bar association is independent, then the individual advocate will also be independent», - noted M. Slenzak.

Using the example of Polish advocacy, she described the system for selecting candidates for positions in the bar's self-governing bodies. She emphasized that the selection mechanism is similar to the Ukrainian system. That is, candidates for all positions are elected by a congress using a quota system at conferences. In addition, as in Ukraine, all bodies of bar self-government are completely independent of each other.

The Polish advocacy also had experience in conducting elections in a mixed format – online and offline voting. However, M. Slenzak stressed that this was only possible by adopting appropriate amendments to the law. «In 2020, during COVID, we had elections in a hybrid form. Many members were online. But we were able to do this because we introduced a special law», - said the international lawyer.

Her statement was fully supported by Rytis Jokubauskas, an expert on justice sector reform and the rule of law, former Deputy Minister of Justice of the Republic of Lithuania, and an expert of the Venice Commission, who was involved in the Commission's opinion on the Law of Ukraine «On the advocacy and the practice of law». He noted that the models for selecting candidates for positions in bar self-government bodies in European countries vary. However, there is a single principle of non-interference by authorities and various external experts in the independence of the advocate profession.

«I am very skeptical about this proposal (the participation of international experts in the selection of UNBA leaders, - ed.). We need to look at other aspects of how to conduct this procedure, but not the direct involvement of certain external experts. In other words, it is up to the lawyers themselves to decide who to elect», - said R. Jokubauskas.

It should be recalled that the sixth congress on elections to the bar self-government bodies was officially convened by the Bar Council of Ukraine back in September 2022, but it became impossible to hold it due to the ban on mass gatherings and the requirement of military administrations to ensure the safety of citizens in regions classified as zones of active or possible hostilities.