Members of the QDCB are not required to submit declarations - BCU

Bar Council of Ukraine examined the legal status of members of bar self-government bodies and found that they are not required to submit declarations of persons authorized to perform functions of state or local self-government.

The relevant decision was adopted during a regular meeting on December 12.

Part 1 of Article 3 of the Law «On prevention of corruption» defines an exhaustive list of entities to which the requirements of this Law apply.

Paragraph 1 of this part includes persons authorized to perform state or local self-government functions. Paragraph 2 lists certain categories of persons who, for the purposes of this Law, are equated with such persons, in particular, representatives of public associations, scientific institutions, educational institutions, experts with relevant qualifications, other persons who are members of competition and disciplinary commissions established by state authorities, local self-government bodies, and other state bodies, as well as members of the Public integrity council.

The President of the UNBA, BCU Lidiya Izovitova recalled the constitutional principles of the organization and activities of advocacy, as defined in Article 131-2 of the Basic Law, and also drew attention to the important conclusions of the Constitutional Court on this issue:

• the submission of declarations by persons authorized to perform state or local self-government functions is a form of state control over the integrity of such persons (decision of 06.06.2019 No. 3-r/2019);
• any legal norm must be defined, clearly and unambiguously formulated, otherwise its uniform application cannot be ensured, which leads to arbitrariness in law enforcement. This is part of the principle of the rule of law and legal certainty (decision of 22.09.2005 No. 5-rp/2005).

At the same time, according to Article 2 of the Law «On the advocacy and the practice of law», advocacy is a non-governmental self-governing institution that independently decides on matters of organization and activity. Among the guarantees of the practice of law is the prohibition of any interference or obstruction of the practice of law (para. 1, part 1, Article 23).

Therefore, imposing on members of bar self-government bodies, including members of the bar qualification and disciplinary commission and the High Qualification and Disciplinary Commission of Advocates, a duty that is not directly established by law, in particular the duty to submit electronic declarations as a form of state control, is an unacceptable interference in the activities of the independent self-governing institution of advocacy.

The subjects of declaration specified in the Law «On prevention of corruption» do not include members of the qualification and disciplinary commissions of the bar, including members of the disciplinary chambers of the QDCB, as follows from the content of Article 50 of the Law «On the advocacy and the practice of law».

In the absence of a provision expressly established by law that would classify members of bar self-government bodies as declarants, imposing on them the obligation to submit declarations by way of an expansive interpretation of the law is inadmissible and contrary to the principle of legal certainty.

Following the discussion, BCU recognized that the chairman and members of regional bar qualification and disciplinary commissions, the chairman, deputy chairs, and members of the Higher Qualification and Disciplinary Commission of Advocates, the chairs and members of regional bar councils, the chairman and members of the Bar Council of Ukraine are advocates who carry out independent professional activities as part of bar self-government bodies, do not perform the functions of the state or local self-government, and are not officials or civil servants of state or local self-government bodies.

They are not subject to the obligation to submit declarations of persons authorized to perform state or local self-government functions, as provided for by the Law «On prevention of corruption», unless such persons hold positions directly referred to by this Law as subjects of declaration.

The BCU's decision will be sent to the National Agency for Corruption Prevention, the Verkhovna Rada Committee on Anti-Corruption Policy, the Office of the President of Ukraine and other interested bodies.