Balancing the right to protection and freedom of speech: the position of members of parliament

Public identification of advocates with their clients has become a systematic tool of pressure that undermines the right to defense, and fair trials become illusory.

This was emphasized by Volodymyr Vatras, chairman of the Subcommittee on the organization and activities of the bar and legal aid bodies of the Verkhovna Rada Committee on legal policy, during a round table discussion organized by the UNBA on the topic The Law on identification: the balance between the right to defense and freedom of speech». MP Hryhoriy Mamka also participated in the event.

«Since my previous speech on this topic, the situation has not only remained relevant, but has become even more acute, - V. Vatras noted. - The practice of publicly identifying an advocate with a client has, unfortunately, become systematic and turned into a real tool of pressure».

According to him, the identification of advocates with their clients is evident in statements by officials, media publications, information campaigns, and even in some procedural documents. «This trend has become particularly threatening in the context of martial law, when public debate is becoming more emotional and legal boundaries are sometimes consciously or unconsciously ignored», - the MP pointed out. Among the consequences, he cited the creation of an atmosphere of fear and self-censorship in the profession, the undermining of trust in advocacy as an independent element of the justice system, and the actual devaluation of the right to defense, when the performance of professional duties becomes dangerous and undesirable for both the advocate and the person in need of legal assistance.

«As a result, defense becomes a formal human right to a fair trial, illusory, and the state will lose cases in international courts and lose trust in the institution of justice within the country. This is a path that is destructive to the rule of law», - concluded V. Vatras.

The MP emphasized that the Constitution guarantees everyone the right to professional legal assistance and explicitly states that advocacy, whose independence is guaranteed by the state, is responsible for providing it in Ukraine. At the same time, for a long time, these constitutional provisions did not have an adequate mechanism for real protection.

Therefore, Law No. 4547-IX «On amendments to the Code of Ukraine on administrative offenses and the Criminal Code of Ukraine to ensure compliance with guarantees of advocacy» adopted by parliament is intended to fill this gap. «This law is a response to a specific public demand and to the real threats faced by advocates. It was adopted not in the interests of a professional corporation, but in the interests of the state, which seeks to have a strong, independent, and accountable justice system», - the MP is convinced.

V. Vatras placed particular emphasis on the balance between the right to defense and freedom of speech. «I want to emphasize separately that the law does not prohibit journalists from informing the public, does not restrict the right to criticize, and does not establish a taboo on mentioning an advocate in connection with a specific case, - assured the chairman of the relevant subcommittee. - This applies exclusively to cases where an advocate is knowingly or unknowingly presented as an accomplice to the client's actions, creating an image of joint responsibility. Such practice is unacceptable from a legal point of view and contradicts international standards».

Speaking about the role of the legislative branch, V. Vatras emphasized that the Verkhovna Rada «is responsible for ensuring guarantees for the practice of law» and that parliament, recognizing the independence of advocacy «only at the level of principles», must bring the adopted changes «to a logical conclusion and ensure their actual application». He also noted that professional discussion should focus on the practical aspects of applying the law, the risks of its misinterpretation, and the formation of consistent legal practice.

In his speech, H. Mamka supported bringing the topic up for public discussion and noted that the adopted law is the first step in this direction. «In my opinion, this is only the first step in highlighting and solving the problem of identification, - he said. - There is indeed a definition of identification, how it should take place. And indeed, regarding responsibility: if a person identifies a defender and a client, then they must be held accountable. This was also my position in the chamber, my position in the amendments, and my position in the vote itself».

The MP gave an everyday example that society does not transfer the actions or status of an employer to an employee, whereas in the case of advocates, identifying the profession with the client is common practice. The MP also suggested that after the round table, the organization could appeal to the President of Ukraine regarding the issue raised, emphasizing that this position was supported by a vote in the Verkhovna Rada.

The round table was devoted to discussing the practical aspects of applying legislative changes prohibiting the identification of an advocate with a client in the context of the balance between the right to defense and freedom of speech.