Unjustified changes to the self-government, risks and corruption approaches - the representative of Ukraine at the Venice Commission, Volodymyr Pylypenko, about the draft law 9055

The draft amendments to the Law "On the Bar and Practice of Law" No. 9055 contains unjustified changes to the system of the bar self-government bodies, numerous risks to the activities of advocates and corrupt approaches in disciplinary and qualification procedures.

His articles for the publishing company “Rezonans” by Volodymyr Pylypenko, the representative of Ukraine at the Venice Commission (2013-2017 years), People's Deputy of Ukraine VI-VII convocations read as follows.

"If the government wants to change one model to another, then it should first prove the 100% inefficiency of the first one. For now, as an advocate, I don`t think that the current system itself is so discredited that it needs to be radically changed. It doesn`t mean that it shouldn`t be improved. It is not desirable that important state decisions were made without prior thorough consideration. It is necessary to learn how to distinct one thing from another. After all, both in the presidential draft law and in alternative there are interesting ideas that could improve our sphere. But there are also those, which, on the contrary, complicate it and increase corruption risks.
I am convinced that the sole innovative desires, without proper argumentation of their expediency, will not in any way bring the Ukrainian legislative field closer to the European standards, which they are dreaming about. The proper dialogue and professional lawmaking, finding a compromise, - are the things we all lack", - publication states.

The author provides as an example the changes to the system of qualification and disciplinary commissions, which include dividing it into two separate verticals - the Higher Qualification Commission of the Bar and the Higher Disciplinary Commission of the Bar respectively, which are likely to be located in Kyiv. Such reformatting and redistribution of powers in favor of higher authorities is not substantiated in the accompanying documents to the draft law.

"In accordance with the current legislation, the decisions on the positive or negative results of qualifying examinations, passed by persons who have expressed a desire to become advocates, are to be made by the qualification and disciplinary commissions of the relevant region. Instead, the draft law stipulates that such a decision shall be made by the Higher Qualification Commission of the Bar, and the Qualification Commission of the Bar of the region will be responsible only for organizing the exam process”, - the publication states.

In addition, in accordance with the current legislation, the Higher Qualification and Disciplinary Commission of the Bar should consist of 30 members. Instead, it is proposed that the Higher Qualification Commission of the Bar and the Higher Disciplinary Commission of the Bar shall include 30 people each. "What is the logic of such a solution? It is hard to understand. Is that someone wants to appoint their people to the “certain” positions?", - the author rhetorically asks. Such an innovation, in his opinion, may result in an increase in advocates' fees, since self-government is maintained at the expense of these funds.

Volodymyr Pylypenko also mentions article 55 of the draft law, which specifies that all advocates, having their working address in the certain region, are empowered to take part at the conference of advocates of a relevant region. The conference shall be considered authoritative providing that the following quantity of advocates have registered to participate in it: 10% of advocates of the region - for regions with a number of advocates of 3,000 or more; 12% of advocates - for regions with the number of advocates 2,000-3,000; 15% of the advocates of the regions - for regions with less than 2,000 advocates

"Following these norms, several plenipotentiary conferences can be held, which will render essentially opposite decisions. Since the quorum, for example, of 10% of advocates of the region, is small. In view of the extremely important functions of conferences of advocates of a regions (the election of members to the Regional bar council, delegates to the Congress of Advocates of Ukraine, representatives to the Higher Qualification Commission of the Bar and the Higher Disciplinary Commission of the Bar, as well as making the decision to dismiss them from office) the risks of holding several plenipotentiary conferences should be the minimal", - convinced Volodymyr Pylypenko.

He refers a new procedure for examinations and appeals against their results as to the corruption risks and discriminatory approaches. According to the draft law, the work experience of a person as an advocate`s assistant and (or) as a judge or prosecutor is considered to be a two-year work experience in a specialty, which is required to become an advocate. Such changes will significantly restrict the access to the profession of advocate of persons who have received higher legal education and for a long time carried out the representation of individuals or legal entities in the courts, provided them with legal advices and legal assistance.

"Moreover, the draft law provides that the advocate may have assistants, but the two-year experience as an assistant will not be considered sufficient to be admitted to the passing of the qualifying examination," - said the former People's Deputy.

Also, according to Part 12 of Art. 9 of the draft law, a person who has passed a qualifying examination with a negative result may complain against such a decision to the Appeals Chamber of the Higher Qualification Commission of the Bar only on the grounds of a substantial violation of the procedure that could affect the objective result of the examination.

"Establishing only one ground for appealing against a decision is, firstly, a limitation of the right of a person for protection, and secondly, the wording "a significant violation of the procedure" is judgemental and uncertain. In practice, this can lead to abuses and corruption risks", - said Volodymyr Pylypenko.

In his opinion, it is discriminatory in the law that for those who have concluded an employment contract with an entity, which is not a law office or association, its size is reduced by 50%, and those who have concluded an employment contract with state authorities or local self-government - are completely exempted from paying it. Thus, the size of the annual contribution will not be the same for all lawyers.

"No less controversial is and Art. 36, which provides that disciplinary action in the form of suspending the right to exercise advocacy activities may be applied in the case of, in particular, a material violation of the rules of lawyer's ethics and / or the law. And in Art. 37 stipulates that "the right to exercise advocacy is terminated by canceling the certificate in the case of, in particular, the systematic violation of the Rules of Bar Ethics and / or the law, which undermines the credibility of the Bar." The wording "substantial" or "systematic violation" is fuzzy and will allow unequal applications, "the author emphasizes.

Until recently, a representative at the Venice Commission, the acting lawyer believes that "the presidential bill, although defined as urgent to review, however, needs to be substantially revised. For now, the whole reform of the law office does not alleviate or improve life anymore. "

Full text of Volodymyr Pylypenko's article for Resonance is available here