The Administrative Court of Appeal upheld the BCU Resolution No. 203 on the Payment of Disciplinary Complaints to Advocates
The Sixth Administrative Court of Appeal upheld the decision of the Bar Council of Ukraine No. 203 dated September 23, 2017, which introduced a compulsory payment for filing disciplinary complaints. In particular, this decision of the BCU has established and approved a fee for the organizational and technical support for considering complaints about the behavior of an advocate, which may be the basis for disciplinary liability, complaints about the decisions of the disciplinary chambers of the qualification and disciplinary bar commissions, as well as complaints on actions or inactivity of qualification and disciplinary bar commissions, in the amount of one living wage for able-bodied persons.
The court ruling was passed on April 8, 2019 in the Viacheslav Pleskach's suit to the UNBA. The appeal was left without satisfaction, and the decision of the District Administrative Court of Kyiv of January 29, 2019 - unchanged. The resolution is valid from the date of its adoption and can be appealed by submitting a cassation appeal directly to the Supreme Court in the manner and in the timeframe specified in Art. 329-331 APC of Ukraine.
The court ruled that the decision of the first instance contains a substantiated conclusion that the law "On the Bar and Advocacy" provides for the right to introduce and formulate certain fees (contributions) for the maintenance of the bodies of the bar self-government for their proper and self-sufficient existence, subject to the legality of the sources the origin of such contributions, which refutes the arguments of the appellant in this part.
The decision of the BCU also determines the right to reimbursement of expenses incurred for the organizational and technical provision of consideration of a complaint in the event of bringing an advocate to disciplinary responsibility at the expense of an advocate in respect of which a corresponding decision has been made; in turn, if HQDBC complies with the complaint of the advocate to the decision of the QDBC, the advocate has the right to reimburse the incurred expenses for the organizational and technical provision of consideration and preparation of the complaint at the expense of the applicant (the complainant) who applied with the application (complaint) to the QDBC.
"Thus, as correctly pointed out by the court of first instance, the contested decision actually introduced the payment for the consideration of applications (complaints) and provides for the right of the complainant to reimburse the costs incurred for organizational and technical support for the consideration of his application (complaint), in the case of bringing the advocate to a disciplinary liability at the expense of an advocate in respect of which a corresponding decision has been made, which in turn guarantees the return of the amount paid to the complainant for filing a complaint, provided that it was substantiated and set forth in it have found their confirmation", - says the ruling of the court.
At the same time, paragraph 2 of the disputed decision provides that the fees specified in paragraph 1 of this decision are exempted: (a) the applicants (complainants) who have the appropriate privileges for exemption from payment of court fees and defined by the Law of Ukraine "On Court Fee"; (b) bar self-government bodies, their working bodies (committees, centers, commissions, etc.); (c) the courts that make appeals (complaints) concerning the conduct of an advocate, which may be the basis for disciplinary liability within the framework of the powers granted to them by the procedural laws of Ukraine, (d) persons in detention, restraint, places of temporary detention or in custody if the application (complaint) is filed through the institution in which the complainant is located.
The panel of judges also notes that the claimant has not provided any evidence of the existence of a real direct negative impact on his rights, freedoms or interests, and that he has the right to apply to the court for their protection.
Popular news
Legislation
A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced
The constitutional guarantees of legal aid, defense, and the independence of advocacy cannot be realized without protecting advocates from unwarranted interference in their professional activities, including searches, the seizure of professional materials and the use of criminal procedural mechanisms to exert pressure.
Abroad
The CCBE is discussing European justice and issues related to the protection of advocates
Today, October 2, a meeting of the Standing Committee of the Council of Bars and Law Societies of Europe (CCBE) is taking place in Brussels. On the agenda are the protection of the advocate profession, the rule of law, attorney-client privilege, and changes in the European justice system.
Rule of Law Roadmap
The UNBA presented the key provisions of the future law on advocacy in Brussels
The Ukrainian National Bar Association presented its proposals for the upcoming law on advocacy, aligned with the Rule of Law Roadmap. The presentation covered topics such as access to the profession, self-governance, disciplinary procedures, professional development and guarantees for the practice of advocacy.
Guarantees of the practice of law
Independent oversight is necessary before using CISA materials against an advocate – Lidiya Izovitova
Before the prosecution uses information obtained during covert investigative actions and related to an advocate’s activities, independent procedural oversight must be conducted. It is necessary to determine whether such information is covered by attorney-client privilege and whether it may be disclosed.
Self-government
Efforts to develop advocacy must be brought to fruition — A. Misyats
The Ukrainian advocacy profession is currently going through a critical phase. Amid the war, it must ensure the continuity of legal aid, defend the independence of the profession, and improve qualification and disciplinary procedures in accordance with European standards. The work that has been started must be brought to a practical conclusion.
Support
Protecting the legal profession, cybersecurity and support for advocates: common themes for the IBA and the UNBA
On September 18, a working meeting was held at the office of the Ukrainian National Bar Association with Executive Director of the International Bar Association (IBA) Mark Ellis. The parties discussed the Ukrainian advocacy profession’s participation in European legal processes, the protection of the UNBA’s digital infrastructure, psychological support for advocates and future areas of cooperation.
Educational events
Not every eloquent phrase is persuasive: how an advocate should choose a speaking style
Rhetorical techniques are effective when they are tailored to the audience, the situation, and the purpose of the speech. Therefore, before speaking, an advocate should determine what message the court, client, or audience needs to hear and remember, and then choose the appropriate structure, examples, quotes and tone.
Educational events
Tax residency of Ukrainians abroad: what matters
The determination of tax residency for Ukrainians who have been living abroad for an extended period depends on the combination of their personal and economic ties to each country. The established status determines the procedure for reporting income, paying taxes and fulfilling CFC reporting obligations.
Publications
Vasyl Kolishnyi, «Law and Business» Supporting mental health should become part of the professional culture of the Bar, - H. Udovenko
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection