The Sixth Administrative Court of Appeal recognized illegal the issuing of extracts from the SRAU by an unauthorized Bar Council of Kyiv
The Sixth Administrative Court of Appeal recognized illegal the issuing of extracts from the SRAU by an unauthorized Bar Council of Kyiv. The court also acknowledged legal the refusal to submit data to the SRAU on the basis of an extract issued by the authorized council of advocates of Kyiv
The resolution was adopted on June 12, 2019, under the appeal of the UNBA to the decision of the District Administrative Court of Kyiv of December 28, 2018 in the case of an administrative case of an individual to the UNBA. The third person in the case was the Bar Council of Kyiv.
The District Administrative Court of Kyiv, by its decision of December 28, 2018, recognized unlawful the exclusion of public information on a advocate-plaintiff in the Single Register of Advocates of Ukraine and ordered UNBA to restore information about it in public on the official website of the Ukrainian National Bar Association.
At the appellate instance, UNBA appealed against such a decision, indicating that the provision of extracts from the SRAU by the first level administrator - the Bar Council of Kyiv - without their confirmation by the BCU with the display on the UNBA website in general is to provide inaccurate information and is contrary to Art. 17 of the Law of Ukraine "On the Bar and Advocacy", which corresponds to the legal conclusions of the Grand Chamber of the Supreme Court, set forth in the resolution dated November 7, 2018 in the case No. 607/3128/16-ц.
The panel of judges of the Court of Appeal revoked the decision of the District Administrative Court of Kyiv of December 28, 2018 and adopted a new ruling refusing to satisfy the administrative claim to the UNBA.
During the consideration of the case in the court of appeals it was established that an extract from the SRAU series AA No. 004650 dated August 10, 2016 (the time of formation of the extract 11:05), was formed and signed by the Head of the Bar Council of Kyiv Rafalska I.V., to which the plaintiff refers, does not confirm the completion of the aforementioned legally established procedure for the introduction of information about an advocate to the SRAU and their disclosure on the official website of the UNBA as active and open, but indicates that the regional council has made certain actions as the first level administrator. Consequently, such an excuse, in the sense of the requirements of the CAP of Ukraine, is inappropriate and inadmissible evidence of the subject of evidence in this case.
"System analysis of the set legal norms gives grounds to assert that the legislation regulates a two-stage procedure for the introduction of advocates' data to the SRAU: the first level administrator - the Council of Advocates of the region and the second level administrator - the BCU, which is authorized to exercise control over the activities of the advocates of the regions for data entry to SRAU, providing extracts from SRAU and ensuring the maintenance of the official website of UNBA. At the same time, only after the BCU's approval of the data submitted to the SRAU by the bar council of the region, they acquire the status of the information, become active and open and subject to disclosure on the official website of the UNBA", - the court ruling says. At the same time, the court refers to the ruling of the Grand Chamber of the Supreme Court dated November 7, 2018 in the case No. 607/3128/16-ц.
Also, the panel of judges notes that at the moment of the petition of the plaintiff to the Bar Council of Kyiv with a statement on the submission to the SRAU of the data about him, namely on June 13, 2016, BCU had already adopted the decision No. 156 dated June 11, 2016, which was precluded precisely the Bar Council of Kyiv to provide information on persons who have received certificates of the right to practice law on the basis of certificates of completion of the qualification examination issued by the non-authorized body - the QDBC starting from November 12, 2012. The specified prohibition extended to the submission of information about the plaintiff to the SRAU by the Bar Council of Kyiv.
In accordance with the requirements of Law No. 5076-VI, the BCU decision No. 156 dated June 11, 2016 was obligatory for the said bar council of the region to be implemented, and it was authorized by the BCU to exercise control over the activities of bar councils of the regions, that is, the Bar Council of Kyiv, concerning data entry to SRAU and provision of extracts from SRAU.
The plaintiff in the case did not provide any evidence to confirm that the decision No. 156 dated June 11, 2016 was unlawful and/or canceled.
"Taking into account the foregoing, taking into account the legal position of the Supreme Court, set forth in the resolution of November 8, 2018, the panel of judges came to the conclusion that there was no legal basis for the satisfaction of the claim, since information about the plaintiff in general was not subject to submission by the Bar Council of Ukraine to the SRAU, and in case of their discovery - were subject to immediate removal by the Bar Council of Ukraine as administrator of the second level", - stated in the court ruling.
The decision came into force from the date of its adoption and may be appealed within thirty days from the date of the complete court decision is issued by submitting a cassation appeal to the Supreme Court.
Popular news
Legislation
Advocates have warned that the draft Labor Code would curtail workers' protections
Certain provisions of the draft Labor Code of Ukraine regarding collective labor disputes undermine labor protections and do not comply with constitutional and international standards.
Educational events
The right of minors to marry: how judicial oversight works
The issue of granting minors the right to marry lies at the intersection of family law, child protection, and judicial discretion. The UNBA Committee on family law dedicated a webinar held on March 30 to this very topic.
Interaction
The UNBA and the Coordination headquarters have agreed to cooperate in assisting those released from captivity
Servicemen released from captivity, family members of prisoners of war, civilians deprived of their personal liberty as a result of armed aggression, as well as persons missing in connection with the war, will gain additional opportunities to access legal assistance and protect their rights.
Self-government
BCU: The HCJ’s decisions undermine the constitutional guarantees of the independence of the advocacy profession
The Bar Council of Ukraine has concluded that, in its recent decisions, the High Council of Justice has, without legal grounds, called into question the right of bar self-governing bodies to protect the guarantees of legal practice and has, in effect, attempted to grant one of its members — who retains the status of an advocate — special immunity from the Rules of professional conduct and disciplinary responsibility.
Announcements
The Bar Council of Ukraine begins its meeting
Today, April 2, a meeting of the Bar Council of Ukraine is taking place in Kyiv. On the agenda are issues related to the activities of bar self-governing bodies, consideration of a decision by the High Council of Justice, a number of appeals, as well as a discussion of the current state and pressing issues regarding the functioning of the legal aid system.
Interaction
The UNBA and the National Guard have agreed to cooperate on legal protection for military personnel
Servicemembers of the National Guard, their family members, and veterans are to receive additional legal tools to protect their rights, while the National Guard’s legal services will receive methodological and expert support.
Interaction
Protecting the rights of service members: The UNBA and the Military Ombudsman have agreed on cooperation
Servicemembers, reservists, conscripts during training exercises, members of local community volunteer units, and other individuals covered by the Law «On the Military Ombudsman» should have better access to professional legal assistance.
Discussion
New Labor Code: advocates highlight the strengths and risks of the draft
The draft Labor Code contains a number of progressive provisions aimed at modernizing labor legislation: digitizing procedures, expanding forms of employment, and increasing transparency in wage payments. At the same time, certain systemic issues require further refinement.
Publications
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
Sergiy Vylkov Our judicial system is so built that courts do not trust advocates