The BCU assessed the NACP's clarifications on advocates as subjects of declaration

16:00 Fri 26.01.24 64 Reviews

The NACP's explanations on the declaration are for clarification purposes only and do not establish new legal norms. The Agency is not a legislative body and cannot establish new legal norms, change, replace or interpret them.

The Bar Council of Ukraine drew attention to this when assessing the NACP's explanation of November 13, 2023, that the subjects covered by the Law «On Prevention of Corruption» are members of the High Qualification and Disciplinary Commission of the Bar, disciplinary chambers of the QDCA (the decision of the BCU of December 15-16, 2023, No. 134, published on the UNBA website).

It should be reminded that according to Article 3 art. 2 of the Law, its effect (including the obligation to file declarations) applies to «representatives of public associations, scientific institutions, educational institutions, experts of appropriate qualifications, other persons who are members of competition and disciplinary commissions established in accordance with... laws». The NACP is convinced that this provision should also be applied to the disciplinary bodies of the Bar.

However, the information set forth in the aforementioned explanation only reflects the position of the state body in numerous disputes. The end result was the ruling of the Grand Chamber of the Supreme Court dated 02.02.2023 (case No. 260/3380/21), which did not establish the obligation of lawyers to file declarations.

In its turn, the BCU disagreed with the NACP's position and noted that the broad interpretation of the Law contradicts the principle of legal certainty, which is a component of the rule of law.

The Bar is an independent self-governing professional human rights institution of civil society, i.e. a non-governmental institution whose activities are not related to the performance of the functions of the state or local self-government. Public authorities and local governments have no right to interfere with the activities of the Bar and bar self-government bodies.

The BCU also referred to the position of the Constitutional Court (Decision No. 5-rp/2005 of 22.09. 2005) that legal constructions of legal norms (definitions, dispositions) that do not allow their addressees - individuals engaged in activities related to the prevention and combating of corruption - to clearly clarify their obligations to submit a declaration of a person authorized to perform the functions of the state or local self-government to fully determine their behavior and foresee the consequences of their actions, in some cases may lead to arbitrary interpretation of the provisions of laws by specially authorized entities (public authorities) in the field of combating corruption, which may lead to arbitrariness in bringing individuals to legal liability, and cause other negative legal consequences for them.

Thus, the NACP's broad arbitrary interpretation of the law is an interference by the executive body in the activities of the independent institution of the bar. In turn, the failure of the members of the HQDCA and the disciplinary chambers of the QDCA to file declarations is legitimate due to the lack of legal certainty in this matter in the current legislation.

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