The BCU assessed the NACP's clarifications on advocates as subjects of declaration
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.
Popular news
War
Are Europe's advocacy associations prepared for a potential war? V. Gvozdiy shared lessons from the Ukrainian experience
The continuity of the bar’s self-governance, the protection of professional registries and archives, as well as equal guarantees of employment for advocates, judges, and prosecutors must be enshrined in advance in legislation in the event of war or another emergency.
Educational events
How DISC helps manage «tigers», «monkeys», «elephants» and «turtles»
The same instruction from a manager may motivate one employee to take action, while leaving another without the necessary guidance. People perceive work tasks differently: for some, a deadline and the expected outcome are enough, while others need explanations, time or a detailed plan.
Legislation
The Verkhovna Rada is preparing a bill to implement the Convention on the Protection of the Professions of Lawyer
Members of Parliament plan to introduce a bill in the near future to implement the main provisions of the Council of Europe Convention on the Protection of the Professions of Lawyer. This parliamentary initiative may also prompt the government to expedite the preparation of the ratification package.
Greetings
The UNBA honored the winners of the «In the language of prose» contest and opened a fashion exhibition
The competition was organized by the UNBA Committee on humanitarian issues and creative initiatives in cooperation with the Center for advocacy and legal research. Two dozen advocates from various regions of Ukraine submitted their works to the competition committee for consideration. The entries were evaluated based on originality, the relevance of the chosen topic and the level of technical skill.
Discussion
What is holding back funding for gas-fired power generation – discussion between businesses and banks at the UNBA
To provide loans for new gas-fired power generation projects, banks require a predictable cash flow, an investor’s equity contribution, and risk-sharing mechanisms. A business model that relies solely on a preferential gas price is not a sufficient basis for financing.
Educational events
Preparing a court argument: 7 tips for advocates
When preparing a courtroom speech, it is best to begin by formulating the decision the advocate is asking the court to render. Next, the structure of the speech should be built around this outcome, strong arguments should be selected, and weak points should be addressed.
Legislation
Advocates’ access to the TCC and the SP should be regulated by law – Ombudsman
The practice of denying advocates access to the premises of the TCC and the SP bears the hallmarks of systematic obstruction of the legal profession and deprives people of the opportunity to promptly obtain professional legal assistance. The procedure for such access must be codified in regulations issued by the Ministry of Defense.
Legislation
The path to ratification of the Convention must not end in yet another delay — L. Izovitova
Ukraine’s preparations for the ratification of the Council of Europe Convention on the Protection of the Professions of Lawyer have already passed key stages. Now, government institutions must submit the matter to the Verkhovna Rada for consideration. In doing so, Ukraine may complete the ratification process faster than EU member states.
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