Whether the guarantees of activity apply to all those who have a certificate of advocate - the position of the Supreme Court
A person whose right to practice law has been terminated or suspended in accordance with the Law «On the Bar and Practice of Law» is not subject to the provisions of the Criminal Procedure Code on the special procedure for criminal proceedings.
This conclusion was reached by the First Judicial Chamber of the Criminal Court of Cassation of the Supreme Court in case No. 199/732/19 (resolution of 23.07.2024).
The court acquitted the judge's assistant, who was accused of influence peddling, on the grounds that the defendant in the case (who had the status of a lawyer but suspended his license) did not acquire the status of a suspect because he was notified of suspicion by an improper prosecutor. As a reminder, according to Article 481 of the CPC, a written notice of suspicion to an attorney is made only by the Prosecutor General, his deputy, or the head of the regional prosecutor's office.
On this basis, the court of first instance declared all the evidence provided by the prosecution inadmissible. The Court of Appeal upheld the acquittal.
However, the prosecutor believed that the courts had come to unreasonable conclusions, in particular with regard to the prosecutor's lack of authority to serve a notice of suspicion.
The Supreme Court examined whether the guarantees provided for in Article 23 of the Law apply to all persons who have received a certificate of an advocate.
The high judges noted that the mere mention of «activity» indicates that these guarantees are functional in nature, i.e., they are not a personal privilege of everyone who has received a certificate of the right to practice law, but are intended to ensure the rights of those whom the lawyer represents and his ability to carry out such activities unhindered and effectively.
In addition, the Law on the Bar and Practice of Law clearly distinguishes an advocate from a person who has suspended or terminated the practice of law.
And while the guarantee of preservation of the attorney-client privilege or immunity from prosecution for actions related to the practice of law continues to apply to persons who have suspended or terminated their practice, other guarantees are intended to ensure the practice of law, which a person who has suspended such activity is not entitled to carry out (Article 31(5) of the Law).
Thus, the SCC concludes, the legislation provides for functional guarantees for the advocate, which are designed to ensure both the rights of the persons he or she represents and the ability to practice law unhindered and effectively.
Upon entering the public service or engaging in other activities that are incompatible with the practice of law, a person is obliged to stop practicing law and cannot rely on the preservation of the guarantees inherent in the practice of law, since he or she agrees to obey completely different rules that are incompatible with the practice of law in many aspects. And it is precisely to prevent a conflict of liability that the suspension of the right to practice law is envisaged.
Based on these considerations, the Criminal Court of Cassation concluded that a person whose right to practice law has been suspended or terminated is not subject to the provisions of Chapter 37 (Criminal proceedings against a certain category of persons) of the CPC.
Since the decisions of the courts of previous instances on the inadmissibility of evidence were based on an incorrect interpretation of the provisions of Article 481 of the CPC in conjunction with the provisions of the Law, the court of first instance committed significant violations of the requirements of the criminal procedure law when assessing the admissibility of evidence, which the court of appeal left unaddressed. Therefore, the appealed decisions were canceled.
Popular news
Advocacy
UNBA to file criminal complaints about violations of advocates' rights
Recently, the UNBA has received more frequent appeals about violations of the rights of lawyers and guarantees of the practice of law. Including by employees of the territorial centers of recruitment and social support. Some of the facts contain signs of a crime.
Advocacy
An extract from the URAU will be available in your personal account
Starting Monday, September 23, lawyers will be able to independently generate extracts from the Unified Register of Advocates of Ukraine through their personal electronic account on the website of the Ukrainian National Bar Association.
Advocacy
A Register of Administrative Proceedings on Lawyers' Complaints to Be Established in Ukraine
All cases of unlawful refusal to provide information at the request of lawyers, the requests of the QDCB, their chambers or members will be recorded in the Register of applications (appeals) on administrative offenses. The relevant terms of reference have already been submitted to the IT service for implementation.
Advocacy
The shadow report on justice will be evaluated at the BCU
Recently, the so-called Shadow Report to the Justice and Fundamental Rights section of the European Commission's Report on Ukraine was published, prepared by a coalition of NGOs led by the Agency for Legislative Initiatives with the support of the European Union's Pravo-Justice Project and other NGOs.
Advocacy
The Bar Council of Ukraine starts a regular meeting
Today, on September 20, a two-day meeting of the Bar Council of Ukraine begins in Zakarpattia.
Advocacy
Ukraine on the way to the OECD: the Bar contributes to the implementation of the program
Accession to the Organization for Economic Cooperation and Development is a common challenge for all national institutions, on which the European future of the state depends. The Bar contributes to the implementation of the relevant OECD Program for Ukraine.
Advocacy
The work on the Convention on the Protection of the Legal Profession has been completed
The Council of Europe has prepared the final text of the draft Convention on the Protection of the Legal Profession, the world's first document that sets international standards for the protection of lawyers, guarantees their independence and protects them from risks associated with the performance of their professional duties.
Advocacy
The UNBA is studying additional opportunities to support advocates
The full-scale invasion has seriously affected the mental health of all Ukrainians. There are certain vulnerable groups that have been most affected by the war in their personal and professional lives, including lawyers.
Publications
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
Iryna Vasylyk Advocacy in the proclamation of Independence of Ukraine
Oleksandr DULSKY When we cross the border of the Supreme Anti-Corruption Court, we get into another department of the National Anti-Corruption…
Vadym Krasnyk The UNBA will work, and all obstacles and restrictions are only temporary inconveniences
Lydia Izovitova Interview with Lydia Izovitova on the occasion of the 8th anniversary of the founding of UNBA: We are the voice of t…