Interference with the activities of an advocate: 5 arguments in favor of detailing liability

The Ukrainian National Bar Association expressed its support for the draft law No. 12320 dated 16.12.2024 on Amendments to the Code of Administrative Offenses, the Criminal Code and the Code of Criminal Procedure to Ensure Compliance with the Guarantees of the Practice of Law.

As a reminder, the draft law proposes to supplement the Code of Administrative Offenses with a new Article 185-16, which provides for administrative liability for violation of the prohibition on identifying an attorney and a client. In addition, the draft law provides for the specification of forms of interference with the activities of an advocate, the liability for which is already established by Article 397 of the Criminal Code.

The purpose of this draft law is to create an effective mechanism for protecting the rights of advocates and guarantees of their professional activity, which is an integral part of ensuring the constitutional right of citizens to professional legal aid. The UNBA believes that the proposed version of the law is optimal for achieving this goal for the following reasons.

1. The object of criminal defense is clearly defined. The proposed wording of Article 397 of the Criminal Code, which establishes criminal liability exclusively for interference with the activities of the advocate, is aimed at strengthening the guarantees of the independence of the practice of law. This approach is in line with the provisions of Article 131-2 of the Constitution. Expanding the object of criminal legal protection, as defined in the current version of the proposed amendment, leads to the erosion of guarantees, since representatives who are not lawyers do not always comply with the requirements for professional activity.

According to the statistics, the number of registered criminal proceedings on the facts of interference with the activities of advocates has shown a significant increase in recent years, which indicates the relevance of this problem. However, none of the criminal proceedings registered in the last year resulted in the notification of suspicion to a person, which indicates the actual ineffectiveness of the investigation of such offenses.

The pre-trial investigation bodies, in particular the investigative bodies of the National Police, failed to ensure the investigation and submission of indictments to the court. As a result, there are no court verdicts. This situation indicates the absence of an effective mechanism for protecting the rights of lawyers from unlawful interference. One of the main reasons is the unclear wording of the disposition of Article 397 of the Criminal Code of Ukraine, which does not specify the forms of interference with the activities of advocates and does not disclose the main elements of the relevant criminal offense. Therefore, the proposed amendments should solve this problem.

2. Responsibility for the identification of an advocate with a client will help to protect the professional reputation of advocates, ensure their independence and prevent pressure from society or government agencies.

International practice demonstrates that public identification of a lawyer with a client harms not only the reputation of the profession, but also the independence of legal activity in general. The introduction of administrative liability in Ukraine will help to avoid such situations, increase the level of protection of lawyers' rights and will be an important step in ensuring the rule of law.

A group of scholars from Australia and Brazil, having studied the problem of persecution of lawyers in the world, recommends implementing a set of measures to protect the rights of lawyers, in particular: creating a network of support centers for lawyers to collect and analyze data on their persecution, as well as publicizing this problem; holding regional seminars and practical trainings on this topic; inviting leading human rights defenders to give lectures on the protection of the rights of lawyers; organizing educational events for representatives of the journalistic community;

3. Assigning jurisdiction over criminal offenses under Articles 397 - 400 of the Criminal Code to the State Bureau of Investigation will increase the effectiveness of pre-trial investigations. The protection of the rights, freedoms and legitimate interests of advocates as participants, in particular, in criminal proceedings, as well as ensuring a prompt, complete and impartial investigation by the investigative bodies of the National Police, which has jurisdiction over these criminal offenses, does not give the desired result.

4. Harmonization with international standards. The draft law takes into account the recommendations of international organizations regarding the need to create clear and effective mechanisms for protecting the rights of lawyers. This will help to increase the credibility of the Ukrainian bar both domestically and internationally. The protection of human rights and freedoms is an integral part of the rule of law.

Pursuant to Article 16 of the Basic Principles on the Role of Lawyers (adopted by the VIII United Nations Congress on the Prevention of Crime in August 1990), governments should ensure that lawyers are able to exercise their professional duties without intimidation, hindrance, harassment or undue interference, and that they are able to move freely and advise clients in their own country and abroad. Lawyers shall not identify themselves with clients and their affairs in connection with the performance of their professional duties (Article 18 of the Basic Provisions).

In accordance with the provisions of paragraph 7 of the Standards of Independence of the Legal Profession, adopted at the International Bar Association Conference in 1990, a lawyer shall not be identified or associated by the authorities and the public with his client or his client's case, regardless of how popular or unpopular the case may be.

Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of the profession of lawyer, adopted by the Committee of Ministers of the Council of Europe at its 727th meeting of deputy ministers on October 25, 2000 (Recommendation No. R (2000) 21) states that lawyers should not suffer or be threatened with sanctions or pressure if they act in accordance with their professional standards. All necessary measures should be taken to ensure that the legal profession is respected, protected and its freedom promoted, without discrimination and without undue interference by the authorities or the general public, in particular having regard to the relevant provisions of the European Convention on Human Rights. All necessary measures shall be taken to ensure the confidentiality of relations between the advocate and his or her client. Exceptions to this principle should be allowed only if they are compatible with the rule of law. The advocates should be provided with access to their clients, including persons deprived of their liberty, which will allow them to advise their clients in private and represent their interests in accordance with the established professional standards. In addition, lawyers should not be denied access to the court, where they can appear in a professional capacity in accordance with their qualifications, and should be provided with access to all materials in the defense of their clients' rights and interests in accordance with professional standards.

5. Strengthening the guarantees of the practice of law is a key to ensuring effective protection of the rights of citizens to receive professional legal aid. Without the independence of lawyers and proper guarantees of their activities, it is impossible to fully ensure the right to defense and representation.

The Ukrainian National Bar Association urged MPs to support the draft law No. 12320 in the proposed version. The adoption of this law will be an important step towards strengthening the legal system of Ukraine and increasing the level of protection of citizens' rights.