Liability for violation of guarantees of the practice of law to be specified - draft law

The system of state guarantees of the practice of law is a safeguard against influence on the advocate. Instead, the lack of accountability actually makes it possible to violate the principles of the Constitution of Ukraine and the current legislation on the Bar with impunity.

To address this gap, a group of MPs submitted to the Verkhovna Rada Draft Law No. 12320 of 16.12.2024 «On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code and the Criminal Procedure Code of Ukraine on Ensuring Compliance with the Guarantees of the Practice of Law». Representatives of the UNBA Committee on Information Policy and Media Relations took part in the preparation of the draft law.

The authors of the legislative initiative note that the problem of identifying an attorney with a client has become particularly acute. This is due, in particular, to the sharp increase in the number of criminal proceedings on criminal offenses related to the armed aggression of the Russian Federation, as well as the consideration of court cases on the restriction of the rights of persons associated with the aggressor state.

Each of these facts causes concern in society, which is often projected onto lawyers who, in the performance of their professional duty, protect the rights and legitimate interests of their clients. At the same time, this is not an isolated case of such identification, but a systemic problem that needs to be addressed, as it harms both individual attorneys and the institution of the Bar as a whole.

However, interference in the activities of a lawyer and other influence on him or her in connection with the performance of professional duties grossly violates the requirements of the Law «On the Bar and Practice of Law», contradicts international standards of independence of the legal profession in a democratic state governed by the rule of law, violates the guarantees of independence of the legal profession, guarantees of professional legal aid and access to justice, and also constitutes pressure on lawyers in the performance of their professional duties.

And this trend is destructive to the fundamental principles of the rule of law, where the rule of law is recognized and applied, and threatens the independence of the bar.

That is why 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 a lawyer and a client. The disposition will consist in public, including through the media, journalists, public associations, trade unions, identification of a person as an advocate and a client to whom such advocate provides professional legal assistance, committed without the purpose of preventing the advocate from exercising the powers provided by law to defend, represent and provide other types of legal assistance to a person. Protocols will be drawn up by officials of the bar self-government bodies (Article 255 of the Code of Administrative Offenses), and cases will be considered by judges of district, city, city or city district courts (Article 221 of the Code of Administrative Offenses).

In addition, it is envisaged to detail the forms of interference with the activities of an advocate, the responsibility for which is already established by Article 397 of the Criminal Code.

It is proposed to criminalize the following:

• unlawful obstruction of the arrival of an advocate to the court, prosecutor's office, pre-trial investigation bodies and other enterprises, institutions, organizations regardless of their form of ownership, as well as to certain premises of such bodies, enterprises, institutions, organizations to represent the interests of a person to whom such advocate provides legal aid
• unlawful obstruction of the meeting of the advocate with the person to whom such advocate provides legal aid;
• unlawful refusal of the persons authorized to accept and register applications, complaints, petitions and other incoming correspondence to accept and register documents submitted by the advocate;
• any other intentional obstruction of the professional activity and exercise of the powers of the advocate provided by law to defend, represent and provide other types of legal aid to a person;
• unlawful interference with confidential communication between the advocate (advocates) and the person to whom such advocate (advocates) provides legal aid, including by listening, interception, recording the content of conversations, messages and correspondence
• unlawful inspection, copying, withdrawal or disclosure of materials (documents) collected, processed or prepared by the advocate;
• unlawful inspection, seizure and copying of information contained on the technical means and media used by the advocate in connection with his or her professional activities;
• entering the advocate's dwelling (premises, place of work), conducting an inspection, search or other investigative actions therein, conducting a personal search of the advocate, demanding or seizing the advocate's documents, except when such actions are performed in accordance with the procedure and in cases provided for by the CPC;
• any other intentional actions that led to the access of unauthorized persons to the professional secrecy and/or its disclosure;
• unlawful influence in any form in order to prevent the exercise of the powers of defense, representation and other types of legal aid provided for by law.

The draft law aims to create a real and effective mechanism for protecting the rights of attorneys and guarantees of their professional activities, which in practice will facilitate the realization of the constitutional rights of citizens to professional legal aid.

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