Lawyers are the only party to the trial that is not booked, – MP
It seems that the Verkhovna Rada understands the need to book lawyers who are part of the justice system. But how do we define the mechanism and what should the criteria be? Some MPs already have the answers to these questions and have implemented them in the form of a draft law.
On December 17, the Ukrainian National Bar Association, on the initiative of the Committee for the Protection of Advocates' Rights and Guarantees of Legal Practice, organized and held an All-Ukrainian meeting on improving the mechanisms of professional rights and guarantees of legal practice.
One of the most pressing issues, according to the UNBA Committee's Chairman Yevgeniy Solodko, is the problem of booking attorneys. The participants of the event paid special attention to its discussion.
«We are not law enforcement officers, not employees of critical infrastructure, but we ensure the realization of the constitutional right to defense, - explained Y. Solodko. According to him, it is not uncommon for lawyers to be sent to serve in the Armed Forces in the middle of complex criminal trials. «This is our duty and no one objects to its fulfillment. But this approach is not very useful for the state, because the processes start from the very beginning... There are many episodes, multi-volume cases, especially when it comes to economic crimes, and again, the courts must work from the beginning, - said the Committee Chairman. - Therefore, this issue needs to be regulated at the legislative level».
Serhiy Alekseev, Head of the Subcommittee on Law Enforcement of the Verkhovna Rada Committee on Law Enforcement, confirmed that lawyers are currently the only party to the trial that is not booked. «The prosecution is booked, the courts are booked, but the lawyers are not. This issue has not been resolved», - he noted.
According to the MP, this problem is not only about booking. «It is about the implementation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it is about access to justice, it is about the protection of constitutional rights of citizens in court and much more, - said S. Alekseev. He believes that this cannot be resolved at the level of a bylaw, because Article 20 of the Law on Mobilization Preparation and Mobilization contains an exhaustive list of persons subject to reservation from mobilization. And lawyers are not mentioned in this list. Therefore, the only way to reserve lawyers is to amend this article.
He recalled that in 2023, two draft laws on the reservation of lawyers from mobilization were registered (No. 9631 and No. 9631-1). However, they were not considered in the session hall and there were certain remarks to them by the Parliament's scientific department.
«There is a question: whether to regulate the procedure for booking lawyers, or simply to include them in the list, and regulate them at the level of bylaws, which can be a resolution of the Cabinet of Ministers or an order of the Ministry of Defense, - suggests S. Alekseev. - Both (we consulted with colleagues) should contain certain quotas in regional bar associations. And the bar associations should submit lists of lawyers to the UNBA according to certain criteria. In turn, the UNBA applies to the competent authorities, the Ministry of Defense, and they make the appropriate decision». Among the criteria for booking lawyers, the MP named the presence of a lawyer in the UNBA, a valid certificate, the absence of disciplinary sanctions, the lawyer's real workload, participation in the free legal aid system or providing defense to the military.
To develop the provisions of the relevant draft law, S. Alekseev believes it is necessary to involve the UNBA. «Of course, it is impossible to book all the lawyers, but a certain percentage and certain criteria should be developed, - he said. - We will provide you with the comments made by our research department in order to draw certain conclusions and submit the draft law that will be supported by the hall... And I want to emphasize once again that a lawyer is the only participant in the trial who is discredited in terms of booking from mobilization».
Yulia Yatsyk, Head of the Subcommittee on Criminal Procedural Legislation and Operational and Investigative Activities of the Verkhovna Rada Committee on Law Enforcement, noted that during the consideration of the draft law on strengthening mobilization measures, several MPs submitted amendments to grant lawyers a deferral from mobilization. However, they did not receive support in the hall. «And we understand why, - she said. - Because at that time the General Staff and the Minister of Defense were very active in minimizing all deferrals from mobilization and reducing them to zero».
The MP spoke about dozens of appeals from lawyers who complained about the actions of the TCC employees who, upon a call from an investigator or prosecutor, came during investigative actions and served lawyers with summonses.
Y. Yatsyk noted that an inter-factional association to protect the rights of servicemen will be created in the Verkhovna Rada, which will also address the issues of lawyers. «And for this we need facts, we need statistics, we need specific appeals so that we can substantiate our draft law», - she summarized.
In this regard, Y. Solodko explained that the UNBA has repeatedly appealed to both the General Staff and the Ministry of Defense with specific proposals to postpone the reservation, but to no avail. «We couldn't even start a dialog, - said the UNBA Committee's Chairman. - Because there is a perception that lawyers are hindering mobilization. We will request statistics from the regions, including a breakdown by region, so that you can operate with facts and, of course, be convincing in your work directly in the Verkhovna Rada», - the lawyer promised.
MP Yevhen Petrunyak also confirmed that they had submitted amendments to the draft law on amendments to the Law «On mobilization training and mobilization», but the amendments were not supported.
«Today, my team has developed a draft law, which I will ask the entire legal community represented in the Verkhovna Rada, as well as other MPs, to sign. This bill will provide for a deferral for lawyers. And here I will apply the approach that lawyers who will be eligible for a deferral must meet certain criteria, - he announced the initiative. - These are at least 10 years of experience, no disciplinary offenses, no disciplinary proceedings against lawyers, no arrears in the payment of lawyer fees. These are the basic criteria that a lawyer must meet in order to be deferred from the draft».
The legislator noted another very important issue, in his opinion. «Today, there is a distortion in human rights activities, when government agencies are fully represented in any litigation - both criminal and any other. At the same time, citizens and legal entities may lose their legal support in courts due to the mobilization of lawyers. And not only in courts, but also during representation in other state bodies. This violates the constitutional principle of the right to defense. There is a draft law, it has been developed. And if there are any comments from the UNBA, we will gladly listen to them. We have addressed the UNBA and based on their response we have developed this draft law».
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