The Bar will have the law it could be able to defeat and defend

Until recently the Bar had been rather the only institution in the law sphere remaining unreformed. A month ago, there came its turn: the head of state submitted to the Parliament us urgent a new version of the special law, which was not well received by the bar community. A little after, there emerged two alternative draft laws. “ZiB” addressed the author of the first of them, a member of the Verkhovna Rada Committee on Legal Policy and Justice, Valerii PYSARENKO, to clarify the differences between his and presidential initiatives, and the perspectives of adoption of the new law.

• Valerii Volodymyrovych, first of all, please, explain: is there really a need to adopt a new law, given that the current one is quite recent?
• Unfortunately, the initiative on adopting a new law on the bar didn’t come from the bar itself. The text of the draft law № 9055 was drafted by the Presidential Administration with no open discussion and was unexpectedly for many ones submitted to the Parliament as urgent. Therefore, it could not be left unnoticed by the professional environment. In my opinion, the appearance of this document was resulted from, for the most, the intention to finish the overthrow of the entire legal system. The courts and law enforcement agencies have already felt the consequences of the reforms and their unsuccessful implementation. The bar is next.

• Thus, you see no urgent need, except for rotation of management, for this initiative?
• Following the logic of the draft law and the projected consequences of its adoption in the current version, I can say it’s aimed at a total bar reloading. Probably, in such a way the authors of the draft law are planning to obtain a distance control over the processes in the sphere. Yet we can’t ignore the positive developments of the draft law, which are worth mentioning. First of all, enhancement of some advocates’ rights and increasing opportunities. Unfortunately, they are compensated with increasing possibility of pressure on the advocates during the exercise of their functions.

• Then what is the purpose of the alternative draft law (№9055-1) you’ve registered?
• The legislative initiative of our team resulted from the advocates’ concerns on the separate provisions of the proposed draft law. The text of the alternative draft law was developed in cooperation with representatives of the Ukrainian National Bar Association. The draft law № 9055-1 contains both certain reform elements and additional preferences that a professional advocate needs for effective fulfillment of its constitutional duty. Nowadays, defense of human rights and freedoms is of particular relevance in various spheres of relations between the state and the citizen. Especially after the final recognition of the exclusive right of an advocate to be representative before the court. We had to work in an accelerated mode, since  Verkhovna Rada regulations provide for only two weeks to introduce alternative draft laws. Probably, we could not put everything that we wanted, but even under such circumstances it’s the best of all submitted to the Parliament.

• UNBA complained that the draft law was developed behind its back. How was the alternative draft law taken within the bar community?
• I’ve read a lot of positive reviews on our draft law since it was registered a month ago, as well as negative comments on the main draft law. I think the closer is the review of these draft laws by a relevant Committee, the more reviews on advantages and disadvantages of one of them come. Though all 3 draft laws may seem similar, they are conceptually different on particular issues. First of all, the structure of the bar self-government: a centralized or branched regional. I must say, the discussion is not new, I remember it’s been an issue since my student years. However, this time these disputes have not only theoretical, but also the fundamental practical significance.

The second fundamental point is the balance of advocates' rights and responsibilities. We believe that it is now necessary to strengthen the advocates’ rights and pay more attention to its protection. Instead, the authors of the main draft law add their own fly in the ointment by increasing the liability.

• Even though the draft law was defined as urgent by the President, neither of the documents is now reviewed by the relevant Committee. Why? Is it due to the lack of time or order from the higher authority?
• I can assure that our committee is responsible about the functions assigned to it. In particular, we have just completed the consideration of proposals for amending the Constitution, which is a fairly significant amount of work. Concurrently, the working group is now working on the Election Code.

Since the draft law № 9055 was determined by the President as urgent, I am confident that it will be considered at the next meeting when it’s prepared by the Secretariat of the Committee and upon obtaining the conclusions of the Central Scientific Experts Office of Verkhovna Rada. Given that in fact all three draft laws are the law in its new wording, even organizational moments take time. So there is hardly any reason to suspect the committee of deliberately delaying it. I assume that a certain delay is due to the fact that the authors are looking for the most painless way for “blitzkrieg” in carrying their initiative out through the Parliament.

"Even if the VC speaks only about one of the draft law, it will be very useful"

• The Deputy Head of UNBA, Valentyn Gvozdii, believes that all three draft laws should be examined by the Venice Commission. The current law is known to fully comply with the recommendations of the Commission. Wouldn’t it surprise the experts that we are changing what works well?
• Six years ago, many spears were broken in discussions around the current law. In particular, at the Venice Commission, where is was regarded as very progressive. So was the draft Criminal Procedure Code, which was adopted a little earlier the same year. But everything is flowing, everything is changing. I think that none of the advocates would abandon the additional rights and guarantees of its activities, that are envisaged by our draft. As soon as the draft law was registered, I officially addressed the Chairman of the Verkhovna Rada with a proposal to send all draft laws for analysis to the Venice Commission. After all, the expert examination is carried out at the request of either the Chairman or the President. However, it's no secret that experts can analyze the proposed documents for a long time. But, on our request, in urgent cases VC may give a conclusion within one to two months. So far our initiative is not supported, because the draft law is urgent and should be considered as soon as possible.

• Yet there are some rumors that the Presidential Administration will indeed send its draft law for analysis to the Commission.
• Yes, I’ve seen the interview of my colleague Serhii Vlasenko in the media, where he told that he raised the issue during the conversation with the President of the Commission Gianni Buquicchio. He also noted that it would be wrong to examine the presidential vision for bar reform on its own. I totally support the need for expert examination of both the main and alternative draft laws. 

Along with that, even if the VC speaks only about one of the draft law, it will be very useful, since we will receive the opinion of the European experts, in particular, on the negative issues the bar community is concerned about. I hope, the conclusion of the Venice Commission will be a strong point for the authors and people’s deputies during further development of the draft.

• Recently, there’s been the opposite practice: first you adopt a law, then you sent it to VC. Is this practice admissible?
• In my opinion, the approach established recently is wrong. As well as a total ignoring of the recommendations of the Commission, that has also become a common practice. Before that, Ukraine would always involve VC experts for analysis of nearly every draft law concerning human rights protection mechanisms and fundamental reformist laws. Upon receipt of the expert comments, the draft law was improved in accordance with the conclusions, and only then the document appeared in the session hall. Such approach provided us with the opportunity to include certain European standards to the national legislation. Today, when European integration is included in the Constitution, the conclusion of European experts either ignored or even not asked for.

• In the explanatory note you mentioned that over the past few years there has been a tendency to increase pressure on advocates, which leads to serious negative consequences. Who exactly is a source of increased danger for them?
• Nowadays, what could only be a nightmare, comes true. There are groundless searches at the advocates' offices, and attempts to bring advocates to criminal responsibility as accomplices in the affairs of their clients... I'm not even talking about physical attempts on the life of advocates, pressure on the bar self-government bodies on the part of so-called activists. All these factors make it possible to assert that today the profession of advocate has become dangerous, and the advocate itself is unprotected. After all, on the one hand, one will not be able to effectively defend the client's rights unless takes active protection. On the other hand, such a position does not suit the law-enforcement system, which tries to counteract advocate in every way, often resorting to non-procedural methods. As a result, the advocate is labelled with shortcuts, becomes an object of increased attention from the "activists", given that not a single resonant case goes without them nowadays. And, identifying a client with its advocate, the radicals send their negative to the latter. All this happens at a time of total inactivity and, as it may be a case, the assistance of law enforcement officers.

• Are there any mechanisms, included into your draft law, to strengthen the protection of advocates from such pressure?
• Today there are enough mechanisms for protection under the current law. The responsibility for the physical protection of the participants of a judicial process lies on the law enforcement system, which, unfortunately, does not fulfill its task.

• That is, in essence, law enforcement agencies should protect advocates from pressure by both activists and themselves. Doesn’t it look like wolves are obliged to keep sheep safe?
• The world has not invented any mechanism, other than provision of law enforcement agencies with the function of protection, whether that was of advocates, judges or ordinary citizens. Sooner or later, the law enforcement system shall start working in the manner prescribed by law. And this will provide for the effectiveness of the rules on the advocates’ rights.

• What is missing in order for these rules to work now? Indeed, the Constitution designates the bodies that should monitor the observance of the rule of law in the state. Maybe the problem is not in the law, but in those who occupy certain positions, not even having professional education?
• This question is no longer legal, but political. The role of a person occupying one or another position is, of course, important. However, one cannot rely on the fact that one person will change something in the system. To this end, everyone - from a simple policeman to the officials of high rank - should made an effort, acting in compliance with the law insofar as it relates to its official duties. There are many good laws adopted today, but there is a lack of desire to adhere to them. In addition, there are many unprofessional people who are taking somebody else’s places. Unfortunately, this problem cannot be solved in one day or by one law. The judicial reform is an example of an attempt to rebuild a whole system at a stroke. As a result, we have dozens of courts that are no longer working, and many have one or two judges remaining with powers. And today nobody knows how to fix this situation quickly.

In the reform of the judicial or law enforcement systems, we must move in an evolutionary way. Yes, it requires time, a well thought-out strategy and prediction of the consequences of each stage. At the same time, moving in haste will rather lead to a paralysis of the whole legal system.

• What are the main differences in the extension of the advocates’ rights and the guarantees of their professional activities provided for in yours and the presidential draft law?
• That part of the draft law № 9055, which is devoted to the extension of the advocates’ rights, also provides for the strengthening of their disciplinary responsibility for abuse of procedural rights. In particular, it concerns the abuse of the right to an advocate’s request, filing a petition or a challenge, etc. This mechanism allows some pressure on advocates.

Had this law acted today, many advocates involved in resonance cases would probably not be so active in defending the interests of a client, looking at the real threat of disciplinary sanctions applied to them as a method of out-of-procedure pressure.

• Many complaints of the bar self-government bodies concerned presidential innovations in terms of sanctions for abuse of procedural rights by advocates. Can the actions in the interest of a client be deemed as abuse of procedural rights?
• When back in the day the reform of judicial system was discussed, we proceeded from the need to consolidate the fundamental role of the judge in the process. That is, he or she should ensure the order in the courtroom and prevent abuses by the parties. For this, the judge must have been empowered to have the tools to influence the participants in the process. Under the current state of the legal system, increasing pressure on advocates would be dangerous.

• Recently, the European Court of Human Rights has repeatedly emphasized the inadmissibility of extraction of information relating to the "attorney-client" relationship. Does your draft law provide for any additional safeguards against interference with attorney-client privilege?
• Yes, the draft law № 9055-1 contains provisions that provide for the strengthening of the protection of the advocate's workplace, information related to the provision of legal assistance to clients. I hope such a shield will make it impossible for law enforcement agencies to visit an advocate only to remind him of his place.

• This shield is provided by additional sanctions or automatic recognition of inadmissibility of evidence obtained in violation of the attorney-client privilege, as emphasized by the ECHR?
• The referred concept of "fruit of the poisonous tree" is also a mechanism that must deter from unreasonable investigative actions against advocates. However, its effectiveness will depend on the readiness of the judges to apply this rule. When law enforcement officials realize that illegal actions will dampen all the results of the previous work, they themselves will refuse pressure on advocates.

And sanctions for unlawful actions are foreseen by the current Criminal Code, there is no sense to increase them. Another issue is that we do not hear about sentences with such qualifications as interference with the activities of an advocate, a threat to its life, and a violation of the right of a person to be protected.

"Today the issue of the structure is not the main thing for the bar"

• One more block of innovations, which caused a boisterous discussion in bar circles, concerns the reform of the structure of the bar self-government. Does your draft law include any kind of restructuring, re-election of these bodies?
• No, we maintain an effective system that ensures the decentralization of the bar self-government. In our opinion, today the issue of reforming the structure is not essential for the Bar. Yes, the system has its own weaknesses, but it works effectively, defends the advocates’ rights.

Our position is the inadmissibility of external intervention. If the advocates have a desire to change the leadership of self-government, they can do so under the current law. This will be a sign of their professional independence. At the same time, the leadership of the bar self-government bodies should draw conclusions: why, despite being aware of the risks of adopting certain Draconian norms of the draft law № 9055, part of the advocates is willing to support it. Probably, there are current issues in the work of the current law enforcement bodies that need to be addressed. Including issues of combating corruption, collective defense, and effective promotion of the advocates’ interests.

• Some advocates believe that the presidential draft law is aimed at overcoming the conflict that arose in Kyiv bar. It seems that it will allow the legalization of those bodies that the Council of Advocates of Ukraine considers illegitimate. Are there reasons for such assumptions?
• When we had been developing both the current law and this draft law, no names were announced. The main thing is to give advocates the opportunity to independently determine the development of their organization and also independently overcome internal differences that may arise. If they need an arbitrator to resolve internal conflicts, they must choose it for themselves. Those advocates who are trying today to bet on the destruction of the current system, in order to gain some benefits, will suffer for themselves in a short time. Don’t you fall for that you can get support in a certain conflict, and then remain independent of third-party instructions.

• So, following the classics: whoever lives by the draft law, die by the draft law. By the way, do you share the opinion expressed, in particular, by the member of the High Council of Justice Pavlo Grechkivsky, that the developments contained in the draft law № 9055 will lead to paralysis of self-government and the lack of rights of the advocates in the process?
• The presidential draft law should be considered in complex. There are lots of positive developments that, unfortunately, cover the pivotal idea of ​​controlling the system and pressure on advocates.

In addition, one should not forget that the head of state has support in the Parliament, which provides his draft law with 226 votes. Also, the President has a veto power that can be applied to a law that does not suit him. So, if the team preparing this draft law shows perseverance, the draft will become a law in its current form, despite how much criticism and indignation express the opponents of the draft law № 9055.

"I don’t think that the head of state and his team are interested in full paralysis of the bar"

• Can you persuade the members of your committee, so that they postpone the presidential initiative and favor the other draft law?
• If the bar actively promotes its vision of the future law, it will help to come up with a certain compromise and unite all reasonable standards from different initiatives into one draft law. This would be a constructive approach. I don’t think that the head of state and his team are interested in the complete paralysis of the bar. I’m sure everyone understands the importance of having a strong advocate with effective safeguards and rights, and not a silent defender who will formally perform its functions. After all, the bar will have the law it could be able to defeat and defend.

• That is, it’s better to engage in the process of improvement than to require to leave everything unchanged?
• When I first started exercising advocacy, we could only dream of a monopoly of representation in the courts and an organization that would represent and protect our interests. Today it has become a reality, and you need to think about how to develop the bar even further. In particular, how to improve access to the profession, how to ensure the professional growth of advocates, the observance of their rights, etc.

The current goal should be to achieve such a level of authority when society perceives an advocate as a person of high moral and professional qualities. We must finally leave in the past the times when the advocate's certificates were bought or given. Only then each advocate will be treated as a respected representative of the legal community.

• What is your prediction: when can you expect to consider the draft laws in the session hall?
• The discussion that had unfolded around the draft law № 9055 since the first day of its registration has already affected the time frames for its consideration in the Parliament. I’m convinced that today we can talk about improving the positions of all the authors during the discussion in the committee and professional circles. I wouldn’t rule out that this law may be adopted at this session. Moreover, the head of state identified it as urgent. At the same time, I believe that the activity of the bar community will have a significant impact both on the time frames and the final version of the law. The Parliament has a sufficient number of representatives of the bar profession, which can provide professional refinement of the document.

• Could it happen that, when confronted with attempts to adopt this law in blitzkrieg, its developers will not dare to aggravate the negative attitude of the bar community to the current government?
• It must be understood that by submitting the draft law № 9055, its authors brought the issue on bar reform to the agenda, and this is already a fact. Whether the law is adopted or not, we can take the chance to start a debate about what is really needed today to ensure the advocacy and development of this institution. I would really like this discussion to take place not only inside the Parliament, but also in the bar community, as well as with the involvement of experts from the Venice Commission. If a constructive discussion with the bar community helps to remove controversial issues from the document, it will become a unifying factor and simplify the adoption of the “united” law. This will be a desirable compromise for everyone.

The interview of the people’s deputy Valerii Pysarenko was published in ZiB (Закон і бізнес) newspaper on November 10-16, 2018 issue.

Автор публікації: Valerii Pysarenko

Valerii Pysarenko

People’s Deputy