The requirement of exclusive advocates' representation of individuals and legal entities before courts is planned to be abolished: whether it is for the benefit of citizens.
Abolishing the advocates' monopoly is about conceding human rights: advocates comment on Presidential draft law
On August 29, the day of the first sitting of the Verkhovna Rada of the 9th convocation, President Volodymyr Zelensky registered in the Parliament a draft law on amendments to the Constitution of Ukraine (abolishing the advocates' monopoly).
The text of the draft law was promulgated today, August 30, and it provides for that the requirement for exclusive representation of the interests of individuals and legal entities in courts shall be abolished. The advocates' monopoly remains solely in criminal proceedings.
Thus, the idea of introducing a monopoly as a guarantee of quality and effective protection of the rights of individuals in the courts may be abolished by the new Parliament.
Representatives of the bar community commented on this initiative.
Oleksandr Dulskii, UNBA Committee on the Approximation of the Ukrainian Bar to the European Legal Standards
The Committee's position is clear! Advocates represent in the courts, and this is a sign of democracy, a sign of approximation to the high European standards that apply to the 47 countries party to the ratified Convention for the Protection of Human Rights and Fundamental Freedoms. Anything that distracts our state of rule of law from human right to defend its rights exclusively with an advocate is a sign of state arbitrariness and a threat to discredit constitutional guarantees. Representation in the court should be exercised exclusively by advocates. and not by legal advisers, who, at their best, have higher education.
Turkey, Spain, Italy, Germany are countries where the bar is active at all levels of the judicial representation.
In order to assure individuals of the guarantee that their right will be protected by a qualified advocate, one must at least obtain evidence that the legal counsel will protect the interests better than an advocate, and there is no such evidence anywhere in the world!
Iryna Senyuta, UNBA Committee on Medical and Pharmaceutical Law and Bioethics
The UNBA Committee on Medical and Pharmaceutical Law and Bioethics finds the draft law inadmissible for the following reasons:
1) the introduction of representation in the courts exclusively through the institution of the Bar, which is part of the justice system, is carried out within the framework of key state strategies that affect the guarantees of the constitutional right to professional legal assistance (Article 59 of the Basic Law of the State), namely, the Strategy for Reform of judiciary and related legal institutions for 2015-2020 (20.05.2015) and the National Strategy for Human Rights (25.08.2015), for the practical implementation of the rule of law and for the functioning of the judiciary a power that meets public expectations for an independent and fair court, as well as European values and standards for the protection of human rights;
2) identifying types of legal aid that can only be provided by an advocate will improve the quality of legal aid and the quality of justice as a whole, without limiting litigants to the right to access to justice, which is identified as one of the areas of judicial reform and one of the factors in strengthening the guarantees of advocacy;
3) the strategic direction of the National Human Rights Strategy identifies the right to a fair trial, guaranteed by quality and accessible legal assistance provided by an advocate and an effective legal aid system;
4) the changes serve the institutional and value unity of the legal community, increase the professional and ethical standards of the legal profession and the quality of legal (professional legal) assistance, incl. to the authorities. Legal officers, legal counselors will become advocates, join the bar professional community, continuingly professionally develop (such professional developments is not almost absent for employees of such services, or are of poor quality) on the equal grounds.
5) the legal position of the European Court of Human Rights in the case of Moldavia v. Ukraine (2018) reaffirmed that Ukraine's constitutional model of providing legal aid meets human rights standards. The decision states that the right to representation in courts is not absolute, but may be restricted. Even limiting the free choice of defense counsel, which narrows the circle of those persons to defense lawyers, cannot be a violation of Art. 6 of the Convention, since specific legal qualifications may be required to ensure effective protection of the individual.
Consequently, where there is a basis in legislation which excludes arbitrariness on the part of the State and provides legal certainty, the requirement for the protection by an advocate (advocates' monopoly) is consistent with the ECHR Convention and practice. Therefore, Art. 131-2 of the Constitution of Ukraine, which clearly enshrined the bar for the provision of professional legal assistance, is aimed solely at guaranteeing the human right to quality legal assistance, affirming the directions of state reforms and upholding European values.
Mykola Pototskii, UNBA Intellectual Property Section
The abolition of advocates' monopoly on representation of interests of state bodies carries the following risks:
- deprivation of subjects of right to professional legal assistance;
- violation of the principle of equality of all participants in the proceedings before the law and the court. Private law persons will be represented by advocatess and public law persons will defend their rights independently. Considering that state bodies can act only in the manner provided by law, in the absence of the provision that the representation of interests is performed exclusively by advocates, the legal position to involve advocates in the representation of interests of public law entities will be eliminated;
- violation of the parties' competitiveness principle. In public-law disputes, the power to prove the authority of a decision, action or omission rests with the authority. Given that public law entities will be deprived of professional representation, the risk of misrepresentation of state interests is obvious.
Ganna Boryak, Committee on the Protection of Advocates' Rights and Guarantees of Advocacy
The advocates' monopoly is intended to bring the protection of citizens' rights in the courts to the European legal criteria set out in the UN standards for the legal profession, and other international declarations.
Such a need is associated with the creation of an independent professional non-governmental organization, which aims to protect the advocates' rights.
The abolition of the advocates' monopoly on defense in court will create an unacceptable imbalance in the judicial representation when one of the participants in the trial will depend entirely on private interests and not have free choice.
The lack of funds in the budget to pay the advocate's fees is not a sufficiently motivated reason, given that the advocate's work is in any case payable from the budget, and the violation of labor law is criminally punishable.
In these circumstances, the abolition of the advocates' monopoly is a step backwards, and therefore not acceptable.
Anna Kolesnyk, Committee on Protection of Human Rights
Article 131 of the Constitution of Ukraine “There is a bar in Ukraine to provide professional legal assistance”. Such a rule of law defines that it is the advocate who provides professional legal assistance, that is, quality legal assistance. The advocate is responsible for providing poor quality legal assistance, the advocate is constantly improving his specialization, the advocate is independent from either the head of the institution or from another person, which once again emphasizes that only an advocate can provide quality legal assistance.
We are building a rule of law together, is it possible to say that the protection of interests of state bodies can be carried out unprofessionally and poorly?
If we talk about budget savings, then the math is quite simple: we reduce the staff of advocates, and on representation in court we turn to professionals. An advocate working in a state body in a district or a village council has virtually no experience of representation in the courts, and therefore his involvement as a representative is already a loser in cases where representation is performed by an advocate on the other side.
Thus, renouncing the monopoly, our country takes a course not on building a legal independent state, but returns to the past, which when our people came out to the Maidan, tried to change when the courts do not have laws, but the power and authority, when the courts decisions are not influenced by laws or evidence, but by the totalitarian influence of the state on the resolution of litigation.
Amending the Constitution to abolish the advocates' monopoly will, in the first place, be a negative consequence for the entire judicial system.
The main arguments for making these changes are: "The budget of the state agency for the year is not" rubber"- it does not provide for a separate article of expenses for representation of interests in court, and, consequently, on the question "where to get money for legal fees?"," Who will pay for postal services?", "How to get to a court in another city/region?" the accounting department must answer with the cost savings fund (if any).
I answered the first question: the state should not only think about saving the budget, optimize and reduce the staff of advocates, but also about the quality of the services received. Thus, unprofessional and poor representation in the courts leads to a delay in the process, which is additional state funds (budgetary funds) and loss of state authorities and self-government in the courts, which is again state funds.
The issue of payment of court fees is not solved by amending the Constitution and abolishing the advocates' monopoly on representation in courts, but by amending the Law of Ukraine “On Court Fee”.
The question of who will pay for the postal services should not be resolved at all by the abolition of the advocates' monopoly on representation in courts, this is all regulated by normative acts.
And the question of how to get to a court located in another city, just concerns the advocates of state-owned enterprise or self-government body, who will need to pay for the trip, accommodation and other business expenses, and an advocate can be hired in the city of representation and then there will be budget-saving in that city.
In fact, abolishing the advocates' monopoly on representation in the courts is not a budget saving, it is uncontrolled spending of the budget on poor legal aid, it is a path to the communist past that our country is trying to escape from.
The abolition of the advocates' monopoly is the failure of the state to fulfill its obligation to provide quality legal assistance.
Let us look at litigation concerning the rights of individuals when public or local governments are involved as third parties or are responsible for cases involving individuals. Today such participation is formal, in most cases, no one even appears in the courts, although the issues related to the rights guaranteed by the Constitution of Ukraine are resolved: property rights or use of property, rights to social security, pensions, rights, rights related to paternity and more. Representatives of state bodies are not independent and their position is always the same: to defend the interests of the body they represent, even if it has no legal grounds or no evidence in favor of that body, an advocate will never go to the head and tell that the case is clearly "lost", and will go to the courts or to write off, receiving for this their wages, that is, in fact, we return, to budget-savings.
Or we may consider issues concerning the involvement of the Children's Affairs Service in the consideration of juvenile courts and the protection of their rights and interests and the representation of minors in court.
The abolition of the advocates' monopoly on representation in court will lead to the fact that children will be deprived of high-quality legal aid, since their interests will be represented not even by lawyers, but by employees of the children's affairs service.
Immediately answer the argument: children have the right to receive free legal aid. Yes, they have the right, and can they always implement it, and do the children themselves know about it, and do the children always know about the existence of a dispute between the parents that affects their rights? No!
The state leaves aside the most vulnerable section of the population - children, deprives them of the right to quality legal aid, which contradicts the Convention on the Rights of the Child and the Declaration of the Rights of the Child, which states that “a child, due to his physical and mental immaturity, needs special protection and care, including legal protection both before and after birth”.
Oleg Prostybozhenko, Section on Civil Law and Procedure
The President's proposed amendments to the Constitution on the abolition of the advocates' monopoly on cases involving state bodies are justified by the budgetary savings. But is such a position justified? Lawyers work in almost every state body and represent it in court and, accordingly, receive a salary from the budget. Has the cost of the lawyer's services been investigated in comparison with the retention of an advocate in a public authority? Is there a need to keep a multi-person legal department, or perhaps more effectively (including from a financial standpoint) to have one lawyer and involve an advocate in cases of representation in a state body? Until such a study is conducted and we do not see its results, any argument about budget savings is a common manipulation.
Vladyslav Sytiuk, Mediation Committee
The advocates' monopoly operates in the vast majority of European countries, including the United States. By signing the Agreement on Association of Ukraine with the European Union, our country has taken a course on the European development of the country, namely - bringing all its institutions and current legislation in line with European standards.
The institute of advocacy in the state of rule of law is a guarantee of professional protection of human and citizen's rights and freedoms.
The abolition of the monopoly will lead to a deterioration of the professional quality of protection in the courts of citizens and legal entities.
Olga Poedinok, Committee on Legal Education
The issue of advocates' monopoly is closely related to the quality of domestic legal education, which is neither practically oriented nor specialized. Usually a graduate is not a professional lawyer, ready for real work; he is merely a "theorist" who cannot yet represent the interests of a person in court.
At the same time, the experience of practicing law is one without which it is impossible to protect the client's rights in the process qualitatively, and is an obligatory condition for admission to the legal profession. In addition, the status of an advocate is a testament to the knowledge and skills acquired during training and in practice.
Monopoly leads to an increase in the number of high-profile advocates in the legal profession as a whole and the legal community in particular. The increase in the number of advocates is due to obtaining the status of an advocate by the majority of legal practitioners to be able to represent clients in courts. At the same time, the increase in the number of advocates has increased the competition and professional standards, which allows individuals to choose their own advocates at least not worse than before. An advocate is obliged to constantly improve his/her qualifications, and continuing professional development is not so much a requirement of the law for advocates, but rather a condition for success in any career.
Also, let's not forget that an advocate has more protection than an ordinary lawyer: questions of attorney-client privilege, inquiry, search. And so the law protects not so much the advocate as his clients. In addition, the status of an advocate implies greater responsibility: the requirements to adhere to rules of professional ethics and the ability to lose the right to practice law.
Ganna Garo, Family Law Section
The President of Ukraine proposes to amend the Constitution of Ukraine to abolish the advocates' monopoly in the work of public law entities in order to save the budget of the country. However, we believe that, on the contrary, it can lead to even greater costs and irreversible adverse effects for the country, based on the following:
The profession of advocate can be compared only with the profession of doctor. The doctor saves life and "improves" the health of the person, and the fate of the person (child) depends on the professionalism, experience, skill of the advocate in most cases. When it comes to those state or local government agencies that represent the interests of children, the question arises: do you trust the treatment of your child to a medical professional who has just graduated from an institution of higher education and has not received an internship, has not received the qualification certificate of a family doctor or pediatrician who has no experience? The answer is obvious. So why can the protection and representation of children's interests be entrusted to a person who is just a lawyer and is obviously less qualified than an advocate? Is it possible to save on the future of the child and/or, if we speak of a more global understanding, of resolving legal issues for the authorities? The answer also seems obvious.
According to the Constitution of Ukraine, the Law of Ukraine “On the Bar and Practice of Law”, professional legal assistance should be provided with high quality and standards.
An exceptionally highly intellectual bar community, it is a factor in guaranteeing the delivery of quality justice, the professionalism of the trial and the implementation of the principle of competitiveness.
Applicants for the right to practice law go through a multi-level system of tests of knowledge of the law, and rules of professional ethics, which require advocates to follow high ethical standards of conduct, including when performing the functions of representation in court.
Instead, there are no such requirements at the legislative level for persons with a law degree, which negates the standards of professional legal assistance to society.
The unification of the legal profession is an indispensable element of guaranteeing the adequate protection of human rights and fundamental freedoms guaranteed by international standards, including the protection of the rights of the child.
Olena Sibiliova, Committee on Professional Development
Advocacy is one of the cornerstones of the rule of law and the effective protection of human rights.
Article 59 of the Constitution of Ukraine provides for the right of every person to professional legal assistance.
Legal assistance is provided by advocates as professionals, with a sufficient level of knowledge, experience, responsibility for each of their actions, with appropriate rules of ethics, which determine the particular position of advocates not as a privilege for the latter, but as qualified legal assistance. This ensures the implementation of the constitutional guarantee to the citizens to receive quality legal assistance.
The Bar has all the necessary attributes to be the basis of a single legal profession. In order to enter the profession, advocates must not only obtain a law degree or a sole employment record, they go through a multistage access to the profession to prove their ability to provide legal assistance and to adequately respond to the title of advocate. Advocates are bound by attorney-client privilege in the interests of clients, which is reflected in legal assistance provided by advocates, not by lawyers. Advocates are special subjects that have additional guarantees from the state regarding workplace searches, access to documents, etc., which again affects the attorney-client privilege and the dominance of the client's interests when providing legal assistance.
To provide quality assistance to others, an advocate must be independent and free from state control. At the same time, his activities are subject to the Rules of Professional Ethics and are governed by the standards and rules of the bar self-government bodies, of which he is also a member and participates in the development of which he also participates.
Lawyerss who are not bound by the Code of Ethics and who do not have their own leverage of unprofessional or unfair colleagues regarding clients, are not required to comply with the standards of advocacy, are not liable to clients as are advocates associated with these Rules of Professional Ethics standards.
In addition, when passing the qualifying examination, the future advocates must confirm the availability of fundamental training in the main areas of law, the history of the bar and the advocate's ethics, and in addition to knowledge - the experience gained in practice through the preparation of procedural documents.
Justice cannot be exercised without functional and independent institutions, including an advocate, which ensures the implementation of the principle of the completeness of the judiciary. How to influence an advocate who disrupts court hearings? Where should the court, client or opponent approach in such cases? However, outside the walls of the court the advocates' monopoly is not even discussed. There are always free market rules in the consulting industry. Finally, the reason for the advocates' monopoly is not in the corporate interests of the bar, but in the public interest of justice and everyone's constitutional guarantee of quality legal assistance.
In order to ensure the independent and effective functioning of their profession, attorneys must have sufficient competence and authority in the legal profession. Unlike lawyers, only a self-governing advocacy organization can monitor the competence of its colleagues and offer multifaceted approaches to qualitatively improve the professional qualifications of its colleagues to ensure competent litigation, the proper representation of client's interests, a condition for quality protection of human rights, a defining condition for respect for the lawyer.
Thus, the main goals of advocates' monopoly are not to provide privileges to advocates, but to create a system of providing qualified legal assistance, to integrate the disparate legal services market into a single regulated profession, subject to common professional and ethical requirements, restrict market access and exclude market participants.
The exclusive right of members of the independent and self-governing bar to represent the interests of litigants is a feature of developed jurisdictions. In this regard, Ukraine has committed itself to meeting these standards and these requirements.
Thus, the advocates' monopoly, introduced by the amendments to the Constitution of Ukraine, is the achievement of a developed civil society, and to yield to it is to concede human rights.
The article was published on the website of the newspaper "Yurydychna Gazeta"