Abolishment of the exclusive right of advocates on representation in courts will be a backdown from the established in the Constitution of Ukraine European orientation

Accepting the changes to the Constitution and signing the Agreement of Association with the EU, Ukraine has established irreversibility of its European and Euro Atlantic course. Particularly, it provides approximation of all institutions and current legislation to the standards of the legal state. Foremost, euro integrational strategy concerns strengthening of institutions, which have provided by the Constitution functions to protect human rights and freedoms. However, the №1013 on abolishment of advocates’ monopoly un the case of its passing will level all achievements and will turn country’s orientation to the other side.

Exclusive right on representation of clients’ interests in courts by advocates exist in the majority of European countries and the US. In such countries as Turkey, Spain, Italy, Germany only advocacy acts on all levels of judicial representation. From 48 countries of Europe in 33 of them advocates’ monopoly exists for defending the defendant, and in 22 of them for representation of the victim’s interests. As for the civil cases, advocates have a monopoly in 18 countries. In administrative cases advocates’ monopoly exists in 14 countries of Europe.

In many European countries exclusive right of advocates on representation in courts has been existing for many decades. For instance, in Germany and Austria, where the level of professionalism is one of the highest, governmental policy on advocates’ monopoly was established 50 years ago.

Exactly European practice has become an example for the Ukrainian government while implementing an exclusive right on representation in courts by advocates. These constitutional changes were accepted by the Constitutional Court and got positive feedback from the Venice Commission. Since September 30th 2016 these changes came into force and were implemented gradually in total accordance with Council of Europe standards and traditions of European advocacies. With practical realization of these changes is directly connected the issue of the availability of advocates’ services. In this context it is important to pay attention to the statistics, which is provided by the Council of legal and bar communities of Europe (CCBE). This leads to the conclusion, that is countries, where the advocates’ monopoly exists, legal aid is always at hand of the citizens. It happens due to the balance of the number of advocates’ corps. The indicator of Ukraine is average to the European. Therefore, there are no objective reasons to say, that there are any problems due to the small amount of advocates available to give legal aid to citizens.

Nowadays in a Single Registry of Advocates of Ukraine there are 52 thousands of advocates. Bar community during the past 2 years has had a stable growth. As UNBA forecast, If the dynamic will keep going, then till the end of 2020 we will have 70 thousand of advocates in Ukraine. In such a case the proportion will be 1 advocate for 600 citizens and it will be a better number, then is some developed European countries. 

Correlation of the number of population to the number of advocates in European countries:

- Germany – one advocate for 466 citizens

- Austria - one advocate for 1375 citizens

- France - one advocate for 1015 citizens

- Italy - one advocate for 1010 citizens

- Denmark - one advocate for 876 citizens

- Greece - one advocate for 504 citizens

- Belgium - one advocate for 7 citizens

- Cyprus - one advocate for 224 citizens

- Hungary - one advocate for 753 citizens

- Luxembourg - one advocate for 1200 citizens

- Malta - one advocate for 920 citizens

- Turkey - one advocate for 665 citizens

- Netherlands- one advocate for 944 citizens

- Norway - one advocate for 588 citizens

- Azerbaijan - one advocate for 6187 citizens

- Ukraine - one advocate for 823 citizens

Nowadays UNBA and BCU publicly and in official communication with government and European partners formed a position concerning a need of keeping an exclusive right of advocates on representation in courts  in the Constitution.

We need to state, that passing a draft law №1013 will contradict the practice of the leading democratic countries of the world and internationally accepted standards of advocacy. Thus exclusive right on representation in courts is foremost interpreted as a guarantee of professional and qualified legal aid. суперечитиме практиці провідних демократичних держав світу та загальновизнаним міжнародним

A positive signal is that PACE Monitoring Committee directed the draft law about judicial municipality (№1008) for the examination of Venice Commission. Logically, Venice commission also considered draft law draft law №1013 in the context of the new stage of changes in the judicial system of Ukraine, because with the try to review recently passed legislation about justice it is important to fix European priorities.

The article is published on the website “Law and Business”

Автор публікації: Valentyn Gvozdii

Valentyn Gvozdii

advocate, deputy head of Ukrainian National Bar Association, Bar Council of Ukraine