2024-04-04T15:30:00+03:00 Politics 2024-09-15T04:32:27+03:00

Ukrainian news

Since 2012, Ukrainian National Bar Association does not perform legal functions of state, but is a self-regula

Since 2012, Ukrainian National Bar Association does not perform legal functions of state, but is a self-regulatory institute - expert constitutionalist

During its existence, the Ukrainian legal profession has gone from full subordination to the state in Soviet times, through the state's delegation of public functions in the 1990s, and to full institutional independence, professionalism and self-government after 2012.

Expert constitutionalist Maryna Stavniychuk drew attention to this in the article "Ukrainian National Bar Association: European future or back to the Soviets?!", published by the New Voice publication (formerly Novoe Vremya).

She recalled that at the end of the USSR, the aspirations of the legal profession were to overcome total state control and ensure free and equal access to the profession. And with the adoption of the Law "On Advocacy" (No. 2887-XII dated December 19, 1992) in independent Ukraine, the community managed to end subordination and dependence on the Ministry of Justice.

It was then that the system of qualification and disciplinary commissions of the bar was formed. The Regulations on the Qualification and Disciplinary Commission of the Bar and the Regulations on the Higher Qualification Commission of the Bar were approved by Presidential Decree No. 155 dated May 05, 1993. And on their basis, commissions are registered as legal entities under public law, to which public powers have been delegated.

However, at the insistence and repeated reminders of European partners, the Ukrainian National Bar Association became self-governing in 2012. According to the new Law No. 5076-VI "On Advocacy", the institute itself had to approve the main regulatory documents. And in fact, the institution of advocacy has completely lost its functions, as those that were delegated by the state.

Decisions and other acts of the Higher Qualification Commission of the Bar under the Cabinet of Ministers and regional Qualification and Disciplinary Commissions of the Bar were recognized as valid until the adoption of the corresponding acts by the new bodies of advocacy self-government. Also, the old commissions (legal entities under public law) were supposed to continue their work only until the first meeting of the new ones.

In the opinion of Maryna Stavniychuk, the institution of advocacy as a whole is specific. Although today it does not perform the legal functions of the state, at the same time, it acts publicly in the sphere of the professional component of civil society.

Public-legal functions delegated by the state in legal relations related to justice are performed by other subjects: the court and the prosecutor's office, which are subjects actually authorized to perform the functions of the state. At the same time, the self-governing bodies of lawyers, although by virtue of the law they perform a number of regulatory, qualification and disciplinary functions, they are limited only to their members in terms of number of persons. Therefore, it is inappropriate to talk about the authorization to perform the functions of the state here.

Separate conclusions of the Supreme Court regarding the fact that some bodies of self-government of lawyers, in particular Qualification and Disciplinary Commissions of the Bar and Higher Qualification Commissions of the Bar, are entities authorized to perform the functions of the state, the expert constitutionalist calls quite controversial. In her opinion, such conclusions do not fully correspond to the letter of the Law "On Advocacy" and rather testify to the still Soviet approach of individual high judges to understanding the functions of the state, which previously covered all relations, including civil society.

Maryna Stavniychuk summarizes that precisely thanks to the 2012 reform, the Ukrainian National Bar Association, which became self-governing, self-regulating, got rid of all state functions. The self-governing bodies of lawyers were no longer authorized to perform the functions of the state, which ensured the real independence of the professional activity of lawyers in terms of defense, representation and provision of other types of legal assistance.