2019-05-08T13:00:00+03:00 Publications 2024-09-14T04:09:36+03:00

Ukrainian news

President's advocacy bill: risks and threats

President's advocacy bill: risks and threats

On October 8, the Lawyer's Day, Ukrainian lawyers stated a mass flashmob on Facebook. They protested against the presidential bill On Advocacy and Legal Profession. The working title of the flashmob was #STOP9055 (reference to the registration number of the bill). According to the lawyers, the document substantially limits their independence and narrows their rights. They note that a close analysis of the bill's provisions indicates presence of a real risk for lawyers to lose their independence and, as a result, deprival of the Ukrainian citizens of their right to effective defense in court. "Illusory ideas to make advocacy weak and dependant and lawyers controllable stands behind an unconcealed desire to amend the relevant law," lawyers wrote on Facebook asking for support to their initiative against the bill. All leading Ukrainian lawyers took part in the flashmob to express their attitude to the bill. They noted that the bill would allow law enforcers to get rid of 'obstinate' lawyers instead of building their legal stance at a state-controlled court. The lawyers want to draw the attention of the authorities, parliamentary members and the society to the risks brought along by the bill 9055. Some lawyers stressed that long ago similar terms had been adopted in the self-proclaimed Donetsk People's Republic (DPR).

The Ukrainian News Agency decided to find out what is concealed within the presidential advocacy bill and what risks and threats it bears with it for representatives of the legal community.

Violation of PACE principles

Right after the President had submitted the bill to the Verkhovna Rada back in early September, the Ukrainian National Bar Association stated that the procedure of the bill's development, approval and submission to the Ukrainian Parliament did not meet recommendations of the Parliamentary Assembly of the Council of Europe (PACE). At the same time, in its letter to Petro Poroshenko, the Council of Bars and Law Societies of Europe (CCBE) noted that any amendments to the legislation by evasion of consultations with the lawyers society would harm democracy, as the independence of the legal profession and its self-governance were recognized by recommendations of the Council of Europe and major principles of the United Nations (UN) on the role of lawyers. In its address to the head of the state, the CCBE expressed a concern about the situation involving the advocacy reform and called for holding back from amending relevant law prior to holding proper consultations with the National Bar Association. Therefore, the lawyers were deprived of an opportunity to examine the text of the finished document. The National Bar Association has many times provided consolidated and lawyer-approved proposals regarding the amendments to the effective law on advocacy starting with the first wording of draft amendments to the law On Advocacy and Legal Profession in 2014 (approved by a congress of Ukrainian lawyers) to submission of an alternative bill in February 2018. Besides, at the final stage of the bill's development, the lawyer society offered a package of amendments to the Criminal Procedure Code of Ukraine in order to enhance lawyers' rights and to the Tax Code on aspects of lawyer activity taxation. However, unfortunately the bill ignores almost all official proposals provided by the lawyers. In fact, procedural uncertainty of the bill's development created favorable conditions for ignoring the most principled objections offered by lawyers as well as for manipulations with the text of the document on its further way to the Parliament.

Venice Commission

It's noteworthy that the European Commission for Democracy through Law (Venice Commission) has not considered the bill, though a number of high-profile bills adopted in Ukraine always received respective conclusions from the Commission. That means the correspondence of the bill to the European standards is quite questionable. The bill itself contains a number of risks including: abolition of the right to free selection of a lawyer, the 'abuse of process' notion, cancellation of pure ban on examination, withdrawal and other actions involving lawyer's privilege, simplification of special procedures for opening a criminal case against lawyers. All the aforementioned makes the positions of lawyers weaker than those in the prosecution, and deprives them of instruments to defend citizens. For the record, the effective law on advocacy has actually received its approval from the Venice Commission.

According to Pavlo Hrechkovskyi, a secretary of the council of lawyers of Ukraine, in a given setting, the parties have to try to achieve a professional compromise, which lies only in the legal plane deprived of political bias and personal ambitions of certain initiators of respective reform. "The Venice Commission is one of the fundamentals of a sensible compromise. Alternative bills, which we certainly have, are another way to tackle the situation. In winter 2018, Ukraine was visited by a special representative of the Council of Europe Secretary-General. Then he advised that the National Bar Association use democratic instruments of the parliamentary democracy at the stage of consideration of the bill in the Verkhovna Rada. We believe that such instruments are professional discussion with the relevant committee, full participation of the Association, lawyers and human rights organizations in such a discussion," Hrechkovskyi said.

At the same time, Ruslan Sydorovych, a member of the judicial reform council under the President of Ukraine, says that the Poroshenko's bill contains both positive and ambiguous terms. He also considers that absence of respective conclusion of the Venice Commission on the law is not critical. "Would such an address (to the Venice Commission) have been useful and positive? I believe, it would. Do I consider all conclusions of the Venice Commission are undebatable? No! I have some questions to some conclusions… thus I do not think that the absence of respective conclusion will be of any problem," he told the Agency.

At that, Sydorovych failed to say why the judicial reform council decided not to address the Venice Commission and advised to try to figure it out at the Presidential Administration.

As at the moment of this release, the Ukrainian News Agency addressed the judicial reform council itself requesting a comment on the risks posed by the bill and the situation involving the Venice Commission. The Agency will publish the comments of the council once they are available.

Risks

In the most general terms, the bill contains two blocks: fundamental changes of the system of lawyer self-governance and new lawyers' rights. At that, none of the issues is solved by the bill, which triggered the public protest of both the lawyer society and human rights organizations. Moreover, implementation of the bill will lead to the opposite effect: paralysis of self-governance and restriction of lawyer's rights within the process. When the said two tendencies reach the cumulative effect, advocacy, as a professional institution, will be totally eliminated. The profession of a lawyer will disappear. Most of the lawyers oppose the amendments to the Criminal Procedure Code touching so-called 'abuse of process'. Any judge will be able to rule lawyer's actions as a violation and impose sanctions against them. Appeals, claims and recusation are likely to turn from a defense tactics into an abuse. The same term might be applied for non-attendance of a hearing against a lawyer but not against a prosecutor. The bill contains many preferences for prosecutors. In compliance with the effective legislation, if an indictment is served by an investigator, it violates lawyer's rights. It is also often considered as a type of pressure exerted on lawyers. Prosecutors gain extended authorities to temporarily suspend lawyers replacing them with public defenders representing free legal protection system in any situation disadvantageous for the prosecution. The document also envisions full disbandment of all bodies of lawyer self-governance and establishment of new ones, which will directly affect the level of protection and legal status of every single lawyer.

Turkey's experience

The problems similar to the ones created by the authorities for lawyers in Ukraine have recently affected Turkey as well. According to professor Metin Feyzioğlu, Turkey has nationalized its lawyers. "At first, they separated the National Bar Association from the regional ones. That triggered complete chaos. The establishment of parallel associations began. The Justice Ministry controls everything. All that was proclaimed 'democracy'. But the real reason was the fact that the National Association was the only institution to criticize the processes taking place in the country," he told the Ukrainian News Agency during the IBA conference in Rome (the Italian Republic). Hrechkovskyi clings to the same position. He considers that any reorganization through disbandment is a very popular scheme in the field of illegal takeovers. "Receipt of evidence, orders, advanced training, payment of fees, holding of disciplinary procedures will be distributed among several sets of self-governing bodies that will war with each other for legitimacy. That is a collapse. It is important to recall the Turkish example. There they decided to reform the advocacy and started to establish regional associations instead of the national one. As a result duplicate structures created chaos within one region. Later the Justice Ministry had to sort out the mess. The true reason for that reform was the fact that Turkish lawyers criticized the authorities too much," Hrechkovskyi told the news agency.

Ukrainian lawyers are confident that such a reverse process is likely to be a result of the implementation of the presidential bill. So far, a lawyer has formally been referred to a region they received their certificates in. The new wording attaches a lawyer to the place of their work and obliges them to belong to a lawyer self-governing body it sets by ignoring desires of the lawyer themselves.

Let's say, there are very many regional lawyers who work in Kyiv. At the same time, they are well aware of the peculiarities of their region, know and communicate with other countrymen-colleagues, however, now they will have to dissolve among Kyiv city lawyers. That's wrong from the point of view of the ideology and the spirit of the law if speaking of independence. A lawyer has to have the right to independently pick a self-governing body they agree to take part in. The more so, since the most part of the lawyers are absolutely passive from the point of view of public activity. In fact, the said novelties are not more than a way to the dictatorship under the guise of 'democracy'.

Conclusions

The contents of the presidential bill are dangerous. The document is drafted in a way turning lawyers into secondary, nominal participants in a process, to introduce conditions for bringing them to justice for their professional activity and to cut professional immunity to searches and criminal proceedings.

The necessity for reformation of the advocacy is obvious. The reform is really a must. However, it should be based on one of the two alternative bills. At the same time, the final document must be approved by the Venice Commission, otherwise we will not be able to avoid chaos in the country where ordinary people are likely to lose their right to effective defense in court, much less the lawyers.