28 February 2019, Thursday, 14:06 464

UNBA Sends Resolution Of Lawyers Congress On Inadmissibility Of Adoption Of Bill 9055 To MPs

Editor: Микола Поліщук

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Ukrainian National Bar Association sends Resolution passed at Ukrainian Lawyers Congress 2019 on inadmissibility of adoption of bill of Ukraine On Advocacy And Legal Profession 9055 to Verkhovna Rada Chairman Andriy Parubiy and every single MP. Document was adopted by highest body of lawyer self-governance on February 15, UNBA press service states.

In its resolution Ukrainian lawyers called on the Parliament not to support the bill On Advocacy And Legal Profession and return the document for additional update to its authors.

"The bill 9055 submitted for consideration of the Ukrainian Parliament might lead to inappropriate or obviously harmful legal experiments, create chaos in legal regulation of legal profession, level European standards already utilized in the Ukrainian legislation. In particular, the bill contains threats of elimination of institutional guarantees to lawyers independence: lawyer self-governance and self-regulation of the profession," the Resolution states.

The Ukrainian Lawyers Congress believes that any amendments to the legislation have to guarantee further approach of the advocacy to the European standards. The priority in this process must be the enhancement of protection of lawyers rights and advocacy guarantees. The Ukrainian Lawyers Congress considers that adoption of the bill 9055 contradicts common logic of the European course of Ukraine, numerous international documents and, in fact, the Strategy of judicial system reformation, court procedure and activity of accompanying legal institutions approved with the presidential decree 276 dated May 20, 2015.

"The bill 9055 invalidates further independent functioning of the advocacy institution, eliminate guarantees for protection of all constitutional rights of the citizens. On the whole it will create systemic risks for development of Ukraine as a legal democratic state. Adoption of the bill 9055 as a basis and in principle will invalidate the opportunity to protect rights, freedoms and interests of people by lawyers not dependant on political will. We are drawing MPs' attention to the fact that political destiny is often a variable value, and every single Ukrainian unexceptionally needs professional protection. The Ukrainian National Bar Association is opposing the bill On Advocacy And Legal Profession 9055 in its current wording and insisting on its further revision and update," the Resolution says.

The Lawyers Congress is reminding that the bill 9055 has obtained two negative conclusions: one from the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine that called for further update of the document; and one from the National Agency on Corruption Prevention (NACP) that also called for its revision.

Late in January 2019, a letter written by Diego Garcia Sayan, Special Rapporteur on the independence of judges and lawyers of the Office of the United Nations High Commissioner for Human Rights, and containing a conclusion on the bill 9055, was sent to the President of Ukraine. The letter mentions that the bill includes a number of provisions able to put at risk free and independent functioning of the legal profession and the ability of the UNBA as a unified professional organization of lawyers to protect interests of its members and independence of the legal profession on the whole. The Special Rapporteur recommends revision of the bill On Advocacy And Legal Profession in order to bring it in line with respective international human rights standards touching independence of legal profession.

Considerable disadvantage of the bill 9055 are numerous corruption risks mentioned in a conclusion of the relevant Verkhovna Rada committee. The bill 9055 is teeming with contradictions between different articles, terminological uncertainty, value judgments, especially as far as it concerns the regulation of the access to the legal profession and disciplinary responsibility of lawyers, distribution of lawyer fees across the system of lawyer self-governance. Such elements are inadmissible as the anticorruption component has to be mandatory for every single phase of the judicial reform.

The bill envisions a four-year grace period for simplified access to advocacy for judges and investigators having the permission to obtain lawyer certificate only on the basis of a testing without required probation.

The bill 9055 contains numerous amendments to the Criminal Procedure Code of Ukraine that narrow guarantees for legal profession. In particular, it offers inclusion of Article 221 on violation of procedural rights by lawyers to the Criminal Procedure Code of Ukraine. A court might consider lawyer's appealing against certain court ruling to be such a violation.

The text of Article 221 within the bill 9055 directly contradicts the provisions of the Constitution of Ukraine, relevant decisions of the Constitutional Court of Ukraine and numerous decisions of European Court of Human Rights (ECHR).

The bill 9055 offers amendments to Article 53 of the Criminal Procedure Code of Ukraine under which a prosecutor or a court obtains right to at own discretion attract a free lawyer and continue all procedures required by the prosecution even in present of an official defendant's lawyer within the case.

The bill 9055 offers simplification of the procedure of notification of a person of suspicion, gives green light to enhancement of criminal prosecution of lawyers for their legal position. At present such practice is confirmed with official statistics of infringement of lawyers rights and guarantees of legal profession.

As Ukrainian News Agency earlier reported, the head of the Ukrainian Helsinki Human Rights Union is surprised with "positive conclusion of the Council of Europe" on the bill 9055.
Earlier, the Ukrainian Lawyers Council said that the Council of Europe had not provided any official estimations on the bill therefore, the information about positive conclusion of the Council of Europe are not true.