AN OUTLINE OF SOME OF THE PROBLEMS,
WHICH THE ADVOCACY OF UKRAINE IS FACING CURRENTLY
1. It should be noted that in the process of admitting Ukraine into the Council of Europe, the CE Parliamentary Assembly stated in its opinion #190 (1995) on Ukraine's admission request, referring to the letter of the President of Ukraine, Chairman of the Parliament and the Prime Minister dated June 27, 1995, that (11-ix) "the status of the legal profession will be protected by law and a professional bar association will be established."
It was underscored in paragraph 12 of the same document that the Parliamentary Assembly proceeds from the premise that Ukraine shares its commitments entered into as spelled out in paragraph 11. In other words, the measures mentioned in paragraph 11 were unequivocally regarded as Ukraine's obligations.
However, the aforementioned obligations have not been fulfilled. Furthermore, the Ukrainian authorities took measures which we think contrast sharply with both those obligations and the understanding of the role, functions, rights and duties of the legal profession that is generally accepted among the members of the Council of Europe.
Thus, it was even before Ukraine's assumption of the aforementioned obligations that the Union of Advocates of Ukraine initiated in the Verkhovna Rada the draft law, On Amendments and Additions to the Law of Ukraine On the Bar, which reflected two fundamental ideas: to strengthen guarantees for advocacy and do create a nationwide professional association of advocates in Ukraine
It could be expected that, in the light of the aforementioned presentations and obligations, this draft law would be supported rather than blocked. Nevertheless, it was "lost" in the course of correspondence between the Parliament and the Ministry of Justice (through which it had been formally submitted for consideration) and never returned to the Verkhovna Rada. Although it was submitted again in 1997, this draft law was not presented for a hearing. Finally in 1999, the draft prepared by the Union of Advocates of Ukraine was submitted to the Verkhovna Rada again at the legislative initiative of People's Deputy V. Medvedchuk, the UAU President. However, it met with the same furious resistance within the walls of the Parliament and was not recommended for adoption by the Legal Policy Parliament Committee. As the draft law was discussed by the committee, the very idea of creating a professional bar association and the principles of its independence and self-governance provoked objections. So did the novellas aimed at strengthening guarantees for advocacy. During the discussion of the draft law, the aforementioned assurances referred to in the PACE opinion on Ukraine's request for admission to the Council of Europe were totally ignored.
The thoughts and recommendations of the international legal community on this issue were disregarded as well. Back in 1995, IBA President Ross Harper sent a letter, based on the results of an expert examination, to the Chairman of the Verkhovna Rada in support of the UAU-proposed amendments to the Law of Ukraine On the Bar. His letter emphasized compliance of the proposed amendments with international standards of organization and functioning of professional bar associations. Also, it stressed the necessity of adopting that law so that the Bar could adequately fulfill its tasks. In 1997, CE experts also examined the UAU draft amendments at the international seminar "Professional Bar Association in a Democratic Society" and came to similar conclusions. In 1999, CE experts at a conference in Kiev expressed a similar opinion on an updated version of the draft. In particular, Rupert Wolf (the former president of CCBE) stressed that this most representative organization of the legal profession in Europe would give all necessary assistance to the UAU for the creation of a professional bar association.
Finally in 2001, Ramon Mullerat, a leading expert of the Council of Europe, noted in his opinion on the UAU-proposed amendments to the Law of Ukraine On the Bar that:
"Due to the fact that Ukraine is a member of the Council of Europe, the Recommendation No. R(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer and its Explanatory Memorandum are applicable . This Recommendation contains the general principles on the freedom of exercise of the profession of lawyers and also encourages the establishment of "professional associations [to] strengthen the professional standards and [to] safeguard the independence and interests of lawyers".
The UAU has proposed to the Ministry of Justice in the UAU's Draft Law, in art. 3.1, a model for the National Professional Association of Advocates of Ukraine (NPAAU) which would adhere to the fifth principle of the Recommendation NR(2000)21 of the Council of Europe, as follows:
The NPAAU is a professional self-governing association: principle of independence. It provides:
1. the effective functioning of the bar of Ukraine,
2. the protection of the professional social and civil rights of the advocates,
3. the rendering of legal aid by advocates free of charge.
4. that the officers of the association, the meetings and the executive body will all be elected in a democratic way (democratic principle).
The UAU's Draft Law with these amendments provides the compulsory membership of all advocates to the NPAAU, a regulation that is perfectly valid and already applied in several countries (e.g. Spain, France).
The expert understands that the NPAAU is based on the same essential principles as organizations of this kind in other democratic countries: self-governing, independent from the state, sufficient financial background and a democratic structure for the election of its officers. Therefore the NPAAU will be an instrument able to defend the independence of the advocates and to help to protect the administration of justice and the rule of law and the expert recommends strongly its establishment.
In 2001 too, Martin Mears, ex-President of the British Law Society, expressed a similar opinion.
Nevertheless, all these expert opinions remain unheard, and all efforts to create a professional bar association in Ukraine are being blocked.
2. At the same time, not only is the current legislative governance of advocate`s legal profession far from improving (improvement which could be provided for by the blocked draft law), but, on the contrary, steps are being taken to undermine the advocate`s defence function and limit the possibilities of advocacy in Ukraine.
Thus, on November 16, 2001 the Constitutional Court of Ukraine approved a decision regarding "the right to free choice of a defender". According to that decision, the first part of Article 44 of the Code of Criminal Procedure, which read that "persons who have a certificate to practice as an advocate may appear for the defense of suspects or defendants. Next of kin, guardians or trustees may do so by the defendant's consent", - was declared unconstitutional.
The Constitutional Court ruled that from now on, anyone "who is a specialist in the field of law and is entitled by the law to provide legal assistance either in person or on instructions from a juridical entity" may appear for defense in court. The Court did not define the circle of such "specialists" in any way. In fact, its decision gave access to defense in criminal cases to a broad and undefined circle of persons whose qualifications are not checked in any way (in contrast to advocates, who take an examination), who are not bound by any professional ethic for the violation of which they could be taken to account (in contrast to advocates, bound by the Rules of advocates` Ethic), and whose independence from the State is not ensured from a functional or organizational point of view.
Moreover, the Constitutional Court gave a distorted interpretation of paragraph 2 of Article 59 of the Ukrainian Constitution, which reads:
"To ensure the exercise of the right of protection from the prosecution and to render legal assistance in court and other bodies of power the Bar in Ukraine shall function."
The aforementioned decision of the Constitutional Court came as a shock not only to lawyers but to judges as well, because the interests of both every individual and the judiciary will suffer if access to the defense in court is given to persons whose qualifications in this specific sphere of law are not checked by anybody and who are not answerable to anybody for their inadequate or unscrupulous acts.
In its official statement addressed to the Constitutional Court, the UAU emphasized that this decision will bring about a decline of professional advocacy in Ukraine.
The EC experts who carried out an expert examination of the decision of the Constitutional Court at the request of the EC Department General of legal affairs in the spring of 2001 shared the opinion of the UAU. Based on the results of the examination, the experts came to the conclusion that the Constitutional Court ought to review its decision.
Regardless of all the difference of the legal systems of their home countries, the experts were unanimous in their negative evaluation of the Constitutional Court's decision. In part, Ramon Mueller and John Fish stressed in their opinions (seconded by Karel Cermak and Emmanuel Sarri) that legal assistance to a person, and particularly the defense of a person in a criminal case, cannot be adequate unless it is provided by representatives
- of a truly independent profession;
- whose highest qualifications and moral integrity have been checked by independent organizations in an objective manner;
- who are bound by a code (rules) of professional ethic; and
- who bear professional responsibility, inclusive of loss of the right to practice, for the violation of those rules.
Furthermore, it is financially independent disciplinary bodies of the Bar that place this responsibility on lawyers.
The experts were unanimous in that only advocates acting in accordance with the Law of Ukraine On the Bar meet the aforementioned standards in Ukraine today, while giving access to defense in court to "law specialists", who neither feel bound by nor meet these standards, contradicts the interests of individuals and the judiciary and is inadmissible in a country that is declaring the rule of law.
Both the EC experts and the UAU have repeatedly stressed that the aforementioned decision of the Constitutional Court is at variance with Resolution # R (2000) 21 of the Committee of Ministers of the Council of Europe dated October 25, 2000. This resolution on the freedom of exercise the profession of lawyer obliges the governments of all CE member countries to ensure that all persons allowed to represent and defend clients act in strict compliance with the lawyers' code of professional ethic (and the principle of confidentiality in particular). They should bear professional (disciplinary) responsibility for its violation. They should be independent. They should not be given access to legal practice unless an objective organization takes a fair and unbiased evaluation (in part, by means of an examination) of their professional qualifications and finds that they meet the highest possible standards. Applicants are also required to show their knowledge of both law and professional ethic and to have practical experience, that is regarded as a prerequisite of "adequate qualifications". Besides, it is required that persons allowed to defend a client be either members of professional bar associations or be registered or connected with the professional legal community in any other formal way. Characteristically, these Recommendations refer to the same international statutes as those which the Constitutional Court have attempted to use in support of its decision.
It is obvious that giving access to legal practice to persons who neither have to affirm their qualifications nor are bound by any ethical or professional requirements will inevitably lead to a deterioration of the human rights situation and a collapse of the legal profession as such, because potential applicants will not be interested in joining the Bar and taking on a lawyer's duties.
As a result, instead of fulfilling the promises to strengthen the legal profession that it gave to the Council of Europe, Ukraine went the way of undermining the very institution of advocacy.
The list of manifestations of this destructive process is to be continued.
3. Thus, the draft law On Free Legal Assistance, which has been submitted to the Verkhovna Rada by the Head of the Parliamentary Committee on Legal Policy Mr. A. Zadorozhny in 2001, could well become the next blow to the viability of the right to legal assistance in Ukraine. Instead of laying the financial foundation for a practical solution of the problem of legal assistance to the poor, this draft simply camouflaged the reluctance of the State to provide funds for this kind of assistance.
Looking at this draft one could not help asking oneself a question - whose interests did it serve; did it really represent an attempt to create a valid legal aid scheme or it was used just as a tool to legalise those enigmatic "persons competent in law", which until that time were in spite of the Judgment of the Constitutional Court of 16/11/2000 somewhat unlegalized enough, as long as the Constitutional Court defining who apart from advocates can act henceforth as a defence council had used a formula "persons competent in law" who are entitled to do so by law "On the Bar".
If however the draft in question was approved - it would technically play a role of "law" entitling those other specialists to render legal assistance, notwithstanding the fact that they did not meet the basic requirements of being bound by professional ethics and disciplinary liability. Neither did they meet the profile of independent providers of legal assistance.
The draft Law "On free state legal assistance" demonstrated like of respect for the above internationally recognized requirements. This law would give the status of equal providers of legal assistance to: "state authorities", the Prosecutor General's office, "ministers and agencies and their territorial affiliates", etc.! Not only are these entities not bound by general standards of legal ethics (in particular by the rule against representing clients with conflicting interests) but because of their status they are governed by internal disciplinary requirements, the nature of which is clearly at variance with potential client's interests.
So, indisputably, such providers do not meet the basic requirement of independence; moreover, they are potentially opposing parties in typical conflicts, where the need for legal assistance arises. Quite predictably, the article of the draft, which dealt with the "obligations of the providers of free legal state assistance" did not impose the minimum range of obligations which should be placed upon someone engaged in rendering legal assistance. In this respect the provisions of articles 17 and 19 of the draft rang hypocritically when they refereed to "laws of Ukraine" which advocates and "specialists in the field of law" should comply with and to the liability of the providers of legal assistance. Those provisions remained meaningless as long as there is only a specific law "On the Bar", but no corresponding regulations applying to "other specialists in the field of law". Moreover, it is not possible to devise a scheme to regulate adequately people with a dramatically different legal position (civil servants, , entrepreneurs, notaries, etc. ). Only advocates therefore remain "obliged" and "responsible"; in relation to other would be providers of legal assistance provisions concerning their "obligations" and "liability" - are mere declarations.
Now, one might say that all those drawbacks can be excused by the "noble goal" - organization of an effective and comprehensive legal aid scheme. However, when it came to the vital issue - who will benefit from this law if it is adopted - it turns out that "the emperor has no clothes". This was because the category of those eligible for legal aid is very narrow and defined on discriminatory grounds. Also the draft was not based on any realistic economic calculation, There was nothing definite in it about the obligation of the state to provide adequate financing. So somehow it was hard to take this draft as a serious and sincere attempt to serve the benefit of the public.
At the same time it looked like quite a serious attempt to undermine substantially the role of the professional advocate and to diminish its irksome independence a little. - as long as the draft law entrusted the Ministry of Justice with a very broad and dangerous discretion in regulating and controlling those who are defined as providers of legal aid.
Although a wide range of legal professionals (judges of the Supreme Court, Procurator's office, etc.) voiced radical criticism of the main provisions of the draft, it was being strongly pushed forward in the parliament; all critical remarks were hidden under the tablecloth or shouted down with demagogic slogans. Similar was the fate of the critical assessments of the draft prepared by the international experts commissioned by the Council of Europe.
The fact that the official recommendations of the seminar where those assessments were presented turned out fairly mild and ambiguous (unlike individual opinions of experts) helped in disregarding them.
Attempts of the Union of advocates supported by the international legal community led to the of this draft. However the tendencies, reflected in it are still alive, and seem to revitalize in the current process of drafting similar law by the Ministry of justice monitored by the Union of advocates of Ukraine.
In the circumstances much more activity from the international legal community is needed to safeguard from revision and violation the very basic principles of an independently functioning advocacy profession, principles which were achieved by the Union of advocates of Ukraine in an atmosphere of enormous resistance during the last 12 years.
In 2001 the Union of advocates applied to the Secretary general of the Council of Europe on behalf of the Vth Congress of the Union of advocates as regards to non-fulfillment by Ukraine of its membership obligations. In its application the UAU stressed all the above destructive tendencies and steps taken by the State in variance with its obligation to support establishment of the professional bar association and strengthening of the legal profession.
However, in spite of the fact that in August 2001 the Secretariat mission of the CE found out for itself the accuracy of the UAU`s description of the situation, its report issued in September 2001 was formulated on overly diplomatic way.
As a consequence the problems of the Bar remain unsolved, ignored by the State authorities and advocacy of Ukraine is currently facing further destruction.
That's why the Union of advocates in 2003 for the forth time had submitted to the Parliament the draft law on changes and additions to the Law , which provides for radical solution of such.
Press-service of the Union of advocates of Ukraine
