Shadow Report "The Advocacy of Ukraine: Lessons of the First Years of Self-Government"

2018-09-19

KYIV - September 19, 2018. NGO "Laboratory of Legislative Initiatives" in cooperation with NGO "Tomorrow's Lawyer" published the Shadow Report "The Advocacy of Ukraine: Lessons of the First Years of Self-Government" at the request of the Verkhovna Rada of Ukraine Committee on Legal Reform and Justice in order to support its control function.

The report is devoted to the evaluation of the implementation of the provisions of the Law of Ukraine "On the Bar and Practice of Law" adopted on July 5, 2012, which came into force on August 15, 2012.

The report examines the role of advocacy in a democratic society, the international obligations of Ukraine to protect the status of the legal profession and the establishment of a professional association of lawyers, the goals and objectives of the state policy in the field of bar and advocacy, issues of law enforcement in this area since November 2012 by August 2018.

The report also analyzes the provisions of the draft new edition of the Law of Ukraine "On the Bar and legal Profession" regarding the effective elimination of gaps and weaknesses in regulating the principles of the organization of the Bar and the exercise of legal practice in Ukraine.

The developers in the summary of the report noted that it is devoted to the analysis of state policy in the field of advocacy and legal practice, the development of the legal profession as an independent self-governing social institute since the foundation of the Ukrainian National Bar Association (UNBA) in 2012 to the present.

The authors took into account changes in the state policy in this area in connection with the implementation of judicial reform, implementation of the strategy in the field of human rights and the introduction of amendments to the Constitution of Ukraine (on justice). In particular, a separate draft is the draft new edition of the Law of Ukraine "On the Bar and Practice of Law" approved by the Judicial Reform Council in June 2018.

In this regard, on the basis of generally recognized international standards for advocacy, the strengths, weaknesses and discussion issues in the draft revised draft law "On the Bar and Practice of Law" are assessed, in particular, how its provisions allow to respond to current challenges in the functioning of the Bar.

The authors of the report reached the following conclusions:

1. According to generally accepted international standards, an independent bar is a prerequisite for the establishment of the rule of law and democracy in society.

2. Advocacy reform is a component of judicial reform and human rights strategy that can not be successful without an institutionally developed independent advocacy.

3. The state policy in the field of advocacy and legal practice is ineffective. The Law of Ukraine "On the Bar and Practice of Law" of July 5, 2012, which defines the principles of its organization and activities, contains significant disadvantages that have a significant negative impact on the advocacy of its special social role in society. This Law has been suspended for two years in accordance with the Constitution of Ukraine after the introduction of changes to it in relation to justice.

4. The development of the Bar in Ukraine in 2012-2018 has revealed a number of problems in the application of the Law.

5. Despite the existence of certain shortcomings and several controversial issues, the draft new edition of the Law of Ukraine " On the Bar and Practice of Law ", approved by the Judicial Reform Council in June 2018, generally complies with commonly accepted international standards, substantially improves the principles of the organization and activities of the advocacy , will allow, in case of its adoption, to resolve most of the problems that arose in the activity of the Bar in 2012-2018 and to ensure its progressive development in the interests of society and the fair justice.

According to the results of the study, the report's authors clearly outlined a number of problems with the application of the Law in 2012-2018. In particular:

- lawyer's self-government bodies were formed in a non-democratic way, since at the central level and in certain regions artificial barriers were created for the participation of lawyers in this process, which questioned their legitimacy;

- artificially complicated access to the profession of advocate by establishing additional and unforeseen requirements and restrictions, in particular, unreasonably high payments (prior to the establishment of a legislative restriction on the initiative of the legislator) for passing the internship and passing compulsory tuition for applicants for a right to practice law at the Higher School of Advocacy of UNBA;

- professional rights of lawyers and guarantees of advocacy are insufficient for the effective performance of the advocate's special social role in society;

- the only register of lawyers of Ukraine, through unlawful interference with it and other actions, is used by the Bar Council of  Ukraine as a powerful tool for pressure on lawyers, in particular, the illegal deprivation of their right to engage in advocacy outside of a disciplinary procedure, etc.

See the full text of the report (UKR)

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