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The Ukrainian Bar: European Future or Back to the Sovietness?

One of the few truly successful reforms in independent Ukraine was adopting the Law on the Bar and Practice of Law in 2012. Having received numerous positive reviews from European institutions, this Law has not yet undergone any significant changes to the chosen regulation model of the legal profession. This article's main points are how this happened and why attempts to undermine this model pose threats to Ukraine as a state governed by the rule of law.

MARYNA STAVNIICHUK

constitutionalist expert, member of the Venice Commission in 2009-2013, Honored Lawyer of Ukraine

The ideal model

The current Law No. 5076-VI «On the Bar and Practice of Law» defines, using the modern terminology of the decisions of the Constitutional Court of Ukraine, the “distinct” (unique, separate from others) public legal status of the Bar. It is a non-state public institution independent of state authorities, local self-government bodies, their officials and employees.

The Bar's self-governing institution consists of all Ukraine advocates who have acquired the right to practice law. Its main task is to provide defense, representation, and legal aid on a professional basis based on the legal profession's self-regulation principle. According to the Law, the Bar independently decides on its organization and activities in the legally established format and legal mechanisms.

The bar self-government operates to ensure the proper exercise of the profession of advocate, observance of its guarantees, protection of the professional rights of advocates, providing a high professional level and addressing ethical issues of the profession and its standards.

The Law enshrines independence as one of the fundamental principles of its activity. Understanding the traditional desire of the authorities, which is always temporary, and their officials to subjugate all non-state and public institutions, the legislator specifically stressed that the state shall create appropriate conditions for the activities of the Bar. According to the Constitution, this should be done exclusively through the adoption of laws and the formation of the legal basis for the activities of the Bar.

This is the ideal basis for a model that should ensure the operation of the Bar on certain principles, as well as create conditions for the independent operation of a professional, self-governing community of lawyers in the context of self-regulation of the profession. After all, in any democratic society and a state governed by the rule of law, advocates are vital figures, subjects of the mechanism of protection of human rights and interests.

Constitutional changes

At one time, when I was developing proposals for modernizing the Basic Law as part of the work of the Constitutional Assembly, I proposed to strengthen the status of the Bar at the constitutional level. This proposal was implemented in 2016 during the reform of the judiciary. In the updated Chapter VIII, «Justice» of the Constitution, Article 131-2 was added, dedicated to the Bar. There were a number of reasons for this: the need to get rid of the criminal bias of Ukrainian justice and the dominance of the prosecutor's office inherited from the Soviet era, the rejection of secondary status, inequality of rights and opportunities of the bar, overcoming the humiliating problem of identifying an advocate with a client, etc.

The main purpose of raising the legal regulation to the constitutional level was to give substance to the constitutional principles of judicial proceedings: equality before the law and the court, adversarial proceedings, and the right to defense for the accused.

Unfortunately, in the eight years since the constitutional changes, the situation in the judiciary has not changed significantly. This is a testament to the quality of the reforms and the reformers. It is clear that the functioning of the judiciary is not better affected by the actual state of war in the country. But this topic deserves a separate study.

To analyze the problems of the Bar, it is important to understand the historical aspects of its institutional formation, the determination of the content of the current regulation by Ukraine's obligations arising from its membership in the Council of Europe, and the European integration aspirations of our country. The comparative experience of European countries is equally important. Finally, in this regard, we can talk about the constitutional and legal capabilities of the Bar.

Overcoming dependency

Over the past decades, the Ukrainian Bar has undergone three conventional stages in its development. The first was the Soviet period. The activities of the Bar in those days can be described as being entirely controlled by the state, both in terms of the organization of the institution and the activities of individual advocates. At the end of the USSR, the professional aspirations of the legal profession were to overcome total state control and ensure free and equal access to the profession.

Adopting the Law on the Bar in independent Ukraine marked the beginning of the second stage. The adoption of this Law in 1992 took place amidst fierce confrontation between the professional community of lawyers and the executive branch.

Eventually, the community ended its subordination and dependence on the Ministry of Justice. The new rules ensured equal access to the legal profession and introduced the individual practice of law through the freedom to choose organizational forms of activity. Professional rights were also significantly expanded, and a list of guarantees for law practice was established. These would later be reflected in the procedural codes.

The Law also provided for a system of qualification and disciplinary commissions of the Bar. Presidential Decree No. 155 of 5 May 1993 approved the Regulations on the Qualification and Disciplinary Commission of the Bar and the Regulations on the Higher Qualification Commission of the Bar. Based on these provisions, the commissions were registered as legal entities under public law and delegated public powers. These were truly revolutionary changes at the time, which remained in place until 2012.

<span class="copyright">MARYNA STAVNIICHUK</span>
MARYNA STAVNIICHUK

The European vector

Over time, the practice of applying the Law “On the Bar” has revealed some shortcomings. The guarantees of the practice of law and the professional and social rights of advocates required further development. For a decade, the legal profession has addressed each Verkhovna Rada (The Parliament) speaker and government with relevant proposals. However, to no avail. Until international and European institutions, primarily the Council of Europe, paid attention to these issues.

Back in 1992, Ukraine applied for membership in this organization, and two years later, a political dialogue was launched. Among the priorities for reforming the legal sector, our state has committed itself to defining the legal profession's status protected by law and establishing a professional bar association (see, for example, PACE Opinion No. 190 (1995)).

In the course of discussions, polls, and debates, the organized bar community has also proposed for seventeen years the introduction of bar self-government - the creation of a single professional organization by law. However, many of the drafts that were prepared and discussed were eventually “lost” on the sidelines of the parliament.

The adaptation of key European standards of bar independence and self-government into national legislation opened the way for the Ukrainian Bar to integrate into the European professional community. In June 2005, Bernard Vatier, President of the Council of Bars and Law Societies of Europe (CCBE), addressed the Ukrainian parliament with proposals, including mandatory membership in a professional association. The point was that bar associations had already been established in all CCBE member countries to represent the legal profession in relations with governments and other persons. In most European Union countries, such associations are considered a prerequisite for the independence of lawyers and the provision of quality services.

PACE has returned to the issue of establishing a single professional bar association in Ukraine several times. Thus, in Resolution No. 1466/2005, “On the fulfillment of obligations and commitments by Ukraine”, the Assembly, in the framework of respect for the rule of law and protection of human rights, addressed the Ukrainian authorities with a proposal “to establish a professional bar association by adopting a new law on the bar without further delay”.

A similar call to “reform the bar and establish a professional bar association in line with Ukraine's commitment to join the Council of Europe” is contained in Resolution 1755/2010 on the functioning of democratic institutions in Ukraine. This document has stimulated the preparation of a new fundamental law. In 2011, the relevant draft law “On the Bar and Practice of Law” received a joint assessment by the European Commission for Democracy through Law (Venice Commission) and the Directorate General for Human Rights and the Rule of Law of the Council of Europe.

In particular, the conclusion of these Council of Europe bodies noted that the legal profession tends to be self-regulating and self-governing. Self-government is a firmly rooted prerogative of the legal profession. Advocates enact rules of ethics that govern their behavior both in their professional and private lives. The main arguments in favor of self-regulation of the legal profession were the need to preserve the bar's independence, the judiciary's independence, and the rule of law. This is how independence from state interference is guaranteed. Self-regulation was recognized as the most effective and strict means of regulating the profession. For a long time (at least since the 15th century), it has been part of the legal tradition and has now become part of the unwritten constitution of the profession.

The new law

Finally, after much preparation and harmonization with European recommendations, the Law on the Bar and Practice of Law was adopted in July 2012 and is still in force today. It marks the beginning of the third stage of the Ukrainian Bar's development.

The new law has already regulated the legal status of an advocate and the fundamental aspects of advocacy and human rights protection. The rights and obligations, guarantees of activity, and ethical provisions were spelled out in detail. The Institute of attorney-client privilege was regulated, and the mechanism of equal access to the profession was defined.

In this regard, the system of bar self-government - the right of advocates guaranteed by the state to independently decide on the issues of organization and activity - is also regulated. In line with European standards, this system has been fundamentally different from the 1992 model. The commissions, which under the old law were created and functioned as legal entities under public law, were liquidated, and the relevant Decree of 05.05.93 No. 155 was canceled.

As a result, there were no longer any public functions delegated by the state to the defense institution! At the insistence of its European partners, the Ukrainian Bar became self-governing. And it has already approved its primary regulatory documents.

At the regional level, the Bar Councils, Qualification and Disciplinary Commissions of the Bar, and the Audit Commissions of the Bar were established. At the central level is the Congress of Advocates of Ukraine as the supreme body of the bar self-government, the Bar Council of Ukraine, the Higher Qualification and Disciplinary Commission of the Bar, and the Higher Audit Commission.

The Transitional Provisions of the Law “On the Bar and Practice of Law” are important for understanding the mechanism of removing state institutions from regulating the Bar.

According to them, the decisions and other acts of the Higher Qualification Commission of the Bar under the Cabinet of Ministers of Ukraine, qualification and disciplinary commissions of the Bar (old legal entities under public law) were recognized as valid until the new bar self-government bodies adopted the relevant acts. Also, the old bodies had to continue their work until the first meeting of the new ones, reporting on their activities to the constituent Congress of Ukraine advocates and regional advocates' conferences.

The constituent document of the Ukrainian National Bar Association (UNBA) is a charter approved by the Congress of Advocates of Ukraine. Membership in the UNBA has become mandatory for advocates.

It was in this model that the Ukrainian legislator implemented European recommendations. Later, in 2019, the Verkhovna Rada confirmed “the European identity of the Ukrainian people and the irreversibility of Ukraine's European and Euro-Atlantic course” by amending the Constitution.

Compulsory membership

Ukraine's approach to the organization of the Bar is in line with the practice of many European countries, such as Italy, Poland, Belgium, Norway, Luxembourg, Slovakia, Slovenia, Spain, Liechtenstein, Austria, Croatia, the Czech Republic, the Baltic States, and Germany.

To ensure the highest standards of legal practice and protection of the public interest, the German Federal Law on the Bar defines the functions and responsibilities of lawyers and self-regulatory bodies of the legal profession. The purpose of self-regulation is to ensure that the bar is independent of the state, to ensure the proper exercise of the profession, to ensure access to justice for all citizens, to promote professional competence, to represent interests before the public and the state, and to ensure that lawyers comply with professional rules.

This was recently emphasized by the President of the German Federal Bar Association, Dr. Ulrich Wessels, in his letter to the UNBA. He also drew attention to the fact that in Germany, advocates and the state recognize the role of self-regulation and mandatory bar membership. These positions have never been challenged in court.

By the way, the mandatory membership of Ukrainian advocates in the UNBA, the only professional organization, allowed us to upgrade the status of our Bar Institute in the CCBE from an observer member to an associate member. The relevant decision was recently made during the plenary session of this international organization in Brussels.

Aspects of self-government

The Law “On the Bar and Practice of Law” defines the legal basis for the organization and operation of the Bar and the practice of law in Ukraine. In this way, the legislator directly linked the advocate's activities as a legal aid provider to the functioning of the Bar (the work of the bar self-government bodies at the regional and national levels).

As in other countries, the Bar self-government in our country acts to ensure the proper exercise of the profession of an advocate, to comply with the guarantees of the profession of an advocate, to protect the professional rights of advocates, to ensure a high professional level of advocates and to resolve issues of disciplinary liability. At the same time, it emphasises the institution's independence from government and local self-government bodies.

Since the Ukrainian Bar consists of all advocates who are legally entitled to practice law, they are automatically members of the Ukrainian National Bar Association, which is a legal entity. This mechanism of legal regulation guarantees the possibility for Ukrainian advocates to exercise their right to bar self-government without interference from the state.

This model was reinforced by the state's recognition in 2016 of the constitutional and legal status of the Bar and its consolidation along with the judiciary and the prosecution in Chapter VIII, “Justice” of the Constitution of Ukraine.

Given the above, to understand the constitutional and legal status of the Ukrainian Bar and UNBA and their place in the rule of law, it is worth considering the following three aspects in more detail:

1) separation of the Bar from the State - independence.

2) the special status of a non-governmental, non-profit organization that unites persons in the profession of an advocate.

3) self-governance - the ability to independently resolve issues of internal activities, which is covered by the concept of self-regulation.

<span class="copyright">MARYNA STAVNIICHUK</span>
MARYNA STAVNIICHUK

Public, but not governmental

The actual independence of the Bar is possible only if it is completely separated from public authorities performing public legal and administrative functions.

The institution of the Bar as a whole is specific. It does not perform the legal functions of the state, while it acts publicly in the sphere of the professional component of civil society.

The public legal functions delegated by the state in legal relations related to justice are exercised by other entities: the court and the prosecutor's office, which are the entities authorized to perform the functions of the state.

At the same time, the bar self-government bodies, although by  the law they perform a number of regulatory, qualification, and disciplinary functions, are limited in terms of the number of persons to their members. Therefore, it is inappropriate to talk about the authority to perform the functions of the state.

Certain conclusions of the Supreme Court that some bar self-government bodies, particularly the QDC and the HQDC, are authorized entities to perform state functions are quite controversial. It seems that they do not fully comply with the letter of the Law “On the Bar and Practice of Law” and are somewhat indicative of the still Soviet approach of some high judges to understanding the functions of the state, which used to cover all relations, including civil society.

Based on profession

At the same time, the Ukrainian National Bar Association, as a non-governmental institution, is not a legal entity under public law. The UNBA needs to have the necessary features for this, particularly the relevant administrative act and state property. Also, the association does not aim to make a profit, is financed by the advocates themselves, is not subordinated to the state, and has its liquidation mechanism - exclusively by law.

Therefore, given the public nature of the institution's activities, it is more correct to speak of the UNBA as a public legal entity. This concept is not identical to a legal entity under public law, a purely civil law phenomenon. Its existence is connected with the need for indirect participation in the civil turnover of the state of Ukraine through its bodies. Therefore, it is regulated by civil law, although these functions are often used to regulate legal relations in other areas of law.

And this happens quite often, because today the legal science needs to fully clarify the status of various professional associations, including the Bar.

Difference from NGOs

Finally, the Bar's professional activities are self-regulated and are a necessary component of its self-government. That is why, by its constitutional and legal nature, the UNBA fundamentally differs from the organizations operating in Ukraine under the Law “On Public Associations.”

Today, there are about fifty non-governmental organisations in Ukraine whose activities are related to the legal professions in one way or another. Advocates are also their members. However, being directly related to drafting and adopting the Law on Public Associations in 2013, the author of this article can state that its provisions do not apply to the activities of self-regulatory professional organizations. Therefore, when some “experts” claim that the Law “On the Bar and Practice of Law” does not comply with Article 36 of the Constitution (which guarantees the freedom to form public organizations), it is clear that by such manipulations, they are destroying the Bar in its integral self-governing and self-regulated form. The self-regulation of the Ukrainian Bar and its bodies should be understood as a systemic and organizational process of internal statutory activities inherent in the bodies with discretionary powers.

Summing up the above, it is worth emphasizing several vital points.

The Ukrainian Bar has evolved from complete subordination to the state in Soviet times, through the delegation of public functions by the state in the 1990s, to complete institutional independence, professionalism, and self-governance after 2012.

Ukraine has the newest Law on the Bar and Practice of Law in Europe. It was prepared and adopted as a European integration law. Indeed, its adoption, subject to establishing a professional organization of advocates with a single membership in the Ukrainian National Bar Association, was part of Ukraine's commitments to the Council of Europe.

The specifics of the UNBA's organization of its activities, as described in the article, indicate its special legal status, which is fundamentally different from public organizations. Therefore, ignoring this fact when assessing the activities of the Bar is a rejection of Ukraine's European course, enshrined in the Constitution.

Thanks to the 2012 reform, the Ukrainian Bar, which became self-governing and self-regulating, lost all state functions. The bar self-government bodies were no longer authorized to perform state functions, which ensured absolute independence of the professional activities of advocates in defense, representation, and other types of legal aid.

The Ukrainian Bar today is a living organism consisting of more than sixty thousand professionals. Everyone has their vision of the processes of organization and management. And this cannot but give rise to disputes in the professional environment. However, the existence of discussions and diversity of opinions is an additional confirmation of the health of this organism, which cannot be destroyed because of someone's unrealised ambitions or to please certain politicians.

We must proceed from the fact that every advocate has rights and guarantees of activity enshrined in law. To ensure them, the law sets out a model of self-organization that has proven its effectiveness and resistance to external influences over decades of practice. Thanks to this, the Ukrainian Bar today is the only constitutional institution in the country that remains aloof from political processes, performing exclusively constitutional tasks.

The rejection of the chosen model of Bar self-government (and over the past decade, we have already witnessed such attempts) implies the denial of the key principle of independence of the Bar, which directly affects the protection of human rights and fundamental freedoms in Ukraine.

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Read the original article on The New Voice of Ukraine