On Thursday, 02 February 2017, the CCBE sent a letter to the President of Ukraine, to the Speaker of the Verkhovna Rada of Ukraine and to the Chair of the parliamentary Justice Committee, in which the CCBE emphasises the importance that the state must respect the independence and the self-regulation principles applying to the legal profession, also in regard to the right of the bars to set their own membership fees. Read full letter here.
Ukraine has a population of approximately 43 million and 35000 registered advocates (as of January 2017). The Ukrainian National Bar Association (UNBA) has been established by law in 2012 as an independent self-governed organization. UNBA has joined the CCBE as an observer member in December 2016.
Key information about the profession:
- Initial training of lawyers: Complete higher legal education (master’s degree in law), command of official language and two years of practice in the field of law are required to take the bar exam. It is then necessary to undertake a 6-month traineeship program. Upon completion of traineeship, the certificate of right to practice law is issued and the information is entered in the Unified Register of Advocates of Ukraine.Persons who have worked as an advocate’s assistant for at least one year are exempt from undertaking the 6-month traineeship program.
- Continuous training is mandatory. It is organized by the Ukrainian National Bar Association and regional bar councils, as well as other organizations. All of the lecturers undergo certification by the UNBA Expert Committee to ensure high professional level of the speakers. Failure to comply with the mandatory continuous training is a disciplinary offense.
- Specialization is not mandatory. Advocates are free to choose the field in which to practice.
- Discipline: Regional Qualification and Disciplinary Commissions of the Bar (QDCB) are in charge of reviewing disciplinary actions against advocates. They are composed of advocates, elected at regional conferences for a 5-year term. The decisions of QDCBs may be appealed to the Higher Qualification and Disciplinary Commission of the Bar, which is composed of 30 advocates, 27 elected by respective regional conferences and 3, the President and two Vice-Presidents – elected by the Congress of Advocates of Ukraine.
- Legal Aid: the Ministry of Justice of Ukraine is in charge of the legal aid system in Ukraine. It is financed by the government. Ukrainian National Bar Association has criticized the system on both national and international level and even prepared a special report on the subject. Primary concerns of the UNBA in this regard is the process of admission of advocates by the Ministry of Justice to provide legal aid (additional exams, even though everyone has already passed the bar exam); non-transparent financing; the fact that directors of regional legal aid centers are often not advocates themselves, and advocates have to show the case files to them in order to get paid, thus violating professional secrecy etc.
Current concerns of the Bar and main challenges in the coming years:
- One of the gravest concerns is the continuous violation of advocates’ professional rights and guarantees by government institutions and law enforcement agencies. Since 2015 CCBE has intervened on a number of occasions with letters addressed to the President of Ukraine, the Prime Minister, the Prosecutor General and other notable officials. The Prosecutor General and his deputy even used inappropriate language when addressing advocates during a hearing of a parliamentary committee and on national TV respectively.
- On 20 December 2016, the parliament of Ukraine approved amendments to the Tax Code of Ukraine, that in turn, amended Law of Ukraine ‘On the Bar and Practice of Law’, thus limiting the existing discretion of advocates’ self-government to set the sum and procedure of payment of yearly membership fees, as well as traineeship fees. Such changes were introduced without any prior consultation with Ukrainian National Bar Association whatsoever. The CCBE has addressed the President of Ukraine with this regard on 23 December 2016.
- There is a plan for 2017 to introduce amendments to the Law of Ukraine “On the Bar and Practice of Law” by the Judicial Reform Council under the auspices of the President of Ukraine. The UNBA, being the regulator of the profession, has not even been invited to delegate members in such an important institution. The planned amendments have not been discussed by the government with the regional bars and UNBA and thus are strongly opposed on both the regional and national levels.
- Amendments to the Constitution of Ukraine establishing mandatory court representation by advocates have been approved by the parliament of Ukraine in 2016. The amendments come into effect in stages:
- 1 January 2017 – Supreme Court of Ukraine and cassation courts;
- 1 January 2018 – Appellate courts;
- 1 January 2019 – all courts in Ukraine.
These changes are very welcome. However, we expect a significant rise in number of registered advocates, since before this reform one was only required to become an advocate if he wished to practice criminal law. Therefore, as of right now there are a lot of unregulated legal practitioners (the numbers are in the thousands) which will become advocates in the nearest future.
The objective of the EU Anti-Corruption Initiative is to strengthen the capacity of the newly created anti-corruption institutions and to enhance external oversight over the reform process by the Verkhovna Rada, civil society and the media. Continue to read here.
The CCBE addressed concerns communicated by the Ukrainian National Bar Association during the last weeks of December in a letter sent to the president of Ukraine, Mr. Petro Poroshenko. The UNBA has informed the PECO committee that a bill was passed in the morning of the 21 December that would amend provisions in the Law on Advocacy, especially regarding the lawyers’ self-governing bodies’ discretion on establishing the sums and the procedure of paying yearly Bar membership fees. On another note, the CCBE was concerned with worrying information from Ukraine regarding defamatory language addressed to lawyers in national media and in the national parliament. The UNBA feels that such language influences negatively public opinion on the legal profession. The UNBA has become an observer member of the CCBE in December 2016.
The UNBA was established in 2012 after the adoption of the ‘Law on the Bar and Practice of Law’ on 5 July 2012 by the Ukrainian Parliament. It is the official regulator and self-governing body of the legal profession in Ukraine.
The UNBA succeeds the Union of Advocates of Ukraine which has been an observer member in the CCBE since 2003.
The European Commission Support Group for Ukraine published today an Activity Report on the first 18 months of its work. Amongst others, the report provides a summary on reforms spanning anti-corruption and rule of law: “In the justice sector, Ukrainian reform efforts focused on amendments to the Constitution (concerning the judiciary) and – partially linked to that – the vetting of judges and prosecutors. (…) Another main area of reform is the system for the enforcement of judgments. Draft legislation envisages the introduction of a profession of private bailiffs which would coexist for a transitional period with the state enforcement officers. (…) Latterly it has been decided that an overall programme in support of rule of law reform should be developed, in order to bring EU resources to bear in a more comprehensive and effective manner. The new programme is due to start in 2017.”
I. GENERAL INFORMATION
Belarus has a population of approximately 9.5 million and 1991 lawyers (in 2016).
According to the Belarusian legislation, only advocates are entitled to provide professional legal assistance. Other legal degree holders are not permitted to be defenders or representatives in criminal, civil and administrative proceedings.
Initial training of lawyers: Law degree. Traineeship of 3-6 months (for those with work experience in the legal field of at least 3 years) or 6-12 months (for those with less than 3 years of work experience) followed by the qualification exam.
The activity of an advocate in Belarus is licensed. Licenses are issued by the Ministry of Justice upon the decision of the Ministry Board on the advice of the Qualification Commission.
Continuous training: The issue of further continuous training of advocates is administered by the National Bar Association, which organises qualification upgrade courses.
The Ministry of Justice has the power to regulate the legal profession. In practice, the Ministry of Justice does not interfere with the activities of advocates except for licensing issues.
The Law determines the establishment and the competence of a separate body, which considers the advocates’ disciplinary liability issues: the Disciplinary Commission. The Disciplinary Commission is created by the supreme body of advocates’ self-management and is in charge of disciplinary proceedings.
IV. LEGAL AID
Free legal aid is provided on the basis of Art. 28 of the Law “On Advocacy and Advocatory Activities” and is funded by bar associations as well as from the budgets of the republican and (or) local authorities.
V. CURRENT CONCERNS OF THE BAR
Current concerns of the Bar and main challenges in the coming years: the status of a lawyer, legal aid and independence of the legal profession
Independence: One of the most fundamental issues in the work of an advocate is the regulation of relations between the profession and the state. An advocate needs to be independent so he or she can provide effective assistance.
An advocate, who feels the pressure, cannot provide adequate legal advice. For that reason, the question of the quality of work arises. If an advocate is not independent or is afraid to speak openly, the protection will be of poor quality.
For the full text of the article on the legal profession in Belarus, please click here.
An international conference on ‘Bar associations for independent, qualified and ethical exercise of the profession of lawyer’ took place on 20-21 June in Tbilisi, Georgia. In addition to Georgia, the following countries were represented at the event: Armenia, Azerbaijan, Belarus, France, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, Romania, Russia, Turkey, the UK, Ukraine. The CCBE was represented by the CCBE First Vice President Ruthven Gemmell WS.
The conference was divided into three sessions:
- Bar associations’ practices in lawyers training;
- The roles of the bar associations in professional deontology;
- Bar associations role in defending lawyers’ rights.
As the discussions during session on ‘Bar associations’ practices in lawyers training’ revealed, the participating bar associations have similar training models and systems. In the sphere of continuous training, all bar associations retain independence from point of view of planning, funding, and content of training courses. The main difference lies in the number of training units and time periods over which these units shall be accumulated.
At the session on ‘The roles of the bar associations in professional deontology’, it was emphasised that the functions of discipline and ethics should be separated. Among other points, the participants discussed the effectiveness of disciplinary sanctions, noting that they should be proportionate to the violation.
In the course of discussions during the session on ‘Bar associations role in defending lawyers’ rights’, it was identified that further activities should be carried out with regard to the following issues: freedom of expression, free access to client, safeguarding of confidentiality, for instance, inadmissibility of search of a lawyer’s office/home without informing a bar association, ensuring equal treatment by courts of defence lawyers and prosecution. The participants also spoke about importance of international cooperation.
To read the full report of the conference, please click here.
28 July 2016, as a follow-up to new cases of lawyers’ rights violations in Ukraine, the CCBE sent a letter to the President of Ukraine, Petro Poroshenko. The reported violations that were brought to the CCBE’s attention include, but are not limited to: physical violence, violation of human and professional rights, unlawful search and seizure, refusal of an access to a client, unlawful wiretapping and identifying a lawyer with a client.
Given the crucial role of lawyers in the administration of justice, and in the maintaining and defence of the rule of law, the CCBE condemned the aforementioned violations. It pointed out that, in many of the cases mentioned, it was law enforcement authorities that committed the abuses. In this context, the CCBE stressed the importance of safeguarding lawyers’ rights, as their violation will inevitably have an impact on the right of Ukrainian citizens to a fair trial, as enshrined in the European Convention of Human Rights. As the lawyers are central in ensuring the protection of human rights and fundamental freedoms, the CCBE respectfully asked the Ukrainian authorities to investigate the facts mentioned in the letter, and to take all measures to prevent future abuses.
On 20-21 June 2016, the Georgian Bar Association in partnership with the Council of Europe and CCBE held a conference on ‘Bar associations working towards an independent, qualified and ethical exercise of the profession of lawyer’ in Tbilisi, Georgia. The conference, hosted by Tbilisi State University, was opened with a speech from the President of Georgia Giorgi Margvelashvili, in which he underlined his regard for the legal profession and the importance of its independent, qualified and ethical exercise.
The event brought together legal professionals, diplomats, scholars and representatives from various international organisations. The conference was attended by over twenty representatives from ten national Bar Associations, including Belarus, Ukraine, Azerbaijan, Turkey and Moldova, as well as by members of the Georgian Bar Association. The CCBE was represented by its First Vice-President Ruthven Gemmell WS. During the conference, the participants explored and exchanged their views on the role of bar associations in such areas as professional deontology, lawyers training and defense and promotion of lawyers’ rights. On the initiative of the Council of Europe, an inventory of good practices shared by participants will be prepared after the event.
The programme of the conference is available here.