Appeal of Human Rights Agenda As Regards Monopoly of Defense Attorneys at Level of Constitution of Ukraine
The Human Rights Agenda platform is opposed to the establishment of monopoly of defense attorneys at the level of the Constitution of Ukraine.
It is known that the draft Amendments to Constitution of Ukraine (Concerning Justice) Act No. 3524 stipulates that “only an attorney shall represent the other person in court as well as defend them from a criminal accusation. The Act may define exclusions as regards representation in court in case of labor disputes, disputes concerning social rights protection, elections and referenda, in case of minor disputes as well as in respect of the representation of minors or under-age persons and those recognized by court to be incapable or whose capacity is limited”.
Thus, the draft act authors propose to introduce monopoly of defense attorneys at the level of the Constitution of Ukraine in the worst meaning of the word. Such a step will adversely affect the exercise of the right to legal aid in view of the following reasons.
Firstly, the world has never seen the precedents of monopoly of a non-state corporate organization to provide services to the society being established at the level of the Constitution of a state. Ukraine may become the first country in the world which establishes protectionism at a constitutional level. At present, the current stage of Ukraine’s legal practice development does not allow guaranteeing high quality of legal services. Approving the proposed amendments is not only an unsubstantiated restriction of a person’s right to choose a defender. It will inevitably lead to a higher price on the services of attorneys who will receive the monopolistic position in the market if clients have no alternative.
Secondly, Ukrainian practice of law has not yet achieved the level of development of, for instance, a bar association, and high authority in society. To date, attorneys are not prohibited to prove the quality of their services by working and participate in any legal proceedings. Therefore, all offers with regard to providing them with monopolistic powers to participate in legal proceedings must be guided by the fact whether it will promote human rights protection. So far, approving the offered amendments transforms one of the citizen’s possibilities in their obligation and limits the range of such possibilities, which, accordingly, restricts the scope of the right to legal aid.
Thirdly, monopoly of defense attorneys may negatively impact the position of attorneys themselves and lead to the legal system development stagnation. Approving the offered amendments will increase attorneys’ dependence on their senior management under the threat of loosing access to profession. The society could have observed the numerous cases of persecution on the part of the management of the National Association of Attorneys of Ukraine during the last few years. In 2015, the National Association of Attorneys of Ukraine has demonstrated its lack of understanding of the principles of attorneys’ self-government system’s functioning and the authoritarian nature of its activity, prosecuting and punishing for criticism of the Association. Considering the example of authoritarian countries, in particular Belarus, defense attorneys may easily become the instrument of state’s influence on judicial community, depriving the attorneys defending human rights activists, journalists and opposition representatives of the possibility to participate in legal proceedings.
Fourthly, establishing monopoly of defense attorneys in the sector of legal aid services is a threat to access to justice of the wide public. If the proposed amendments are approved, the existing system of free legal aid will be subordinated to attorneys. The scope of this aid was not taken into account when making a decision on monopoly of defense attorneys. The higher cost of services in case of the lack of necessary funds in the budget will result in manifold reduction in the number of people provided with free legal aid. Furthermore, the state deprives itself of the right to adequately response to the needs of the society using the services of paralegals and other structures capable of providing legal aid.
With this in mind, the Human Rights Agenda platform offers to amend Article 123-2 of the draft Amendments to Constitution of Ukraine (Concerning Justice) Act No. 3524 and exclude the provision on the representation of the other person in court and defense from a criminal accusation solely by attorneys.
