Constitutional reform: Justice threatened by lawyers lobby

On 22 of December in the Verkhovna Rada of Ukraine submitted to the Constitutional Court of the change in the Section “Justice” of the Constitution of Ukraine. Among other things, one of the proposed amendments is the exclusive right of lawyers to legal representation of the parties in all kinds of cases. Executive Director of the Ukrainian Helsinki Human Rights Union Arkadiy Buschenko commented as they can affect the Ukrainians proposed changes.

Do you feel good, secure, in fact, the interests of the guild of lawyers in the Constitution of Ukraine?

Arkady Bushchenko: First of all, need to divide two points here. Can a long discuss the question of whether the exclusive right to legal representation is provided by the state professional corporation law. And such a monopoly has its risks and benefits, as any state monopoly (here I use the term in a neutral economic sense). This is the first time.

But I would like to emphasize that this issue is very complex and involves many aspects. Some risks can be reduced by various methods. You can change many of the provisions that will not work. You can change the structure of the state monopoly, adapting it to the current situation. And here we come to another question: Does this include the state monopoly in the Constitution is necessary.

From my point of view, it would be a huge mistake. The Constitution can not lobby for any corporate interests. The Constitution should not be anything without which society could do without. A society can do without a lawyer monopoly. As I have said, monopoly regulation may require numerous changes. In some cases, you may need to do the cancellation of such a monopoly in order to respond to the various challenges faced by society.

However, if the monopoly is enshrined in the Constitution, we find a problem that can not be fast enough to handle, given the difficulty of amending the Constitution. The state simply deprive themselves of the opportunity to respond adequately to the situation and put himself in a very difficult position. Take an extreme case. After talents state privileges of the exclusive representation of the corporation can take an internal decision, such as that from a certain date the lawyers are not allowed to provide services to citizens in less than 1,000 hryvnia per hour. After that, at a minimum, the entire system of free legal aid “will be covered with a copper basin.” The state is unable to provide free legal assistance in such rates. It should be increased a hundredfold government for such assistance expenses. And good, if the state has such resources. And if not? The state will be forced to reduce the amount of legal aid, narrowing the categories that are eligible for such assistance. And the market situation will not make a difference here. Even if the lawyer is willing to provide assistance to less than 1,000 hryvnia per hour, it can not do so, since the risk of being excluded from the Corporation for violation of internal rules.

Maybe I’m exaggerating, but exaggerating it is a trend that must manifest itself. Thus, the state will be under the permanent threat that it will be unable to fulfill its obligations under both the Constitution and international treaties – to ensure access to justice, the right to high-quality legal assistance – being held hostage by the professional corporation. And by making the relevant provision of the Constitution, it will deprive themselves agility in responding to the situation.

What are the volumes of the state Legal Aid (BPP) today?

AB .: BMB system was launched January 1, 2013; Today more than 100 regional centers throughout the country, with an annual budget of about 267 million hryvnia. Each year, lawyers are utilized BPP system in criminal cases in about 80 thousand cases. From July 1 this year BMB system was extended to non-criminal proceedings. Already half a year lawyers have been involved in 8 thousand cases.

In my short nereprezantativnomu survey of lawyers, an average case takes from 20 to 50 hours. That is, only in a criminal trial lawyers have spent a year between 1.6 and 4 million hours to free legal aid.

In recent years, between the National Association of Advocates of Ukraine (NAAU) and the state system of free legal aid developed this information war. What do you think the reason for this confrontation?

AB .: I do not see war, I see the attack on the part of BPP at NAAU system. Frankly, I do not know what was the reason for such a confrontation. I have the impression that this is a common envy of the successful development of the system. BPP system this year opened 100 regional centers throughout the country for two months. Few can demonstrate such effectiveness. I think this is the best response to the information attack.

I have such an “impact” on the BPP by the system NAAU still puzzling. In other countries, lawyers are fighting for the creation and maintenance of the system. By the way, the other day another report NAAU was published, in which the BPP has once again exposed to criticism verbose. Among other things, the report assumes that BPP should be governed by the legal community without government control. To me it seems a bit naive. It reminds me a vivid example of adolescent psychology in the style of “Mom, give me some money and do not interfere in my personal life.”

In the context of a conversation about the monopoly of the legal profession, it is also important that NAAU suggests that Community Law itself defines the criteria under which a person is entitled to free legal aid. Against this background, my thoughts about trying to use the lawyer’s monopoly as a lever of pressure on public policy does not look like an exaggeration.

Returning to the issue of monopoly. Previously, you were an advocate of monopolization of legal representation. What areas do you think that this may relate to the monopolization? And under what conditions?

AB .:Even now I do not deny the possibility of monopoly law as a way to achieve some of the public good. And here it is necessary to look at the problem from the point of view of society. What could justify the monopoly of lawyer corporation? What are the benefits to society as a whole from a state monopoly? There are several, but the most important thing – the corporation responsible for the behavior of its members. In this case, referring to any member of the corporation, the client gains confidence that the service provided will meet corporate standards. No such certainty when dealing with an individual attorney or a lawyer. But in this case I would like to see effective mechanisms for how the corporation provides certain, relatively speaking, “quality standards” (professionalism, integrity, special rules of behavior and so on.).

For example, the monopoly of the Bar was introduced three years ago in the criminal process. And I was an active supporter of such changes in the law. I have also actively supported the provisions of the laws on free legal aid, which provides for the obligation PPO system to cooperate only with licensed attorneys. It took 3 years and it would be advisable to examine what benefits that such a monopoly has brought to society. I have the law professional corporation for three years to develop as a “quality standards”, as well as mechanisms that ensure an adequate level of legal aid? I’m not sure.

Now, without a preliminary analysis of the achievements of the monopoly in the field of criminal proceedings, it is proposed to extend the monopoly of the legal profession to other legal disputes. This is a very risky move. The fact that the monopoly of lawyers in criminal proceedings although it was not fixed by law but de facto has always existed. In other areas the proportion of “licensed” lawyers on the legal services market is much smaller. And in these areas have already formed the legal structure of the business, which quite successfully operate and provide the appropriate quality by other means, not through a state monopoly. Will there be rational to destroy the system and replace them with state monopoly system, granted by the legal profession? Not sure.

In certain areas of the court it is possible to experiment with such a monopoly. For example, I’m for that in the higher courts side were only lawyers who specialize in such processes. This can seriously reduce the time trial on the condition of a qualified representative. But the monopoly is necessary to experiment with extreme care and only at the level of the individual approval of legislation that can be changed, if necessary, by Parliament.

How, in your opinion, the National Association of Advocates of Ukraine is able to guarantee the quality of service of members of his “corporation”?

AB .: Who can show me the quality control system of our advocacy work? No one, because such a control system does not exist. There are some elements of control: examination distsiplinarka, but in general the system yet. Therein lies the main problem is the issue of the legal profession monopoly. Our advocacy pretend to serious market advantage, as enshrined in the Constitution, does not guarantee the quality of legal assistance.

Jury trial?

AB .:I am an ardent supporter of the jury. It is very necessary to our country. Firstly, in order to make life in our courts, which are often fenced off from the life of legal structures. Secondly, it is important to ensure that our citizens have formed in the legal sphere. Today our country is accepted indiscriminately criticize judges for their decisions, but I am not sure that most critics will be able to take an appropriate decision, as on-site judges, even in the simplest case of the family of the pan section to hear the court all the arguments for ” “and” against. ” In my opinion, a very important fact that people get the right to be judges. In this there is even a kind of ritual significance – people will personally participate in justice to be done, and will have to make a final decision: guilty / innocent. Participation in the jury trial entails the assumption of part of personal responsibility for the lives of the accused. Now people have no idea about this law and justice. They have never in my life this is not encountered. Today there is no request for a fair trial in the community. Today, there is a request for the court to do so as the people want. The Court, as a rule, does not like the people want, and it is his task.

Another positive aspect of the jury – he makes judges more independent. Why do American judges so calm in the process? Because they do not care what the verdict will be, because it is not they make a decision. The decision taken 12 people. judge the matter reduces to just to give the jury the most objective picture in which the equality of the prosecution and defense must be observed. In a jury trial, equality of the parties is a fundamental requirement of the process.

In what is referred to as a jury in the draft amendments to the Constitution of Ukraine?

AB .: In the new project the jury mentioned very briefly and without explanation. But the fact is that the jury is mentioned in the current Constitution. The current Code of Criminal Procedure, he also mentioned, but here there was a substitution. In fact, under the name of “trial by jury” was returned to the institution of “lay judges” when the judge together with elected citizens in the general board adjudicates. This jury trial jurors meet separately and discuss them one can not influence.

It is no secret that in our courts there is still a huge disparity between convictions and acquittals. What, in your view can align this situation?

AB .: expect that in our country there is a high percentage of acquittals, would be naive. In all European countries, the acquittal rate is in the range of 2-5%. In America, there are other statistics. For example, in Texas, in some years the percentage of acquittals is 50%. But do not forget that in this country before the trial comes sometimes only 1% of cases, and other cases are resolved in the pre-trial stage by transactions.

From my point of view, the problem is not in the percentage of acquittals. In the last couple of years, I see an encouraging trend, which shows that our judicial system is still getting used to the acquittal. On the way to this trend there are lots of obstacles. The problem is that our judicial system acquittal remains emergencies. Things will get better when our judges will apply to acquittals quietly as a normal result of judicial activity, such as, what is the verdict of guilty.

Many judges, it seems, is still experiencing serious psychological difficulties even with the spelling of the word “justified” in the sentence. And write acquittal is much harder than the guilty. we need only rewrite the indictment to conviction. To justify the need to involve a serious argument and formulate its own judicial position on the particular case. Write this decision is much more difficult. In this case, of course, can help special training in writing competent judicial decisions. And it is quite important, since it is well written judicial decision to cancel is extremely difficult.

There may be more drastic measures. In the US, for example, the prosecution has no right to appeal the verdict. A defendant may, and the prosecutor is not. Prosecutors verdict of the court of first instance is final.

Whether it is necessary to introduce this practice in the Ukrainian courts?

AB .: As a therapeutic measure – yes.

What is your opinion on the importance of continuity in the process of court cases?

AB .:It is important to restore this fundamental principle. You need to be aware that any court case – is a unique product in the form of a judgment, a unique assessment of the aggregate unique circumstances. Today, in the judicial practice of the conveyor system in which the judge considers the case pieces and one meeting on the case can be spaced in time with the next for months is quite common. Judges can carry dozens of cases at the same time. But because every business is unique and separate data system, the total amount of information is often very heavy for one particular judge. The judge is not able to keep in mind at the same time all the information in dozens of cases, and the quality of judicial work begins to seriously suffer. There are plenty of precedents where judges even confused the names of the accused at the trial.

The irony lies in the fact that in any given period of time the judge is still considering the same number of cases. Regardless of whether he does it in series or in parallel. But in the first case, the quality of the judicial decisions is much higher. Among other things, the continuity of the norm in the process of court cases is a very important moment for the organizing of the judiciary. This rule not only helps those same lawyers and prosecutors to plan their working hours, but also often reduces the time spent on the trial of.

Interviewed by Boris Zakharov

Sourse, 23/12/2015