Today in Parliament ** recorded four bills related to reforming the legal profession:
- № 1430 (a year ago was brought in to replace) on the bar Yuri Miroshnichenko, Yuri Karmazin, Dmitry Shentseva, Vadim Kolisnychenko Vladislav Lukyanov and Elbrus Tedeyev;
- № 3549 "On Amendments to the Law of Ukraine "On the Advocacy"(on the system of self advocate) Serhiy Vlasenko;
- № 4353 "On Amendments to the Law of Ukraine" On Advocacy "by Sergey Vlasenko, Irina Berezhna and Sergey Mishchenko;
- № 4353-1 «On amendments to the Law of Ukraine" On Advocacy "by Andrei Portnov, Sviatoslav Oleynik and Vladimir Pilipenko. The desire to reform the bar without a clear understanding of the needs and support themselves without attorneys can lead to numerous protests or advocacy groups and unions, or to compulsory and authoritarian "Law On Advocacy ".
The aim of the study is to study the legal basis and legality of proposed changes to the law "On Advocacy".
For the purpose, objectives of this work are:
1. To analyze the position of legislator regarding the criteria legality of their proposed amendments to the law "On Advocacy".
2. Writing legal assessment of the proposed changes to the law "On Advocacy".
3.Find out prospects of the bill on the bar, its importance for the legal community and the Ukrainian society.
The main material research.
Optional Supreme Council presented several bills. Three of them offer a comprehensive reform. Sergey Vlasenko Project № 4353 "On Amendments to the Law of Ukraine "On Advocacy" can be seen as a variant of "small reform". He proposes to expand the current law provisions on the Congress of Advocates of Ukraine, to provide a professional self-government in the regions represented by advocates and their boards of councils and eliminate discriminatory clauses of the participation of only the Union of Advocates of Ukraine in qualification and disciplinary committees of advocacy.  Now it is clear that consensus on the reform of the legislator does not. Big question is the possibility of a small reform of advocacy, such as changes in the context of the access to the profession and of professional self-examine how it works and in the long term fix in the new edition. For example, project number 4353, as opposed to the project number 1430, Detailed provisions for a qualification examination for the right to practice law, painted a probation order. At the same time, the project № 4353-1 differs from the bill number 1430 in matters of organizational forms of advocacy. According to Igor Tkazenko, deputy head of the Secretariat of the Supreme Council on Legal Policy, currently only a draft number in 1430 was generally positive review of Europe. Although the only one who has passed an international examination, note that other initiatives in co-operation Committee and the Council of Europe will be reviewed for compliance with European principles and standards. [Http://crimealawyers.com/zaplutalisya-v-trokh-sosnakh-advokatura] Point out details on the project № 4353-1 «On amendments to the Law of Ukraine" On Advocacy "Andrei Portnov, Sviatoslav Oleynik and Vladimir Pilipenko. Description of the initiative comes to introducing a system of legal aid for any legal matters, not only in criminal proceedings taking place now and without any compensation for the value of the assistance from the state budget, unlike the current procedure - lean pay assigned counsel. In other words, the state's duty to ensure and guarantee the realization of social rights, including the right to free assistance that is secured by the state as the international legal acts and the Constitution of Ukraine, the authors of the bill easily translate to the whole advocacy community - rightly observes in "Ukrainian Pravda" Igor Golovan. [Http://blogs.pravda.com.ua/authors/golovan/4c722568c67ba/] In large cities, where there are plenty of lawyers and law firms, yet somehow you can imagine alternate free provision of advocacy services. But "there are rural areas, where the 1-2 advocates, or even none. Imagine working as a lawyer suggested reformers turn to free aid. In Kiev, attorneys turn move for months and years, and in any single district attorney will have to work for free every day? Do lawyers travel reformers offer Ukraine in the framework of Ukrainian stage? It is clear that advocacy is not limited to performance of duties under the criminal procedure law in the process of inquiry and preliminary investigation.
Article 5 of the Law of Ukraine "On Advocacy" includes other types of advocacy:
Consultations and clarification of legal issues;
-oral and written reference to legislation;
- compiling applications, complaints and other legal documents;
-representation in court, other state bodies to citizens and legal persons;
-legal assistance to enterprises, institutions and organizations;
-legal support of business and foreign individuals and legal entities;
-other legal assistance provided by law.
It should be borne in mind that most lawyers have a narrow specialization. I would feel uncomfortable civilist in the economic process, and specialist in criminal law - in the media law. This is not the only mistakes the legislator, who studied the carelessly or legal regulatory framework Ukraine or deliberately indifferent to her treated.
But in terms of legal background in the above initiatives misfires.
According to Art. 1 of the Constitution of Ukraine (the Law of Ukraine on June 28, 1996 / / Supreme Council of Ukraine. - 1996. - № 30. - Art. 141. (Amended by Law of Ukraine on December 8, 2004 / / Supreme Council of Ukraine. - 2005. - № 2. - Art. 44), Ukraine is a sovereign, independent, democratic, social state. Proclaiming itself of the state and even thirty years ago ratifying relevant international agreements our country has a number of commitments to compliance and to guarantee a specific set of social rights of its citizens. But it is ratified international agreements, States are responsibilities and number of positive actions to achieve the proper social level and guarantee a certain minimum of minimal social benefits. Usually this is achieved through the mechanisms of distribution and redistribution of national income accumulation of the respective funds of funds, i.e. indirect involvement of other members of society. But in any civilized country, which declared a social state, challenges and desires of some members and segments of society are not solved immediately and directly at the expense of others.
Every legislative act as a formal document of higher legal force, must be primarily legal in nature. Otherwise it will be a manifestation of arbitrariness at the state level. According to part 1 of Art. 8 of the Constitution of Ukraine, Ukraine recognized and effective rule of law. As the Constitutional Court of Ukraine in paragraph 4.1., The decision in the case of Constitutional Court of Ukraine on the conformity of the Constitution of Ukraine (constitutionality) of provisions of Article 69 of the Criminal Code of Ukraine (case on the court a milder punishment, Journal of the Constitutional Court of Ukraine, 2004 , 00, № 5) [electronic resource]. Access mode http://www.ccu.gov.ua/uk/doccatalog/list?currDir=9851, according to the first paragraph of Article 8 of the Constitution of Ukraine recognized and effective rule of law. Rule of law - a a domination of law in society The rule of law requires the state to its implementation and enforcement activities, particularly in laws on the maintenance should be imbued with ideas of social justice above all, freedom, equality and so on. One manifestation of the rule of law is that law is not limited by law as one of its forms, and includes other social regulators, including moral norms, traditions, customs, etc. which are society legitimated and historically conditioned reached the cultural level of society. All these elements combine quality law, which corresponds to the ideology of justice, the idea of law, which received largely reflected in the Constitution of Ukraine. The legislative proposal led Portnow obviously does not correspond to the ideas of social justice and equality, morality, and its implementation will be non-implementation of law in law making and law of our state.
According to Part 2 of Art. 8 of the Constitution of Ukraine Constitution of Ukraine has the highest legal force. Laws and regulations adopted on the basis of the Constitution of Ukraine must conform to it. As stated in Art. 43 of the Constitution, everyone has the right to work, which includes the ability to earn for a living by work which he freely chooses or to which they freely agree. Realization of free legal assistance to the proposed grounds of order and form of legislation is a direct violation of constitutional guarantees on the possibility of lawyers earn for their living by labor, elected for life. According to paragraph 4.1. Decision of the Constitutional Court of Ukraine in the constitutional provision in 1956 of People's Deputies of Ukraine on the conformity of the Constitution of Ukraine (constitutionality) of provisions of paragraph two of Article 39 of the Law of Ukraine "On education" (the maximum age of candidate for the head of the university, Bulletin of the Constitutional Court Ukraine, 2004, 00, № 4 [electronic resource]. dostupuhttp mode: / / www.ccu.gov.ua/uk/doccatalog/list?currDir=9850, under Article 43 of the Constitution of Ukraine has every right to work, which includes opportunity to earn his living by work which he freely chooses or to which they freely agree. The purpose of the establishment of certain differences (requirements) in the legal status of workers must be relevant, and most differences (requirements), pursuing the goal must comply with constitutional provisions be objectively justified, reasonable and fair. Otherwise it would mean discrimination. The above interpretation of Article 43 of the Constitution of Ukraine with international legal acts. Thus, under the International Covenant on Economic, Social and Cultural Rights of 1966, the government may prescribe only such restriction of those rights which are determined by law only insofar as it is compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society (Article 4). [Source] So, first, the purpose of limiting the status of workers including employees of the liberal professions, should be substantial, and they must meet different constitutional provisions. Proposal attorneys work without any remuneration, payments or compensation may be due to any purpose and in itself contrary to the provisions of the Constitution of Ukraine Article 43. [ constitution] Second, the exclusion of constitutional law, as repeatedly emphasized in his legal position of the Constitutional Court of Ukraine may take place only in the Constitution, not the current laws. It is clear that in case of adoption of this law very difficult to control the quality of free services. The fact that advocates are forced to make massive order to provide these services will serve them formally is obvious.
According to the General Conditions of the Role of Advocates, adopted by the VIII Congress of the United Nations to prevent crime in August 1990, [electronic resource]. Access mode http://www.ccu.gov.ua/uk/doccatalog/list?currDir=9851 http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=995_835, governments should ensure that efficient procedures and responsive mechanisms for effective and equal access to advocates of all parties; governments should provide necessary funding and other resources for legal assistance to poor and other disadvantaged people. Professional associations of advocates shall cooperate in the organization and provision of such assistance. Thus, the legislative initiative of total legal aid and is contrary to international law, including international acts on the status of the advocates.
Summarizing the above, it should be noted: the fundamental international instruments on human rights, international instruments on the status of advocates lay and guaranteeing social rights, including rights to legal aid, it is the governments. No civilized and socially oriented state will not translate the following duties on advocate firm community, and like the idea of a common political PR, not aimed at reforming the really painful problems of Ukrainian society, and to increase their own political rating.
1. In this project № 4353-1 «On amendments to the Law of Ukraine "On Advocacy" Andrei Portnov, Svyatoslav Oliynyk and Vladimir Pilipenko there are many legal loopholes and legal contradictions. For example, forcing lawyers to legal aid is contrary to Article 43 of the Constitution of Ukraine, which clearly indicated that the person must work to receive compensation in the form of payment.
2.In this bill are no clear criteria for selection of persons who may use the free assistance.
3.No clear of legal services that under the bill, should be free.
4.No regulated mechanism of legal aid distribution of functions between advocates of Ukraine.
5.No factor of control over the data services and their quality.
6.Rekommended to pass similar bills for open discussion to the community of advocates of Ukraine, holding them in cities and district centers. Do not make final decisions regarding the bill, not having heard the views of Advocates of Ukraine.
List of sources:
1. Constitution of Ukraine: the Law of Ukraine on June 28, 1996 / / Supreme Council of Ukraine. - 1996. - № 30. - Art. 141. (Amended by Law of Ukraine on 8 December 2004 / / Supreme Council of Ukraine. - 2005. - № 2. - Art. 44.
2. European Convention on Human Rights: the basic provisions, application of the Ukrainian context, edited. O.L. Zhukovsky. - K.: ZOT "VIPOL", 2004. - 960 p...
3. Decision of the Constitutional Court of Ukraine in the case of Constitutional Court of Ukraine on the conformity of the Constitution of Ukraine (constitutionality) provisions of Article 69 of the Criminal Code of Ukraine (case on the court a milder punishment, Journal of the Constitutional Court of Ukraine, 2004, 00, № 5) [Electronic resource]. Access mode http://www.ccu.gov.ua/uk/doccatalog/list?currDir=9851
4. Decision of the Constitutional Court of Ukraine in the constitutional provision in 1956 people's deputies of Ukraine on the conformity of the Constitution of Ukraine (constitutionality) provisions of paragraph two of Article 39 of the Law of Ukraine "On education" (the age limit on a candidate for head of higher education institutions, Journal of the Constitutional Court of Ukraine, 2004, 00, № 4 [electronic resource], access mode http://www.ccu.gov.ua/uk/doccatalog/list?currDir=9850
5. Basic Principles on the Role of Advocates, adopted by the VIII Congress of the United Nations to prevent crime in August 1990, [electronic resource]. Access mode
A competitor of the department of legal disciplines NNIPP KNUVD R.Z. Huseynov-Chekurda
Advocate, partner of advocate firm "Justem" S.G. Deledyvka
Doctor of Law, professor, chair of Civil Law of the Academy of Advocacy of Ukraine E.S. Zakharova
** A bill submitted by working groups of MPs to Parliament. In particular, a bill to reform advocacy № 4353-1 «On amendments to the Law of Ukraine "On Advocacy " by Andrei Portnov, Svyatoslav Oliynyk and Vladimir Pilipenko, registered in the Parliament.
Keywords: Law of Ukraine on the Bar, legal aid, 47 article of the Criminal Procedural Code of Ukraine.
Address the zakonoproektы, predstavlennыe working group of deputies to the Verkhovna Rada. In particular, the project of reforming advokaturы № 4353-1 «On amendments on the Law of Ukraine" At the Bar Andrew Portnova, Olyynыka Sviatoslav and Vladimir Pilipenko, the registered in the Verkhovna Rada.
Keywords: Ukrainian law "About Advocacy", free of charge law aid, 47 article of Ukrainian Criminal Processual Code.