Opinion: UNBA makes a landmark contribution to Ukraine as a state governed by Law

The eyes of the world are currently fixed on Ukraine, as the country continues to face pressure from Russia. Ukraine’s progress in building a rule of law based state offers a powerful model for post-Soviet countries as they strive to chart their future. One organisation that has been at the forefront of the process to strengthen the rule of law in Ukraine is UNBA – the Ukraine National Bar Association – which recently celebrated the ninth anniversary of its establishment. The president of UNBA, Lydia Izovitova, on 23 November 2021 addressed a conference of European officials, opinion shapers and legal professionals gathered in The Hague for an event on the theme "The EU and its Eastern Neighbourhood", organised by LINKS Europe, in association with the City of The Hague. UNBA was a special guest organisation at the event, with participants having the opportunity to familiarise themselves with the work of the organisation, and with the challenges ahead for Ukraine, especially in the field of the rule of law. In her speech to the Conference, by video link from Kiev, Ms Izovitova pointed out that the incorporation of UNBA satisfied one of the preconditions for the future conclusion of the Association Agreement with the European Union, namely the establishment of a professional Bar Association and protecting the status of the legal profession by law. "This is a truly landmark contribution to the development of Ukraine as a state governed by law. This important achievement turns the constitutional rights and freedoms of citizens into real opportunities, and provides a mechanism for their protection, primarily from the encroachments by State."

The following opinion article is based on Ms Lydia Izovitova's speech.

Ukraine is currently a party to the EU's Eastern Partnership foreign policy initiative, cooperating with the EU on the basis of the 2014 Association Agreement.

This Agreement, in terms of its scope and thematic coverage, is the largest international legal document in the history of Ukraine and the largest international agreement with a third-country ever concluded by the European Union.

These are great milestones for the foreign policy of our country, but their achievement required time and, most importantly, the persistent efforts of politicians, diplomats and advocates, including lawyers, who paved the way for the independence of their professional community.

Independent advocacy of Ukraine hardened in the times of confrontation with the totalitarian regime, when Ukraine was still part of the USSR.

The struggle peaked in the late 1980s, as a response against pressure of the State on the Bar.

Since 1991, the Bar went through three major stages, and each new stage was marked by amendments to pertinent legislation and the Constitution. Fortunately, every time the Bar succeeded in gaining more independence, and thus brought us closer to European standards of the legal profession.

In 1992, the first post-Soviet law "On the Bar" ensured transition of the Bar from being under complete control of the State towards quasi-self-governance.

Only 20 years later, on July 5, 2012, the Parliament adopted the Law of Ukraine "On the Bar and Practice of Law", that provided for incorporation of the first independent professional organization of advocates – Ukrainian National Bar Association with a single membership. Thus, Ukrainian Bar now had to operate under a model of true self-governance.

The Bar of Ukraine is grateful to the Parliamentary Assembly of the Council of Europe, which adopted Resolution in 1995, recommending Ukraine to establish an independent professional organization of lawyers, which later became one of the conditions for the subsequent conclusion of the EU-Ukraine Association Agreement.

It took Ukraine 17 years to implement this PACE Resolution in relation to the Bar.Ukrainian National Bar Association became the first and only all-Ukrainian professional organization, with mandatory membership for all advocates of Ukraine.

The 2012 Law of Ukraine “On the Bar and Practice of Law”, implementing the recommendations of both PACE and the Venice Commission, took into account the best European practices of Bar organization, and European standards of Bar self-government.

In essence, European standards in relation to the status and operation of the Bar in Ukraine have been in place for more than nine years. This is a truly landmark contribution to the development of Ukraine as a state governed by law. This important achievement turns the constitutional rights and freedoms of citizens into real opportunities, and provides a mechanism for their protection, primarily from the encroachments by State.

Adaptation of key European standards of advocacy independence and self-government into the national law paved the way towards integration of Ukrainian Bar with the European professional community, even the conclusion of a comprehensive EU-Ukraine Association Agreement, which occurred only 2 years after the establishment of UNBA.

Incorporation of UNBA satisfied one of the preconditions for the future conclusion of the Association Agreement, namely establishment of a professional Bar Association and protecting the status of the legal profession by law.

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Lydia Izovitova addressing the conference by video link from Kiev on 23 November 2021
Ms Lydia Izovitova addressing the conference, 'The EU and its Eastern Neighbourhood', by video link from Kiev, 23 November 2021; LINKS Europe

Recently, Ukrainian National Bar Association celebrated its ninth anniversary of incorporation.

Today there are more than sixty-two thousand licensed advocates in Ukraine.

The current Law on the Bar changed the old concept: the powers of the Bar are not delegated by the state, as in preceding years; instead, the Bar derives its powers directly from the Constitution and the law, such as self-governance, managing access to the legal profession, resolving issues of disciplinary liability of lawyers, keeping the Unified Register of Advocates of Ukraine, etc.

In addition to the core law on the profession, the rules and regulations regarding the Bar are set by advocates themselves. These include Rules of Professional Conduct, admission requirements, and issuing clarifications of the law. It is fundamentally different from the preceding stage of the Bar development between 1992 to 2012.

The new system of representation and management assumes that only advocates participate therein. Advocates themselves establish the rules of their institutional functioning and enjoy legal guarantees and protection against interference of State authorities.

The burden of practical implementation of the PACE recommendation was completely on our shoulders. We have created the new Bar from scratch, fulfilling not only the requirements of law, but also Ukraine's international obligations.

We made every effort to develop it, as we understood that the self-government of the profession, on the basis of the best European practices, guarantees advocates their independence and a high level of professional standards.

Advocates' self-government is currently developed as a balanced system of national scale, where strong regional bodies are kept in check by the national bodies.

A democratic nature of the system requires that all offices within the advocates' self-government are elective and bear term limits.

The advocates’ exclusive audience rights means that Ukrainian Bar enjoys the same status in the justice system as in other European States. At the same time, Ukraine is far ahead of many Eastern European and CIS states in terms of this reform.

This innovation, introduced by the recent changes to the Constitution, aimed primarily at effective protection of citizens' rights and interests. To our dismay, we now observe attempts to reverse it.

The Recommendations of the Council of Europe and the UN Basic Principles on the Role of Lawyers stipulate that all legislation regulating the Bar as institution cannot be amended without notice and consultation with the professional organization. 

Unfortunately, these principles are not always followed in Ukraine and some legislative amendments are accepted without such consultation with UNBA.

The current law on the Bar, implements the European standards by providing for ability for foreign lawyers to practice in Ukraine.

So, since 2012, the national legislation allowed for the integration of professional lawyers from different States into Ukrainian Bar.

The purpose of such a novelty was to create an opportunity for foreign investors to seek legal advice in Ukraine from lawyers of their own State. In a strategic sense, it was meant to stimulate foreign business to start projects in Ukraine, as such businesses were granted improved opportunities for legal defence.

The Bar is currently the most stable institution within justice system in Ukraine.

All these years we have been working pursuant to the same edition of the core law. This allowed us to accomplish the below strategic objectives:

  • to build a self-governing independent professional advocacy organization with a single compulsory membership.
  • to ensure the unimpeded exercise of legal practice following the principles of the rule of law, legality, independence, confidentiality and avoidance of conflicts of interest.
  • to establish a list of professional rights and guarantees that allow defenders to work safely, professionally, and effectively.

The fact that this law has not undergone fundamental changes since 2012, despite a serious risk of politically motivated amendments, proves an important rule: the stability of legislation is a decisive factor in the development of effective institutions.

The Law on the Bar enabled creation of a stable institution at national and regional levels, executive bodies – Bar Councils, Qualification and Disciplinary Commissions of the Bar, and higher bodies – Bar Council of Ukraine and Higher Qualification and Disciplinary Commission of the Bar.

The principle of self-governance provides that the audit powers regarding the Bar self-government are carried out by the Bar bodies.

All of them are elected by advocates from among practicing advocates, seasoned professionals trusted by the professional communities of the regions, trusted by the Congress as the highest body of advocates' self-government.

This system is calibrated, built on the principle of checks and balances, and is absolutely transparent and accountable.

Regional Conferences and national Congresses provide an opportunity for a true assessment of the state of affairs in the Bar and re-staffing bodies of Bar self-government. As of lately, more and more younger advocates get elected.

That is, the new generation is increasingly interested in Bar affaires and ready to assume responsibility before thousands of colleagues on a voluntary basis.

UNBA established advisory bodies – Committees, which provide expert and analytical support in key areas of advocacy; create platforms for professional discussions, actively participate in the legislative process, having a constant dialogue with Committees of Verkhovna Rada.

In 2018, the national survey showed, that Bar self-government and its decisions enjoy a high level of trust of its constituents.

The national survey showed support for the current model of advocacy, and high appreciation of the quality of services provided by advocates on the ground and nationwide.

This year, the Bar Council of Ukraine approved the UNBA 2025 Strategy, which defines priority development objectives and actions for the next four years.

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Ambassador Robert Serry, the former Dutch ambassador to Ukraine, introduced Ms Lydia Izovitova to an audience in The Hague on 23 November 2021
Ambassador Robert Serry, the former Dutch ambassador to Ukraine, introduced Ms Lydia Izovitova to an audience in The Hague on 23 November 2021; LINKS Europe

The Strategy for the Development of the Judiciary and Constitutional Justice for 2023, adopted by the Presidential Decree also contains tasks for the Bar and the relevant Action Plan is now under development.

Of course, we prepared package proposals to this Action Plan, sufficiently specific, professional. This is a roadmap that is coordinated, agreed, should be finalized and implemented in the coming years.

Thus, the legal community is committed to open dialogue regarding organic changes to the relevant legislation that will solve the real problems of protecting advocates from interference and strengthening the independence of our professional organization.

The adaptation of key European standards of Bar independence and self-governance to the national core law has paved the way for us to integrate into the European professional community.

Ukrainian National Bar Association has started cooperation with the Bars of Germany, Spain, France, Italy, United Kingdom, Lithuania, Georgia, Kazakhstan.

UNBA is also a party to the CCBE Memorandum on Mutual Recognition of Lawyers’ Cross-Border Continuing Professional Development. This allows Ukrainian advocates to partake in single European space of professional education, formed by the Memorandum and covering 45 States.

UNBA maintains systemic contacts with International Bar Association, which currently brings together more than 200 associations of lawyers from around the world and more than 80,000 individual members. Thanks to this powerful partnership, we have an opportunity to attract global attention to advocate’s problems, access to justice and other issues in Ukraine.

In addition to CCBE and IBA, UNBA systematically works with the International Commission of Jurists, another major global discussion platform for the protection of advocate’s professional rights.

Exchanges with our foreign colleagues, participation in international professional forums and conferences, institutional visits to Bars of various countries enriched us with many ideas concerning Bar organization, consolidation of the profession. 

Cooperation with professional communities abroad has not become a one-sided process for us.

We can confidently affirm that the Ukrainian Bar has something to share with colleagues from other countries.

We have successfully carried out projects that are of interest to foreign Bar associations, and we are ready to share our practical experience of building the Bar as institution and share some of our projects as well.

In particular, our digital products such as the Unified Register of Advocates, an electronic ledger of advocates, electronic warrant, system of registration and accrual of CLE points garnered most interest.

The Law vests the Bar Council of Ukraine as the highest body of advocates' self-government the task of maintenance of the Unified Register of Advocates of Ukraine. Since 2013, such an electronic register is available at the UNBA website.

This is an open official database that anyone with internet access can use it.

Each advocate listed in URAU has its own personal online account. With the help of this service, one has an number of opportunities, like warrant generation and integration with electronic justice platform.

UNBA ensures organization of advocate’s professional development.

We responsibly perceive this mission, invest in the development of the training system and raising standards, and expand the choice of areas for professional growth. Taking into account exclusive audience rights, this strategy is non-alternative.

The legal profession involves constant learning process, so raising the professional level is the responsibility of each advocate.

The Bar Council of Ukraine decided to create a single online platform for raising the professional level of advocates - UNBA Higher School of Advocacy.

Single electronic resource contains data about all accredited events. Advocates may access the online calendar for easy search of the desired event. Only an authenticated advocate has the opportunity to register online for events.

Now, during the COVID-19 pandemic, this resource has demonstrated its great importance to continuous training of advocates. In some regions, it was the quarantine time when more events were carried out than usual. Also, thanks to technical capabilities of online registration and audience connection, in 2020 we held two large-scale international events with German Federal Bar. Several thousand advocates from different regions of Ukraine took part in these events.

The Bar also has exclusive powers to adopt the rules of professional conduct and consider disciplinary complaints against advocates. The Rules of Professional Conduct approved by the Congress of Advocates, the highest body of advocates' self-government. In drafting the Rules, we relied on international standards, including CCBE Code of Conduct for European Lawyers.

The legislation allows an advocate, with suspended or terminated right  to practice law, to appeal this decision either to HQDCB, or the court.

That is, the law gives an advocate the tools to defend his professional honor, and established safeguards, preventing disciplinary procedures being used to prosecute advocates for personal reasons or for their professional activity.

In case of termination of right to practice law as a disciplinary sanction, the advocate is not disbarred for life. After two years, advocate may pass the qualification exams again and return to practice law.

The legal profession remains attractive, prestigious and enjoys public trust. We are open to accepting the best educated, motivated and selfless lawyers into our ranks.

This means that we face a lot of work and very interesting challenges. And I am convinced that we are facing them prepared, strong and consolidated as a national professional community. We are open to interaction with international institutions to enrich our professional experience and pass on our achievements to colleagues from different countries.  

It is extremely important for the Ukrainian Bar to maintain contacts with colleagues in the Eastern Partnership countries and the European Union.

We have already established and developed relations with the bar of Azerbaijan and Georgia.

Our relations include the exchange of visits, invitations to professional events on a national scale, mutual support within international organizations such as the CCBE or the Council of Europe, and the provision of expertise on changes to national legislation.

At this platform, which covers the professional audience of all countries participating in the Eastern Partnership of the European Union, I would like to reiterate the openness of the Ukrainian bar to share our own experience of building an independent bar.

For 9 years we have been convinced that the Law of Ukraine "On the Bar and Practice of Law" embodies European standards of legal independence and provides the legal community with effective tools for building a self-governing organization capable of ensuring a high level of professional standards and ensure protection of advocates professional rights and guarantees.

This law allowed us to transition from the post-Soviet eclectic model to the European, holistic formula of an independent bar.

It established clear safeguards against state control over the bar and undue political influence.

The experience of the Ukrainian Bar in the implementation of this law can be used, provided the support of European institutions, in any country of our region in order to strengthen the bar as a human rights defence institution in the interests of all citizens.

We are ready to participate in any projects, events and consultations regarding the transfer of our success, our know-how.

source: This article by Lydia Izovitova President of the Ukraine National Bar Association is based on a speech she delivered at the conference, "The EU and its Eastern Neighbourhood", held in The Hague on 23 November 2021.
photo: Lydia Izovitova, President of the Ukrainian National Bar Association; UNBA

 

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