About the lawyer’s monopoly

About the lawyer’s monopoly

Author

Perepelchenko Anatolii

The inevitable reform of the bar in Ukraine is causing a lot of controversy. The draft Law of Ukraine "On Amendments to the Constitution of Ukraine (concerning Justice)" № 3524 (hereinafter - draft № 3524) proposed by the President of Ukraine literally divided the legal community into two camps: "for" and "against" the so-called monopoly of the bar. There is no denying that both the supporters of such a reform and its opponents have strong arguments in favor of their beliefs. However, if you take a closer look at the proposed changes, you can refute many "negative" arguments.

In particular, regarding the allegation of narrowing the right to legal aid, guaranteed by Art. 59 of the Constitution of Ukraine. Thus, in the draft law № 3524 Art. 59 of the Constitution of Ukraine is worded as follows: "Everyone has the right to professional legal assistance. In cases provided by law, this assistance is provided free of charge. Everyone is free to choose a defender of their rights."

Some lawyers and attorneys argue that the change from "legal" assistance to "legal" assistance significantly changes its essence, but, in my opinion, "the amount does not change from the permutation of the terms." Changing an adjective can in no way affect the content of the law. In particular, the Constitutional Court of Ukraine in Decision N 23-rp / 2009 of 30.09.2009 determined that legal aid is multifaceted, different in content, scope and forms and may include consultations, clarifications, drafting of claims and appeals, certificates, statements , complaints, representation, in particular in courts and other state bodies, protection against prosecution, etc. The state, represented by the relevant bodies, determines a certain range of subjects of legal aid and their powers. The analysis of the current legislation of Ukraine on this issue gives grounds to determine, in particular, the following types of subjects of legal aid:

- state bodies of Ukraine, which are responsible for providing legal assistance (Ministry of Justice of Ukraine, Ministry of Labor and Social Policy of Ukraine, notary, etc.);

- Bar of Ukraine as a specially authorized non-governmental professional human rights institution, one of the functions of which is to protect a person from prosecution and provide legal assistance in resolving cases in courts and other state bodies (part two of Article 59 of the Constitution of Ukraine);

- business entities that provide legal assistance to clients in the manner prescribed by the legislation of Ukraine;

- association of citizens for the exercise and protection of their rights and freedoms (part one of Article 36 of the Constitution of Ukraine).