Debating Monopoly of the Bar in Khmelnytskyi

DRI’s latest stop on its regional Ukrainian outreach tour focussing on constitutional reform was the central city of Khmelnytskyi from 14-15 November. DRI trained students and organised a student debate: ‘Monopoly of the bar: pro and contra?’

Students from the Khmelnytskyi University of Management and Law and the National University of Ostroh Academy debated a new constitutional provision allowing representation in a court of individuals, legal entities, and state institutions exclusively by lawyers with a bar certificate. The provision was introduced on 30 September 2016 by constitutional amendments and led to intense discussion among legal practitioners. This novelty contradicts the current practice backed up by the previous prevailing opinion of Ukraine’s Constitutional Court whereupon any legal specialist can represent a party in a court.

The Khmelnytskyi team supported the notion that monopoly of the bar was timely and necessary in Ukraine. Olya Bazhan emphasised that there were no international or European standards prohibiting such a monopoly. On the contrary, she added: “Representing parties by lawyers with a bar would enhance equal possibilities of parties to a trial and thus contributes to the equal representation of parties in a court and to a fair trial”.

Representation by a bar also means more procedural rights for the parties represented, such as rights to confidentiality and simplified disciplinary proceedings in cases of misconduct of attorneys, argued the students from Khmelnytskyi. They noted that the monopoly would be gradually introduced by 2020 and was not absolute; the exceptions encompass disputes related to electoral law, labour law and minor disputes.

The main argument of the opposing team was that the introduced monopoly restricted the fundamental right of everyone to legal assistance of his/her own choosing as anchored in the European Convention on Human Rights. Taras Kozachenko noted that there was no qualitative difference between a bar member and a legal practitioner in Ukraine. Forcing the latter to pass a fee-based bar exam would lead to additional costs among practicing lawyers. In his opinion, the monopoly should also exclude so-called in-house lawyers who know the business of companies and could best represent companies in court better than an external lawyer, even with a bar membership.

Both teams agreed that the Law on the Bar currently being elaborated in Ukraine’s Parliament should clarify the notion of “minor disputes” to be excluded from the monopoly of the bar.

The Khmelnytskyi University of Management and Law, which argued in support of the bar’s monopoly, won the debate, while the prize for best speaker was given to Taras Kozachenko from the National University of Ostroh Academy.

Before the debate the students were coached in public speaking skills by Vasyl Komissarov, Chairman of the RITORI development centre. DRI’s expert Ruslana Vovk provided students with the context to the current legal reform and a comparative European perspective on the monopoly of the bar.

The jury consisted of Serhiy Petukhov, Deputy Minister of Justice of Ukraine on European-Integration; Roman Tytykalo, a deputy of Kyiv Oblast Council and lawyer, and Ruslana. Vovk.

Opening up the discussion

DRI’s public discussion in Khmelnytskyi focussed on the topic: ‘Judicial reform for everybody: civil society control. Bar monopoly. Revamped courts’. Deputy Justice Minister Serghiy Petukhov reminded the participants that “Reloading the judiciary is anything but a simple task. Moreover, another opportunity for this kind of renewal might not occur again. Three years is the time period in which tangible changes in every area can be achieved,” he said.

Andriy Popyk, Deputy Chairman of Khmelnytsky Initiative civil society organisation, was concerned about the bar’s monopoly because of the difficulty to ensure proper legal representation for low-income citizens. Mr. Tytykalo, noted, however, that “The new law on the bar has been not approved yet” and the details are still being worked out. Interestingly, Yuriy Belousov, Professor of the Khmelnytskyi University of Management and Law, confirmed that that the region’s experts, lawyers, and scholars had been active in the consultations on the preparation of the legal reform and the debate surrounding it.

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