Protection of advocates' rights in the performance of their duties

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Ukraine / Kyiv

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Publication date: 09.07.2024

Protection of advocates' rights in the performance of their duties
 

Introduction
 

Advocates play a key role in the administration of justice by representing the interests of citizens in court and other legal matters. An important aspect of their professional activities is the protection of their own rights in the performance of their duties. In this article, we will consider the main aspects of legal protection of attorneys in Ukraine, including the legal framework, attorneys' rights, protection mechanisms and liability for violation of their rights.
 

Legislative framework
 

The legal protection of advocates in the performance of their duties in Ukraine is regulated by a number of legal acts, including
 

1. TheConstitution of Ukraine - guarantees the fundamental rights and freedoms of citizens, including advocates.
    
2. TheLaw of Ukraine "On the Bar and Practice of Law " - defines the legal basis for the activities of advocates, their rights and obligations, as well as guarantees of protection.
    
3. TheCriminal Code of Ukraine (CCU) provides for criminal liability for offences against advocates.
    
4. TheCivil Code of Ukraine (CC U) regulates civil liability for damages.
    
5. TheCode of Professional Ethics for Attorneys - establishes ethical standards of conduct for attorneys and guarantees of their protection.
    
6. Other legal acts regulate specific aspects of the protection of the rights of advocates.
    

Rights of advocates
 

1. The right to independence and autonomy
 

1. Independence of the Practice of Law: Advocates have the right to carry out their activities independently of any influence, pressure or interference from the authorities, other persons or organisations.
    
2. Independencein decision-making: The advocates shall have the right to make decisions on the provision of legal aid, the choice of methods and means of protecting the rights of clients.
    

2. The right to confidentiality
 

1. Ensuring the professional secrecy: The advocates are obliged to keep confidential the information obtained in the course of providing legal aid and have the right to demand that other persons respect this right.
    
2. Protection of confidential data: All materials related to the practice of law shall be protected from unauthorised access, disclosure or use.
    

3. The right to protection from unlawful acts
 

1. Protection from violence and threats: The advocates shall have the right to protection from any form of violence, threats or other unlawful acts aimed at interfering with their professional activities.
    
2. Protection from unlawful prosecution: Lawyers shall have the right to protection from unlawful prosecution, detention or arrest related to their professional activities.
    

4. The right to access information
 

1. Obtaining necessary documents and information: The advocates have the right to receive from the state bodies, organisations and institutions the necessary documents and information related to the protection of the rights and legitimate interests of clients.
    
2. Free access to clients: The advocates have the right to free access to their clients, including those who are in custody or other places of restriction of liberty.
    

Mechanisms for the protection of advocates' rights
 

1. Protection of the rights of advocates in criminal proceedings
 

1. Special status of advocates: According to the Criminal Procedure Code of Ukraine (CPC), advocates have a special status in criminal proceedings, which ensures their protection from unlawful actions.
    
2. Protection of attorney-client privilege: The CPC provides for the protection of attorney-client privilege, including a ban on searching attorneys' premises without a court order.
    
3. Liability for obstructing the activities of lawyers: The CCU provides for criminal liability for obstructing the lawful activities of advocates, including threats, violence or coercion to perform unlawful acts.
    

2. Protection of the rights of advocates in civil proceedings
 

1. Civil liability: In case of violation of the advocates' rights, infliction of material or moral damage, they have the right to file a claim for compensation for damages.
    
2. Judicialprotection: The advocates may apply to the court to protect their rights, in particular, to appeal against decisions, actions or omissions of state bodies that violate their rights.
    

3. Protection of advocates' rights in disciplinary proceedings
 

1. Disciplinary commissions: In case of violation of the rights of advocates by other advocates or subjects of the legal profession, they can apply to the Qualification and Disciplinary Commissions of the Bar (QDCB) to resolve disputes.
    
2. Consideration of complaints: The CDC examines complaints from advocates about violations of their rights, conducts investigations and decides on disciplinary action against the perpetrators.
    

4. Self-defence mechanisms
 

1. Barassociations: Lawyers can unite in professional organisations and associations for the collective defence of their rights and interests, exchange of experience and professional development.
    
2. Mediation: In the event of conflicts or disputes with clients or other lawyers, advocates may use mediation as an alternative method of dispute resolution.
    

Liability for violation of the advocates' rights
 

1. Criminal liability
 

1. Obstruction of theadvocate's activity: Article 397 of the CCU provides for criminal liability for obstructing the lawful activities of an advocate, including threats, violence or coercion to perform illegal acts. Sanctions include a fine or imprisonment for up to 3 years.
    
2. Illegal searches: Article 374 of the CCU provides for liability for unlawful searches of the advocate's premises or seizure of documents constituting the attorney-client privilege.
    

2. Administrative liability
 

1. Violation of therights of advocates: The Code of Administrative Offences (CAO) provides for administrative liability for violations of the rights of advocates by officials, including fines and other sanctions.
    

3. Civil liability
 

1. Compensation fordamages: In the event of material or moral damage to the advocate, the perpetrators may be held liable under civil law, including compensation for damages caused by unlawful actions.
    

4. Disciplinary liability
 

1. Violation ofethical standards: Advocates may be subject to disciplinary liability for breach of ethical norms and standards of practice.
    

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