The most important factor in optimization of attorney-at-law activities is to form a regulatory framework which determines the development strategy of the legal system and is aimed at strengthening the human rights activities of the modern Ukrainian State. The current stage of lawand State-building in Ukraine calls for a new legal justification of the activities of the Bar.

The purpose of the article is to explore the right of an individual to lawyer’s aid and to determine the role which the Bar has in the mechanism of such right’s implementation in the context of the discussion on the abolition of the advocates’ monopoly.

The right to lawyer’s aid is a fundamental right which guarantees the right to justice and, consequently, to a fair trial. The sources enshrining the international legal standards of access to justice can be classified according to: the degree to which they are binding – mandatory ones (provisions of international treaties, judgments of the European Court of Human Rights) and dispositive, i.e., recommendatory ones (acts of bodies of international organizations – resolutions of the General Assembly of the United Nations, recommendations of the Committee of Ministers of the Council of Europe); the degree of prevalence – universal, accepted at the level of international community, and regional ones. These sources provide for mandatory participation of defense counsel (attorney) as a representative only within criminal proceedings, and there is no similar mandatory rule regarding representation by attorneys in other jurisdictions.

As a result of amendments to the Constitution of Ukraine (regarding justice) in 2016, the advocates’ monopoly in Ukraine has been introduced; it entailed a mixed assessment of whether this step was justified. The major arguments in favor of its abolition are: narrowing of the right of access to court; unavailability of the necessary number of attorneys, bureaucratization of the procedure through which the attorney-at-law status is obtained leading to an increased cost of attorney-at-law services; inconsistency with provisions of international law which entitle to exercise the right of access to justice, either personally or through a lawyer freely chosen, at own discretion, from among the lawyers who are capable of providing efficient legal protection.

Recently, with a view to optimizing the mechanism for obtaining professional lawyer’s aid, amendments to Ukraine’s legislation have been proposed regarding the abolition of the advocates’ monopoly, and this is a positive step aimed at expanding the access to justice for the general population to protect their rights and freedoms. The exclusive right of an attorney to exercise protection is reserved only in criminal proceedings, and this is justified since defense attorney’s practice in this area is highly specific and differs from protection of an individual’s rights in non-criminal areas of court procedure. As a rule, criminal attorneys specialize only in this particular area and, owing to this, they develop professional practical skills which, in turn, make legal protection of their clients more efficient. In this context, it should be emphasized that in case several defense counsels are involved in criminal proceedings, one of them must certainly be an attorney-at-law, and others may be just lawyers.

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Newspaper articles

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