Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 77
Abril
Junio
2023
Recibido el 26/09/22 Aceptado el 12/02/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 41, Nº 77 (2023), 309-323
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal guarantees of lawyers’
activities with respect to the provision
of free secondary legal aid in the
administrative court system
DOI: https://doi.org/10.46398/cuestpol.4177.21
Serhii Shatrava *
Serhii Vylkov **
Yevhen Sobol ***
Nataliia Maksymenko ****
Inna Zelenko *****
Abstract
The research was aimed at ascertaining the content of legal
guarantees of the lawyer’s activity in terms of rendering free
secondary legal aid in administrative proceedings. With the help
of general and special methods and cognition, it has been shown
that the legal guarantees of a lawyer’s activity as a subject of rendering free
secondary legal aid have the following characteristics: 1) guarantee the
freedom, without hindrance, of the exercise of the rights attributed to the
lawyer and the due fulllment of the duties attributed to the obligations;
2) the set of means, modalities and conditions that make up the content of
the guarantees are always set at the appropriate regulatory and legal level;
3) they begin to operate after the occurrence of legal events that are related
to the acquisition of special rights and obligations by the lawyer, and; 4) it
is a component of the more general legal category “guarantee of defense”.
By way of conclusion, we can state that the legal guarantees of the lawyer’s
activity depend for their success on several factors: institutional, legal and
contextual, which require particular treatment by future research.
Keywords: lawyer in Europe; legal guarantees; administrative process;
legal aid; free legal assistance.
* Kharkiv National University of Internal Aairs, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-
0002-7072-961X
** Head of Higher Qualication and Disciplinary Commission of the Bar; Kyiv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-0328-9957
*** Volodymyr Vynnychenko Central Ukrainian State Pedagogical University, Kropyvnytskyi, Ukraine.
ORCID ID: https://orcid.org/0000-0002-0804-8354
**** Volodymyr Vynnychenko Central Ukrainian State Pedagogical University Kropyvnytskyi, Ukraine.
ORCID ID: https://orcid.org/0000-0002-1005-5115
***** Volodymyr Vynnychenko Central Ukrainian State Pedagogical University Kropyvnytskyi, Ukraine.
ORCID ID: https://orcid.org/0000-0003-0226-7481
310
Serhii Shatrava, Serhii Vylkov, Yevhen Sobol, Nataliia Maksymenko y Inna Zelenko
Legal guarantees of lawyers’ activities with respect to the provision of free secondary legal aid in
the administrative court system
Garantías jurídicas de las actividades de los
abogados con respecto a la prestación de asistencia
jurídica secundaria gratuita en el sistema de tribunales
administrativos
Resumen
La investigación tuvo por objeto conocer el contenido de las garantías
jurídicas de la actividad del abogado en cuanto a la prestación de asistencia
jurídica secundaria gratuita en los procedimientos administrativos. Con la
ayuda de métodos generales y especiales y de cognición, se ha demostrado
que las garantías legales de la actividad de un abogado como sujeto de la
prestación de asistencia legal secundaria gratuita, tienen las siguientes
características: 1) garantizar la libertad, sin trabas, del ejercicio de los
derechos atribuidos al abogado y el debido cumplimiento de los deberes
atribuidos a las obligaciones; 2) el conjunto de medios, modalidades y
condiciones que integran el contenido de las garantías se jan siempre en el
nivel reglamentario y legal adecuado; 3) comienzan a funcionar después de
la ocurrencia de hechos jurídicos que están relacionados con la adquisición
de derechos y obligaciones especiales por parte del abogado, y; 4) es un
componente de la categoría legal más general «garantía de defensa». A modo
de conclusión podemos armar que las garantías jurídicas de la actividad
del abogado, depende para su éxito de variados factores: institucionales,
legales y contextuales, que requieren de tratamiento particular por parte de
futuras investigaciones.
Palabras clave: abogado en Europa; garantías jurídicas; proceso
administrativo; auxilio judicial; asistencia jurídica
gratuita.
Introduction
The professional and special rights and duties of a lawyer, as a subject of
provision of free secondary legal assistance, are exercised by him during the
consideration and resolution of a public-law dispute in an administrative
court. At the same time, it is obvious that a lawyer, receiving the status of
a procedural representative of one of the participants in an administrative
case (a person who needs secondary legal assistance on a free basis), is
additionally granted the procedural rights and obligations specied in Art.
44 the CAP of Ukraine.
In this context, it is worth briey reminding that all potential subjects
of specic administrative-procedural relations must necessarily have such
a legal property as administrative procedural legal personality, thanks to
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which they become full-edged participants in the administrative case and
realize the constitutional right granted by the state to judicial protection.
By itself, the legal construction “legal entity”, performing the function of
generalizing the characteristics of the legal status of a natural or legal entity,
is used in almost all areas of law. The practical purpose of this category is
that it outlines the circle of persons who can be recognized as subjects of
law, guarantees their acquisition of a certain legal status and a set of rights
and obligations, and also reects their “legal destiny” (Dzhafarova, 2014).
Therefore, the model of administrative procedural legal personality,
which consists of administrative procedural legal capacity, legal capacity
and procedural rights and obligations, is also inherent to a representative
lawyer who provides free secondary legal assistance to one of the main
participants in an administrative case.
By the way, as some administrative researchers rightly note, there is no
single administrative procedural legal personality for all participants in the
administrative process: for each subject of administrative-procedural legal
relations, a specic legal personality is provided, which is characterized by
a certain content and scope (Ditkevych, 2011).
Such a conclusion allows us to state the fact that the purpose of
participation and the functional appointment of a lawyer as a participant
in an administrative case in a judicial process, who provides free secondary
legal assistance, directly aects the content and scope of his administrative
procedural legal personality.
It is quite logical that the lawyer implements the subjective interest
of the person he represents, in order to exercise the functional rights and
obligations assigned to him, determined by the norms of substantive law.
On the other hand, his interest in an administrative case in the process
of providing free secondary legal assistance is always characterized not
only by private interest, but also by a state-legal and social component, as
it follows from the competence, purpose, functions and professional and
special powers entrusted to him by law , dened in the Laws of Ukraine
“On Advocacy and Advocacy” (Law of Ukraine, 2012) and “On Free Legal
Aid” (Law of Ukraine, 2011).So, today, the professional representation
performed by a lawyer in the administrative process at the expense of state
funds actually combines the possibility of him performing two functions
- the function of direct representation and the function of providing free
secondary legal assistance.
As we know, an exhaustive list of procedural rights and obligations
of the parties to an administrative case is contained in Art. Art. 44, 47 of
the Code of Administrative Procedure Ukraine (Law of Ukraine, 2005).
At the moment, the legislator obliges all participants in an administrative
case to use their procedural rights in good faith, not to abuse them and to
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Serhii Shatrava, Serhii Vylkov, Yevhen Sobol, Nataliia Maksymenko y Inna Zelenko
Legal guarantees of lawyers’ activities with respect to the provision of free secondary legal aid in
the administrative court system
strictly fulll procedural obligations (Part 3 of Article 2, Part 2 of Article
44 of the Civil Procedure Code of Ukraine). The above also applies to a
representative lawyer who provides free secondary legal assistance within
the administrative process, in accordance with Part 1 of Art. 57 and Part 3
of Art. 16 the CAP of Ukraine.
Taking into account the peculiarities of consideration and resolution of
a public legal dispute in an administrative court, as well as the range of
subjects to whom the legislator grants the right to receive free secondary
legal assistance, it becomes obvious that a lawyer can provide this type of
legal assistance only to one of the parties to an administrative case, which,
rstly, is not a subject of authority and, secondly, mostly declares claims on
the subject of the dispute.
Only in certain cases specied by law, the lawyer has the right to provide
free secondary legal assistance to low-income and unprotected natural
persons who are under the jurisdiction of Ukraine, foreigners or stateless
persons who act as a defendant in the following administrative lawsuits:
1) on detention foreigner or stateless person or forced deportation outside
the territory of Ukraine; 2) on establishing restrictions on the exercise
of the right to freedom of peaceful assembly (meetings, rallies, marches,
demonstrations, etc.) (Part 4 of Article 46 of the CAP of Ukraine (Law of
Ukraine, 2005), Article 14 of the Law of Ukraine “On Free Legal Aid” (Law
of Ukraine, 2011).
Content of Part 3 of Art. 21 of the Law of Ukraine “On Free Legal Aid”
(Law of Ukraine, 2011) and part 2 of Art. 59 of the CAP of Ukraine (Law
of Ukraine, 2005) indicates that the powers of a lawyer providing free
secondary legal assistance in an administrative process must be conrmed
by a mandate from the center for providing free secondary legal assistance
and a power of attorney drawn up in accordance with the requirements of
administrative procedural legislation, which is certied by an ocial person
of the body (institution) that made such a decision.
Restrictions on the attorney’s powers to perform a certain administrative-
procedural action, again, must be stipulated in the power of attorney
issued to him, as evidenced by Part 2 of Art. 60 the CAP of Ukraine (Law of
Ukraine, 2005). For the most part, the above refers to the powers contained
in Art. 47 of CAP of Ukraine and relate to: 1) refusal of the claim statement;
2) recognition of the statement of claim in whole or in part; 3) changes in
the basis or subject of the claim; 4) increase or decrease in claims; 5) ling
a response to a claim; 6) achieving reconciliation; 7) ling a counterclaim.
As an example, we will cite separate procedural rights and duties of
a lawyer as a subject of providing free secondary legal assistance in an
administrative process, based on the norms of the CAP of Ukraine.
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First of all, a lawyer who represents the interests of a person against
whom administrative proceedings have been initiated has the right to
familiarize himself with the materials of the administrative case (Articles
43, 49, 52, 53, 58, 59, 62 of CAP of Ukraine (Law of Ukraine, 2005). If
the information provided by a person in need of free secondary legal
assistance is not sucient to clarify all the circumstances of the case, the
lawyer, guided by the principle of competition, dispositiveness and ocial
clarication of all the circumstances of the case (Article 9 of the Code of
Administrative Procedure of Ukraine), takes all possible measures to obtain
such information (collects information about circumstances and facts that
can be used as evidence, in accordance with the procedure established by
law).
According to Art. Art. 44, 223 the CAP of Ukraine, the lawyer also has
the right to submit a petition to postpone the consideration of the case or
announce a break in it in the event of the need to study a signicant amount
of administrative case materials or form a legal position.
If there are legal grounds, the lawyer is obliged to explain to the person
to whom he provides free secondary legal assistance the possibility of
conciliation with the other party in an administrative case, its conditions,
procedure and consequences of conciliation (Article 190, clause 3, part 1
of Article 238, Article 314, 348, 377 of the CAP of Ukraine). In addition,
if necessary, the lawyer has the right to submit a petition or statement for
securing evidence or securing a claim (Articles 114-117, 150-153 of the CAP
of Ukraine), after agreeing on this issue with the person he represents.
The legislator also imposes on the lawyer the obligation to comply with
the procedural terms established by law when providing free secondary
legal assistance, as well as to respond to their violation by other participants
in the manner established by law (Articles 118-123, 173, 295, 309, 329, 342,
363, 376 CAP of Ukraine). In the case of missed deadlines and if there are
grounds provided for by law, the lawyer has the right to le a motion to
renew the missed procedural deadlines (Article 121 of the CAP of Ukraine).
The lawyer is obliged to notify the administrative court and the person
to whom he provides free secondary legal assistance of the impossibility of
attending the court session in advance (parts 2, 3 of article 131 of the Code
of Administrative Procedure of Ukraine).
The lawmaker also does not prohibit a lawyer from preparing objections
against the court’s satisfaction of the other party’s requests to add evidence
to the court case materials after the procedural period established by law
(articles 44, 79 of the CAP of Ukraine).
In some cases, the lawyer has the right to object to the satisfaction of the
demands, statements and petitions of other participants in the legal process
by the administrative court, which are contrary to the legitimate interests
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Serhii Shatrava, Serhii Vylkov, Yevhen Sobol, Nataliia Maksymenko y Inna Zelenko
Legal guarantees of lawyers’ activities with respect to the provision of free secondary legal aid in
the administrative court system
of the person he represents, to express his own arguments, considerations
and objections on the merits of the administrative case, based on the legal
basis agreed with this person positions (Articles 44, 47, 166 of the CAP of
Ukraine).
During the trial, the lawyer is granted the right to participate in the
examination of evidence, if necessary, to submit oral and written requests,
explanations, to state objections and to submit a request for the involvement
of participants in the administrative process who, in his opinion, should be
involved in the case, to participate in interrogations, court debates, other
procedural actions (Articles 39, 44, 47, 81, 82, 84, 91, 93, 209-226, 243 of
the CAP of Ukraine).
If the lawyer believes that the person he represents is, in his opinion,
unjustiably insisting on an appeal or revision of the court decision, then he
oers to agree with him on the legal position and draws up a written legal
opinion (Articles 13, 293, 328 of the CAP of Ukraine).
In the process of appealing a court decision in an administrative case,
the lawyer (if necessary) submits a request for consideration of the case
with the participation of the person he represents (Part 3 of Article 296,
Part 3 of Article 304, Clause 1, Part 1 of Article 311, Part 3 of Article 330,
Part 3 of Article 336, Part 3 of Article 338 of the CAP of Ukraine).
It is clear that these and other administrative-procedural powers of the
lawyer in the process of providing free secondary legal assistance cannot
be properly implemented in the administrative process in the absence of
certain prerequisites, conditions and means to ensure them at an optimal
level. In order for their eective implementation to take place, there must be
a whole system or set of normatively established methods and conditions.
Among the latter are legal guarantees of advocacy, that is, such legal means,
as noted by A.V. Ivantsova, which are enshrined in legal norms, and the
subject of their inuence are the rights and duties of a lawyer, ensure
their implementation, protection and renewal in case of their violation
(Ivantsova, 2010).
1. Purpose and objectives of the research
The main purpose of the article is to study the legal guarantees of the
lawyer’s activities regarding the provision of free secondary legal assistance
in the administrative proceedings of Ukraine. In order to achieve the
goal of the article, the following tasks were solved: rst, to investigate
the understanding of the term “guarantee” and “guarantee of advocacy”;
secondly, to nd out the legal guarantees of advocacy by functional purpose;
thirdly, to oer one’s own understanding of “legal guarantees of the activity
of a lawyer as a subject of providing free legal aid” and to form its features.
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2. Literature review
The problems of studying free legal aid in Ukraine, clarifying its legal
nature and content, the issue of determining the organizational, legal and
managerial aspects of the activity of state bodies and institutions that
ensure and guarantee the realization of a person’s right to free legal aid, as
well as various aspects of the organization of a self-governing institute of
the bar, which implements the function of providing legal assistance, have
not been the subject of a separate comprehensive scientic study to date.
Only fragmentarily, within the framework of studying more general
problematic issues of advocacy activities, certain aspects of the raised
topic were considered, in particular by the following scientists: E.Yu. Bova
comprehensively highlights the problems of organizing, securing and
ensuring the right of citizens to receive free legal aid (Bova, 2009); A.V.
Ivantsova conducted a comprehensive study of the modern problem of
the organizational forms of advocacy (Ivantsova, 2010); M.V. Stamatina
examined the organization of activities related to the realization of citizens’
right to free legal aid (Stamatina, 2013); A.V. Bitsai claried the theoretical,
organizational and legal principles of a lawyer’s participation in mediation,
which determine the functioning and further development of mediation in
the legal system of Ukraine with the participation of lawyers (Bitsai, 2015);
V. V. Zaborovsky revealed at the conceptual level the theoretical and legal
provisions of the legal status of a Ukrainian lawyer and developed on their
basis and put into practice scientically based proposals for improving
the norms of the current legislation on advocacy, in order to ensure the
proper realization of a person’s right to professional legal (legal) assistance
(Zaborovsky, 2017); P. Valko presents a comprehensive idea of the essence
and features of providing free secondary legal assistance by lawyers in
administrative proceedings (Valko, 2020), etc.
A general review and analysis of the above-mentioned works shows
that they mainly contain separate aspects of the organizational and legal
basis for the provision and provision of certain forms and types of legal
assistance, while the specics and features of the legal guarantees of the
lawyer’s activity regarding the provision of free secondary legal assistance
were practically not considered.
3. Research methodology
The methodological basis of scientic work is a set of general scientic
and special scientic methods and methods of cognition, which are
comprehensively used to solve the tasks set in the dissertation research. The
methods of functional and systemic analysis, as one of the main methods of
316
Serhii Shatrava, Serhii Vylkov, Yevhen Sobol, Nataliia Maksymenko y Inna Zelenko
Legal guarantees of lawyers’ activities with respect to the provision of free secondary legal aid in
the administrative court system
this work, were used for the purpose of researching the essence and features
of the realization of the individual’s right to free legal assistance by subjects
endowed with the professional status of a lawyer.
The use of terminological, logical-semantic and logical-legal methods
made it possible to formulate the author’s denition of the concept of
“guarantees of advocacy in the process of providing free secondary legal
assistance.” The methods of classication and grouping provided the
possibility of classifying the legal guarantees of the lawyer’s activity as a
subject of providing free secondary legal assistance in administrative
proceedings, taking into account the norms of national legislation and
international legal ocial documents.
4. Results and discussion
Moving on to covering the issue of legal guarantees of a lawyer’s activity
as a subject of providing free legal aid, (Pohosian et al., 2021) we consider
it expedient to rst clarify in general terms the content of such categories
as: “guarantee”, “legal guarantees”, “guarantees of activity”. Undoubtedly,
all of them have a signicant theoretical and methodological signicance
for our research, taking into account its purpose and tasks. We will briey
conduct a general review of interpretative editions and legal literature,
on the pages of which these categories are considered and their primary
importance is revealed.
In legal literature, the term “guarantee” is used in a wide variety of
meanings, as it is quite multifaceted and is studied not only by legal theory,
but also by other legal sciences in the aspect of researching human rights
and freedoms, legal principles or legal regimes, as well as certain areas
of activity of state bodies and their ocials, etc. Thus, if we are talking
about “legal guarantees” or “legal guarantees”, we mean legally established
means of protecting the rights and freedoms of citizens, ways of their
implementation, as well as means of protecting law and order, the interests
of society and the state (Busel, 2003).
At the same time, guarantees are not recognized as any conditions for
the existence and realization of human and citizen rights, but only those
dened by the state to ensure the concrete implementation of a person’s
legal status, the actual implementation of his subjective right.
V.V. Vvedenska notes that guarantees are a certain obligation of the
state to create a system of prerequisites, conditions, means and methods
enshrined in legislation, which provide everyone and everyone with
equal legal opportunities to discover, acquire and realize their rights and
freedoms, their actual implementation, protection and reliable protection
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(Vvedenska, 2006). So, on the one hand, guarantees are used to ensure the
optimal development of certain legal relationships, and on the other hand,
they are designed for negative phenomena and events associated with
the presence of a threat to the rights, freedoms and interests of a person
(guarantees-protection) or their violation (guarantees- protection).
It is the state, as often emphasized by researchers, that, in the person of
its authorized bodies, is obliged to ensure the realization of the guaranteed
rights, freedoms and interests of the individual, not to violate them, and to
provide the necessary protection and protection. In general, in all the above
denitions, a special emphasis is placed on the state’s obligation (through
a set of legally established methods and means) in terms of creating the
necessary conditions for an individual’s ability to realize his legal rights,
freedoms and interests. After all, such conditions must ensure their actual
implementation, adequate protection and protection when necessary.
As for the legal guarantees of advocacy, on the pages of special literature
in the specialized eld, some researchers emphasize that such guarantees
are aimed both at protecting a lawyer from possible manifestations of
arbitrariness on the part of the state, attorney self-government bodies and
other subjects, and at ensuring the right of an individual for professional legal
(legal) assistance, the implementation of which is closely interconnected
with the existing system of such guarantees (Zaborovsky, 2017).
R.V. Afanasiyev, for example, sees the assignment of guarantees
of advocacy in the implementation of positive conditions for the
implementation of advocacy functions, in particular regarding the reality of
protection, representation and provision of other types of legal assistance
to the client, as well as ensuring the state of protection of the advocate
from the inuence of objective and subjective negative factors in process
of his professional activity. According to the scientist, economic-legal,
social-legal, criminal-legal, administrative-legal, criminal-procedural and
other types of guarantees are important among the guarantees of advocacy
(Afanasiev, 2014).
Instead, the fact that professional rights and guarantees, according to
I.V. Golovany, represent a characteristic dierence between advocacy and
other types of legal practice. And it is precisely around professional rights
and guarantees, provided they are actually implemented, that the modern
Ukrainian legal community unites without any coercion (Golovan, 2004).
The stated points of view do not cause any complaints and comments, and
therefore, extrapolating their content to the term-concept “legal guarantees
of the activity of a lawyer as a subject of providing free legal aid” (by analogy),
we can formulate the latter as a set of legally established means, methods
and conditions by means of which the actual implementation, realization,
protection and protection of the rights and obligations of the lawyer as a
subject of provision of free legal aid are ensured.
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the administrative court system
Especially since Art. 23 of the Law of Ukraine “On Advocacy and
Advocacy” clearly indicates that guarantees of advocacy are guaranteed and
protected by the Constitution and Laws of Ukraine, which regulate legal
principles of advocacy and advocacy (Law of Ukraine, 2012).
It is obvious that it is with the help of material-nancial, political,
organizational-legal and other conditions and means that the unimpeded
and eective implementation of advocacy activities, its reliable protection,
as well as the functioning of the Ukrainian Bar Association as a self-
governing independent legal institution as a whole is ensured.
Violation of the guarantees of lawyer activity dened by the legislator
is subject to criminal liability in accordance with criminal procedural
legislation (Article 374, Article 397-400 of the Criminal Code of Ukraine
(Law of Ukraine, 2012). At the same time, we focus our attention on the
fact that the real implementation of the legal guarantees of the lawyer as
an entity providing free secondary legal assistance in the administrative
process occurs when a number of legal documents are concluded, which
certify the administrative and procedural powers of the lawyer to provide
free secondary legal assistance.
As can be seen from the above, the legal guarantees of advocacy in
general can be conventionally divided into: 1) general guarantees, which
are represented by a set of methods, means and conditions that ensure
the exercise of the professional powers of a lawyer, granted by law for the
implementation of his main tasks and functions; 2) special guarantees that
facilitate and guarantee the implementation of the attorney’s powers in
the process of carrying out a certain type of advocacy (in the process of
providing free primary legal assistance, participation as a defense attorney
in a criminal trial, etc.); 3) individual (personalized) guarantees that ensure
the implementation of the powers of a specic lawyer in certain legal
relations with his participation (ensuring the personal safety of a specic
lawyer-defender in the process of considering a specic criminal case in
accordance with the Law of Ukraine “On ensuring the safety of persons
participating in criminal proceedings” (Law of Ukraine, 1993) etc.
The legal regulation of guarantees of advocacy is carried out not only
by the norms of national legislation, but also by the norms of international
legal ocial documents (the European Convention on the Protection of
Human Rights and Fundamental Freedoms, the Recommendations of
the Committee of Ministers of the Council of Europe on the freedom of
professional activity of lawyers). In addition, the protection of lawyers’
rights is regulated by acts of the United Nations, the Council of Bar and
Legal Societies of Europe (SSBE), the International Bar Association, etc.
(Migdal, 2018).
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First of all, national legislation in the eld of organization of legal aid
activities guarantees the right to proper payment for the lawyer’s activity
as a subject of free secondary legal aid, in particular: 1) the right to the
correctness of the calculation of the amount of his remuneration; 2) the right
to reimbursement of expenses related to the provision of free secondary
legal assistance by a lawyer on a permanent basis in accordance with the
contract or on a temporary basis in accordance with the contract, which are
carried out in the prescribed manner.
At the same time, in part 2 of Art. 25 of the Law of Ukraine “On Free
Legal Aid” contains a rule according to which a lawyer in the process of
providing free secondary legal aid on a permanent basis under a contract or
on a temporary basis based on a contract is provided with the guarantees
established by the Law of Ukraine “On Advocacy and Advocacy” and other
by the laws of Ukraine (Law of Ukraine, 2011).
Analysis of the content of Art. 23 of the Law of Ukraine “On Advocacy and
Advocacy” allows to state that the professional rights, honor and dignity of
a lawyer are guaranteed and protected at the legislative level, in particular,
it is prohibited to: 1) interfere with and hinder the implementation of
advocacy; 2) demand from a lawyer, his assistant, a trainee, a person
who is in employment relations with a lawyer, a lawyer’s oce, a lawyer’s
association, as well as from a person in respect of whom the right to practice
law has been terminated or suspended, to provide information that is
lawyer’s secret.
These persons may not be interrogated on these matters, unless the
person who entrusted the relevant information exempted these persons
from the obligation to maintain secrecy in accordance with the procedure
prescribed by law; 3) review, disclose, demand or withdraw documents
related to the practice of advocacy; 4) to involve the lawyer in condential
cooperation during operative and investigative measures or investigative
actions, if such cooperation is related to or may lead to the disclosure of the
lawyer’s secret; 5) interfere in private communication between the lawyer
and the client; 6) submit submissions to investigators, prosecutors, as well
as issue a separate decision (resolution) of the court regarding the lawyer’s
legal position in the case; 7) interfere with the lawyer’s legal position; 8)
bring to criminal or other liability a lawyer (a person in respect of whom
the right to practice law has been suspended or suspended) or threaten
to apply liability in connection with his practice of law in accordance with
the law; 9) identify the lawyer with the client; 10) to carry out investigative
measures or investigative actions against the lawyer, which can be carried
out only on the basis of a court decision; 11) hold the lawyer accountable for
his statements in the case, including those that reect the client’s position,
for statements in the mass media, if the lawyer’s professional duties are not
violated (Law of Ukraine, 2012).
320
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the administrative court system
Let’s also pay attention to the fact that separate regulations of the
same article establish legal guarantees for: a) equality of rights with
other participants in the proceedings, compliance with the principles
of competition and freedom in providing evidence and proving their
persuasiveness; b) state protection of the life, health, honor and dignity of the
lawyer and his family members, as well as their property; c) implementation
of disciplinary proceedings against a lawyer in a special manner; d) the
right to security during participation in criminal proceedings in accordance
with the procedure established by law (Law of Ukraine, 2012).
Thus, the generalization of the legal guarantees of advocacy, dened
in the Law of Ukraine “On Advocacy and Advocacy”, allows them to be
combined according to their functional purpose into the following groups:
1) guarantees of independence of the advocate; 2) guarantees of the lawyer’s
inviolability, within which it is possible to distinguish: a) guarantees of the
lawyer’s professional safety; b) guarantees of the lawyer’s personal safety;
3) guarantees of inviolability of the lawyer.
Among the most typical violations of the rights of lawyers (of a less
serious nature), it is possible to single out failure to provide or untimely
provision of access to information and case materials to the lawyer (which, in
essence, is an obstacle in the preparation of the defense or representation).
In addition, state authorities and law enforcement agencies interfere in
every possible way in the lawyer’s performance of his activities, trying to
maximally control the process of their work, creating certain obstacles that
do not belong to the powers of these bodies. There are quite a few cases in
which investigators do not ensure the mandatory participation of a defense
attorney in the cases provided for by law; restrictions on the right to freely
choose a defense counsel; creating obstacles to the realization of procedural
rights related to obtaining free legal aid, etc. (Azarov, 2018).
Conclusions
Taking into account the above, we can state that, in general, the legal
guarantees of a lawyer’s activity, in particular as a subject of providing free
legal aid in the administrative proceedings of Ukraine, are characterized
by the following characteristics: 1) ensure the unhindered and free exercise
of the lawyer’s rights and their proper execution duties assigned by him
in the process of providing free legal assistance to a person who needs it;
2) the set of means, methods and conditions that make up the content
of guarantees is always xed at the appropriate regulatory and legal
level (national and international), in particular dened in the norms of
substantive and procedural law and embodied in law enforcement acts; 3)
objectively determined by the level of development at this stage of the life
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of society and the state, on the one hand, the legal institution of advocacy,
and on the other, the institution of free legal aid; 4) begin to function after
the occurrence of legal facts, which are associated with the acquisition of
special rights and obligations by the lawyer for the provision of free legal
assistance; 5) is a constituent part of the more general legal category
“guarantee of advocacy”.
Therefore, the legal guarantees of the activity of a lawyer as a subject
of providing free legal aid should be understood as a set of legally
established means, methods and conditions by means of which the actual
implementation and protection of the rights and obligations of a lawyer as
a subject of providing free legal aid are ensured legal aid.
In turn, it is appropriate to classify the lawyer’s legal guarantees
depending on the legal status to which he is assigned: 1) general guarantees,
which are represented by a set of methods, means and conditions that ensure
the exercise of the professional powers of the lawyer granted by law for
the implementation of basic tasks and functions; 2) special guarantees that
facilitate and guarantee the implementation of the attorney’s powers in the
process of carrying out a certain type of advocacy (in the process of providing
free legal aid, participating as a defense attorney in a criminal trial, etc.); 3)
individual (personalized) guarantees that ensure the implementation of the
powers of a specic lawyer in certain legal relations with his participation
(ensuring the personal safety of a specic lawyer-defender in the process of
considering a specic criminal case in accordance with the Law of Ukraine
“On ensuring the safety of persons participating in criminal proceedings “
etc.).
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Esta revista fue editada en formato digital y publicada
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