The dissertation reveals the main aspects of criminal law protection of advocacy in Ukraine. For the first time, the features and limits of the criminal protection of the lawyer’s activity as a social value protected by the criminal law were determined, and the specifics of the mechanism of damage to the components of the object of criminal protection were revealed in detail. The social conditions of the criminalization of encroachments on advocacy activities were also investigated, and objective, subjective and qualifying features of criminal offences encroaching on advocacy activities were analyzed. The work distinguishes criminal offences encroaching on advocacy from other criminal offences and administrative offences encroaching on advocacy. The current legislative activities regarding the improvement of the criminal law protection of advocacy activities were analyzed, in particular, the provisions of the draft Criminal Code of Ukraine, developed by the working group on the development of criminal law, created under the Decree of the President of Ukraine No. 584/2019 dated August 7, 2019, which provide criminal legal protection of advocacy activities. Critical comments were made regarding the inexpediency of criminalizing the repeated absences of the defence attorney, prosecutor, and juror at court sessions in criminal proceedings since procedural and disciplinary mechanisms should first be used to combat the specified actions. The legislative initiative of the National Association of Lawyers of Ukraine regarding the provision of Art. Three hundred seventy-four of the Criminal Procedure Code of the additional subject «military serviceman» and increased responsibility for the commission of criminal offences provided for in Art. Art. 374, 397, 398, 399 of the Criminal Code in conditions of martial law or a state of emergency.
The scientific novelty of the obtained results lies in the fact that the dissertation is the first complex study in Ukraine of the criminal legal protection of advocacy, in which, based on the analysis of theoretical and practical problems arising in connection with bringing to criminal responsibility persons who commit encroachments on implementation of advocacy, some new concepts and provisions are proposed and argued, which are of significant importance for improving the state of criminal law protection of advocacy at the legislative and law-enforcement levels.
The study provides a comprehensive characterization of the practice of law and identifies the components of criminal law protection of the practice of law, namely: 1) victims (a lawyer; a lawyer’s client; other natural or legal persons who have applied to a lawyer; an assistant lawyer; a trainee lawyer; other person who is in an employment relationship with a lawyer; a law firm; a law association; a person in respect of whom the right to practice law has been suspended or terminated; the state; and other persons whose rights and interests may be relevant to the practice of law); 2) the rights, freedoms and interests of a lawyer; of other natural or legal persons; of a lawyer’s employees; of a law firm; of a law association; of a person in respect of whom the right to practice law has been suspended or terminated; of the state; as well as of other persons whose rights and interests may be relevant to the practice of law; 3) social relations that arise between the lawyer and natural/legal persons and/or the state, within the framework of which the property and non-property interests of the participants of the legal relations of the practice of law, public and state interests are satisfied; 4) intangible and tangible benefits, which include high-quality professional legal aid; property and non-property interests of the lawyer and the client, etc. From this it can be seen that the content of the attributes of the practice of law as a social value protected by criminal law is determined and defined by the concepts of «lawyer», «practice of law» and their attributes which have criminal significance.
The work also describes the lawyer’s activity as an essential social value, which is an integral part of the justice system in every democratic country and is protected by the norms of criminal law. Comparison of the constitutional provisions of a number of other countries with the norms of the Constitution of Ukraine shows that the legal protection of the practice of law in Ukraine is much narrower than that provided by the constitutional and legal norms of most European countries.
