THE LEGAL SIGNIFICANCE OF THE OATH IN THE PROCESS OF ADMISSION TO THE PROFESSION OF ADVOCATE

Abstract

Background. The advocate's oath is one of the elements of the mechanism for gaining access to the legal profession, combining normative, procedural and symbolic dimensions. In the context of Ukraine's European integration aspirations and systemic challenges, this institution is becoming particularly relevant. In particular, the growing practice of former judges, prosecutors and law enforcement officers acquiring the status of advocate for precautionary reasons indicates the existence of a legislative loophole that undermines the institutional independence and integrity of the legal profession. The aim of this article is to provide a comprehensive analysis of the legal nature and functional significance of the advocate's oath in Ukraine, identify systemic shortcomings in its legislative regulation, and justify proposals to address them, drawing on the experience of European Union countries.

Methods. The study is based on a combination of general scientific and specialised legal methods. The dialectical method and the method of systemic analysis were applied in determining the legal nature of the oath. The formal-legal method and comparative analysis were used to examine the texts of oaths for various legal professions in Ukraine. The method of analysing court decisions enabled the study of the Supreme Court's practice regarding the incompatibility of statuses. The comparative-legal method facilitated the study of foreign experience in regulating the advocate's oath across EU countries.

Results. It has been established that the advocate's oath differs fundamentally from those of judges and prosecutors: it focuses on protecting human rights and freedoms rather than on service to the state, rendering it incompatible with other legal oaths. The Grand Chamber of the Supreme Court confirmed that it is impermissible for a person to be bound by two competing oaths simultaneously; however, this position has not eliminated the legislative loophole that allows representatives of other legal professions to acquire the status of an advocate whilst under oath. A comparative analysis has shown that in most European countries, the advocate's oath is a mandatory component of access to the profession and is accompanied by a public, solemn ceremony.

Conclusions. The present study demonstrates the need to reform the institution of the advocate's oath in Ukraine in two interrelated areas. Firstly, the current formal approach to the oath-taking procedure, which amounts to a simple signing of the text, requires substantial improvement through the introduction of a solemn public ceremony involving the use of state symbols, which would be in line with the practice of European Union countries and would contribute to enhancing the institutional authority of the legal profession and fostering a deeper understanding among new lawyers of their professional mission. Secondly, in order to address the legislative gap regarding access to the profession, the optimal model for Ukraine should combine a statutory prohibition on judges, prosecutors and law enforcement officers acquiring the status of an advocate for a period of five years from the date of their dismissal with a mechanism for the partial recognition of prior legal experience after the expiry of this period, which is proportionate, complies with Council of Europe standards and does not devalue the practical experience gained in related legal professions.