Bar Leaders Conference of the International Bar Association,
25-26 May 2016, Barcelona
Andriy Kostin
Attorney, Vice-Chair of the Council of the Bar of Odessa Region (Ukraine)
Leading the Way
(Ukraine and Odessa report)
Ukraine is the country in Europe which is the biggest by territory and with population of circa 45 million people. Ukraine has got its independence in 1991 after collapse of the Soviet Union and the first Law about the Bar was adopted in 1992 promoting the independency of the attorneys, protecting basic professional guarantees and main principles of the ethics. The law also regulated admission to the profession and discipline. But it failed to unite all of the attorneys in one national organization.
The new law of 2012 On the Bar and Practice of Law provided mandatory membership of the attorneys in the Ukrainian National Bar Association which is autonomous and independent non-governmental and self-regulated association of attorneys. It has also approved professional guarantees and created a system of self-governance on regional and national level.
The highest body of the UNBA is the Congress of the Bar. The Council of the Bar of Ukraine chaired by the President of the UNBA is executive body which operates between the Congresses. The Council of the Bar of Ukraine consists of 30 members (27 elected by the local Bars one from each Bar + 3 elected by the Congress, namely President and 2 Vice-Presidents). On local level there are 27 Councils of the Bar of the region, whose members are elected by the Conference of attorneys of the region. The Council of the Bar of Ukraine is regulatory authority, while local Councils of the Bar are dealing with representation of attorneys, necessary paperwork, professional training, internship, licensing and many other day-to-day matters, except examination and discipline.
Examination and discipline within the UNBA is conducted by another elected body – which is Qualification and Disciplinary Commission of the Bar which exists in each of the 27 regions. All members are elected by the Conference of attorneys of the region. This Commission works in 2 chambers, namely Qualification Chamber and Discipline Chamber, both consist only of attorneys. Qualification Chamber is dealing with examination process while Discipline Chamber is responsible for dealing with claims against attorneys. The High Qualification and Disciplinary Commission of the Bar of Ukraine (HQDCBU) acts as an appeal instance to review claims over decisions of the regional Discipline and Qualification Chambers of the Commission. The HQDCBU consists of 30 members (27 elected by the local Bars one from each Bar + 3 elected by the Congress of the Bar, namely Chair and 2 Vice-Chairs).
Current number of advocates who are included in the Unified Register of Advocates of Ukraine is about 33.000.
By this new law the Council of the Bar of Ukraine chaired by the President acts as regulatory authority adopting the majority of the internal rules and regulations except several rules which are adopted by the Congress of the Bar of Ukraine.
The ‘Revolution of Dignity’ of 2014 opened the gates for young generation of politicians, state servants and lawyers who are willing to approve the system of justice of Ukraine to make it fair and effective. Many young and experienced attorneys became state servants of different offices on regional and national level trying to contribute to reformation of the judiciary and other state institutions.
But the annexation of the Crimea by Russian Federation and the war in Donbass supported by Russia lead to dramatic changes in Ukrainian society when political interests and populism sometimes prevail over professional opinion about the ways and instruments of reformation of the judiciary.
The President of Ukraine created consultative bodies – Constitution Commission and the Council for Judiciary Reform where national and international experts prepare the set of amendments to the Constitution, laws about judiciary, prosecutors, the Bar, procedural codes and other important amendments which are aimed on the improvement of the independence and effectiveness of the system of justice and should raise the accountability of judges, prosecutors and attorneys before the society.
Of course substantial changes raise a lot of discussions not only between professionals but also between politicians and active members of the society. Such discussions sometimes become very hot as social tension in Ukraine which is fighting to protect its integrity is very high.
Such social tension in situation with the judiciary and its two integral wings (the Prosecution and the Bar) is better to name pressure. And we appeared to be in the middle of this pressure. From one side we are pressed by the society and mass-media which do not trust the courts and from the other side we are under pressure from the state and politicians which want to keep the courts within their orbit of influence. And attorneys are facing the same pressure, moreover attorneys are ‘traditionally’ pressed by some judges and law-enforcement agencies.
The Ukrainian National Bar has issued a report on violation of professional rights of Ukrainian attorneys in 2013-2016 based on the information provided by merely all of the Regional Bars and individual attorneys. The report may be downloaded from the UNBA web-site:
http://en.unba.org.ua/assets/uploads/news/zvity/2016_03_16-Report-violation.pdf
Such violations are divided in several categories:
- Murders of attorneys and attacks on their lives. Oleksandr Gruzkov (Kharkiv), Yuriy Ignatenko (Kyiv), Yuriy Grabovsky (Kyiv) were killed most probably for their professional activity. The last case raise tremendous public and media response since Mr. Grabovsky was the attorney of one of the Russian military officers accused for killing of Ukrainian citizen in Ukrainian territory (so called Case of Russian GRU officers). Investigation is on-going and possible executors of this murder are arrested.
- Opening of criminal cases against attorneys.
- Illegal arrest of the attorneys.
- Physical violence against attorneys.
- Threats to the attorneys made in connection with theirs professional activities
- Destruction of attorney’s property.
- Illegal searches of attorneys’ offices.
- Covert surveillance of attorneys.
- Questioning of attorneys.
In many cases association (identification) of the attorneys with their clients is the background of such violations but what we know exactly is that principle professional position of all of the affected attorneys was the main reason of such violations and even crimes committed against them.
This means that a lot of Ukrainian attorneys despite of all difficulties are ready to stand for the core values of the legal profession and each such case make attorneys’ community more solid.
How the Bar can respond to this challenges?
The Ukrainian National Bar collect and analyse a lot of information about violations from the Regional Bars and from attorneys directly, as well as from the media. Applications to various state and law enforcement agencies about effective investigation of all of the cases of violations, termination of the violations and sanctioning of those who are responsible for such violations are the tools of fast response. Meetings with state officials from the Prosecutor General Office, National Police, State Security Service and even appeal to international lawyers’ organizations are also important means of reaction.
The majority of the cases of violation of professional rights happen in the regions where attorneys are practicing. Therefore activity of the Regional Bars is very important because the Chairs of the Regional Bars are on site and may react and should react immediately, because in some cases it may help to prevent more serious violations.
Being a Vice-Chair of the Odessa Bar I would like to share our experience in dealing with such cases. The Council of the Bar of Odessa Region is dealing with day-to-day activities of more than 2.000 of the attorneys registered in Odessa region and protection of their professional rights is a matter of our daily work.
Fortunately we have no cases of murder of Odessa attorneys during last three years, but there were cases of murder of attorneys for the their professional activity before. Actually attorney Y.Grabovskyy from Kiev was kidnapped in Odessa which he visited during week-end and then killed near Kyiv. I remember the beginning of the last week was very nervous as late at night electronic media started to circulate information about murder of one of the attorneys in Odessa whom we know but luckily it was deliberate misinformation as the part of special operation of law enforcement special forces to arrest the gang of killers who intended to kill this attorney.
But what we have in Odessa is the number of very sensitive criminal cases which raise high interest from the public and authorities. Just to inform you that 1 of 4 district courts in Odessa – Primorsky District Court is the second from 663 local courts of general jurisdiction Ukraine by number of sanctions given by investigative judges during criminal investigation. This includes arrest and search orders, seizure of documents, surveillance etc. We have also so called “The Second of May Cases” connected with mass riots lead to death of around 50 people on streets and burned in the Trade Unions House on the 2nd of May, 2014. Ukrainian authorities are criticised for long and ineffective investigation of this case, the trial which is still on going in Odessa and is famous for unprecedented pressure from the public on judges and attorneys. Our attorneys were kidnapped and beaten. They are so used to threats that pay no attention to them. Destruction of attorneys’ property, illegal searches of their offices and seizure of clients’ files, covert surveillance, refusals to provide information for attorneys – we have it all in Odessa as well.
What we do?
Immediate response is very important, though some cases may look controversial and they need additional research before going public. For this purpose we have created a Committee for Protection of Professional Rights and Guarantees with the Regional Bar whose members under the guidance of the Chair of the Council of the Bar check necessary information, help to prepare necessary documents and may represent our attorneys and/or the Regional Bar in specific cases. Their activity is also to provide an emergency assistance to the attorneys who are in critical situation with law-enforcement agencies or any other pressure. This helps not only to stop violation and collect evidences of it but also to prevent violations in the future. All of the Regional Bars have such committees and the same committee operates on national level. It is also important to mention that we have already several cases of cooperation between regional committees when attorneys from Odessa provide support and assistance to attorney from Kyiv during her trial in Odessa and members of such Committee of the Kiev Regional Bar provided assistance to the attorney from Odessa arrested in Kiev Region. This show us how effective could be direct cooperation between the Regional Bars in provision of immediate assistance because, as I have mentioned above, Ukraine is a very big country where distance between, for instance, Odessa and Kyiv is around 500 km.
How to reduce such cases of violation?
We believe that not only legislative changes are required (more professional guarantees, more strict liability for violation of attorneys’ professional rights, creation of an independent authority which will investigate illegal actions of police and prosecutors).
It is my firm belief that reputation of the Regional Bar and its leader is very important. Communication is one of the most effective instruments to change situation, to reduce the number of violations and to prevent them. Regional Bars with well-known and reputable Deans have more chances to improve the situation and help their attorneys. Communication with police and prosecutor offices, chief justices and court administration, even with ‘activists’ who create a lot of problems in courts demanding fair and effective trial – this is our daily work in regional Bars. Many of the potential problems which may become a real ones could be solved even by phone communication if specific state servant is always ready to pick up his phone when he see that the Chair of the Bar is calling.
So, reputable Bar leaders and active members of the Bar, coordination of activity between Regional Bars horizontally and between regional and national bar, communication with law-enforcement agencies, courts, politicians and civil society is the only way to improve the situation.
If we support these principles then we are on the right way!