LHS DISCUSSION HUB: STRENGTH THROUGH UNITY: LAWYERS, PROSECUTORS, AND JUDGES MUST UNITE TO DEFEND THEIR PROFESSIONAL RIGHTS

“We call for the following. First, to strictly adhere to the Constitution and laws of Ukraine regarding the rights and guarantees of the legal profession, to prevent any threats to the life and health of lawyers, the inviolability of their offices, or any obstruction of their professional activities. Second, do not implement any changes to Ukrainian legislation regarding the status of lawyers, their rights, duties, and guarantees of practice without prior broad public discussion with the legal community and without taking into account the general opinion of that community. Third…” — Oleg Malinevsky reads the Manifesto on the Protection of Lawyers’ Rights, published today on the website of the Ukrainian Bar Association, as he opens the LHS Discussion Hub “Protection of Lawyers’ Rights.” The event took place on January 24 at Ukrinform.

Oleg Malinevsky emphasized that judicial reform is once again underway in Ukraine, and the legal system is being reimagined yet again; however, lawyers still do not understand how the current government envisions the future of the legal profession. Given the increasing pressure on lawyers and the lack of clarity regarding the future of the legal profession, serious and well-founded concerns are emerging. All of this is forcing not only the legal profession but also the broader legal community to unite.

It is impossible to ensure adversarial justice and a fair trial without a strong and qualified legal profession. Oleg Tkachuk, a member of the Council of Judges of Ukraine and a judge of the Grand Chamber of the Supreme Court, is convinced of this. Mr. Tkachuk emphasized the need for mutual respect between the parties to the proceedings; however, at this stage of development, the legal community is hardly able to agree on common principles for collaboration. “The problem is that the Ukrainian legal community has not yet reached a level of healthy cooperation where attorneys support judges in their work and vice versa. Another problem is that many colleagues have either not read the codes of professional ethics or do not adhere to them,” the judge said. The third problem, he noted, is the abuse of procedural rights. “No one—not a lawyer, not a prosecutor, and not a judge—has the ‘right to do wrong.’ ‘Strength lies in unity,’” Oleg Tkachuk concluded.

Alexey Shevchuk, a partner at Barristers LLC, expressed doubt about the ability of the specialized working group established by the President of Ukraine to effectively reform the legal system, given the absence of specialists who defend the rights of defendants in court on a daily basis. This is the first problem. The second is that the relevant parliamentary committee has a subcommittee on the protection of lawyers’ rights, which, however, has not initiated a single bill aimed directly at protecting lawyers’ rights! Mr. Shevchuk also emphasized the mechanisms of disciplinary accountability for lawyers and the need to strengthen the role of disciplinary bodies in the process of protecting lawyers’ rights. “If something is preventing us from moving forward today, let’s turn to the international community: the Council of Europe, international specialized organizations, and associations regarding the protection of professional rights,” urged Oleksiy Shevchuk. Lawyers are also outraged by the absurdity of the actions taken by anti-corruption agencies and the lack of accountability among their representatives.

Vladimir Polishchuk, Chair of the Bar’s Qualification and Disciplinary Commission in the Kyiv region, believes that the violation of lawyers’ rights is directly linked to the creation of new law enforcement and anti-corruption agencies: Before 2015, there were isolated cases of violations of lawyers’ rights; since 2015, there have been dozens of cases every year. Mr. Polishchuk is convinced that judges, prosecutors, and lawyers must strictly adhere to current legislation. Lawyers and prosecutors must not abuse procedural rights, and judges must not thoughtlessly grant the prosecution’s motions. “The key to everything must be a spirit of tolerance between the parties,” the lawyer believes.

“The judicial system is changing in one way or another. And attitudes toward lawyers are changing as well. I do not agree that the judicial system is more favorable toward the prosecution. No,” assured Oksana Birsa, chair of the Dnipro District Court of Kyiv.

The lawyers present in the courtroom emphasized that ensuring an inclusive environment is a crucial aspect of lawyers’ safeguards. Yet the AAU manifesto makes no mention of this. Oleg Malinevsky replied that the manifesto is only the beginning; the document will be expanded to address contemporary challenges.

Ilya Chernogorenko, head of the Council of Europe’s project “Support for the Implementation of Judicial Reform in Ukraine” and the Council of Europe’s observer on the Commission on Legal Reform under the President of Ukraine, takes a critical view of the situation regarding respect for lawyers’ rights. He announced that the Council of Europe project will present a report on this issue on January 31, 2020.

Speaking about the liability of judges, Oleksiy Malovatsky, Deputy Chair of the High Council of Justice, advised prosecutors not to use decisions to hold judges disciplinarily liable as part of an investigation under Article 375 of the Criminal Code of Ukraine — any attorney can invalidate such evidence, since these are two different types of liability. Mr. Malovatsky cited examples from the High Council of Justice’s disciplinary practice regarding interference with a lawyer’s rights. The situation will remain difficult until equality between the parties to the proceedings is ensured.

He drew attention to the situation arising from the lack of legislative provisions to staff the courts adequately and the ineffectiveness of disciplinary proceedings due to judicial red tape: Cases are often delayed for objective reasons; a judge does not have the physical capacity to hear more than 30 cases a day, let alone hear them effectively and thoroughly.

Every conscientious representative of the prosecutor’s office must respect the guarantees of the legal profession, according to Stanislav Petrenko, a prosecutor with Kyiv Local Prosecutor’s Office No. 7. Regarding the individual protection of lawyers’ rights, the prosecutor noted the high level of self-organization within the legal community. “Mutual respect is the key to a healthy society and healthy relationships between the parties to the proceedings,” Mr. Petrenko noted. In his view, procedural opposition should sometimes take place, and at other times, procedural cooperation.

“Learning to apply what we have, and only then changing everything for the better”—Sergey Lysenko sees this as the panacea for healthy relationships and ensuring lawyers’ rights. “It is very important that people hear us. After all, if society comes to believe that bakers’ rights are defended by bakers, journalists’ rights by journalists, and lawyers’ rights by lawyers, our mission is doomed to failure,” — emphasized Semen Khanin, adding that the systemic problem of violations of lawyers’ rights is linked to the government’s failings. According to him, lawyers, as citizens, are themselves to blame for the fact that a flawed system has formed around them, one ready to carry out the government’s orders… “If we fail to make our voices heard, then no matter what we discuss or what changes the Verkhovna Rada of Ukraine adopts, officials dependent on the authorities will continue to carry out their orders,” Mr. Khanin concluded.