Interview with Elvira Lazarenko, Associate Partner at Barristers, LLC, for the online publication "Delo.ua"

Ukraine Ranks Among the Leaders in Cases Brought Before the European Court of Human Rights — Barristers Lawyer

Elvira Lazarenko, an associate partner at the Barristers Law Firm, discusses the specifics of handling high-profile political cases, clients’ faux pas, and why Ukrainian businesses should turn to the European Court of Human Rights

Why did you choose a career as a lawyer?

Even as a child, I realized I wanted to be a lawyer, and by the time I graduated from high school, I had already decided for sure that I would pursue a law degree. I chose the Yaroslav Mudryi National Law Academy, which was also located in my hometown. Unfortunately, at that time, the academy did not have a law school, so I enrolled in the program to train personnel for the prosecutor’s office. But I never actually ended up working in the prosecutor’s office system.

Did you want to see from the inside how the opposing side operates?

At first, yes. After graduating from the academy, I was even assigned to work at the Luhansk Regional Prosecutor’s Office, but due to family circumstances, I couldn’t afford to relocate. So my career path took a different turn—I worked at one of the highest courts, then as a legal counsel at a private metallurgical company. Thanks to this, I gained knowledge and experience in commercial, corporate, and tax disputes, as well as disputes with government authorities, and later, in 2011, when I received my license to practice law, I transitioned to criminal law.

Why criminal law?

For me personally, criminal litigation is the most dynamic and interesting, although perhaps also the most challenging—working outside regular hours, nighttime arrests and searches, protracted and tense court hearings, and a great deal of responsibility. I can’t say that the areas of practice I worked in previously were boring, but criminal procedure is my passion. And the knowledge and experience I’ve gained in those areas are widely applied in my criminal practice, allowing me to develop tactics and strategies to defend clients against criminal prosecution in the field of business activities.

You recently joined the partnership at the Barristers Law Firm—how did that come about?

Yes, in May 2018, I received an offer from Oleksiy Shevchuk, the managing partner of the Barristers Law Firm, to join the firm as an associate partner.

Why did you agree to join the Barristers team?

The fact is that although Barristers is a relatively young firm, having been registered just under a year ago, I’ve known the firm’s founders—managing partner Oleksiy Shevchuk and partners Kostyantyn Globa and Andriy Levkivets—for much longer, having collaborated with them on various projects while working at a law firm. “Shevchuk & Partners.” Even back then, I realized that they were incredibly professional, charismatic, and creative attorneys—people I could learn from and who were a pleasure to work with. That’s why I didn’t have any doubts when accepting the offer.

Tell us a little about Barristers. How was the firm formed, and why was this name chosen? After all, “barrister” is a term from English law—why not use a different term for a lawyer?

It all began with the merger of two law firms—the Kyiv-based firm “Shevchuk & Partners,” led by Oleksiy Shevchuk, and the Odesa-based firm “Ponomarenko & Partners,” led by attorney Denys Ponomarenko. Subsequently, the remaining partners joined the firm. Today, Barristers has offices in Kyiv, Odesa, and Kharkiv—headed by attorneys Oleksiy Shevchuk, Denys Ponomarenko, and Oleksandr Shadrin, respectively—and in Moscow, led by attorney Ilya Novikov. We also plan to open offices in Lviv and Riga (Latvia); negotiations are still underway.

Why were these cities chosen?

This network of offices in key regions of Ukraine allows us to provide prompt and high-quality legal assistance to our clients throughout Ukraine. As for the selection of our foreign offices, it is dictated primarily by the personal qualities of the attorneys representing our brand, rather than by the geographic location of the foreign offices. When the firm’s partners reach full trust and mutual understanding regarding key areas of cooperation and partnership, such a decision is made.

As for the Barristers brand—it’s not just a name and a logo. It is a spirit, a philosophy, and ideas that the firm’s founders sought to express and demonstrate to their clients, colleagues, and the entire legal community through the name and logo.

The name “Barristers” comes from the title of senior English attorneys who practice in court—barristers. It is the profile of such a barrister that is depicted in our logo. It is clear what the founders intended to convey: we are experienced, practicing trial attorneys who strive for the highest standards in providing legal assistance to our clients.

The idea of high standards is also reflected in our slogan—“With faith in God and knowledge of the law”—which directly corresponds to our core belief in acting with integrity and professionalism.

The partners’ vision was to use the name, logo, and slogan to convey that we honor classical values and traditions, possess impeccable knowledge of the law, respect the past, and draw on its best practices, while adapting it to modern realities and shaping new practices—in other words, creating a new classic. At the same time, the Barristers team represents a new generation of attorneys with a personalized approach, a fresh perspective, and creative ideas.

What is your firm’s main area of specialization? Are you more of a boutique law firm or a full-service firm?

Our firm was formed through the merger of a team of experienced attorneys specializing in criminal law, and since our team brought together such “giants” of criminal law, this has essentially become the firm’s primary focus. However, if our regular clients have questions in other areas of law, our team—which consists of about 30 attorneys—certainly handles these matters very well. But our main area of specialization is, of course, criminal law.

Your firm takes on high-profile cases. Why is that? Is it a desire to make money or to take on a complex, interesting case? After all, such cases are usually toxic.

Our team specializes in what is known as “white-collar crime,” and the defense of members of parliament, judges, government officials, and top corporate executives inevitably gains public attention due to extensive media coverage of such cases and active discussion on social media. Such cases inevitably become “high-profile.”

Who would you refuse to defend under any circumstances?

I cannot speak for all my colleagues; each attorney decides for themselves whether to defend a particular individual. We fully understand that, regardless of the crime a person is accused of, everyone has the right to a defense. Moreover, there is a presumption of innocence, and until a court has handed down a guilty verdict, we cannot consider a person a criminal or claim that they have committed a crime. This requires an individualized approach, because a person may be accused of a particularly serious crime yet be completely innocent. Moreover, the defense attorney’s role is not to help a person evade responsibility, but to ensure full respect for the defendant’s rights during criminal proceedings. That is why I would not want to be categorical.

Aren’t you afraid that you’ll end up with negative media coverage because of high-profile cases?

Indeed, there is a lot of talk these days about reputational risks for law firms and individual attorneys when they defend so-called “toxic” clients who are being prosecuted for political reasons or who are viewed negatively by the public. In such high-profile cases, lawyers may face pressure not only from the media and activists but often even from law enforcement agencies, which may initiate criminal prosecutions against them. I believe that a necessary condition for preserving one’s reputation—both in this category of cases and in all others—is a systematic, “clean,” and effective defense of the client using exclusively legal methods, which demonstrates the lawyer’s professionalism. With this approach to handling the case and proper communication with the media, the risks of the attorney being equated with the client—and, consequently, the reputational risks—are significantly reduced.

Have you ever had to refuse a case because of a client’s toxic behavior?

It does happen that at some stage we cease representing a client. But these are rather exceptions, and often this is not due to the client’s “toxicity,” but rather to differing views on the defense strategy and the inability to reach a unified legal position on the case.

However, we always try to reach an understanding with the client, establish complete trust, clarify everything, and explain all tactics and strategies, as well as the possible risks and prospects in the case.

How do attorneys and lawyers cope with public pressure? Is there a specific approach within your firm?

Since such pressure often manifests as criticism, we first need to identify its goals and motives, analyze its content, and determine whether the criticism is destructive, unfounded, or worth listening to and drawing conclusions from. If the criticism is destructive, it’s not worth paying attention to.

Speaking of criminal practice, how has it changed over the past four years?

Undoubtedly, the events of 2014 marked the beginning of a trend toward an increase in politically motivated prosecutions, as well as a rise in criminal prosecutions for “war” crimes, acts of terrorism, the financing of terrorism, encroachment on Ukraine’s territorial integrity or inviolability, and subversion.

In addition, due to the active implementation of anti-corruption reforms, the number of criminal proceedings for so-called “corruption” crimes—such as obtaining undue benefits, illegal enrichment, abuse of influence, and declaring false information—is on the rise. Moreover, prosecutions in such cases are often used as tools to exert influence or take reprisals against dissidents.

The practice of prosecuting economic crimes and crimes against property—such as embezzlement and fraud—remains prevalent.

These are the types of cases our team encounters most frequently.

Have you handled any cases involving terrorism?

Yes, my colleagues in the firm provide defense in such cases. Moreover, in these cases, the wording of the charges is so absurd that it falls outside both legal and logical boundaries. For example, in one case involving the financing of terrorism, the prosecution accuses officials of a Ukrainian company of funding the budgets of the “DPR” and “LPR” by supplying products to the territory of a neighboring state, which were subsequently transported by the buyer to the territory of the Russian Federation, and from there, via unknown logistics channels, ended up in the occupied territory.

Are there any procedural specifics in such cases?

First, regarding the suspects themselves in such cases, the Criminal Procedure Code does not provide for the imposition of any preventive measure other than pretrial detention.

Second, cases involving terrorism are under investigation by the Security Service of Ukraine, and defense attorneys find themselves under close scrutiny—in such cases, conducting covert investigative actions against defense attorneys is standard practice. Such “wiretapping” of defense attorneys serves no legitimate purpose but is aimed at gaining access to information about defense strategies and other details that constitute attorney-client privilege. Of course, no one may ever find out about such covert investigative actions, although the law requires law enforcement agencies to subsequently notify individuals of restrictions on their right to privacy.

There is an institution known as the European Court of Human Rights. How widespread is the practice of appealing to the ECHR in Ukraine, in what types of cases, and to what extent does this apply in Ukrainian practice, given the lengthy duration of proceedings?

Ukraine continues to be one of the leading states parties to the Convention for the Protection of Human Rights and Fundamental Freedoms in terms of the number of applications filed with the European Court of Human Rights. The provisions of the Convention and the case law of the European Court, which reflect these provisions, constitute a source of law in Ukraine and are binding. And despite the rather lengthy time it takes for the European Court to adjudicate complaints—which can range from 5 to 10 years—such an appeal ultimately yields results. I am referring not only to the recognition of a violated right and the possibility of receiving financial compensation, but also to the potential, in certain cases, to have decisions of national courts reviewed—and even to improve legislation if the European Court finds that it does not meet the “quality” requirements for a law.

I must also emphasize such an effective tool as filing a motion with the European Court for the application of interim or, as they are also called, protective measures, pursuant to Rule 39 of the Rules of Procedure of the European Court of Human Rights.

If the European Court determines that there is indeed a risk of serious and irreparable harm to the applicant—in particular, if the applicant faces the risk of death, torture, cruel or inhuman treatment, or even separation from their family— the European Court may instruct the government of the relevant state to refrain from certain actions or, conversely, to take them.

The vast majority of cases in which such measures are taken relate to deportation and extradition proceedings; however, the European Court quite often instructs a state to conduct a medical examination or provide medical treatment to the applicant.

For prompt consideration, I recommend submitting such requests to the European Court of Human Rights by fax in accordance with Rule 39 of the Rules of Procedure of the European Court of Human Rights.

Do they use faxes?

Yes, they use two forms of correspondence—mail and fax—but fax is reserved solely for submitting urgent applications under Rule 39.

How quickly are they reviewed?

Quite promptly—from one to several days. Of course, such rapid consideration and the issuance of relevant instructions apply to serious cases of violations of the applicant’s rights.

If the application concerns hypothetical risks of harm that are not supported by evidence, the European Court will either deny the request for interim measures or may request additional information and documents from the government and the applicant. In such cases, the review of the application for interim measures may take a longer period of time.

How often are such applications even considered?

In Ukraine, the government takes the European Court’s instructions regarding interim measures very seriously and strives to comply with them. And although there are no direct sanctions for a state’s failure to comply with interim measures, the European Court may, when examining the merits of the complaint, find that the state has violated the right guaranteed by Article 34 of the Convention—the effective exercise of the right to an individual complaint—due to its failure to comply with interim measures.

Have you ever had to deal with such motions in your practice?

Yes, of course. One such case specifically concerned a motion to have the applicant, who was being held in a pretrial detention center, referred for a medical examination and provided with medical care. The European Court exchanged correspondence with the government and the applicant to clarify exactly what measures the state had taken and how critical the situation was. While this correspondence was ongoing, the pretrial detention center administration referred the applicant for an examination, and he underwent the necessary surgical procedure. Of course, we immediately informed the European Court that the application of interim measures was no longer necessary.

Do you think the correspondence with the European Court had an impact on the situation?

Definitely. Furthermore, in addition to referring the client for treatment, the court subsequently imposed a preventive measure on him that did not involve detention. I am confident that the European Court’s intervention in the client’s health situation played a significant role.

Speaking of the ECHR’s case law, how can businesses use this practice to their advantage? In our country, however, people more often turn to international arbitration.

Appealing to the European Court of Human Rights and resorting to international arbitration are, after all, different means of addressing violated rights, since international arbitration is one of the effective ways to resolve disputes arising between entities engaged in foreign economic activity, while the European Court of Human Rights considers complaints from individuals regarding violations by the state of rights guaranteed by the Convention. In other words, businesses cannot file complaints with the ECHR regarding the actions of other economic entities.

Of course, the vast majority of complaints to the ECHR come from individuals, and I attribute the relatively low number of complaints from legal entities to the fact that they are either unaware of this option or do not understand in which specific areas they can seek protection of their rights.

How often do Ukrainian companies file complaints?

It is quite difficult to provide statistics on applications from Ukrainian companies, as only a handful of complaints reach the stage where the European Court issues a decision on the merits; approximately 80–90% of all complaints are deemed inadmissible by the European Court due to failure to meet all necessary criteria. However, the ECHR’s case law contains numerous successful examples of appeals by Ukrainian companies, in which the ECHR found that their rights had been violated and awarded just satisfaction. For example, there are well-known cases where companies were awarded multi-million compensation, such as in the case of “Agrokompleks v. Ukraine,” in which the company was awarded 27 million euros.

Who pays this compensation?

Payments of just satisfaction in cases where Ukraine has been found to have violated the applicant’s rights are made from the State Budget of Ukraine. The Committee of Ministers of the Council of Europe monitors the government’s implementation of ECHR rulings and maintains constant communication with the Ukrainian government. However, the government faces far greater difficulties not with implementing the decision to pay compensation, but with implementing other measures—such as restoring the applicant’s former rights or improving legislation. This is precisely why many ECHR judgments remain “pending” with the Committee of Ministers for years.

In what cases can businesses turn to the European Court of Human Rights?

Most often, legal entities file complaints with the European Court alleging violations of the right to a fair trial by an independent and impartial court, unfounded and unmotivated court decisions, excessive length of court proceedings, and violations of property rights.

Moreover, the scope of application of Article 1 of Protocol I to the Convention, which guarantees the protection of property rights, is quite broad and may relate to violations in bankruptcy proceedings, licensing procedures, and tax matters—in particular, violations of the VAT refund procedure—which subsequently result in the company’s loss or reduction of its property assets.