Published: 16 Nov 2020 | By Toby Collis
Note on International Commission of Jurists (ICJ) report/roundtable on the state of the independence of the legal profession in Ukraine
The situation of the security and independence of lawyers in Ukraine, and the obstacles to represent clients on human rights claims, presents the sadly not uncommon disjuncture between high standards on paper, and serious concerns in reality.
On Friday 18 September 2020, the International Commission of Jurists (ICJ) hosted a roundtable on the security of lawyers and state of the legal profession in Ukraine. This roundtable, held online due to COVID-19 restrictions, brought together lawyers in Ukraine, members of the Ukrainian National Bar Association, UN experts, and academics, to discuss the situation in Ukraine, and to reflect upon ICJ’s recent report, Between the Rock and the Anvil: Lawyers under Attack in Ukraine (May 2020), which was the output of a 5-day mission to Kyiv in March 2019.
This short information note outlines some of the key findings of the event and the report.
The discussion, and the content of the report, presents a worrying situation for lawyers in Ukraine. Ukraine has a formally independent bar, constitutional rights to legal assistance, and formal security and protections for lawyers such that, on paper, it generally meets international legal standards. However, this is not always reflected in practice.
Whilst the 2012 reforms to Ukraine’s legal profession established an official national bar association with mandatory membership, internal conflicts between two associations that vie for position as the ‘official’ bar association, and the establishment of rival qualification and disciplinary institutions, have created confusion in the bar’s self-regulation.
More worrying, despite a guarantee of independence of the legal profession, and the establishment of crimes specifically relating to actions against lawyers, the security climate has rapidly deteriorated for lawyers, particularly defence lawyers. ICJ’s report detailed intimidation of judges, court staff and lawyers, by far-right groups who seek to influence the outcomes of judicial proceedings. Lawyers are being regularly physically attacked, sometimes by law enforcement officers, or often by members of right-wing political groups. A number of lawyers have been murdered in connection with their work, after escalating intimidation and harassment. These crimes are often met with impunity, with police reluctant to either respond or to initiate an investigation.
Similarly, legal mechanisms are being employed to harass lawyers, to force them to withdraw from representing their clients. This includes bogus criminal charges and prosecutions, sometimes based on forged documents, often affirmed by courts. This has the consequence of de facto aligning lawyers with the actions or alleged crimes of their clients. Spurious disciplinary complaints, by both law enforcement agencies and judges, are being brought, often because the lawyer refuses to side with the court or prosecution.
Lawyers are not only facing personal consequences, they are being inhibited from protecting the human rights of their clients. Lawyers are regularly impeded access to clients in pre-trial detention, or are subject to verbal and physical abuse when insisting to meet clients. Lawyers now assume that their communications with clients are not confidential, despite guarantees to confidentiality under Ukrainian law. This includes covert investigative practices against lawyers, including tapping lawyer’s telephone conversations. Searches of lawyers’ offices are increasing, often taking on a violent character, and resulting in violation of attorney-client privilege. Lawyers are being designated as witnesses in their client’s cases, creating a conflict of interest and preventing them from representing the party.
Finally, lawyers acting in uncontrolled territories of Ukraine are facing their own unique challenges, with clients are often being denied access to lawyers, or ineffective State legal representation. One unique problem for these lawyers is that these lawyers, who must register with the de facto authorities, face difficulties and harassment due to their continued registration with the Ukrainian bar.
ICJ’s report makes a number of recommendation to address these issues, including:
- A ‘lawyers protection’ scheme to those at risk of violent attacks;
- The prompt investigation of attacks on lawyers, particularly killings of lawyers;
- Ensuring unimpeded access of the bar association to lawyers arrested or detained;
- Providing facilities that guarantee lawyer-client confidentiality.
The discussion during the workshop demonstrated that the situation described by the report has deteriorated further. Two lawyers have been murdered in the past year. The safety and security of lawyers is so dire that draft laws are being considered that permit lawyers to carry firearms, a proposal that many local lawyers support. Far-right activist groups brazenly intervened in the disciplinary proceedings of a lawyer they supported and attacked the head of the committee. A meeting of the national bar committee was interrupted by activists who sprayed the head with tear gas, leading to hospitalisation.
EHRAC has been involved in litigation in Ukraine responding to the forced dismissal of Ukrainian judges. This recent ICJ report, and accompanying roundtable, provides a welcome resource that highlights, objectively and systematically, the further practical failures of the Ukrainian justice system and respect for the rule of law.
ICJ’s report is available here.