UHHRU condemns attempts to stifle pluralism among bar lawyers
The Ukrainian Helsinki Human Rights Union has issued a statement expressing concern over recent events concerning the Ukrainian Bar.
On 5 April 2013 the Kyiv Qualification and Disciplinary Bar Commission banned Volodymyr Vysotsky who had for many years headed the High Qualification and Disciplinary Commission from carrying out work as an advocate. The grounds for this included his having held “an alternative congress” and having “made public his personal position regarding the correctness of decisions”.
On 17 April the Transcarpathian Qualification and Disciplinary Bar Commission brought disciplinary proceedings against advocate Mykola Siry, Senior Academic Member of the Koretsky Institute of State and Law. The advocate’s assessment of certain aspects of the new Criminal Procedure Code was used as the grounds for issuing the warning. .
We would point out that the warning was issued for an infringement of Article 57 of the Rules of Advocates’ Ethics adopted on 17 November 2012, while the advocate’s remarks were made on 13 November 2012. It is regrettable that we are formed to remind representatives of the legal profession of the inadmissibility enshrined in Article 58 of the Constitution of liability having retroactive force.
On 17 April 2013 the same commission stripped Olha Masharynets of the right to practise as an advocate and suspended Nadia Baranska from practising for one year. We are awaiting further information regarding the grounds for bringing proceedings against these advocates.
On 17 April 2013 the Transcarpathian Bar Commission suspended for six months the right to practise of Roman Martynovsky, well-known for his many years of human rights work; Head of the Board of the Ukrainian Legal Aid Foundation; and elected member of the Sevastopol High Qualification and Disciplinary Bar Commission. His absence from a meeting of the High Qualification and Disciplinary Bar Commission on 7 December 2012 was used as grounds for this decision. On 10 April 2012 Mr Martynovsky as a member of the High Qualification and Disciplinary Bar Commission had proposed including on the Commission’s agenda the question of whether the disciplinary punishment of Volodymyr Vysotsky had been warranted. On 18 April 2013 he was expelled from the High Qualification and Disciplinary Bar Commission, and on the following day the security guards refused to allow him to attend the commission meeting.
According to information we have received, at the present time the Transcarpathian Qualification and Disciplinary Bar Commission is considering disciplinary cases brought against the following advocates:
Valery Tarhoniy, elected member of the High Qualification and Disciplinary Bar Commission;
Serhiy Udovychenko, elected member of the High Qualification and Disciplinary Bar Commission;
Serhiy Safulko, member of the High Council of Justice;
Hennady Avramenko, Head of the Organizing Committee for holding an extraordinary congress of Ukrainian advocates;
The Donetsk Qualification and Disciplinary Bar Commission is considering disciplinary cases against the following advocates:
The Donetsk Qualification and Disciplinary Bar Commission – disciplinary cases against:
Thus, according to our information, at the present time at least 20 advocates have faced or are facing disciplinary proceedings.
On 15 April 2013 the District Administrative Court in Kyiv passed a second ruling according to which the following advocates should face proceedings:
All of them were involved in organizing the alternative gathering of advocates.
It is noticeable that the separate ruling is not about disciplinary proceedings. The next day there was mention of “actions of an essentially criminal nature” in a Statement from Transcarpathian Bodies of Advocate Self-Government, published on the site Transcarpathia Online.
Almost simultaneous consideration of the cases; the use of one and the same methods for initiating disciplinary proceedings (submissions of complaints from advocates from different regions; submission of civil suits in order to obtain separate rulings from the court) give grounds for thinking that these disciplinary proceedings are a planned campaign aimed at crushing any attempts to express criticism directed at what O. Fazenkosh has called the “new vertical of bodies of advocate self-government “and act in accordance with their convictions.
What is more, in Kharkiv a civil suit is being examined which demands that Yefym Holyand; Oleksandr Zadniprovsky; Oleksandr Honcharenko and others retract information which they circulated about the holding of an alternative advocates’ conference in Kharkiv in October 2012.. In this way it is not only any form of disagreement that is being crushed, but the very mention of there being any disagreement.
We have been observing the conflict among advocates which arose after the new Law on the Bar and Practice of Law came into force, however considered it inexpedient to express an opinion on issues which needed to be resolved by the bar community itself.
However the recent events which are quite unprecedented for Ukraine’s Bar, by their nature and significance extend beyond purely internal problems. The use of bodies of advocate self-government as reprisal against dissidents cannot be an internal matter for the Bar.
As an association of human rights organizations whose activity is aimed at affirming the rule of law and defence of human rights, we are concerned over dangerous attempts to crush any difference of views within the Bar community.
We consider the Bar to be precisely that community where pluralism of views is a fundamental principle for its activities; a community which should encourage advocates’ capacity to express disagreement and stand up for their position without which it is difficult to imagine advocates’ work. Model advocates are also distinguished by the fact that they aren’t afraid to express their position, even when they end up alone, confronting the majority. The bar is intended to preserve this capacity of advocates.
The guarantees of independence; the principles of self-government and privileges of the bar are given not to satisfy the ambitions of one or other advocate or group, but so that the bar community is capable of serving the public interest so that civil society and each individual can count on professional assistance in upholding their rights, so that they can counter encroachments by the State on their rights.
If these privileges and guarantees are used in order to destroy the very possibility of holding a dissenting view, this turns the Bar into an institution incapable of carrying out the tasks which society has placed on it.
We can assert that the circumstances under which people faced proceedings in a number of cases demonstrate flagrant violation of freedom of expression; the right to a fair trial; and the right to freely make use of one’s property (articles 6, 10 of the Convention) and Article 1 of the First Protocol to the Convention).
We would also state that we will continue to follow events linked with the Bar and will be informing the public, the international community and professional law associations about these events.
We call on the High Qualification and Disciplinary Bar Commission to consider at its earliest convenience complaints over decisions taken by regional Qualification and Disciplinary Bar Commissions with respect to advocates who express a position which differs from that taken by the management of the Bar, ensuring their open examination and access of journalists and members of the public at the hearings.
Yevhen Zakharov, Head of the UHHRU Board
Arkady Bushchenko, UHHRU Executive Director