02 April 2021 of the year
Investigation of violations of the rights and guarantees of lawyers
Olga Prosyanyuk and Anton Alekseev
"specially for the AYUU Bulletin"
The initiative group for the protection of the rights of lawyers appealed to all lawyers who for 2016 – the first quarter of 2018. found themselves in a situation where their professional rights and guarantees were violated, with a request to provide relevant information and send evidence of violations. This data was collected in the study in order to attract wide public attention to cases of violation of the rights of lawyers and to prepare monitoring in Ukraine as part of the work of the UN Special Rapporteur on the independence of lawyers.
The report is divided into three parts:
- The place of the legal profession in the “value system” of the international community.
- Analysis of the facts of violation of the rights of lawyers in Ukraine.
- Proposals to overcome negative trends in this area.
The text of the interview in the Bulletin of the Ukrainian Bar Association is also available here.
What was the purpose of this study?
Olga Prosyanyuk: Since the creation of the Initiative Group for the Protection of the Rights of Lawyers, there have been a sufficient number of complaints about systematic gross violations of the rights of lawyers and guarantees of legal practice in Ukraine. I have repeatedly come across this personally as a practicing lawyer, as a managing partner of a company, as a representative of the legal community. Since this phenomenon, unfortunately, has become an everyday occurrence, we began to draw the attention of the international community to this problem. At one of the meetings, as the Head of the Action Group, I was offered to conduct a special study, referring to which this issue will be discussed in the relevant international bodies. From the very beginning of the preparation, the Action Group cooperated with the Ukrainian Section of the International Society for Human Rights (IHR).
Anton Alekseev: At the time of the start of cooperation, we had enough information, since during 2017 our organization monitored the observance of the right to a fair trial in Ukraine. In the course of this work, it turned out that not only the defendants, but also their defenders face human rights violations. Therefore, we decided to join forces with lawyers and investigate how widespread these phenomena are. We invite everyone to familiarize themselves with the results.
How serious is the problem of violation of the rights of lawyers today?
Olga Prosyanyuk: For the period 2016 – early 2018. 597 applications from lawyers about violation of their professional rights were entered in the Unified Register of Pre-trial Investigations. And this is known to us data, and it is not yet known how many such cases colleagues do not notify. The worst thing is that the situation is not limited to searches in the offices of lawyers, denial of access to court hearings or identification with the client, but even comes to attempts on life, physical violence and murder of lawyers.
The study describes the main trends in the violation of the rights of lawyers. Which trend, in your opinion, is the most dangerous?
Olga Prosyanyuk: Of course, the tendency of physical destruction of lawyers – murder and assault – remains dangerous. However, no less dangerous is the pressure on lawyers from politicians, opponents, the public and attempts to remove them from the process, in particular, in high-profile public cases. In such cases, lawyers with an active position to defend the client, in fact, automatically identify with the client and become accomplices of the crime incriminated to the client or are accused of committing certain criminal offenses. Another way – they are trying to “remove” from the process by all possible methods and attract a more “loyal” lawyer who will facilitate the adoption of the necessary decision. Such actions greatly harm the independence of the legal profession and make it impossible to exercise adequate protection of human rights.
Anton Alekseev: In turn, I would draw attention to the attempts of some government officials to use the mechanisms created to protect human rights, not for their intended purpose. For example, so-called public defenders are a great idea, but again, when they are used to oust client-selected contractual defenders from the process, it goes against the very essence of the institution. Or when the courts refer to the decision of the European Court of Human Rights, and then, when analyzing this very decision, it turns out that there is a completely different context that has nothing to do with the essence of the case under consideration by the Ukrainian court. As a result, on paper, everything has a legal form: lawyers are involved, there is a reference to the practice of the ECHR, and in fact – a complete contradiction of the goal of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Are you continuing to collect information on violations of the rights of lawyers?
Anton Alekseev: Yes, this work is being continued by the Initiative Group and MTPL. We will continue to monitor the observance of the right to a fair trial, which also applies to the observance of the rights of lawyers. By the way, this work helps to identify new negative trends in domestic legal proceedings. Already now we can talk about serious problems with the observance of the rights and guarantees of the activity of judges. In the future, there is a desire to prepare a similar report on the rights of judges. Thus, perhaps, we will gradually cover the entire sphere of legal proceedings: the rights of defendants, lawyers, judges.
How can human rights organizations facilitate litigation?
Anton Alekseev: Practice shows that in the Ukrainian realities it is not always enough to be an experienced lawyer and have the skills necessary to participate in the trial. In complex cases, for example, those that have a “political component”, the issue of compliance by all parties to the process of international standards of legal proceedings requires close attention from the public, including the international one. This makes the process truly public, makes it possible to draw the attention of international organizations to the problems of a particular case. And violating human rights when your activities are monitored by the international community is much more difficult than in a quiet and empty courtroom.
What can you advise as a lawyer and head of a bar association in such situations?
Olga Prosyanyuk: First of all, you need to enlist the support of your colleagues in advance. The legal community has repeatedly demonstrated solidarity and support during illegal actions against one of the lawyers. It is important to immediately apply to all relevant committees and groups for the protection of the rights of lawyers with appropriate statements in order to draw maximum attention to the situation. You need to understand that there may be risks in a law firm, the representative of which is a lawyer whose rights are being violated. These risks are doubled if the lawyer is a partner of the company. Therefore, it is necessary to prepare for such situations in advance, as this may affect the activities of the entire company. For example, you need to think over possible scenarios for blocking the work of a law firm, how client projects will work in the future, who is responsible for what processes, who to turn to for legal assistance and anti-crisis PR and the like. A very effective protection mechanism, which we personally checked more than once, is the existence of concluded agreements on the provision of legal assistance with lawyers of the corresponding specialization of other law firms. It is no secret that during such events, a practicing lawyer has various external and internal factors that do not allow him to effectively defend himself. Therefore, it is important for a lawyer to have his own lawyer. In addition, in our practice, internal trainings are often conducted in law firms regarding the behavior of the firm’s team during various investigative actions.