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Open letter of Ukrainian Helsinki Human Rights Union to Council of Bars and Law Societies of Europe

On behalf of Ukrainian Helsinki Human Rights Union – non-governmental association of 30 human rights organization, I would like to inform you about recent deplorable development in legal profession of Ukraine.

I write you keeping in mind prompt and disquieted reaction of the Council of Bars and Law Societies of Europe caused by very questionable events concomitant with establishment of National Bar Association of Ukraine. In its Report on the Fact-finding mission to Kiev, Ukraine, 10-12 July 2013 the experts expressed their concern that in result of some legal actions the lawyers were precluded to speak freely about issues of public interest. They also underlined that “it is important to ensure that advocates can freely gather and assemble and that they are able to express themselves freely”.[1]

Also the CCBE experts were “highly concerned about the disciplinary proceedings and decisions that have been brought to its attention. Advocates have been disbarred or suspended over the past few months because of their participation or non-participation in self-government activities such as organising or chairing ‘alternative’ congresses, or not attending council meetings of the new Bar Association or other activities. … The CCBE experts find this absolutely unacceptable. Such practice does not comply with European standards. … To the knowledge of the experts, such practice – as the one of the new Ukrainian Bar Association – is not deployed in any other European country”.[2]

In its follow-up report on Ukraine of 26 February 2014[3], CCBE reiterated its concern as to nature of disciplinary proceedings against lawyers.

I believe that CCBE have not lost interest to the development of legal profession in Ukraine. I am made to bring to your attention new development highly relevant to the concerns expressed in your abovementioned Reports, as well in the report of International Commission of Jurists and statements of many national organisations and lawyers.[4]

Regrettably, recent events prove that the philosophy and approaches of the leaders of NBAU have not been changed and persecution of any nonconformity remains the underlying principle of their activities.

In July 2015, the head of NBAU initiated disciplinary proceedings against lawyer Andriy Vyshnevskiy, the leader of Free Legal Aid System in Ukraine. The pretext for this decision was the public speech of the lawyer at a conference conducted under auspice of Council of Europe. In his speech Vyshnevskiy expressed some concerns; in particular , that “the main risk for the free legal aid system, the main risk for the realization of citizens' constitutional right to free legal aid and the capacity of the state to ensure this right, we see, is the dire state of the Ukrainian Bar, which has already been mentioned today by our colleagues – this is low ethical standards and professional level of the bar; this is that it is the attorney, who is the main corruption element as of now, that is that the phenomenon of “police lawyers” is not counteracted by the National Bar Association and even not commented in any way, and a lot more could be told here, but I will not stop on it. Reforming of the bar is necessary now. As in the state it is today, it can be a hindrance to the implementation of the judicial reform …”.

After disciplinary proceedings started, our organisation expressed the concern about the fact that the head of NBAU attempts to bring the lawyer to disciplinary responsibility for expressing his viewpoint regarding the situation in the Bar. Our organization was also shocked by the soviet-style campaign of “unanimous condemnation” organized by the NBAU and supported by some bodies of the Bar.[5]

The Parliamentary Ombudsperson expressed the view that it was “inadmissible use of disciplinary proceedings concerning Mr. Andriy Vishnevsky as a way of pressure upon the lawyer for public expression of his views and belief”.[6] One of the largest Ukrainian lawyers association also underlined unacceptable nature of the attempts to use disciplinary proceedings to suppress freedom of speech.[7]

Notwithstanding of widely expressed concern on the situation, the submission of the head of NBAU was not withdrawn and, on September 10, 2015, the Kyiv Regional Qualification and Disciplinary Bar Commission made a decision to disbar lawyer Mr. Andriy Vyshnevsky. The reasons for this decision you may find in its text attached to this latter.

The decision has caused quite predictable reaction of national and international stakeholder.

Our organization reiterated grave concern on the situation and publicly refused to have any joint activities with NBAU. Parliamentary Ombudsperson expressed publicly her intention to refrain from participation in forthcoming forum organised by NBAU referring to the disciplinary decision of the Bar.[8] Some lawyers also expressed the view that NBAU did not willing to promote free discussion and participating in the “unanimous” forum did not make any sense.

Eventually, Council of Europe, the supporter of the forum, postponed the event. The Council of Europe indicated that “the withdrawal of important national actors from the Forum presents a risk that a comprehensive and inclusive discussion might not be ensured”. It also referred to the fact that “several Ukrainian national human rights and civil society organisations have expressed concerns regarding the recent developments in the legal profession in Ukraine”.[9]

I present you this information about recent development in legal profession of Ukraine in connection with statement at the NBAU official web-site that they have submitted request on accession to the Council of Bars and Law Societies of Europe.

Our organization highly estimates the activities of the Council of Bars and Law Societies of Europe which allow lawyer in Europe to perceive the Council as the voice of the European legal profession.

We call the CCBE to consider the above information together with previous conclusions of CCBE experts and take it into account in deliberation of any decisions concerning cooperation with NBAU to secure that such a decision may not be construed as support or tolerance toward policy adopted by the executive bodies of NBAU.

Sincerely yours,

ARKADIY BUSHCHENKO

Copy of the decision on disbarment is enclosed

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UHHRU, established in 2004, is an independent non-profit and non-partisan organization. The Union is the largest association of human rights organizations in Ukraine, which brings together 30 human rights NGOs with the purpose of human rights protection. The UHHRU constitutes itself as the part of the Helsinki movement and continuator of traditions and activities of the Ukrainian Civil Group to Promote the Implementation of the Helsinki Accords. Its mission – realization and protection of rights and freedoms by promoting practical implementation of humanitarian articles of the Final Act of the Conference for Security and Cooperation in Europe adopted in 1975, other international standards based on it and international obligations accepted by Ukraine in human right and freedoms sphere.

Main directions of activity are as follows:

·         Ongoing monitoring of human rights situation in Ukraine and informing the public about facts of violations of human rights and fundamental freedoms

·         Legal assistance to victims of human rights violations, including supporting strategically important cases

·         Protection of human rights and fundamental freedoms in courts, the authorities and bodies of local self-government

·         Human rights research and analysis, including regular monitoring of draft laws and legal acts, as well as preparing and advocating own legislative initiatives

·         Resisting the adoption of normative acts, which could worsen human rights safeguards; public discussion of draft normative acts, preparation of our own suggestions

·         Human rights education and awareness – conducting awareness-raising campaigns, educational seminars, trainings, courses for various target groups

·         Developing and providing support for the network of human rights NGOs in Ukraine

[1] http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_REV_MISSION_REPOR1_1387204993.pdf

[2] Ibid.

[3] http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/26022014_EN_FINAL_FO1_1395651497.pdf

[4] ICJ, Ukraine: Conflict, Disbarments and Suspensions in the Legal Profession, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/02/Ukraine-Conflict-Disbarments-And-Suspensions-In-The-Legal-Profession-ENG-Interactive11.pdf

[5] http://helsinki.org.ua/index.php?id=1437380823

[6] http://www.ombudsman.gov.ua/en/all-news/pr/20715-wc-ms-valeriya-lutkovska-it-is-inadmissible-to-bring-the-lawyer-to-respon/

[7] http://uba.ua/ukr/news/3940/

[8] http://www.ombudsman.gov.ua/en/all-news/pr/the-statement-of-the-ukrainian-parliament-commissioner-for-human-rights/

[9] http://www.coe.int/en/web/kyiv/sasg-news/-/asset_publisher/CtYC43GW3iw6/content/council-of-europe-postpones-the-organization-of-the-forum-protection-of-human-rights-in-criminal-proceedings-proof-and-evidence-?_101_INSTANCE_CtYC43GW3iw6_viewMode=view

DECISION of Qualifications and Disciplinary Commission of Kyiv Regional  Bar (docx-file)

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