Valentyn Gvozdiy, Managing Partner of GOLAW, Deputy Chairman of the Ukrainian National Bar Association (UNBA), told Delo.UA, who encroached on the independence of the bar, how it had become possible to overcome the indictment bias in courts, and what were the new rules of conduct in social networks for advocates.
In Ukraine, the law gives advocates the right to participate in the creation of judiciary structures, such as the High Council of Justice, the High Qualifications Commission of Judges, etc. Is it standard practice?
It is a unique case in the legislation of the European countries and is present almost nowhere else. In Ukraine, the Bar is involved in the formation of a number of key state bodies: the High Council of Justice, the High Qualifications Commission of Judges, as well as the High Disciplinary Commission of Public Prosecutors of Ukraine. The Congress of Advocates elects two representatives for each of these bodies (except for the prosecutor’s commission, for which they elect only one). Once elected and transferred to the permanent place of work, they have to suspend their advocacy, so that no conflicts of interest occur. This gives the Bar the opportunity to influence the processes of reforming the judicial system and the public prosecutor’s office.
However, these powers did not protect advocates from pressure.
That is why we have created the Committee on Protection of Advocates’ Rights within the Ukrainian National Bar Association. Similar bodies exist within regional bar councils.
Why? What goals were pursued?
About a year ago, there was a powerful wave of aggressive attacks on the Bar – there were lots of searches of advocates, documents were seized, advocates were summoned for questioning. In short, advocates were, so to speak, confused with their clients and identified as their subordinates. It was believed that if you defend a murderer/separatist/drug dealer, then you are alike. This idea prevails until the one who thinks so needs an advocate himself/herself.
We have to protect everyone, regardless of their social status, political affiliation, etc., anyone who turns to us for protection and needs it by virtue of the law. This is the global practice and our constitutional task. Thus, at some point there had arisen a situation where we became unprotected from the state arm-twisting ourselves. But how can you well protect your client, if you are unprotected yourself? We did not find enough support in Ukraine, and in response to our complaints the state bodies sent us only some replies beside the point, so we decided to internationalise this problem.
In what way?
At that time, we became a member of the CCBE (Council of Bars and Law Societies of Europe), an international association that consolidates all of the European law firms. In addition to that, we also work with the IBA (International Bar Association) and other structures that are actively protecting us today and bringing up a question of what is happening at the international level. At that moment of pressure on our advocates, they sent letters – from the highest level – to the international communities and directly to the President, the Prosecutor General, and the Director of the NABU; you know, all this produced some results. Inside, we were also trying to build a dialogue. The UNBA’s management was meeting with the management of the Prosecutor General’s Office, and we were founding common ground, were investigating violations of advocates’ rights in each specific case, which had never happened before. As a result, the situation stabilised and we stopped the attacks of security forces, but we still need to go some way to reach the desired results.
What happens next? As far as I understand, there are disputes over the further reforming of the Ukrainian Bar.
As we see, the current government wants a new law for the Ukrainian Bar. However, the very idea of modernising the law was proposed by the UNBA, actually in 2014, that is right after the Revolution of Dignity. Then we came up with a proposal to reinforce our existing law in terms of strengthening the status of an advocate. We were supported by the Ministry of Justice, and together with the Ministry and the working group we created, in my opinion, a very high-quality draft law, which was submitted both to the parliament and to the Presidential Administration for approval, where it hung up...
What changes did you offer?
We even proposed to allow advocates to carry weapons; judges and prosecutors have the right to carry weapons, so why cannot advocates do the same, if we talk about the equality of parties? Moreover, murders and threats of physical harm to advocates are indicative of such a necessity. Also, the draft law proposed to address a lot of issues concerning, for example, advocates’ inquiries, liability for violation of our rights, procedure for searching advocates’ rooms, etc. But our draft law was put on the shelf, and the Reform Council, which has been dealing with the reforms for the four years already, states that it has its own vision of what needs to be amended in the law on the Bar.
Nobody knows exactly, because texts of the alternative draft laws on the Bar are not published anywhere; some manipulative working groups meet, and they are formed based on the principles we do not understand. People who join these groups have little understanding of the Bar and its operation and the problems advocates face. We fear that all this is being done in order to introduce into the law the norms enabling the state to influence the Bar and limit its independence. You do not need to reform things that have already been reformed, but you only have to balance the rights of the advocates with those of other parties to the proceedings. We will not allow anyone to encroach on our independence. We will work with the parliament to prevent diminishing of the status of the Ukrainian Bar. If the state decides to return to the old “Soviet model” of the dependent Bar, that will not be a step, but five steps back.
Have these ideas of the conversion of the Bar already developed into something specific?
We have seen several draft laws, but those were very crude. All the ideas I am talking about were still in the notes. Officially, these proposals have not been submitted to the parliament yet. Oleksiy Filatov, who is an advocate himself, works at the Presidential Administration (as the Deputy Head of the Presidential Administration of Ukraine – ed.), and I hope he will not tolerate the destruction of the Bar. Political activities are not eternal, and you return to your profession afterwards.
At the same time, the judicial reform is under way; in particular, the composition of the Supreme Court is being radically updated. In fact, it is being created from scratch. How do you assess these processes?
I saw the names of candidates for the posts of judges of the Supreme Court. Many of them are very decent professionals. There is hope that the new Supreme Court will work at full capacity. I do not see the things through rose-coloured glasses and do not reckon everything will be fine tomorrow. It will take 5 to 10 years for the new Supreme Court to play the appropriate role, because most of those who go there today have neither experience in generalising large amounts of judicial information, nor the work experience as a judge, etc. Moreover, the volume of legislation is constantly changing, and they need some time to get used to their work.
If we look at the judicial reform from the point of view of an advocate, the main thing for us is to make judges hear us and make decisions based solely on the law, but not on phone calls, somebody’s instructions, or any other factors. For this purpose, the judicial system needs to be really independent. Of course, high liability for breaking the law and decent remuneration for fair work will help improve the situation.
Speaking about the improvement of the situation, do you think the indictment bias – that is, if you are brought before the court, then you will be charged – is still preserved in Ukrainian courts?
I do not agree with such statements. The indictment bias is gone. To date, the situation has changed dramatically, and the acquittal is no longer something extraordinary. Besides that, such tendencies appeared long before the EuroMaydan, in 2012, when we received a new Code of Criminal Procedure. It was drafted by the Americans and successfully implemented.
So, as before, there are many problems and exaggerations, but this is nothing compared to the old Ukrainian legislation, not to mention the Soviet Union times. If you look at the statistics of sentences, it is clearly visible that the number of acquittals increases year by year, and this is a very good sign for our legal system as a whole. This means that judges become really independent, that nobody exerts pressure on them, that they will not be shot for an acquittal, and nobody will be punished, if the acquittal is based on the law.
What reforms made after the EuroMaydan can you note?
It is the establishment of the Business Ombudsman Institution working under the Cabinet of Ministers. Algirdas Šemeta’s staff is highly efficient. Finally, in 2014, the business got a new structure, which can intervene at the appropriate level in the situation when law enforcement agencies violate the rights of businesses, if such cases occur, and achieve legitimacy and justice. This was not to be found in Ukraine before, but now we have such a structure.
Let’s get back to the advocates’ daily life. What is on the agenda of the All-Ukrainian Congress of Advocates?
The most important issues are the novelties in the Rules of Advocates’ Ethics. We are applying global practice of regulating the conduct of advocates in social networks and the Internet as a whole to our realities. This is something we did not have in the Rules of Advocates’ Ethics in general, but it is obvious now that it is necessary to settle this issue, because we have many disciplinary cases of such character in proceedings. Unfortunately, some advocates allow themselves to do absolutely unacceptable things online and believe that this is one life, and the real life is a different one with its own rules.
It is about the inappropriate conduct online towards other advocates?
It is about their conduct towards anyone, including judges, officials, and everyone, especially other advocates. We believe that we urgently need to establish order in this area, as you cannot lead a double life: one online, and another one in reality. It is the same life, and all of its parts have to correspond to the high status of a professional legal counsel, that is an advocate.
How do you want to regulate the advocates’ life online?
As the basis, we used the rules of the CCBE and the IBA I mentioned before, but the ultimate say on their implementation rests with the Congress.
That is, the European bar associations, the rules of which you have used as a basis, do not consider such rules for regulating the online life an attempt to encroach on the freedom of speech, do they?
Definitely not! Situations when an advocate offends another advocate in the comments in social networks should not occur. It should not be that way. We are not going to forbid advocates to say anything, criticize anyone, etc. The Rules will clearly indicate that swearwords are not allowed in the Internet communication, nor are the offensive words in respect of their colleagues and judges. In the Internet, you need to behave properly, as in your normal life and in the courtroom. An advocate has to be ethical in any area of his or her activities: when communicating in social networks, working in court, or advertising the services. An advocate should be an advocate everywhere.