Justice Ministry’s Vyshnevsky says Ukraine bar association stalling judicial reform

Originally posted here.

The Ukrainian National Bar Association doesn’t take well to criticism.

Andriy Vyshnevsky, the director of the Ukrainian Justice Ministry’s Coordinating Center for the Provision of Legal Aid, found that out after delivering a stinging rebuke to the bar at a judicial conference on June 15.

He’s now facing a one-year suspension because his statements allegedly impaired the dignity and reputation of the bar, and violated its code of ethics. Ukraine’s bar association didn’t respond to numerous requests for interviews since the Kyiv Post initiated contact with the professional body on July 17.

“The poor state of Ukraine’s bar is the main risk to the system of pro bono legal aid,” Vyshnevsky said at the conference. “This concerns the low ethical standards and professionalism of the bar. This concerns attorneys being a main link in corruption. This concerns the Ukrainian National Bar Association’s being unwilling to counter the phenomenon of so-called militsia advokats (attorneys biased in favor of investigators) or at least to give a legal assessment to it… Reform of the bar is urgent… The current state of the bar may hamper judicial reform.”

But the disciplinary proceedings launched against him by the bar are a symptom of a wider malaise gripping Ukraine’s professional body of lawyers, Vyshnevsky said. He also said the action launched against him is supposed to serve as a warning from the bar to all of Ukraine’s attorneys.

“This is an ostentatious process aimed at intimidating attorneys,” Vyshnevsky told the Kyiv Post on July 23. “This is a signal they have to keep their mouths shut … and by no means are they allowed to criticize the bar. This is an attempt to turn the Ukrainian National Bar Association into a totalitarian organization.”

While Vyshnevsky’s disciplinary hearing, which had been scheduled for July 16, has been postponed indefinitely, the lawyer has already appealed against numerous procedural violations during the commencement of earlier proceedings in the Kyiv District Administrative Court. The hearing on his appeal is scheduled for Aug. 31.

Both Ukraine’s human rights Ombudsman and the Ukrainian Helsinki Human Rights Union have come out in support of Vyshnevsky.

“It (this case) destroys the fundamental principles of an independent bar, and casts doubt on the ability of the bar to accomplish its tasks,” reads a Helsinki Union statement issued on July 20.

When asked to explain who the so-called militsia advokats are, Vyshnevsky said that “these are (those) public defenders who are more inclined to favor prosecutors rather than their pro bono clients.”

Their appearance followed the scrapping of the Soviet-era collegium of attorneys in the 1990s, which left no professional body responsible for the appointment of public defenders in cases where legal representation is required.

“To fill this gap, investigators started to contact lawyers they knew,” Vyshnevsky said. A form of corruption, this mechanism allowed crimes to be pinned on people who did not commit them. And now they are clients of pro bono legal aid.”

This is not the first time calls for reforming the bar in Ukraine have been raised.

Two draft bills, both aimed at strengthening the ethical standards of attorneys and the independence of the bar, are awaiting approval from parliament’s legal policy and justice committee ahead of being put to a vote.

Both bills propose to make it mandatory for all clients to be represented in court by attorneys. At the moment, a person representing a client in a Ukrainian court is not required to have the status of advokat (attorney) – apart from in criminal proceedings. In other words, a person representing a client in court can and often does fall completely outside the qualification and disciplinary system of the bar.

“This gives practically no means for clients to control the quality of the legal services they receive,” Vyshnevsky told the Kyiv Post.

While experts agree this has to change, they doubt that introduction of mandatory legal representation will work without the careful reform of bar as well. Andriy Stelmashchuk, a managing partner at law firm Vasil Kisil & Partners, said he believes mandatory legal representation “will be used as an instrument of pressure and abuse of powers.”

“The institution of the bar is weak. For twenty years it served the state. Despite the adoption of the law on the bar, its management did not change,” said Stelmashchuk.

While that situation could be remedied through the re-qualification of attorneys and the introduction of bans on the former management holding any office in the bar, lawyers have little will to reform the system.

Ethical standards also have to be strengthened.

“Corruption flourishes because lawyers are promoting it… because without a lawyer as an intermediary between a judge and a client, corruption would be impossible,” said Stelmashchuk.

A survey by the U.S.-funded Fair Justice project conducted on July 12, 2014 showed that 39 percent of the criminal proceedings in Ukraine were sabotaged because lawyers failed to turn up in court, while in 34 percent of civil cases, attorneys came unprepared.

To supplement the code of ethics, lawyers, together with the European Union project Support to Justice Sector Reforms have drafted a declaration to protect human rights in сriminal сases. It is a code of practices designed to supplement the law.

“The key is to involve society in the oversight of courts,” said Mark Segal of the Support to Justice Sector Reform’s project. “Historically speaking, the court system in Ukraine was not designed to serve the interests of the people. We need to reorient the court system to make it into something that belongs to the people.”

Another equally troubling problem, according to Vyshnevsky, is that the bar’s disciplinary branch, its ethical standards watchdog, is not independent. It is financed either with payments for attorney examinations, or funds transferred by regional bar councils, rather than individual membership fees.

Kyiv Post’s legal affairs reporter Mariana Antonovych can be reached atantonovych@kyivpost.com.

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