Threats to the bar activities have reached an unprecedented level – the Committee on Protection of Advocates’ Rights

The Committee on Protection of Advocates’ Professional Rights and Guarantees held a round table on “Practical aspects of the law enforcement in criminal process”.

During the discussion the participants have considered the differences between the notion of “information entered to the Unified Register of Pre-Trial Investigations” and the circumstances to be investigated, as well as the practice of unreasonable suspicion and responsibility for the consequential violation of human rights. The reason for holding such discussions was the appeals of the advocates to the Committee in connection with the opening of criminal proceedings against them with the said violations of criminal procedure law.

“The situation around the bar is stalemate and threatens the national security. The main foundation for the protection of human rights, namely, the bar institute, is being destroyed”, — said Hanna Boriak, the Head of the Committee on Protection of Advocates’ Professional Rights and Guarantees.

Advocate Vitalii Serdiuk has also assessed the situation as a “threat to the human rights institution by implementing intentional systemic actions to eradicate the bar institute as a whole”. He stressed that the basis for such assessments is the systematic work of a number of governmental institutions. With regard to the above mentioned, the main violators of the defenders’ professional rights are the Prosecutor General’s Office and the NABU, the Ministry of Internal Affairs and other law enforcement agencies, which demonstrate a record number of violations of the advocates’ rights.

By way of example Vitalii Serdiuk mentioned complete disregard of the advocates’ rights and guarantees, cases of physical pressure on advocates, and killing of advocates that are not being investigated.

“Even in case of Hrabovskyi, which is the only one sent to the court, there are no answers to the unexplored facts of this case. Everyone who follows it has the feeling that they are either trying not all or trying the wrong”, — said the advocate. He also cited the cases of assassination attempt against the advocates, death threats, assault and battery during investigative actions, which have no reaction and which are not even entered into the Unified Register of Pre-Trial Investigations.

Separately, Vitalii Serdiuk named the identification of an advocate with a client that is prohibited by law. “The advocate is always perceived as a criminal, and this is done by the law enforcement officials since it is beneficial to do so in the eyes of society and court”, —he said. Moreover, the practice of making public statements about the aforementioned transformed into the opening of criminal proceedings against the advocates as related to the cases of their clients.

“Concerning the advocates, the law enforcement officers, grossly abusing their official duties, make statements and fabricate proceedings in order to exert pressure on advocates. There are many such cases”, — says Vitalii Serdiuk.

The answer to such a situation, at his suggestion, should be both an introduction of amendments to the law and consolidated efforts of the bar to defend the profession. It refers to expanding the composition of the UNBA Committee on Protection of Advocates’ Professional Rights and Guarantees, lobbying for legislative changes through people's deputies practicing the law and through public pressure, and attracting the attention of society and international partners to unlawful pressure on the bar. At the practical level, he advised to create tactical response teams that would help the advocates in need of assistance during violation of their rights, and supported the idea of ​​the advocates’ strike.

During the round table, the peculiarities of entering information to the Unified Register of Pre-Trial Investigations were discussed. Hanna Boriak emphasized that, instead of the information, the circumstances that must be established during the investigation are often entered to the register. On the other hand, it is extremely difficult to enter information on crimes pertaining to violations of the advocates’ rights. During the discussion advocate Yurii Hryhorenko noted that there is not a single guilty verdict in cases of interference with the advocate’s activity.

Advocate Diana Nazarenko called the application of Article 214 of the CPC an opportunity for pressure from law enforcement agencies, provided that the subjective interpretation of the provisions of this article is admissible. In their Resolution the round table participants called for the unconditional implementation of this Article of the CPC, which will increase the possibilities to protect the citizens and will reduce the burden on courts, if the citizens demand to enter information to the Unified Register of Pre-Trial Investigations under the court decision.

The second topic of the round table was devoted to the practice of serving unreasonable suspicion, including in cases initiated against the advocates. With regard to the aforementioned advocate Oleh Klymenko reminded that the practice of the European Court of Human Rights provides that the unreasonable suspicions are a violation of the right to protection. An example of criminal proceeding initiation based on the unreasonable suspicion is the case against advocate Cheberdin, which contains no information about the time, place and the actual commission of the unlawful acts. Hanna Boriak stated that the justification of the suspicion should be verified by court, but the relation of this concept to the concept of the legal components of the crime is not practiced during such assessments.

“The text says that the conclusion about the legal components of the crime cannot be made, but it is passed to the investigating judges, and nobody bears responsibility for the said”, — emphasized Hanna Boriak. In this context advocate Yurii Hryhorenko pointed out that, while continuing the preventive measures applied on the basis of such suspicion, the prosecution party should justify the risks that have been taken into account when adopting the first court decision. “When choosing a preventive measure and when the preventive measure is prolonged, the judges turn a blind eye to the fact that the suspicion is not substantiated. As long as the investigating judges do so, the situation will not change”, — said the advocate.

Advocate Diana Nazarenko considers the appeal to the ECHR to be the way to prosecute such actions, since there are no effective measures in Ukrainian legislation. The advocate can file complaints about wrongful acts, apply to the qualification commission of prosecutors or judges, as well as file a statement about committing criminal offenses through abuse of authority. “The notice of suspicion should be supported by proper and admissible evidence, and be served within the limits of the law”, — stated Diana Nazarenko.

According to Hanna Boriak, the mechanism of responsibility for serving unreasonable suspicion may be the petition to close the proceeding with a view to the lack of information about the legal components of the criminal offense, filed to the pre-trial investigation body or the court.

“This practice works today. And when the judge does not make a decision, I appeal to the qualification commission of judges”, — said the Head of the Committee, referring to her own practice of law. The NSDC representative Serhii Shepetko added that the mechanism for counteracting such practices could be the introduction of amendments to the CPC, which would allow challenging the validity of the suspicion.

The relevant paragraph, proposing to prevent serving of the unreasonable suspicions and clarifying the meaning of the concept of reasonable suspicion, was included in the round table Resolution.

The text of the Resolution will be sent by the UNBA Committee to the law enforcement agencies to clarify the content of the advocates’ rights and guarantees.