Defenseless Defenders

The Law of Ukraine ‘On the Bar and Practice of Law’ established professional rights and guarantees of an advocate. The Criminal Code of Ukraine provides for liability in case professional rights and/or guarantees of an advocate. In particular, arts. 397-400 of the criminal code of Ukraine entail liability for those interfering with activities of defenders or attorneys, criminalize threats and/or violence against defender of attorney, intentional destruction or damaging property of defender or attorney, attempt on life of defender or attorney in connection with his professional activity – providing legal advice.

In practice, however, the situation does not seize to be dire, year after year. Advocates keep complaining, police does nothing. As we can see from the statistics, advocates en masse file statements alleging criminal offences committed against them as ‘the special subject’ (victim) within criminal proceedings on counts of violating his/her professional rights and guarantees which is punishable by dedicated provisions of criminal law.

At the request of the Vice-Chairman of the UNBA Committee for the Protection of Advocates Professional Rights and Guarantees, the Prosecutor General's Office of Ukraine provided data from Unified Register of Pre-trial Investigations concerning the statistics of relevant criminal proceedings. From the given data, for the period between 2017 and present, information about crimes committed against advocates under Articles 397-400 of the Criminal Code of Ukraine was entered into URPI 665 times.

Thus, in 2017, 315 criminal proceedings were registered, in 2018 - 307, in the first half of 2019 -  43.

So, in 2017 the counts under:

• Art. 397 of the Criminal Code - interference with the activities of a defender of attorney - 229, representing 73% from the total number of occurrences;
• Art. 398 - a threat or violence against defender of attorney - 74, which is 23%;
• Art. 399 - intentional destruction or damage to the property of defender of attorney - 9, which is 3%.
• Art. 400 – attempt on life of a defender of attorney in connection with their activities related to the provision of legal aid - 1, which is less than 1%.

Pursuant to Article 397 of the Criminal Code of Ukraine, in 2017, zero indictments went to court in the said criminal proceedings, amounting to 0%, 116 criminal proceedings were closed, amounting to 51%, and in 113 criminal proceedings, which is 49% no procedural decisions were rendered.

Pursuant to Article 398 of the Criminal Code, in 2017, three indictments went to court, which is 4%, while 30 criminal proceedings were closed, which is 41%, and in 44 (39%) criminal proceedings no procedural decisions were rendered.

Pursuant to Article 399 of the Criminal Code, in 2017, zero indictments went to court, which is 0%, while 5 criminal proceedings were closed, which is 56%, and in 4 (44%) criminal proceedings no procedural decisions were rendered.

Pursuant to Article 400 of the Criminal Code, in 2017, zero indictments went to court, which is 0%, 5 criminal proceedings were closed, which is 56%, and in 4 (44%) criminal proceedings no procedural decisions were rendered.

In total in 2017, less than 1% of criminal proceedings ended up with indictment in court, 48% of criminal proceedings were closed, about 51% of criminal proceedings, no decision was rendered.

So, in 2018 the counts under:

Art. 397 KK - 237, which makes up 77%,

Art. 398 KK - 63, which is 21%,

Art. 399 KK-6, which is 1%

Art. 400 KK-1, which is less than 1%.

Pursuant to Article 397 of the Criminal Code of Ukraine, in 2018, 1 indictments went to court in the said criminal proceedings, amounting to less than 1%, 84 criminal proceedings were closed, amounting to 35%, and in 152 criminal proceedings, which is 65% no procedural decisions were rendered.

Pursuant to Article 398 of the Criminal Code, in 2018, two indictments went to court, which is 3%, while 25 criminal proceedings were closed, which is 40%, and in 36 (57%) criminal proceedings no procedural decisions were rendered.

Pursuant to Article 399 of the Criminal Code, in 2018, zero indictments went to court, which is 0%, while 1 criminal proceeding was closed, which is 17%, and in 5 (83%) criminal proceedings no procedural decisions were rendered.

Pursuant to Article 400 of the Criminal Code, in 2018, zero indictments went to court, which is 0%, zero criminal proceeding were closed, which is 0%, and in 1 (100%) criminal proceedings no procedural decisions were rendered.

In total in 2018, less than 1% of criminal proceedings ended up with indictment in court, 36% of criminal proceedings were closed, about 64% of criminal proceedings, no decision was made.

So, in the first half of 2019 the counts under:

Art. 397 KK - 36, which makes up 84%,

Art. 398 KK - 5, which is 12%,

Art. 399 KK - 2, which is 4%

Art. 400 KK - 0, which is 0%.

Pursuant to Article 397 of the Criminal Code of Ukraine, in 2019, zero indictments went to court in the said criminal proceedings.

Pursuant to Article 398 of the Criminal Code, in 2019, zero indictments went to court in the said criminal proceedings.

Pursuant to Article 399 of the Criminal Code, in 2019, zero indictments went to court in the said criminal proceedings.

Pursuant to Article 400 of the Criminal Code, in 2019, no entries into URPI were made.

In total in the first half of 2019, 0% of criminal proceedings ended up with indictment in court, 12% of criminal proceedings were closed, about 88% of criminal proceedings, no decision was made.

It is evident from the above analysis that law enforcement agencies continue to ignore cases of violation of the professional rights and guarantees of advocates. In fact, the prosecution sabotages investigation of criminal proceedings where advocates are victims, despite the fact that the said offences are related to advocates’ professional activities.

One can say with full confidence that defenders in Ukraine are defenseless. This raises the question what kind of procedural equality we are talking about. Another issue at stake is independence of the legal  profession from third-party intervention and pressure in connection with the legal position of an advocate.