An attorney can get up and leave the courtroom if there is no room for him or his client in a cramped room. Such actions are not grounds for the prosecution of the attorney. In an interview with ZiB, Oleksandr DULSKY, Chairman of the committee on bringing Ukraine’s legal system closer to European legal standards, told how lawyers defended their right to a temporary job. He also spoke about common types of human rights violations in the Supreme Anti-Corruption Court. And that can fix the situation.
When we cross the border of the Supreme Anti-Corruption Court, we get into another department of the National Anti-Corruption Bureau of Ukraine
«In Ukraine, the attorney is not protected because he is a human being and human beings in Ukraine are not protected at all.»
- Mr. Alexandre, the European Commission on the Efficiency of Justice of the Council of Europe (CEPEJ) in its 8th report stated the correlation between the number of lawyers per 100,000 population. In Ukraine, this number is 107, in Cyprus - 458, in France - 99 lawyers. The average number in Europe is 164 lawyers per 100,000 persons. Can we say that these numbers indicate a shortage of lawyers in our country?
Starting from 2018, I had an opportunity to study with colleagues from more than 10 countries: France, Israel, Germany, UAE, Italy, Turkey, Spain, etc. In each of these countries, I have interacted with dozens of people, including representatives of national and regional chambers of attorneys, and participated in court hearings. After such an experience, I realized that the Ukrainian attorneys and the standards of legal aid in Ukraine are very high and worthy, and sometimes it is better than the level of foreign colleagues. I will explain why.
The number of attorneys per capita cannot indicate society's need for law protection. Lots of colleagues from Barcelona, Frankfurt, or Istanbul deal with residency, taxation, real estate, registration of rights, legal support of the business. After all, if you want to place your assets in one of these countries, you will be provided with a whole legal team for support. That is why there are more attorneys in Europe. In our case, most of such cases are dealt with without lawyers` support.
- You claim that our attorneys are providing more qualitative services. What about labor conditions? Ukrainian attorneys are known for working in extreme and even sometimes dangerous conditions for life. Therefore, can we compare Ukrainian and international standards of the legal duties’ performance?
- Let's look at Germany, more precisely - at its criminal process. Of the total number of cases in criminal proceedings, an average of 7% goes to court. Why? All cases are of high quality in terms of evidence, the vast majority of which meet the objectives of criminal proceedings and the case-law of the European Court of Human Rights (hereinafter - the ECtHR) and national law. As a result, the attorney works with almost exemplary charges.
Having received such a case, the defender immediately goes to collect the characteristics of the principal, rather than build a puzzling strategy. In addition, when the attorney is suspected, all the case materials are opened immediately without any hesitation. Therefore, the course of the process is easy to predict. Simply, «junk does not get into the court hearing room».
I was present at the hearing when the attorney said that his client must not be put in prison, since he had an old sick mother who had a hypertensive crisis last year. And if not for her son (accused. - Ed.), she would have died. And the attorney says: "Do not deprive the defendant`s mother of the right to life."
Our situation is completely different. In every corner of our state, there is arbitrariness, which often goes from the state`s side. Citizens are detained without stating the reason in the protocol, violating the constitutional rights to the secrecy of correspondence, communication, conducting searches, and seizures without the decision of the investigating judge… In such cases, the task of the investigation is completely leveled. An investigation is always carried out for the sake of an investigation. What are the goals of these actions, I think you can guess…
Thus, our lawyers are forced to investigate the practice pools of the ECtHR and protect the client's rights primarily from violations by law enforcement and judges.
- In your opinion, what is the situation with the standards and personal protection of attorneys? Does the defendant feel pressure from society and civil activists when he defends the public persons and politicians?
In most of the cases, which I lead as an attorney, the opposing party is the state. However, the client`s opponent can be not only the state but also the society, for instance, civil activists. Therefore, an attorney is always forced to accept calls from the state in the face of law enforcement officers who violate the rules of procedure, and any opponents of the client.
Answering the question about the personal protection of an attorney, I will say this: in Ukraine, an attorney cannot be protected because he is a human being. And the human beings in our country are not protected at all.
Unfortunately, there is a practice of combating «undesirable attorneys». If a lawyer or a law enforcement officer does not like a lawyer, arrows of complaints can fly at him. Various tools can be used to change his rhetoric, to get him out of the case.
However, we are endowed with a bastion and the opportunity to defend ourselves. And this opportunity is due to the strong self-government of the legal community. We can defend ourselves through the National Bar Association of Ukraine. I will say more: as long as the bar is not controlled by the Ministry of Justice, as in many countries around the world, we can protect ourselves from arbitrariness on the part of the state and society as a whole.
After all, we always stand united with our colleagues.
- What tools or methods does your committee use to defend the rights and status of colleagues?
- The committee is a tool itself. We are often forced to turn to the Parliamentary Assembly of the Council of Europe, the plenipotentiaries of the European institutions, the President of the High Council of Justice, the presidents of the courts about the total violation of human rights at various stages of criminal proceedings.
We are doing this in the hope that in the future, those who allow themselves such arbitrariness will gather and discuss our protests. And, perhaps, at the internal level, they will make decisions aimed to correct the situation.
Another part of our work is that we, together with colleagues from the Committee on Legislative Initiatives on Advocacy, which operates within UNBA, are working on draft amendments to the procedural codes to prevent arbitrariness.
The total violation of rights mostly concerns the Supreme Anti-Corruption Court. My colleagues and I often joke that there was no such thing in the Pechersk court. Therefore, another component of our work is an appeal to all Western institutions involved in the formation and launch of this court. Perhaps, at least, they will be able to reduce the volume of human rights violations.
Our committee will keep you informed of any violations, so I encourage colleagues to contact the committee and join forces.
- Appeal to the European institutions is an effective tool. However, it is not possible to go to international institutions with every question. Does your committee advocate for European advocacy standards at the national level?
- I will show one very illustrative example. In the past, my colleagues across the country, and I have faced a situation where the case was heard "on a chair." That is, the defender or his client simply had nowhere to sit. Even in criminal cases, there were cases when the client could not be near his lawyer due to lack of space, and the lawyer did not even have a table to put the documents with which he planned to protect human rights. In one case, an indictment was served on 25 people at a time. Accordingly, all of them could not fit in the courtroom of Ukrainian court.
This type of problem has been repeatedly referred to in ECtHR decisions, according to which the client must be close to his lawyer. Otherwise, it must be considered as a violation of the right to protection.
And now let's imagine the average courtroom in our country. For the most part, these are two tables with chairs for two people, where there is room for only two people, which makes it impossible for two or more defendants or defenders to be next to each other. As a result, the client is sitting in a place for free listeners and in fact, cannot use legal aid in time: to get an explanation, to consult, or to follow the text of the examined evidence.
Therefore, in order to stop this shameful practice, with the active support of the committee, the issue was initiated before the Bar Council of Ukraine to prevent violations of the right to professional legal assistance and the need to provide an attorney with a temporary table and chair for himself and his client. The appeal described in detail the procedure and the reasons why a person should be with his attorney in the courtroom and have a table with a chair, and what are the legal consequences of their absence.
- And what was the result of your appeal?
- As a result of the appeal, a decision was made at the meeting of the Bar Council of Ukraine "On taking measures to prevent violations of the right of a person to receive professional legal assistance". This document states that if the courtroom is not technically equipped and the defense counsel cannot be near his client, he has the right to leave the courtroom. And this cannot be a reason to bring him to disciplinary responsibility. After all, if the client is at a considerable distance from an attorney, he is in fact deprived of legal aid. And the defender himself, in turn, is deprived of the opportunity to exercise the constitutional right of a person to legal aid.
The committee informed the Ukrainian courts in all regions of Ukraine, the High Council of Justice, and judicial self-government organizations about this decision. I ordered the production of special forms and sent more than 50 letters informing the judges of the relevant decision of the Bar Council of Ukraine. In fact, all courts answered that they provide and do everything in their power to provide a lawyer with a temporary seat place and that the content of the Bar Council of Ukraine decision was brought to the notice of judges at the meeting of the judges.
So now, in case of violation of such a right, Ukrainian lawyers can easily get the decision of the Bar Council of Ukraine and win a place in the courtroom. The expected results did not take long. After all, in the court case, where there are 25 defendants and 48 defense attorneys at the same time ("tax case"), the judiciary managed to equip a huge hall for the simultaneous accommodation of more than 100 people with tables and microphones. This hall is the only one in Ukraine, it is located on Volodymyrska Street in Kyiv (Pechersk court building).
This is just one of the few achievements of the committee. And the judicial branch, it turns out, if it wants, can effectively and with dignity cooperate with attorneys.
By the way, once I had to leave the courtroom due to the refusal of the panel of judges to provide me and my client with a temporary seat, which actually forced them to take a break and deliver tables with chairs to the courtroom. After all, it is difficult to effectively defend a client while being "on your knees".
- You often defend clients in the Supreme Anti-Corruption Court. At the same time, UNBA has repeatedly complained about the pressure from this court on lawyers. What violations have you felt or maybe you have heard something from your colleagues?
The Supreme Anti-Corruption Court was allegedly created according to all standards and criteria of developed countries and with their direct participation. It seemed to people that it was to become a platform for real, incorruptible justice. A court to which gifts are not brought. A court to which law enforcement officers do not bring flash drives with draft resolutions and in which they do not hold hearings without sound recordings. A court where errors in investigators' motions are not converted into errors in rulings, which has always confirmed the fact of extra-procedural relations and a certain closeness of the prosecution to the court. Moreover, the ideas and provisions of the law were approved by the Venice Commission. At least, it should have been like that.
But let's see what the situation is now. The facts of procedural arbitrariness can be observed at almost every session that takes place in this judicial institution. Such violations and disregard for procedural law could not be afforded even by well-known, not the best representatives of the judicial profession. The attorney is faced with a bunch of violations on every corner.
- And how bad is everything? What violations are in question?
- So that our conversation does not drag on, I will cite only the most common types of law disregard.
Money or any other items are often confiscated from a person during a search. All these actions usually take place before detention. At the pre-trial stage, neither the defense nor the victim is able to access his materials, including the materials on the basis of which the investigating judge authorized the search. After the investigation is over, the defense counsel or his client asks the investigating judge to provide them with these materials, especially those related to the permission to conduct a search and seize items.
However, they are denied with reference to the secrecy of the pre-trial investigation, which is already completed. As a result, the lawyer and his client cannot verify the legality of granting permission to conduct a search, during which certain items or documents were seized, expert examinations were conducted with them and expert opinions were brought to court. Particularly, in our state where more than half of the evidence is falsified in almost every case.
Sometimes during the investigation, access to such materials can be obtained. Yet, it happens that there is no court journal or technical record. Guess the consequences ...
- Are there cases when during a search a smartphone is seized, and all information is removed from it without access authorized by the investigating judge?
- Yes, it happens. Today, smartphones store almost all the information about us. After his seizure, investigators request the phone to be seized. The investigating judge summons the owner of the property to participate in the hearing. The investigating judge summons the owner of the property to participate in the hearing. The owner of the phone or its lawyer submits a request to get acquainted with the case materials. And what do you think? They are denied! Although the investigating judge is not the owner of this information, he justifies his refusal by referring to the secrecy of the investigation.
All other courts always give access to the case file, both in the first case, when it came to a search warrant, and in the second case, when it came to accessing the materials based on which the arrest was made. Only Anti-Corruption Supreme Court takes a different position, but I'm sure it's temporary.
- What do you think is the reason for such a different interpretation of the law in the Supreme Anti-Corruption Court?
- Probably, it is difficult for the investigating judge of the Supreme Anti-Corruption Court to refuse NABU detectives. But the fact is that this is happening.
Let us get back to the phone. It often happens that the decision does not allow its seizure. However, investigators confiscated the mobile device and filed a motion for its arrest with the investigating judge. They substantiate their position with printouts from messengers of the same phone. As a result, the investigating judge permits the arrest.
But you need to understand that detectives are deliberately violating the rules. Connect the removed mobile device to the computer, copy from it all information without any permission and even without the message on suspicion! The seized information is later used as a basis for a motion to seize the phone. This is no longer just a violation of procedural purity, it is a violation of the rights and freedoms guaranteed by the Constitution and international treaties.
- Some provisions of the law "On ensuring the functioning of the Ukrainian language as the state language" have recently entered into force. But in the courts, the accused is guaranteed the right to an interpreter. There are no problems with this?
- In more than 10 years of legal practice, I only had to ask the court twice to hire an interpreter for my clients. Both cases took place during the operation of NABU and the Supreme Anti-Corruption Court. One of the principals sought protection because he had signed the text of the agreement with the Specialized Anti-Corruption Prosecutor`s Office prosecutor in a language he did not speak and before it was approved by the court when he realized what kind of papers he has been handled.
The investigating judge hired an interpreter and refused to approve the agreement because the person did not understand its content at all. As soon as the case was referred to the Supreme Anti-Corruption Court, it became clear that the translator did not have the proper authority, but that was another story.
The second case is more unique! During the examination of the request for the application of a measure of restraint in the form of detention, the investigating judge, at my request, engages an interpreter and with him examines the prosecutor's request, which he refuses.
The dissatisfied prosecutor appealed the decision, but I informed the panel of judges of the Supreme Anti-Corruption Court that had forgotten to invite someone, an interpreter who had been brought in by the trial court. The panel refused to involve an interpreter, and the prosecutor's appeal, which was also rejected, was considered without the translator's participation in a language the suspect did not speak.
- Why? It is guaranteed by the Criminal Procedural Code.
- I think that they will correct their mistakes only after a good dozen decisions of the European Court of Human Rights in cases against Ukraine. Several, by the way, already exist. However, there is our committee, there are other UNBA committees that will continue to promptly respond to violations of the law. After all, the point is not only that the rights of a particular person are violated, but also in the erroneous tendency formed by the practice of non-observance of the rights of the defense party. We must not allow the Soviet accusatory bias to have a new turn in the history of Ukrainian justice.
- Do judges not understand that they exceed the limits established by the law, neglecting procedural guarantees. After all, the servant of Themis is well aware of the "fruits of the poisonous tree" and the possibility of reversing such a decision. Why do such cases still occur?
- At one time, the chairman of the Land Court of Frankfurt am Main (the financial capital of Europe), answering questions about the pressure on judges by the authorities, provided interesting statistics. For the last 40 years, he has known the only case of bringing a judge to justice for committing a criminal act. Unfortunately, the simplicity of criminal prosecution of a Ukrainian judge, the frequent violations of the guarantees of judicial independence, and the absolute insecurity of the independence of the judiciary are, in my opinion, the root causes of questionable court decisions. Quite often, a Ukrainian judge is forced to play along with the secret services and law enforcement agencies, understanding the consequences in the event of dissatisfaction with state interests as opposed to the rule of law.