Statement of the UBA on the application of disciplinary proceedings as a means of pressure on attorneys

The Ukrainian Bar Association (UBA) draws attention to the fact that in recent years there have been numerous cases of bringing advocates and persons, whose advocate’s certificate was suspended, to liability by disciplinary commissions of the bar self-government bodies, apparently due to such persons’ public criticism of the managerial actions and decisions of the current leadership of the bar.

In 2015, the Qualification and Disciplinary Commission of the Kyiv Oblast Bar disbarred the Director of the Coordination Centre for Legal Aid Provision of the Ministry of Justice of Ukraine, Andrii Vyshnevskyi for his public criticism of the bar self-government bodies. This decision was later quashed by the Administrative Cassation Court of the Supreme Court of 14.03.2018 in case No. 826/23545/15.

For instance, on 21 June 2023, the Disciplinary Chamber of the Qualifications and Disciplinary Commission of the Qualifications and Disciplinary Bar Commission (QDBC) of Zakarpattia Oblast, during a meeting of 21 June, applied a disciplinary sanction in the form of disbarment to Valeriia Kolomiiets, former Deputy Minister of Justice of Ukraine for European Integration.

Artem Donets, an attorney from Kharkiv, was subjected to disciplinary measures by the Higher Qualifications and Disciplinary Bar Commission (HQDBC), just like in the cases of Valeriia Kolomiiets and Andrii Vyshnevskyi. In 2023, he was temporarily disbarred for 6 months for criticising the quality of the attorneys’ education, expressed against the Higher School of Advocacy of the Ukrainian National Bar Association (HSA UNBA). This decision was adopted despite the fact that were no other violations established by other decisions of other QDBCs, similarly to the case of Andrii Vyshnevskyi, where the QDBC’s decision was quashed by the Supreme Court.

On 13 November 2023, the Head of the UNBA’s Committee on Protection of Rights filed complaints to the Disciplinary Chamber of the Kyiv Oblast QDBC against the advocate Illia Kostin, who is currently serving in the Armed Forces of Ukraine, for public criticism of the UNBA leadership for inaction in relation to the traitor advocates.

In this context, it is interesting to note that application by the disciplinary bodies of the Bar of disciplinary liability against advocates who disagree with the bar self-government bodies is an issue that is also being raised at the international level. One example is a report of the International Legal Assistance Consortium Surviving the Assault: The Ukrainian Legal System After a Year of War, which states, that “While recent reports indicate that abusive disciplinary proceedings are no longer common, the use of such proceedings in the past to threaten the livelihoods of dissident lawyers has worried international servers” (page 54).

The UBA considers this practice of disciplinary commissions of the bar self-government bodies unacceptable for the following reasons:

  1. The right to freedom of speech is guaranteed to every person by Ukrainian legislation and international law. Article 10 of the European Convention on Human Rights expressly states that freedom of expression is one of the cornerstones of a democratic society and one of the key conditions for the society’s development and self-fulfillment of each individual. Moreover, according to paragraph 2 of the same Article of the Convention, the freedom of expression applies not only to ‘information’ or ‘ideas’ that are duly received or regarded as inoffensive or insignificant, but also to those that cause offence, indignation or disturbance. Similar wording is also contained in the UN Basic Principles on the Role of Lawyers and Recommendation No. R (2000) 21 of the Committee of Ministers of the Council of Europe to member States on the freedom of exercise of the profession of a lawyer.
  2. In the two cases mentioned above, disciplinary sanction was applied to persons who, at the time of the initiation of the proceedings, held positions in state authorities and performed the functions of the state, but their right to practice law was suspended. This approach contradicts the standards of the Council of Europe. Thus, the Opinion of the Council of Europe On the Draft Law on amending the Law of Ukraine “On the Bar and Practice of Law” and other related legislative acts of Ukraine specifies as follows: “any use of termination of the right to practice law as a disciplinary sanction for lawyers whose right to practice has already been temporarily suspended to enable them to work within the civil service would make no immediate sense (para. 64)” and “Lawyers in public service are subject to various restrictions which in general mean they cannot practice law (para. 61)”.

In other cases, mentioned above, disciplinary liability was imposed on lawyers who are currently serving in military forces and who publicly criticised the bar self-government bodies. Criticism is a sign of a democratic society and independent relations. It should be emphasised that the criticism of the UNBA leadership by the attorney Illia Kostin concerned the absence of the UNBA’s position on the armed aggression of the russian federation and lack of disbarment of Ukrainian attorneys who defected to the enemy’s side.

The UBA considers it unacceptable to use disciplinary proceedings as a means of pressure on advocates, officials and servicemen/women.

Based on the above, the Ukrainian Bar Association calls on the UNBA to reconsider their approach to disciplinary proceedings and apply the best standards of the Council of Europe.

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