After the de-occupation of the territories, the state will face the challenge of how to restore the legal profession and the trust of local residents in lawyers in the liberated cities and villages. This is one of the most important aspects of the restoration of justice, so the state must decide whether and what kind of responsibility the lawyers who remained working under occupation will bear.
This was discussed on 29 January during the online discussion “Should there be liability for lawyers for their activities under occupation?”. The event was organised by the ZMINA Human Rights Centre with the support of the European Union and the International Renaissance Foundation.
ZMINA’s Advocacy Director Alyona Lunyova noted that the role of a lawyer is very important for people who remain under occupation and are persecuted for political reasons.
“In the context of de-occupation, which will definitely happen, we need to talk about what to do with those lawyers who, for example, held certain positions during the occupation, or became judges or prosecutors in these territories. So what should be their responsibility and should it be?” Luniova reflects.
According to Daria Luneva, partner at AZONES, expert of the coalition “Ukraine. Five in the Morning” coalition, Daria Svyrydova, while the state has a vision – prosecution for collaboration – for those lawyers who remained in the occupation and began working in the occupation administrations as so-called judges or law enforcement officers, there is no specific position on lawyers who remained in the occupation and continued their professional activities. Such a position should be formed among the professional legal community, Svyrydova believes. There are discussions with extreme views, the expert says, either to punish all lawyers under occupation (and there are already two draft laws criminalising the very fact of lawyers continuing to work), or not to assess the activities of lawyers under occupation at all until the end of the war.
Svyrydova says: 90% of lawyers in Crimea are Ukrainian citizens who have Ukrainian certificates of the right to practice law. That is, 10% of lawyers have been replaced by Russian citizens who came to the territory and became colonisers.
“Each of those who remained, firstly, was forced to take a Russian passport, and secondly, to become a member of the bar association, which was created by the occupiers on this territory. Thirdly, in one way or another, these lawyers have to interact with the illegally created courts, the so-called law enforcement agencies. And these are the factors without which it is simply impossible to continue their work in the occupied territory,” says Daria Svyrydova.
According to the expert, the mere fact of working as a lawyer under occupation should not be subject to condemnation or prosecution. She noted that the Geneva Conventions relative to the Protection of Civilian Persons state that the population under occupation must receive effective legal proceedings and cannot be deprived of the right to a fair trial. In addition, the accused should have the right to be assisted by a qualified human rights defender of their choice. Moreover, Ukraine has legislation in place that, among other things, provides for the provision of legal aid to protect our citizens in Russian captivity under occupation.
“So will the criminalisation of the work of lawyers in the occupation be in line with Ukraine’s international obligations?” the expert reflects.
Daria Svyrydova / Photo: Centre for Investigative Journalism
At the same time, according to Svyrydova, non-judicial mechanisms, including lustration, can become a tool for assessing the activities of lawyers under occupation:
“Such lustration should definitely not turn into an instrument of revenge or collective responsibility for the lawyers who remained in occupation. Lustration should facilitate an individual assessment of the actions of certain lawyers, clearing them of negative influence and restoring confidence in the bar after de-occupation.”
She also reminded that in Crimea, lawyers defending political prisoners work at the risk of their lives. Such lawyers are persecuted, arrested, and subjected to discrediting campaigns in the controlled media. Therefore, criminalisation of advocacy will have a demotivating effect on these people.
“It is very important to ensure proper legal protection for the population of the liberated territories. It may happen that after the liberation of these territories, there will be no lawyers who can or want to work there, and the number of legal issues and challenges faced by the population of the liberated territories is incredibly high.”
Artem Donets, a lawyer and managing partner of Donets and Partners Law Firm, a serviceman, believes that lawyers who hold Ukrainian certificates and somehow cooperate with the occupation authorities violate professional ethics, as they once took an oath as a lawyer of Ukraine.
Artem Donets / Photo from his personal page
He noted that he is aware of cases where lawyers with a valid Ukrainian bar certificate in the occupied territory hold positions in the so-called state bodies of the occupying state and head the so-called courts. Donets is convinced that the lack of reaction of the bar self-government to such situations is an avoidance of solving the existing problems and systemic inaction.
He also added that he could not justify either the actions of lawyers in the occupied territory or the inaction of the bar self-government bodies during the ten years of war with Russia.
According to Anastasiya Serbina, a lawyer and the head of the AC Training Group, people in occupation need legal assistance, because life there continues and has many challenges:
“When I ask myself whether we should criminalise the activities of lawyers in the occupied territory, how we should react, whether we should ban them or, on the contrary, allow everything, the first thing I always consider is the person who remains under occupation. Therefore, for me, the answer is “no” to the question of criminalising the activities of lawyers.”
At the same time, Serbina says, this does not mean that any person who has remained in the occupation, holding a Ukrainian certificate, and continues to work should be justified.
Anastasia Serbina / Photo: ZMINA
“We have to evaluate the activities of each lawyer separately. If a lawyer with a Ukrainian certificate continues to work in the occupation and does not become a member of illegal bodies, does not become a judge or prosecutor, which is currently being prosecuted in Ukraine, it is obvious that the practice of law should not be criminalised,” Serbina said.
Roman Tytykalo, a lawyer and member of the Ukrainian Bar Association, also does not support the prosecution of all lawyers who work under occupation. In his opinion, only those who cooperate with the occupation authorities should be prosecuted.
At the same time, he said that the bar self-government bodies should indeed respond to violations of legal ethics and facts of cooperation with the occupiers, but, according to him, the qualification and disciplinary commissions do not know how to notify lawyers, in particular in the occupied Crimea, of the initiation and consideration of such disciplinary proceedings. However, according to the lawyer, this issue of notifying persons in the occupied territories can be resolved, in particular, through the relevant decisions of the bar self-government bodies.
Tytykalo recalled that last year, following a complaint from ZMINA human rights activists, Ukrainian lawyer Yulia Marchuk was disbarred for the first time for violating legal ethics and collaborating with the occupiers. Roman Tytykalo called it a positive experience, but noted that there could be more examples of this.
Also, according to the lawyer, a separate problem is that the bar self-government bodies in Crimea, those that should have moved to the controlled territory, in particular to Kherson, remained on the peninsula.
Roman Tytykalo / Photo from open sources
“It would be possible to create the relevant commissions and the Bar Council of the Autonomous Republic of Crimea, which would make it possible to consider complaints and everything else in the Kherson region. Now these complaints are being considered in other regions, but along with the restoration of bar self-government in the de-occupied territories, there is also an urgent need to restore the relevant bodies in the free territories,” says Tytykalo.
The lawyer also said that the UBA has developed a position on approaches to the restoration of the Ukrainian bar in the de-occupied Crimea. The concept is available here.
The event was held with the support of the European Union and the International Renaissance Foundation within the framework of the joint initiative “European Renaissance of Ukraine”. The event represents the position of the authors and does not necessarily reflect the position of the European Union or the International Renaissance Foundation.
