Collaborators or Defenders?

 

By Daria Svyrydova, partner at the AZONES Law Firm

 

Recently, more and more discussions and questions have arisen around the assessment of the activities of lawyers who remained in the occupation and continued their professional activities there. And whereas the assessment of the activities of those citizens among the lawyers who started working in the occupation administrations and became so-called “judges”, “law enforcement officers”, etc is regulated by the state – by the existing criminal law. The question of assessing the actions of Ukrainian lawyers who remained in the occupation and actually continued to work as lawyers under the legislation of the Russian Federation, which was illegally spread there by Russia, remains a subject for discussion.

The context

Since the beginning of the Russian aggression against Ukraine in 2014, and in particular after the full-scale invasion in February 2022, there has been a growing demand in society for justice and accountability for individuals who collaborated with the aggressor. Despite the ongoing occupation of parts of Ukraine’s territory, it was only in March 2022 that the Criminal Code of Ukraine was supplemented with Article 111-1 (“collaboration activities”). The prompt adoption of this provision by the Parliament, among other things, led to many complaints from human rights defenders about the quality of such changes to the legislation and the ambiguous practice of its application. In fact, any interaction with the aggressor state was criminalized without taking into account the standards of international humanitarian law, broad and unclear wording of the norms on collaboration was introduced, which, among other things, led to difficulties in distinguishing between other crimes against national security, and most importantly, the disproportionality of the violation and the penalty for it. For example, the Office of the UN High Commissioner for Human Rights expressed concern that the law on collaboration does not comply with international human rights law (IHRL) and international humanitarian law (IHL).

Regarding Ukrainian lawyers who remained in the Russian-occupied territories, there are currently two extreme positions in public discussions:

(1) The punishment to all those who remained.

Thus, we already have certain initiatives at the level of the Parliament, both in 2022 and in the fall of 2023, bills were registered suggesting, among other things, the criminalization of legal practice in the occupied territories.

(2) Neither punish nor evaluate the activities of lawyers in the occupation, at least until the end of the war (for example, the position of the Bar Council of Ukraine in its decision No. 96 of August 2023).

In this regard, in my opinion, two logical questions arise:

1. Can there be something in the middle of such extreme positions?
2. Who can form such a position and approaches to assessing the work of lawyers under occupation? The state or exclusively professional communities?

Regarding the first question

I am closely involved in the context of the occupied Crimea, and the teams of the Ukraine 5 AM Coalition and CEELI (Czech Republic) have recently investigated the situation with the rights of lawyers in the Crimean Peninsula.

All lawyers who remained in Crimea and other occupied territories and continue their professional activities work in conditions where they need to interact with the occupation courts and law enforcement agencies, as well as other illegally created structures (for example, being members of the bar associations of the Russian Federation created in the occupation).

For example, after the occupation and subsequent annexation of Crimea, the activities of lawyers in these territories became permissible only if they obtained a Russian passport, which is not recognized by Ukraine, and the right to practice law in Russia. Currently, the majority of lawyers in Crimea are still Ukrainian lawyers. According to human rights activists, at the time of the occupation, there were about 1700 lawyers in Crimea, now there are no more than 800. And at least 102 lawyers came to work in Crimea from Russia, which is 10% of all lawyers of the peninsula.

For me personally, the mere fact that a lawyer works under occupation should not be subject to any form of condemnation or persecution by Ukraine.

Firstly, this approach is guided by international law.

The ECHR defines the right to use legal assistance of a defense counsel, including as a component of the right to a fair trial. Similarly, Ukraine recognizes the existence of an armed conflict on its territory since 2014 and the application of IHL. The provisions of the Geneva Convention relative to the Protection of Civilian Persons indicate the need to ensure effective judicial proceedings under occupation (these conditions are not met, starting with the fact that the courts of the occupied territory have not been able to continue to perform their functions in relation to the consideration of offenses defined by Ukrainian criminal law). And the relevant categories of civilians cannot be deprived of the right to a fair trial. At the same time, for example, the provisions of Article 72 of the Convention stipulate that the accused must have the right to the assistance of a qualified human rights defender of their choice, who must be able to freely visit the accused and must be provided with all necessary means to prepare a defense.

So, at the very least, the question arises whether criminalizing the work of lawyers in the occupation would be in line with the spirit of Ukraine’s international obligations.

Secondly, I believe that certain provisions of national legislation already indicate such an approach. For example, the Law of Ukraine 2010-IX guarantees persons in respect of whom the fact of deprivation of personal liberty as a result of armed aggression against Ukraine has been established, the right to reimbursement of expenses for professional legal assistance provided, including under occupation, for their defense.

Or the Law of Ukraine 1207, which defines the protection of the rights and freedoms of persons in the temporarily occupied territories as one of the goals of the relevant state policy. Since the beginning of the war in 2014, the state and human rights organizations have been documenting numerous war crimes of the occupier and human rights violations against our civilian population. Among them are such as the intentional deprivation of a prisoner of war or other protected person of the right to a fair and regular trial. The very system of courts under occupation is to some extent an instrument of the occupier to persecute the civilian population and suppress any resistance. These facts of deprivation of the right to a fair trial are currently the subject of our national investigations, appeals to international courts, as well as political resolutions in the UN and PACE on human rights violations by Russia as a result of its armed aggression against Ukraine.

Will the fact that we criminalize any activity of lawyers in the occupied territory strengthen our position and arguments? Will it add to the arguments of victims of violations regarding the deprivation of their right to defense, and to lawyers regarding violations of the standards of their professional activity?

Lustration as a solution?

At the same time, the state and the professional legal community obviously face the issue of restoring confidence in the bar after the de-occupation of our territories. This, in my opinion, is caused by the facts of individual episodes of dishonest behavior of certain lawyers during the occupation, as well as the need to restore the work of bar self-government bodies there, which may also be headed by lawyers compromised by cooperation with Russia.

If some of these lawyers are involved in international crimes, such facts should undoubtedly be subject to criminal prosecution.

However, other facts of continuing to work under occupation that did not have such consequences may be subject to assessment under non-judicial administrative procedures, such as lustration.

The development of these mechanisms requires the consensus of the professional community of Ukrainian lawyers. Study of international and Ukrainian experience (such as the results of the lustration process since 2014). The purpose of such lustration should be clearly defined.

Lustration should not become an instrument of revenge or collective responsibility, but should help to cleanse the bar of negative influence and threats from citizens who have been compromised by (1) certain cooperation with the occupier, its law enforcement agencies, (2) participated in the persecution of other lawyers or their clients, (3) prevent compromised non-attorneys from joining the community (for example, persons who were judges or otherwise worked during the occupation and who may become lawyers).

Therefore, lustration should be based on international standards and ensure that the restored bar is trusted. It should also provide for an exclusively individual assessment of the activities of persons with a guarantee of the right to defense, rather than collective restrictions.

Thus, returning to the experience of Crimea, we can cite very different cases of lawyers’ work under occupation. On the one hand, since 2014, numerous facts of persecution by the occupier and occupation administrations of Ukrainian lawyers working on cases of political prisoners, Ukrainian prisoners of war (directly calling them prisoners of war in the occupier’s court proceedings), citizens who oppose the aggression of the Russian Federation (accusations of publicly “discrediting the Russian army”) or evading mobilization into the Russian army, etc. have been documented. All this has a very strong chilling effect and demotivates lawyers to work on such complex and sensitive cases. And criminalization of such activities by Ukraine will only add to the demotivation and deprive the state of one of the few tools to provide legal aid to victims of persecution.

On the other hand, there are cases when lawyers in Crimea voluntarily cooperate with the FSB, and their activities lead to violations of their clients’ rights (inducing them to cooperate with the FSB, covering up torture or obstructing access to cases for other independent lawyers). Either such lawyers represent the so-called bar self-government bodies illegally created in the occupation, which cover up the persecution and pressure of the occupier on independent lawyers, or they assist in the colonization of the peninsula by Russian lawyers. Of course, such facts should be monitored, and such lawyers and the consequences of their activities should be assessed by both Ukrainian bar self-government bodies and law enforcement agencies. Unfortunately, during the occupation, there was only one case of such an assessment by the bar self-government bodies – in relation to the Ukrainian lawyer Yuliia Marchuk, who headed the so-called “Bar Association of Sevastopol”. Sevastopol”. At the same time, the UNBA actually declares its unwillingness to resolve the issue of assessing the activities of individual dishonest lawyers who continued to work under occupation until the end of the war.

What to do, what solutions are possible

So, returning to the second question from the beginning: who should do what with all this?

Firstly, the UNBA’s position is important, which, obviously, from the very beginning of the Russian aggression, should:

(1) monitor violations of the rights of lawyers and guarantees of their professional activity in the occupied territories of Ukraine and respond to these violations;

(2) to develop and implement procedures for consideration of disciplinary proceedings against lawyers who cooperate with the FSB, facilitate international crimes of the occupation authorities, etc. during martial law; and

Secondly, the professional legal community should assume responsibility and develop a consensus in a broad discussion on the possibility of applying lustration measures to lawyers, their purpose and procedures. This process should lead not only to the establishment of trust in the restored bar, but also to the ability of the bar to provide adequate legal protection to the population of the liberated territories on the numerous issues that will arise after the restoration of the Ukrainian legal field in the liberated territories.

Thirdly, the state should also play its role, at least by using international platforms. For example, to bring this issue to the PACE, in particular to the Committee of Experts on the Protection of Lawyers, which is currently in the process of drafting and approving the future Convention on the Protection of the Rights of Lawyers of the Council of Europe member states. Or to initiate an invitation to Ukraine for the UN Special Rapporteur on the Independence of Judges and Lawyers to make visible to the international community the challenges of lawyers’ work in armed conflicts and occupation, which ultimately have the most severe consequences for our citizens under occupation, deprived of any protection.

Posted in Expert Opinion