Balancing Human Rights Protection and Defense of the Motherland in Ukraine

by | Nov 21, 2022

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About Sergiy Panasyuk

Sergiy is a Ph.D in constitutional law; Lecturer at the Department of Constitutional Law of the Faculty of Law of Charles University (Prague, Czech Republic); Visiting Fellow at the Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany); Professor at the Ukrainian-American Concordia University and the European University (Kyiv, Ukraine); Former academic consultant of the Judge of the Constitutional Court of Ukraine (2017-2023).

Image description: the Supreme Court of Ukraine in session

The full-scale Russian military invasion of Ukraine on February 24 put tremendous strain on the legal system and showed legislative gaps. Mobilization posed a unique and urgent legal challenge. For instance, among the exceptions to mobilization, one is conspicuously missing – advocates (equivalent to barristers in England and Wales). They have the exclusive right and authority to protect people’s rights in court, but are not exempt from mobilization, which can lead to undermining human rights protection in Ukraine. Moreover, corrupt prosecutors could exploit their connections to get advocates opposing them in a case drafted.

Despite the war, life goes on in Ukraine, from commercial relations, to family disputes, to criminal proceedings. As such, people must have sufficient access to representation by advocates.

In deciding who should and should not be mobilized to the army, the Verkhovna Rada made five changes (from March to July) to Article 22 of the Law on Mobilization training and mobilization, which lists exemptions for conscription during mobilization. This includes students, educators, people with multiple children, people with disabilities, etc… Moreover, many government workers are exempt: civilian employees of the Ministry of Defense of Ukraine, the Armed Forces of Ukraine, and the State Border Service. Crucially, the list also includes law-enforcement officials, such as the National Police of Ukraine, and the National Anti-Corruption Bureau of Ukraine, who can bring charges and carry out prosecutions. Why then, are advocates not exempt? Because they can be freely mobilized, there may be a lack of defenders on the side of the accused.

Under Article 131-2 of the Ukrainian Constitution, only advocates have rights of audience. Thus, Ukrainians may find themselves without representation not only in criminal cases but in any matters, from divorce proceedings, to personal injury, to commercial, property, and administrative disputes. Leaving advocates susceptible to conscription risks a gap in human rights and court protection, which is guaranteed by Article 55 part 1 of the Ukrainian Constitution.

According to last year’s statistics from the National Bar Association, there are 45.5 thousand advocates in Ukraine, and almost 62% are men, who can be mobilized any minute leaving their clients without protection. When conscription began, advocates faced possible disciplinary liability from the Ukrainian Bar for failing to represent their clients. The Higher Qualification Commission of the Advocate had to issue a clarification waiving liability for mobilized advocates.

Advocates asked to solve the problems that arose and to regulate the possibility of advocates’ exemption from the draft by the professional authorities. However, the Ukrainian National Bar Association refused this request, stating that they will only fall under the general procedure. As such, there is little recourse for those advocates who are caught under mobilization.

Professional advocates, who play a critical role in human rights protection in any court and in all steps of criminal cases in Ukraine, should be included in the list of professionals exempt from mobilization, like educators. The present situation could violate Article 6 of the European Convention on Human Rights: the right of representation in criminal proceedings. 62% of defenders can be mobilized, which puts all human rights protection at risk, and threatens the realization not only Article 6 but almost all Convention rights, ultimately protected by courts.

The Russian invasion of Ukraine is challenging the advocate’s rights protection during a time of martial law. While these questions were the subject of academic discussion in the past they are now more real than ever. A wide discussion about the potential and ongoing advocates’ rights violations can be useful for strengthening rights protection and support, and serve as an example for the draft European Convention to Protect Lawyers.

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