Tetyana Kozachenko: “These people have no moral right to lead the legal profession”

By Natalya Shnyr, Journalist for Jurliga
03.13.2014
Translated and edited by Voices of Ukraine

99_001_433x433Jurliga spoke with Tetyana Kozachenko, a lawyer and head of the Advocate League “Capital” Law Company. She is also one of the lawyers who not only signed the Act of No Confidence in the leadership of the Ukrainian National Bar Association [UNBA], in addition, she set the date for the emergency meeting of [UNBA] lawyers.

Tell us what prompted lawyers to express their lack of confidence in the leadership of the Bar Association? What were the reasons and justifications?

Many are currently wondering for whom it is that the lawyers are actually working? There is no point in looking for one actual person, this was a collective initiative. It is time to accept that many events in the country are happening not at the command of some specific person, but because the moment comes when we realize that we can no longer work or live under a regime where one’s rights are completely disregarded or infringed upon. It is possible that many people might find it inappropriate when emotions are mixed with the dry reasoning of jurisprudence. However, it is important to me that lawyers believe in core human values, which they declare and defend in both their work and civic positions.

A number of things happened in the year and half since the law establishing the Bar Association was adopted, while the self-governing bodies of the Association were forming. In particular, there was a power struggle along with a redistribution of spheres of influence and assets. Most lawyers, busy with their professional activities, tried to stay out of this. When the leadership of the self-governing bodies–namely, the Chairperson of the UNBA and CAU [Council of Advocates of Ukraine] Lidiya Izovitova, her deputy Valentyn Gvozdiy, and the Chairman of the HQDBC [High Qualification and Disciplinary Bar Commission] Valentyn Zagaria – came out as reliable supporters of the Yanukovych regime, it became obvious that these people had no moral right to represent the Bar Association.

During the past three months, I have seen another Bar Association, one I can talk proudly about. When the peaceful protesters were brutally beaten by Berkut [riot police] in downtown Kyiv on the nights of November 29 and 30, many lawyers came out to offer free legal help to the victims. They did this using social networks and the grapevine. Afterwards, many of them started working practically around the clock, and I am not talking about participation in the country’s political system. Instead they were doing exclusively legal work during the investigative proceedings at the agencies of the Interior Ministry, prosecutor’s offices, courts, THFs [temporary holding facilities], detention centers, and emergency rooms. There was a never-ending flow of new victims and people falsely suspected of invented crimes based on falsified evidence. I got to know more colleagues in three months than I had in 12 years of legal practice! These relationships were professional in nature and we were united entirely on the basis of positive human qualities. There was a lot working against the lawyers: a full and systemic disregard of rights and the law by government authorities, flagrant denial of lawyer access to defendants, unlawful violation of people’s liberty, tortures, kidnappings, severe beatings, killings. And this is not even close to a complete list of the atrocities committed by the government authorities and their supporters. During the last few months, lawyers stopped having any illusions that the [legal] system had turned out to be exceptionally one-sided–indeed, it worked against the people, outside the legal regulatory environment, to safeguard the regime.

Despite things seeming hopeless, very many lawyers worked responsibly. They did everything possible to maximize their understanding of the cases, substantiate the legal positions, and record all the breaches of law. In the hopes that times will change, it means the work of a lawyer would be to record all possible violations, to register such violations in legal documents, to provide the greatest possible legal support to people, and to be able to defend the law and justice without being bound by the statute of limitations. Our work had moved away from a purely legal scope and into the human sphere, because it was impossible to remain on a formal professional footing after witnessing such insanearbitrariness and the blatant lobbying of decisions at all stages of the legal process performed by the ruling regime. Human qualities took their place alongside professionalism. The lawyers themselves paid the fines, and they bought and organized medicines, packages, and belongings, because when they had to act immediately, there was no time to look somewhere else for help.

Not only did the National Bar Association of Ukraine [NBAU] and the Council of Advocates of Ukraine [CAU] fail to stand up for legal rights, they also discredited themselves as the representative body of Ukrainian lawyers through their position and actions. These representatives are supposed to safeguard the professional rights of lawyers and the guarantees of the legal profession.

For example, Mr. Valentyn Zagariya, as the Head of the HQDBC, publicized his support for the unjust laws of January 16 [2014]. Furthermore, a rather voluminous article appeared on the Internet 12 minutes after these laws were voted on in Parliament. The whole country saw that the MPs had blindly voted in support of the laws, without an adequate opportunity to familiarize themselves with the text. However, Mr. Zagariya had not only acquired the text of the laws from somewhere, but had also been able to read and comment on them. Most importantly, he supported these laws not as a lawyer or a private citizen, but as Chairman of the HQDBC, thereby endorsing these laws on behalf of the Bar Association. These were laws that incited protests in our country and were not supported by the international community. The leadership of the NBAU and CAU (which are the same thing) have now declared that they did not support these laws, and have no influence on Valentyn Zagariya. They can try to justify everything legally, but all of this cannot be justified in light of basic human rights. Their legal position contains a number of glaring errors. The claim they have not broken the law is unacceptable. Even if they do nothing further, they will hardly violate any law in this situation.

They somehow forgot the CAU, NBAU, and HQDBC are self-regulatory authorities for lawyers, and that these are non-governmental, non-profit professional organizations. They have forgotten they are not government officials, who only act within a prescribed authority, but instead have the right to act in the interests of the Bar Association and the law, so long as these actions are not prohibited by law and the code of legal ethics. They can and must be the public voice and backbone of the Bar Association and not the [ruling] regime.

Lidiya Izovitova is the head of the CAU as well as the NBAU. What is she doing? Has she made any announcements about this?

At the time, her (Izovitova’s) position should have been lawful and open. She should have announced this was the personal position of Valentyn Zagariya, not the authority he was representing, and that the CAU had not met on the issue, leaving it unable to offer an official position. She should have stated she personally did not support the adoption of the illegal laws.

In reality, all of these events and laws are links in the same chain. Neither Yanukovych nor Putin have personally committed any illegal or violent acts. This all becomes possible for one reason only–because government officials, judges, prosecutors, the police and many other people have done their part and served as the bulwark of the criminal regime. None of them have actually broken this chain of lawlessness.

And besides all of this, lawyers have witnessed examples of illegal detention, beatings, falsification of materials in criminal proceedings, and the application of preventive measures. This includes the detention of the lawyer Viktor Smaliy, which has demonstrated what lies ahead for every defense attorney. It is a vivid example of repression. In fact, the only thing the NBAU and CAU did in this matter was apologize to the court for the lawyer’s behavior. There was no real analysis of the situation, and they failed to execute their principle function, which is to defend the rights of lawyers and safeguard their professional activity.

And nothing is proven by the fact that the leadership of the Bar Association did not publish their list of complaints to the state authorities regarding Viktor Smaliy until after they were presented with the Act of No Confidence on the very same day. The NBAU and the CAU think that their functions in defense are limited to submitting formal questions to the state authorities without producing any real results.

At a session of the CAU, Ms. Izovitova argued that everything possible was being done for his defense, but that Smaliy’s lawyers did not turn to the leadership of the Bar Association for help.

This list of requests by Viktor Smalyi’s attorneys is in fact located on the NBAU website. Here there is a list of inquiries to the state authorities from the NBAU, and this list represents the forwarding of these requests [by Smalyi’s attorneys]. In other words, the NBAU performed the function of a post office by forwarding the requests. The lawyers received responses in the form of formal replies such as, “… with regard to the fact that you have not presented evidence, we cannot process your request. Please apply again.”

Moreover, the NBAU reacted to the events in the country on February 19 by advising on their website that attorneys should establish an auxiliary group of lawyers in order to provide free legal help. This happened after the lawyers had already organized this work on their own beginning on the 1st or 2nd of December [2013]. They had already been working “in the field” for two and a half months!

I do not need verdicts and enforced court rulings to prove the leadership of the Bar Association and their [official] position were the mainstay of the regime, and that they did nothing to support the Bar Association and the LAW. More than 150 lawyers signed the Act of No Confidence. But that is my position as a lawyer and as a human being.

There are many other complaints directed at the CAU, NBAU, and HQDBC. They pale in comparison to the circumstances mentioned  above, but cannot be ignored. Take, for example, the colored warrant forms–it’s impossible to provide legal services without them. The use of these colored warrants does not make any sense at all. The introduction of these colored documents by the NBAU and CAU represents a restriction of the right to one’s defense. If there’s no colored warrant form, then it’s nearly impossible in most cases to provide legal assistance. The right to issue the standard warrant form has been perverted into the right to impose the warrant, which is printed only by the CAU or the regional CAs. Even the justification that the warrants are issued free of charge is fiction, since they are paid for by our considerable [membership] fees.

The bar membership fee amount has no logical basis. It cannot be justified by adding up expenditures. Instead, it is an exorbitant levy at the expense of most lawyers in the regions as well as in the capital [Kyiv]. Without payment of these fees, it is impossible to be included in the Registry of Lawyers, and thus work as a defense attorney in criminal proceedings. For example, over half the attorneys in KhmelnytskyiOblast [region] did not pay their membership fees for 2 years amounting to about 2,500 hryvnias [USD 197]. This effectively left their defendants without representation, thus violating their right to a legal defense and representation of their interests. Over 28,000 lawyers have been included in the registry, while over 10,000 are still not listed. The large membership fees are one of the main reasons for this.

Nationwide, the collection of membership fees constitutes over 20 million hryvnias a year. During a year and a half of self-government, there has been no justification offered for the amount of such membership fees, nor has there been a report regarding the use of funds. Attorneys should not have to demand or ask the self-governing bodies to work transparently, nor should they have to investigate this themselves. They themselves must embody the principles of transparency and openness, since these are the principles enshrined in the Law of the Bar Association.

The Congress of Advocates of Ukraine is now scheduled for April 26, 2014, and there are a number of conferences before then. On one hand, this is our chance to re-elect the leadership of the NBAU, CAU and HQDCB. However, the NBAU has established a system for cheating, which allows the delegates to control and manipulate the process.

For example, I have been an attorney since 2002. While I have been working and living in Kyiv all these past 12 years, I was registered in Khmelnytskyi Oblast. This means I received my license to practice law at the Khmelnytskyi Qualification and Disciplinary Bar Commission [QDBC]. During the founding conferences, the lawyers were supposed to attend at the locations where they had been admitted to practice law. Attorneys who received their licenses to practice law 10-20-30 years ago in another area of Ukraine were only to participate in conferences located in those jurisdictions where they had been licensed, where they didn’t know anyone and no one knew them. This means that they could neither put forward delegates nor become delegates themselves, since no one would vote for them.

In this way, a significant majority of attorneys were turned into outsiders. This made it possible to provide a voting framework with clear-cut lists of those who would go to the CAU, NBAU or the self-governing authorities. I became an outsider, since there was no point in driving 350 km [217 miles] to another oblast where the attorneys didn’t know me, and my participation would have been pointless.

I am now registered and work in Kyiv, but according to the Registry of Lawyers I am a lawyer in Kyiv Oblast and I am a member of the Council of Advocates in Kyiv Oblast. This was done to redistribute the flow of membership fees to fund the corresponding regional Councils of Advocates. I cannot find any other explanation. In other words, we have serfdom. Thus, by residing in Kyiv and working in Kyiv, I am an attorney in Kyiv Oblast [Ed. –Kyiv is a self-governing city that operates independently of Kyiv Oblast despite being situation within it]. But I only know a few lawyers in Kyiv Oblast, only the ones who ended up there just like I did. Likewise, I am losing the opportunity to participate in those conferences where I know my colleagues and they know me.

Thus, I received an invitation not long ago from the Council of Advocates in Kyiv Oblast to attend a meeting where delegates were to be elected to the Conference of Advocates. However, I was invited to a meeting with the lawyers from Kyiv Oblast that only work in the Pechersk District. I cannot vote for a lawyer who is a member of the same Council of Advocates in Kyiv Oblast if they work in a different district of Kyiv. I won’t get into the details about the appointment of the co-opted delegates, who automatically without elections became delegates at the attorneys’ assembly. One instance of this is the entire composition of the Council of Advocates in Kyiv Oblast. This is an example of the divide and conquer principle: manipulate the election of the delegates, and then the very elections themselves.

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Give us some more details about the meeting with Lidiya Izovitova, when lawyers started taking shifts at the NBAU office.

At first, approximately 40 lawyers signed the Act of No Confidence. They were fed up, got together, wrote it up and almost immediately went to the NBAU office on Yaroslavska Street. The only person there was a secretary, whom we asked to contact the leadership, explain the situation and set up a meeting. After a number of telephone conversations, the secretary said there wouldn’t be a meeting. We were asked to register a written statement and wait for a response in writing. This is what prompted us to stay at the NBAU until the leadership showed up for work.

It should be noted that only Valentyn Zagariya came to meet us, and after some heated discussions, he agreed to sign his resignation from the office of Chairman of the HQDBC. The video of what happened and his statement were posted on Liga.net [legal news website]. The attorneys waited until midnight for Lidiya Izovitova and Valentyn Gvozdiy, at which point they started taking shifts. When I went to the NBAU with my colleagues to bring drinking water the next day after work, Lidiya Izovitova was already sitting at her desk, and the conversation was under way. She was essentially trying to draw the lawyers present into a discussion of legal issues (what legal norms had we broken?). Of course, I was outraged, and I voiced my concerns–let’s just say I became a moderator. Lidiya Pavlivna held the “majority.” She had come with a support group and accused us of being “political advocates,” and that my language was not the language of an attorney. She was correct only in the latter assessment, because my declaration of mistrust in her, first and foremost as a person, was because the leadership of the the NBAU, CAU, and the HQDBC was fundamentally immoral, cynical, and not in line with the principles of the protection of rights in the country and the Bar Association in general. It was impossible to watch silently as they consciously supported and continued to support those in power, those who have distorted the law, and crippled and killed people. Obviously, these people do not have the moral right to lead the Bar Association.

After this meeting, the NBAU posted on their website the report concerning Viktor Smaliy–what they did, etc. They also invited an initiatory group of lawyers to the CAU meeting so they could make their case, though they did not give the date of the meeting. That is, it looked as though there was a dialogue, as if they were listening to us. At the same time however, this information [the date of the meeting] was published on their website at the last minute on February 27, and none of us received a phone call to let us know.

I learned through Facebook about the invitation at one o’clock in the morning on February 28. And an hour after that, I found out that I (Tatyana Kozachenko) and Oleh Veremeyenko had been chosen as speakers. So, it was not the lawyers of the initiatory group who had chosen the speakers, but rather they [NBAU and CAU] had. They unilaterally chose the two of us (as we seemed the most emotional) to repeat the accusations of political advocacy and the absence of a legal basis for infringements.

Can you tell us anything about the masked people present at the CAU meeting on February 28?

I don’t know who those people were. I don’t know who invited them. It seemed more like a flash mob to me. There were about a hundred lawyers and these seven or eight people in masks. A ridiculous comparison. Besides, during the discussion of the issues and the voting by the members of the CAU, nearly all the lawyers (including the masked people), left the room at the request of the board members of the CAU meeting. Therefore, no one could have influenced their decisions.

Considering everything that has been said, what is your take on the possibility the leadership may resign during the assembly scheduled for April, 26?

Valentin Zagariya has already written a statement in this regard. As for the leadership of the NBAU and CAU, this is not about dismissal, and there are grounds for them to be re-elected. This will be up to the assembly. A thawing process has begun at the Bar Association, and there is an understanding of what it should be like. Over these past three months I have seen so many professional lawyers, good people, and aware citizens among my colleagues who want changes in the Bar Association and the country. Currently, Ukrainian lawyers do not have the foundation needed for unification and self-regulation in the manner that is required. Most lawyers do not even know what the self-governing authorities for attorneys are called, how these authorities are formed, and who is in charge of them. You could verify this by conducting an independent poll.

As for the self-governing authorities of the Bar Association, they are nowadays created for their own sake, and do not represent the interests of lawyers.

Who do you think could bring the Bar Association together?

Everything has unfortunately been done recently to ensure that there was no legal elite, which would be dangerous for a country unprepared for the creation of a lawful state. To understand the source of the problem, it is necessary to understand how the constitutive assembly of lawyers came about, and how its current leaders had been chosen.

A significant number of attorneys could not participate in the regional constitutive conferences, because they would simply not let them in. The congress on November 17, 2012 was effectively stage-managed, and a large number of the chosen delegates were not allowed inside the assembly premises. This provided the opportunity to unanimously “hand-pick” the current leaders. The NBAU and CAU have been led by a lawyer whose license to practice law was suspended 17 years ago. Since 1998, Liliya Izovitova has been a member of the HCJ [High Council of Justice], and she has not practiced law for 17 years. Any person who has not practiced law for 17 years loses their professional qualifications. They do not and cannot know about the current processes in the Bar, or the real needs and difficulties of legal practice. It is possible however, to represent the interests of lawyers in the High Council of Justice, head a section on the appointment of judges and their dismissal from office, and also ensure legal representation for a judge, especially if it is the Chairman of the Supreme Administrative Court. What do you think, was there any point in bringing legal cases to the Administrative Courts while the NBAU was in such state?

The NBAU was also founded in this scandalous and undemocratic way, and thus the above-mentioned people received their positions. A similar conclusion was reached by the initiative of the Council of Bars and Law Societies in Europe, as their report showed. After this assembly, the practice of sanctions and disciplinary proceedings was introduced against unsuitable colleagues in the Bar Association. A lot more could be said about this issue, particularly about the legitimacy of the constituent assembly.

Therefore, the Bar Association could be united by the assembly of lawyers if it is led in a legal and open fashion, with elected delegates worthy of people’s voteand not delegates who have been co-opted.

First of all, it is necessary to make changes to the law governing the Bar Association, in order to ensure transparency in the voting and thus fair elections.

What changes should be made to the laws governing the Bar Association?

There needs to be order and regulation in conducting conferences and the assembly. This is crucial. What is happening now leaves unlimited opportunity for abuse by interested parties with access to executive positions in the Bar Association. The law needs to be reworked on many issues. For this reason, the Ministry of Justice created an initiative group to draft the new law. This group includes specialists and well-known legal experts. Discussion is public, and that means that all the prerequisites are there for a competently written law that does not serve the interests of certain individuals.

The time has come for all lawyers in Ukraine to take the initiative in organizing the regional conferences of lawyers by actively participating in the self-governing bodies. Study the candidates and delegates to the assembly of lawyers. Discuss and propose worthy candidates from the regions. Now is the time to start thinking about an active social role for the Bar Association in society, one that will be implemented, among other ways, by the work of self-governing regional and national bodies.

Real work needs to be done to protect the interests of both individual lawyers and the Bar Association in general by significantly reducing unjustified annual membership fees. We also need topare down the number of bloated bureaucrats in the self-governing bodies. Therefore, all the lawyers need to start working to improve the reputation of their own profession. And, as always, we need to start from the top, by electing proper leaders to the National Bar Association of Ukraine.

Source: Jurliga.ligazakon  

ADDITIONAL REFERENCES:

The crucial Judicial Lustration Bill was passed by the Ukrainian Parliament on April 8, 2014:
http://khpg.org/index.php?id=1396995867

Human Rights Watch argues that the new lustration bill undermines the independence of the judiciary:
http://www.hrw.org/news/2014/04/09/ukraine-new-law-violates-judicial-independence

Ukraine’s Bar Under Fire, Halya Coynash:
http://ukraineanalysis.wordpress.com/2013/05/16/ukraines-bar-under-fire/

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