Oct 2, 2015 | News
The ICJ is concerned at the recent disbarment of lawyer Andriy Vishnevsky, Director of the Coordination Centre of Legal Aid of the Ministry of Justice of Ukraine.
The ICJ considers that his disbarment, which resulted from his public comments critical of the Ukrainian bar association, interferes with his capacity to freely discharge his professional functions as a lawyer.
Furthermore, it constitutes a violation of his right to freedom of expression, and risks unduly constraining lawyers in legitimate participation in public debate.
The ICJ calls on the Ukrainian bar association to reinstate Andriy Vishnevsky to the bar so that he can resume his status as an accredited lawyer.
Andriy Vishnevky was disbarred on 10 September, following a hearing before the Qualification-Disciplinary Commission of Kiev Region Advokatura. Disciplinary proceedings were initiated based on two separate complaints: one submitted by the Ukrainian national bar association on 24 June 2015; and the other by Ukrainian Parliament Member Rybalka S.V. on 22 June 2015.
The complainants alleged that Andriy Vishnevsky “humiliated the bar, every lawyer, destroyed respect of the society to the bar in the State, in contradiction with the European standards”.
They cited his comments made at a conference on 15 June 2015 at the premises of the Supreme Court of Ukraine, where he presented his report “The bar and free legal aid: approaches to the reform”.
He made a number of comments critical of the legal profession.
These included his assessment that the bar association was “in a dire state”; a reference to “low ethical standards and professional level of the bar”, including that lawyers are “the main corruption element”; and a claim that “the phenomenon of police lawyers is not counteracted by the national bar association and not commented upon in any way”.
The decision quoted him as saying that “if the bar is not reformed as soon as possible in accordance with the principles and standards of the Council of Europe, it can become a hindrance to the implementation of the judicial reform”.
The Disciplinary Chamber came to the decision that the statements of Andriy Vishnevsky were contrary to the law and the Code of Lawyers’ Ethics and that he should therefore be disbarred for the statements made during the conference.
The ICJ considers the Chamber’s decision to contravene fundamental and universal principles on the independence of the legal profession.
If applied generally, this interpretation of the Code of Ethics would effectively prevent lawyers from critically debating the governance of the legal profession.
The UN Basic Principles on the Role of Lawyers provide that while lawyers should “maintain the honour and dignity of their profession as essential agents of justice” they, like other persons, “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.”
The right to freedom of expression is protected in international human rights law, including the International Covenant on Civil and Political rights and the European Convention on Human Rights, treaties to which Ukraine is a party.
Under the European Convention on Human Rights, where matters of public interest are discussed there is a particularly narrow scope for restriction of freedom of expression.
Disciplinary action against a lawyer, solely on the grounds of comments critical of the bar association, made at a conference convened to debate aspects of the justice system, amounts to an illegitimate interference with freedom of expression.
The ICJ is concerned that such punitive measures are likely to have a chilling effect on freedom of expression of lawyers in Ukraine and in particular on their ability to engage in debate on reform of the justice system.
It is important, for any justice system, that such debate take place with the active participation of the legal profession, as lawyers are amongst those best placed to identify and criticize the deficiencies of the justice system and make informed proposals for reform.
The ICJ calls on the Ukrainian bar association to reinstate Andriy Vishnevsky as a lawyer.
Furthermore, the ICJ recommends that the interpretation of the Code of Ethics should be reviewed and guidance should be issued to ensure that the Code of Ethics is not applied to stifle public debate among lawyers on ways to reform the justice system in Ukraine.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
The full statement with background information can be downloaded here:
Ukraine-Lawyer Vishnevsky statement-News-web story-2015-ENG (in PDF)
Ukraine-Lawyer Vishnevsky statement-News-web story-2015-UKR (Ukrainian version, in PDF)
Jun 18, 2015 | News
Today, the ICJ expressed concern at the attempt to initiate criminal proceedings against the President of the Constitutional Court of Ukraine, following interrogations of judges of the Constitutional Court and seizures of documents from the Court earlier this year.
On 16 June, the Chair of the Security Council of Ukraine, Valentin Nalivaychenko, is reported to have filed evidence alleging criminal offences by the President of the Constitutional Court of Ukraine, Jury Baulin.
The documents allege that he abused his office in violation of Article 364(2) of the Criminal Code of Ukraine, leading to the usurpation of power by the former President, Victor Yanukovich.
The allegations relate to a decision of the Constitutional Court of 30 September 2010, No 20-rp/2010, which overturned the adoption of the Constitution of 2004.
The initiation of the criminal proceedings is therefore based entirely on a ruling of the Constitutional Court on a question of constitutional law.
“It is inherent in the judicial function that courts issue rulings concerning matters on which public opinion may be divided. Prosecution of judges in relation to such decisions undermines judicial independence and erodes the rule of law,” said Wilder Tayler, ICJ Secretary General. “In all times but particularly in times of transition, such as at present in Ukraine, it is crucial that the executive refrain from any interference with the independence of the judiciary”.
The ICJ stressed that such attempts to initiate criminal proceedings against the President of the Constitutional Court are contrary to international law and standards on the independence of the judiciary, including the UN Basic Principles on the Independence of the Judiciary.
“Changes to the law or Constitution, must be sought and brought about through proper constitutional processes in the legislature and courts, not through prosecutions of judges. Criminal investigations and prosecutions against Constitutional Court judges must be discontinued and the government must ensure that the Court can operate without threats or interference,” Tayler added.
Following the change of government in early 2014, the ICJ expressed concern at the dismissals of judges of the Constitutional Court by the Verkhovna Rada (the Ukrainian Parliament) and called on the authorities to ensure the security of tenure of judges and non-interference with judicial independence.
Earlier this year, the Security Service of Ukraine interrogated sitting judges of the Constitutional Court in regard to the same case.
According to the State Security Service, at least 10 judges of the Constitutional Court have been interrogated. Moreover, the Security Service of Ukraine seized documents from the Constitutional Court in May 2015.
These investigations and prosecutions of Constitutional Court judges are taking place at a time when the Court is considering a number of highly significant cases, including the constitutionality of the Law “On cleansing of power”, the Law “On condemnation of the communist and national-socialist (nazi) regimes in Ukraine and prohibition of propaganda of their symbols” and the Law on an “All-Ukrainian referendum”.
The ICJ recalls that Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
The principles further stipulate that [t]he judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law without restrictions or improper influences, inducements, pressures threats or interferences, direct or indirect, from any quarter or for any reason” (Article 2).
Recommendation No. R(94) 12 of the Committee of Ministers to Members States on the Independence, Efficiency and Role of Judges elaborates on this principle, stipulating that “judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary”.
Contact:
Róisín Pillay, Director, Europe Programme, e: roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, e: temur.shakirov(a)icj.org
External link: Official information about the criminal procedure
Jun 11, 2014 | Advocacy, Non-legal submissions
The ICJ, together with the International Lesbian and Gay Association (ILGA) and on behalf of ARC International, today delivered an oral statement to the Human Rights Council during an interactive dialogue with the UN Special Rapporteur on peaceful assembly and association.
The report of the Special Rapporteur addressed challenges faced by groups at risk, including lesbian, gay, bisexual, transgender and intersex persons.
The statement welcomed the report by the Special Rapporteur.
It referred to the Nigerian Same Sex Marriage (Prohibition) Act (which in fact criminalizes a much broader range of human rights-protected activities than its title would necessarily suggest), Uganda’s Anti-Homosexuality Act, and Ukraine’s draft law on “propaganda of homosexual relations”. All of these laws impede freedom of peaceful assembly of LGBTI persons. The Nigerian law also interferes with freedom of association, as it bans registration, funding and activities of “gay” organizations.
It also referred to Russia’s ban on “propaganda of non-traditional sexual relations”.
It emphasised the detrimental impact of such laws on the work of LGBTI human rights defenders and the activities of health care providers. It stressed that laws directly targeting the freedom of peaceful assembly or association of LGBTI individuals solely because of their sexual orientation or gender identity are inconsistent with international human rights law.
UN-HRC26-AssociationLGBTI-OralStatement-advocay-non legal submission-2014 (full text in pdf)
The report of the Special Rapporteur is available here.
May 23, 2014
C. Principal subjects of concern and recommendations Discrimination on the grounds of sexual orientation and gender identity 10.The Committee is concerned about discrimination on the grounds of sexual orientation and gender identity in employment, social security,...
Mar 20, 2014 | News
The ICJ today called on the Ukrainian authorities to discontinue criminal prosecutions and dismissals of Constitutional Court judges.
These measures, which came at a time of crisis in the country, were taken due to disagreement with a ruling made by the judges in 2010.
The measures interfere with the independence of the judiciary, and are inconsistent with the principle of separation of powers and respect for the rule of law.
Wilder Tayler, ICJ Secretary General underscored that “In times of crisis the stability and continuity of the judiciary is essential. Judges should not be subject to arbitrary removal, individually or collectively, by the executive, legislative or judicial branches”.
On 24 February 2014, the Verkhovna Rada, the Parliament of Ukraine, adopted a resolution according to which twelve of the eighteen judges of the Constitutional Court were to be dismissed by the institutions which appointed them.
Five of the judges were dismissed by the Rada itself. The Rada recommended that the Acting President and the Congress of Judges consider dismissing the other seven judges.
On 13 March, the Parliament appointed four new judges of the Constitutional Court.
The grounds for dismissals were breaching the oath of a judge.
Moreover, in accordance with the resolution, the Prosecutor General was assigned by the Parliament to initiate criminal proceedings against those judges who were “guilty of adopting the decision of the Constitutional Court of Ukraine of 30 September 2010 No 20-rp/2010”, which overturned the adoption of the Constitution of 2004.
The Parliament’s resolution against the justices of the Constitutional Court followed the Ukrainian political crisis, which reached its peak on 22 February 2014 after three months of protests and violent clashes, and resulted in a change of government.
“The ICJ is deeply concerned at the dismissal and criminal prosecution of Ukrainian Constitutional Court judges on grounds of their interpretation of the law in judicial decisions” said Wilder Tayler.
“These measures are inconsistent with respect for the independence of the judiciary and the rule of law. It is precisely at moments of transition or crisis, such as Ukraine is now experiencing, that upholding the rule of law and the separation of powers is most critical. Any disciplinary action against judges must respect the independence of the judiciary, be based on established standards of judicial conduct and be taken only following a fair procedure in which the rights of the judge concerned, including to a defence, are respected.”
The ICJ stressed that action taken against the judges of the Constitutional Court is inconsistent with the duties of all branches of the government of Ukraine to respect and protect the independence of the judiciary.
This duty, a fundamental pillar of the rule of law and a fundamental aspect of the principle of separation of powers of the three branches of government, is enshrined in both the European Convention on Human Rights and the International Covenant on Civil and Political Rights, international human rights treaties to which the State is a party.
Furthermore, Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
This requires that judges have jurisdiction over issues of a judicial nature and that judicial decisions by courts must not be subject to revision (Principle 4).
Judges must have guaranteed tenure until a mandatory retirement age or the expiry of their term of office (Principle 12) and can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
The European Court of Human Rights found, in the recent case of Volkov v Ukraine, that dismissal of a judge of the Ukraine Supreme Court through a parliamentary procedure violated the right to a fair hearing under Article 6.1 of the European Convention on Human Rights, since there had been insufficient examination of the merits of the case, and it had not been heard by a tribunal established by law.
Contacts:
Róisin Pillay, Director, Europe Programme, t + 32 273 48 46, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, t + 41 22 979 38 32, temur.shakirov(a)icj.org
Ukraine-dismissal and criminal prosecution of judges-news-2014 (Statement, PDF)
