Dmytro Yagunov, Yurii Kanikaiev: The Impact of War on Legal Profession: The Problem of Holding Elections

The most difficult challenge faced by the Ukrainian legal profession during the war is the problem of ending the usurpation of power, renewing the leadership of the Ukrainian National Bar Association (UNBA) and holding elections for self-governing bodies of the legal profession, such as regional bar councils and qualification and disciplinary bodies.

In Ukraine, Regional Bar Councils perform organisational functions to improve the qualifications of lawyers, resolve disputes between them and protect their rights and guarantees of professional activity.

Regional Qualification and Disciplinary Commissions of the Bar certify candidates for the right to practise as lawyers and bring lawyers to disciplinary responsibility. When considering complaints against lawyers, they are authorised to either exonerate them or hold them accountable, with penalties ranging from a warning or temporary suspension from the practice of law to complete deprivation of the right to practise law.

In addition, the UNBA has established a General Council of Advocates of Ukraine and a Higher Qualification and Disciplinary Commission of the Bar, which are authorised to review decisions made at the regional level and adopt them at the national level.

It should be emphasised that in Ukraine, as in other countries, the Bar has a self-governing status. This means that the Bar is a legal institution directly provided for by the Constitution of Ukraine as part of the justice system, and lawyers are traditionally regarded as ‘officers of justice’.

The Ukrainian bar is administered and governed not by the state, but by bodies of self-government elected by the lawyers themselves. These are the Bar Council of Ukraine and the High Qualification and Disciplinary Commission of the Bar, as well as regional bar councils and qualification and disciplinary commissions of the bar.

The Bar is headed by an elected person – the Chair of the Bar Council of Ukraine, who is also the Chair of the National Association of Advocates of Ukraine. All lawyers, without exception, become members of this Association upon acquiring professional status. In Ukraine, it is impossible to be a lawyer without membership in the National Bar Association of Ukraine. Membership is mandatory for all advocates in Ukraine.

Elections of bar self-government bodies must be held regularly at intervals specified by law.

On 18 November 2022, the term of office of the Chair of the UNBA, Lidia Izovitova, came to an end. At the same time, according to the Law of Ukraine ‘On the Bar and the Practice of Law’, the term of office of the Chair of the Bar Council of Ukraine cannot exceed two consecutive five-year terms. As a result, critical but well-founded questions are regularly raised in the media and academic publications that the Chair of the UNBA and other members of the bar self-government bodies hold their positions illegally, i.e. beyond the terms established by law.

As a result, there is discussion of the usurpation of power by the top echelons of the bar self-government bodies, which have blocked the renewal of power.

Accordingly, the issue of holding elections for the heads and members of the bar self-government bodies has become topical.

Nevertheless, the Chair of the UNBA, Lidia Izovitova, continues to perform the duties of the Chair of the UNBA after the expiry of her legal powers. This has been made possible by decisions of the UNBA that are contrary to the current Ukrainian legislation.

In particular, the decisions of the Bar Council of Ukraine No. 69 of 21 September 2020 and No. 108 of 5-6 September 2022 allowed her to continue her powers, which is a violation of the law.

Back in September 2020, the Bar Council of Ukraine announced that ‘in order to prevent institutional discontinuity in the legal profession, it is appropriate and reasonable to apply the principle of institutional continuity of the organisational forms of self-government of the National Bar Association of Ukraine’.

However, this was before the start of full-scale Russian aggression, and the situation was caused by the coronavirus pandemic.

Therefore, the Bar Council of Ukraine stated that ‘the extension of the terms of office of bar self-government bodies should be an exception and is permitted only if there are objective grounds that preclude the possibility of holding elections that are unimpeded and safe for the life and health of individuals, such as the impossibility of holding such elections in a timely manner under pandemic conditions’.

As a result, the Ukrainian Bar Association believes that ‘the legislative requirement for continuity and uninterrupted powers of bar self-government bodies means that bar self-government bodies and their members keep doing their jobs until the newly formed bar self-government bodies start working, and their new members are elected’[1].

However, the pandemic has passed, but the elections of the bodies of bar self-government have not been held.

Therefore, as of today, in order to elect the composition of the Bar Council of Ukraine, the High Qualification and Disciplinary Commission of the Bar, and the Chair of the Council of the Bar Association/UNBA, it is necessary to convene and hold a Congress of Lawyers of Ukraine, whose delegates are elected on a quota basis from each region.

In accordance with current Ukrainian legislation, the term of office of members of the bar self-government bodies, as well as the Chair of the Bar Council/UNBA, is five years. The same person cannot hold a certain position for more than two consecutive terms.

The term of office of the current Chair of the Bar Council of Ukraine and the National Association of Advocates of Ukraine expired in November 2022, but a new Congress of Advocates of Ukraine to elect new leadership of the bar has not yet been held.

The explanation offered to lawyers and the public by the National Association of Advocates of Ukraine is the so-called ‘security risks caused by the war’ and ‘the complete or partial occupation of several regions of Ukraine, which, in the opinion of the leadership of the National Association of Advocates of Ukraine, makes it impossible to ensure the proper representation of all bar councils of all Ukrainian regions’.

As a rule, on the issue of extending the indefinite powers of the bodies of the bar self-government after the expiry of their terms, the leadership of the UNBA emphasises the analogy with the legal status of the President of Ukraine in wartime. As a rule, on the issue of extending the indefinite powers of the bodies of the bar self-government after the expiry of their terms, the leadership of the UNBA emphasises the analogy with the legal status of the President of Ukraine in wartime (the so-called principle of ‘continuity’, i.e. the continuity of power).

Thus, in accordance with Part 1 of Article 108 of the Constitution of Ukraine, the President of Ukraine shall exercise his powers until the newly elected President of Ukraine takes office.

However, during the period of martial law, democratic presidential elections cannot be held in accordance with the constitutionally defined principles of electoral law. In addition, the Law of Ukraine ‘On the Legal Regime of Martial Law’ expressly prohibits the holding of presidential elections during martial law.

Thus, the Constitution of Ukraine significantly limits the powers of the President of Ukraine. It is obvious that in the current circumstances of prolonged full-scale Russian armed aggression, Ukraine will face problems of state governance in the absence of the President of Ukraine.

Accordingly, the current President, in accordance with Article 108 of the Constitution of Ukraine, not only is entitled to continue his powers until the newly elected President takes office in the first post-war elections but is also politically obliged to the Ukrainian people to exercise his powers[2].

Accordingly, the leadership of the bar self-government bodies raises the question: if the President of Ukraine can continue to exercise his powers after the expiry of his official term, why is the Head of the National Bar Association of Ukraine deprived of this right?

At first glance, the question deserves to be formulated with precision and logic.

However, if we analyse the issue more deeply, we can conclude that this position is manipulative and has only one goal to prevent Ukrainian lawyers from obtaining a new legitimate composition of self-governing bodies of the legal profession, including a new composition of disciplinary courts for lawyers, which decide on many issues that are crucial for lawyers and take decisions that constitute interference in the private and professional lives of lawyers.

The powers of the President of Ukraine as the Head of State directly depend on the possibility of holding nationwide elections, which, as is well known, are strictly prohibited during wartime. Moreover, the President is elected not by representatives according to quotas, but by all citizens of Ukraine who have the right to vote.

However, the Chair of the Bar Council of Ukraine and the Chair of the National Bar Association of Ukraine are not subject to such legislative restrictions in principle. Moreover, there is no law in Ukraine that would prohibit the holding of congresses of representatives of self-governing professional organisations during martial law, including congresses of lawyers.

This is clearly demonstrated by the fact that, after the start of full-scale Russian aggression, congresses were organised and held by judicial and prosecutorial self-government bodies, as well as by self-government bodies of private enforcement officers.

On August 30, 2024, a Congress of Private Enforcement Officers of the Executive District of the City of Kyiv was held with the help of technical means.

On September 18, 2024, the 20th Regular Congress of Judges of Ukraine was held. At the congress, a judge was elected to the Constitutional Court of Ukraine and a new version of the Code of Judicial Ethics was approved.

On September 10 and September 24, 2024, a Congress of Representatives of Higher Legal Education Institutions and Scientific Institutions was held.

On 12 December 2024, a regular Congress of Private Enforcement Officers of Ukraine was held.

Therefore, the position of the UNBA regarding the so-called ‘security risks’ of holding a advocates’ congress is based on the argument that a large gathering of delegates in one place could become an attractive target for Russian occupiers.

However, there are many opinions that such a position of the UNBA and the UBA is nothing more than a justification for the banal usurpation of power.

Firstly, because in the fourth year of the war, Ukraine has more than enough successful events held by various bodies or organisations in regions far from the front line using underground shelters.

Secondly, because the Law ‘On the Bar and the Practice of Law’ does not in any way prohibit the holding of an advocates’ congress online.

Thirdly, online voting by lawyers can be easily ensured with the help of electronic digital signatures and appropriate modern information technologies that allow online events such as voting or testing to be held. For example, long before the war, many universities began to hold thesis defences online. Today, there are already many electronic programmes that allow video conferences with numerous participants to be held and their identities to be reliably verified, which, in fact, nullifies any so-called ‘security arguments’ of the UNBA at the present stage.

Moreover, the current Law of Ukraine ‘On the Bar and the Practice of Law’ does not specify any mandatory forms for holding this event, delegating the resolution of all organisational issues to the lawyers themselves through a decision of the Bar Council of Ukraine.

Accordingly, this means that, if they so desire, the members of the Bar Council of Ukraine are fully capable of adopting decisions that will allow any reporting and election events of the bar self-government bodies to be held remotely. By law, every advocate in Ukraine must register in the ‘Electronic Court’ system, which includes a video conferencing subsystem that not only provides online communication but also allows for the exchange of documents and recording of the conference process, as well as authorisation with the signing of documents in digital format using electronic digital signature keys or a special application called ‘Dіya’ (which is officially recognised in Ukraine as an electronic document that certifies identity and allows authorisation in all state online services and banking institutions).

Therefore, if the UNBA had asked the court administration to allow it to organise and hold the congress, the court administration would not have raised any objections. Not to mention the commercial offers available on the online communications market, which are also plentiful.

Thus, Ukrainian advocates have found themselves hostage to their own elected representatives, who are deliberately failing to comply with the law, justifying their inaction by the war and continuing to usurp power.

Continuing to highlight this issue, it is necessary to note one more aspect of this problem. As mentioned above, according to Article 131-2 of the Constitution of Ukraine, the legal profession is a part of the judiciary.

The application of this direct provision of the Constitution of Ukraine, together with the numerous conclusions of the Supreme Court, indicates the status of regional qualification and disciplinary commissions as a ‘court’ within the meaning of Article 6 of the Convention for the Protection of Human Rights. Numerous decisions of the Supreme Court have established a consistent practice that each Regional Qualification and Disciplinary Commission of the Bar is a holder of public authority[3].

This points to a fundamental issue in the Ukrainian legal profession, as disciplinary courts for lawyers, which require reform and whose members need to be re-elected, continue to issue disciplinary ‘sentences’ in disciplinary cases based on complaints against lawyers, imposing severe restrictions on lawyers that may amount to ‘punishment’ within the meaning of Article 6 of the Convention for the Protection of Human Rights.

Given that Regional Bar Qualification and Disciplinary Commissions are ‘courts’ within the meaning of Article 6 of the Convention on the Protection of Human Rights, this creates an acute issue of the establishment of ‘courts not in accordance with the law’.

As a result, there is a real threat of numerous lawsuits by Ukrainian lawyers to the European Court of Human Rights due to disciplinary sanctions imposed on them by disciplinary courts of the Bar, which have no authority but have usurped the ‘power to punish’.

[1] Decision of the Ukrainian Bar Association № 69 ‘On Approval of Clarifications Regarding the Institutional Continuity of the Ukrainian Bar Association and Organisational Forms of Bar Self-Governance’ dated September 21, 2020.

[2] Chirkin A., Mahera, A., Kirichenko, Y. (2024). Conclusion of experts from the Centre for Political and Legal Reforms on the powers of the President of Ukraine. Centre for Political and Legal Reforms. 20 May 2024. Source: https://pravo.org.ua/vysnovok-ekspertiv-tsentru-polityko-pravovyh-reform-shhodo-povnovazhen-prezydenta-ukrayiny

[3] Decision of the Civil Court of Cassation in case No. 607/678/20 of 03.02.2022, Decision of the Grand Chamber of the Supreme Court in case No. 817/66/16 of 06.11.2019, Decision of the Grand Chamber of the Supreme Court in case No. 817/66/16 of 06.11.2019, Decision of the Grand Chamber of the Supreme Court in case No. 640/12325/15-tc dated 29.03.2018, Decision of the Administrative Court of Cassation in case No. 380/9317/21 dated 15.03.2023