By Leyla-Denisa Obreja
On December 12, 2018, the European Court of Human Rights (ECtHR) issued a press release announcing its decision to “permanently” prohibit Ukrainian lawyer, Nataliya Yevgenivna Tselovalnichenko “from representing or otherwise assisting applicants in both pending and future applications.” This unprecedented decision contains questionable legal arguments to justify a permanent ban. The ECtHR has not made public any information regarding the Court’s reasoning, nor the deliberative process, which led to this disciplinary sanction. As such, we do not know the facts of the case that led to the ban. Although the ECtHR may have banned representatives in singular proceedings before, this decision was unexpected. Is the Court acting within its competence when it applies lifelong disciplinary sanctions? This post will analyze the legality of this action in two respects. First, it will examine this action in the specific context of the ECtHR’s legal regime. Second, it will consider the decision of an international court to ban a legal representative in the general context of existing international rules and practices.
What we know about the ban
The ECtHR claims to have reached this decision out of “concern not to prejudice applicants” and in light of the “fraudulent and abusive behaviour” of Ms. Tselovalnichenko. Specifically, the Ukrainian lawyer has allegedly “submitted documents which had obvious signs of forgery, while in several [other cases] she had lodged applications on behalf of deceased applicants without informing the Court of their deaths.” These are the only facts the ECtHR mentions with respect to the alleged misconduct of the Ukrainian lawyer. Press reports indicate that Tselovalnichenko is a human rights activist and, as of 2016, Chairwoman of the NGO “Luhansk Human Rights Initiative.” These reports suggest that she is known by experts in the field for trying to “flood” the European Court with applications related to the Donbas hostilities. In the aftermath of Euromaidan and the 2014 Ukrainian revolution, Donbas has seen escalating conflicts between the Ukrainian government and separatist, pro-Russian forces.
The procedural rule acting in support of this ban is Rule 36(4b) of the Rules of the European Court. It states that “[i]n exceptional circumstances and at any stage of the procedure, the President of the Chamber may, where he or she considers that the circumstances or the conduct of the advocate or other person appointed under the preceding sub-paragraph so warrant, direct that the latter may no longer represent or assist the applicant and that the applicant should seek alternative representation.”
The ban in the context of ECtHR rules
Rule 36(4b) contains three requirements that must be met in order for a ban to be imposed on a legal representative: exceptionality, authority, and procedure. Each of these elements will be examined in turn.
Exceptionality: It is unclear what constitutes “exceptional circumstances” under the Rules of the Court. If the “exceptional” nature of the conduct was based on the allegation of forgery, it then begs the question as to whether the Court is invested with the capacity and authority to declare that the document is forged in the first place. It is also unclear whether the Court conducted an investigation in cooperation with the Ukrainian authorities and how the Court came to conclude that these documents were forged. Despite the fact that European laws vary in how they conceptualize and sanction forgery and other types of fraud, it appears that in most States, this conduct would be subject to an investigation and sanction. The ECtHR is not authorized to investigate, nor to institute, criminal proceedings against individuals. Nevertheless, under Rule 36, it can impose a ban on the applicant’s counsel, with or without prior or subsequent criminal proceedings in Member States.
Authority: Under Rule 36, the President of the Chamber orders the ban. According to Rule 1, “the term Chamber means any Chamber of seven judges […] and the expression President of the Chamber means the judge presiding over such a Chamber.” The press release does not identify the Judge who ordered the ban, nor does it provide any details about the Chamber in question.
Procedure: Once banned, Rule 36 states that the legal representative may not continue to assist or represent the applicant. Further, the ban can be declared at any point in the proceedings. This rule, combined with the fact that it is the President of the Chamber who orders the ban, suggests that the ban can only be imposed within a specific and singular procedure. The use of the word “applicant” further implies that the ban extends to the representation of an applicant in a singular proceeding. Neither Rule 36, nor any other rule of the Court, mentions the possibility of a permanent ban. In exercising such a measure, the Rules of the Court do not indicate how the representative in question can appeal a ban. Since a permanent ban is not provided for in the Rules of the Court, following the principle of legality, the decision of the Court is likely ultra vires, or not sufficiently justified by the existing Rules of the Court.
However, several other Rules of the Court could act in support of this decision. These are Rules 44B and 44D. Rule 44B suggests that the “President of the Chamber may take any [appropriate] steps” if the parties fail to abide by the orders of the Court. Rule 44D underlines that in the case of “abusive, frivolous, vexatious, misleading or prolix submissions,” the President of the Chamber can ban a representative from the proceedings, “refuse to accept all or part of the submissions or make any other order which he or she considers it appropriate to make.” A broad interpretation of Rule 44D could indeed justify the ban, as the President of the Chamber maintains the authority to “make any order he or she consider[ed] appropriate.” Admittedly, these actions are permissible during a singular proceeding. Yet they do not extend further, affecting future acts of representation before the Court.
The ban in the context of human rights law
What makes this ban surprising is the fact that it was declared by a human rights body. It is imperative to briefly examine whether this ban has indeed followed the very spirit of the norms the Court is called to defend and enforce. A similar ban by any international judicial or quasi-judicial body would be worth examining, but the operative area of the ECtHR, specifically the defense of human rights, makes this paradox particularly worthy of our attention. This ban implicates the right to reputation, the freedom to exercise a profession, and the right to an effective remedy.
It is easy to see how the right to reputation, which falls under Article 8 of the European Convention of Human Rights (and Article 12 of the UDHR), might have been jeopardized by the ECtHR’s press release. It is common for the right to reputation to clash with the freedom of expression. The proper balance between these competing rights is often hard to maintain, a problem that the Court has had to address in several cases. Previously, the Court has drawn the line at the commission of a criminal offense: “Article 8 cannot be relied on in order to complain of a loss of reputation that is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.” By claiming that the Ukrainian lawyer was “fraudulent, abusive” and forged documents without instituting criminal proceedings or otherwise cooperating with the Ukrainian authorities to uncover the authenticity of these documents, the ECtHR might have overstepped its bounds. Moreover, it appears that the involvement of the Ukrainian government came only after the Court reached its decision. Nevertheless, because many of the facts surrounding this ban are still unknown, it may be premature to claim that the ECtHR has violated Mrs. Tselovalnichenko’s rights. Many elements must be met for a violation of the right to reputation to exist, among which are the seriousness of the attack on the person’s reputation and a “prejudice to personal enjoyment of the right to respect for private life.”
It is also necessary to consider the freedom to exercise a profession and to seek a remedy. In 2000, the Council of Europe adopted a series of recommendations for Member States that seek to guarantee the freedom of exercise of the profession of lawyer. Principle VI dictates that disciplinary proceedings must give lawyers the opportunity to participate in the proceedings and apply for judicial review. Further, Principle I stipulates that decisions to practice as a lawyer “should be subject to a review by an independent and impartial judicial authority.” In support of these principles, the Council of Europe recalls various instruments, including the European Convention on Human Rights and UN Basic Principles on the Role of Lawyers. It is unclear whether the Ukrainian lawyer has had the opportunity to participate in these proceedings and justify her actions and the legality of the documents she submitted. From the press release, it is apparent that these safeguards were not respected.
How other international courts impose disciplinary bans
Appearing before an international court requires a certain level of decorum, preparation, and professionalism. The stakes are high and the risk of misconduct can arise. In anticipation of these risks, other international courts have adopted rules and procedures to clarify the disciplinary measures that can be taken against legal representatives.
In the case of the International Court of Justice (ICJ), procedural rules do not regulate exclusions or bans for legal counsel and advocates. Despite this fact, Chen argues that the ICJ has permissive rules of admissibility of evidence. The author suggests that the ICJ might not have excluded evidence obtained illegally in certain cases, including the Corfu Channel Case. Examining the ICJ’s practices with respect to forged, privileged, and confidential evidence, Chen argues the Court should promulgate a set of rules to regulate its exclusionary discretion. The ECtHR exercises a similar amount of discretion in the imposition of bans. In fact, the ECtHR has developed a fair trial doctrine that states “a trial is not necessarily corroded by the use of illegally obtained evidence.” Given the ECtHR’s discretion to exclude evidence, it is necessary to ask whether the exclusion of evidence, rather than the exclusion of a representative, would have been more suitable in the case of the Ukrainian lawyer. Comparative legal practices suggest that illegally obtained evidence might be declared admissible under exceptional circumstances. It remains unclear why the ECtHR opted for a ban instead of declaring the alleged forged evidence inadmissible and allowing the representative to continue the proceedings.
The International Criminal Court (ICC) has a Code of Professional Conduct for Counsel. Chapter IV regulates disciplinary measures and establishes the forms of misconduct, the counsel’s liability, the procedure to file a complaint of misconduct, the limitation period, and the authority of the Disciplinary Board to take action. Counsel has a right to participate in the proceedings and submit a response. There, certain standards of equitability are in place and the disciplinary regime is more coherent and organized.
The Inter-American Court of Human Rights does not have regulations regarding the possibility of applying disciplinary measures, but it does refer to incomplete or illegible evidence in Article 59 of its Rules of Procedure. Article 59 permits the Court to allocate supplementary time to the parties to “correct [the] defects or to submit relevant clarifications” related to the evidence brought before the Court. A failure to comply with this rule could lead to the Court dismissing the evidence in question.
The rules of the Court of Justice of the European Union (CJEU) provide for the possibility of exclusion of a representative. Article 46 of the Rules of Procedure of the Court of Justice state that “the Court may at any time, having heard the person concerned and the Advocate General, decide to exclude an agent, adviser or lawyer from the proceedings by reasoned order. That order shall have immediate effect.” These rules also incorporate the necessity of a hearing before proceeding with a declaration of exclusion. The International Bar Association has drafted a Guide for Establishing and Maintaining Complaints and Discipline Procedures (2007), that underlines the importance of giving a lawyer “reasonable opportunity and time to respond to the complaint” in disciplinary procedures.
Not all international courts and quasi-judicial bodies have rules in place for declaring bans and exclusions. Yet when they exist, they usually incorporate a review system and some type of procedural safeguards.
Given the massive caseload of the ECtHR and the enhanced risk of misconduct by the applicant’s counsel, the Court should codify rules on the procedures and safeguards of temporary or permanent bans and other disciplinary measures. There have not been many public cases involving bans at the ECtHR, which has denied experts the opportunity to scrutinize the Court’s lack of safeguards and guarantees for legal representatives in the Court’s procedures. One author notes, however, a pressing need for international courts to adopt common ethical standards for lawyers in light of “issues of dishonesty and documentary evidence” in the practice of the CJEU and the ECtHR.
However, the case of Tselovalnichenko’s ban raises several questions as to the limits of an international court’s authority and the relationship between the court’s actions and the competence and jurisdiction of a State party. First, can an international court permanently prohibit a legal representative from appearing before a court without a prior investigation in cooperation with the relevant Member State? Second, how can and should an international court signal to a State party that it suspects forgery has taken place while maintaining the court’s impartiality? Laws and regulations that guarantee the independence and freedom of counsel in an international context must be put in place to guarantee that State actors do not try to exercise pressure over lawyers when their interests are implicated in a dispute.
Lastly, how can international courts sanction legal representatives if the ability and competence to practice law stems, not from the mandates of international courts themselves, but from the national bar associations and government institutions that regulate the legal profession. It follows, therefore, that future reforms might be needed to clarify the rules and conditions that legal representatives must satisfy to carry out their activities before these courts. In Europe, many have called for the adoption of a European Convention to Protect Lawyers, underlining increased risks in Eastern Europe. Future rules should regulate the disciplinary procedures under which lawyers are suspended or banned at a domestic and national level, and how the consequences of these bans inform each other and limit the representative powers of lawyers.
Leyla-Denisa Obreja is a human rights scholar and lawyer. She recently completed a PhD program at Bond University (Australia) on the topic of States’ due diligence obligations to prevent intimate partner violence.