Advice in conflict

Zaporizhzhia in Ukraine is some 800km from Kyiv, a 12-hour train journey that Olha Popova undertook overnight. She left the capital on 23 February last year, arriving at the south-eastern city a day ahead of her bar exams. ‘I remember that I woke up because I thought my phone was vibrating,’ she recalls. ‘I had lots of calls from my friend and when I picked up the phone, she told me she was in Kyiv. She told me that, “we are under bombs”. I think in the first moment I couldn’t even hear what she was saying because my brain refused to accept this information.’

She was not totally unprepared, though. In line with official advice, she had in her possession key personal documents, including important medical records. All ‘for a three-day trip’, she says. ‘Normally you shouldn’t do this.’

Popova’s parents lived in Zaporizhzhia, ‘which was I think good for them because they could be less nervous because I am there and not in Kyiv’. Later on that would have been of limited comfort – at the time of writing, Zaporizhzhia is just 30km from the frontline and within range of Russian shells.

At midday on 24 February, Popova called the Bar Commission: ‘They told me that they had lots of people scheduled that day from other cities, not from Zaporizhzhia, and they understood that all these people had already arrived.’

The exam went ahead, both oral and written. ‘When the exam finished, we had the first siren in Zaporizhzhia,’ she says. ‘And of course everyone was so scared because you hear this sound for the first time. You can’t understand what you should do. It seems for you that all Russian rockets will be here in your location just in a moment.’

Carrying on

The drama of Popova’s bar exam is just one example of the determination of Ukraine’s legal profession to persevere. The average age of a Ukrainian lawyer is 39. Many practitioners recall the emergence of independent lawyers and a judiciary committed to upholding the rule of law, free of the direct state control of the Soviet era. It is this young profession, albeit one maturing at speed, which is having its resilience tested by Russia’s war.

‘The full-scale invasion began and the business stopped,’ Dmytro Hladkyi, managing partner of Gladky, Yatsenko & Partners in Zaporizhzhia, says. ‘The courts and law hearings just stopped and I had to postpone... for another date.’ Criminal cases continued as best they could, but most civil claims had to wait until June to restart. But although the court system is comfortable with remote hearings for aspects of many civil cases, says Hladkyi, ‘we have planned and not-planned blackouts’.

With Ukraine’s energy infrastructure under attack, Hladkyi has a battery that can run a lamp and internet connection. The ‘cell-tower’ the latter depends on can run for about an hour once the energy supply goes. It is an arrangement mentioned by others interviewed for this article.  

Hladkyi, though, has a further challenge: 70% of his clients are in Russian-occupied territory. For business clients, on both sides of the frontline, ‘a lot of cases were about force majeure, and how to restore and [obtain compensation] for destroyed property’.

Such cases are near impossible to progress. So for now, Hladkyi says: ‘We advise clients to have all documents, and photos and videos of lost property if it is possible – if it is safe.’

Hladkyi and colleagues are also advising clients pro bono in the occupied territories. ‘They needed legal advice about how to act,’ he says. ‘Can they leave… temporarily occupied regions through the Russian Federation and get back to Ukraine or European countries? Is this legal, and how can they manage it?’ Advice is also being offered, again pro bono, for refugees who have left unoccupied Ukraine.

For Hladkyi, ‘doing his bit’ extends to his role as a deputy on the city council. Restoring housing, energy, heating and water are priorities for local government, and it is the same for his peers in the north, west and south. Of Russian rocket attacks, he observes: ‘It’s very cheap for war and it’s not precise… [but as] terrorist acts, it does well for the Russian army.’ He adds: ‘It’s very different from the previous years when we tried to develop the city.’ He and other deputies stayed in Zaporizhzhia at the outbreak of war. Local government staff also stayed; municipal administration is under extreme stress, but it still functions.

Commercial litigator Vladyslav Bandrovsky speaks to me from Kyiv during an unscheduled adjournment; those in court having taken shelter when the air raid sirens sounded. (Later that day began the first missile attacks on the capital for months.)

Although the lights are on, Bandrovsky wears an overcoat over his suit. The building is cold. The ex-DLA Piper disputes lawyer, whose practice includes international arbitrations, says courts are considered defined targets for Russian missiles, rather than just buildings at risk of collateral damage.

Before the war, like many contemporaries, his career was coupled to the increasingly international and European orientation of Ukraine’s economy. In his case, that involved litigating the alleged corruption of the past.

Notably, at DLA Piper, Bandrovsky cut his teeth working on disputes and internal investigations in a number of fields.

'By the end of the summer, probably most of the courts… were working quite [well], even complying with the procedural deadlines'

Vladyslav Bandrovsky, Sayenko Kharenko

Bandrovsky is now at Sayenko Kharenko, a Ukrainian firm with a ‘sophisticated, international arbitration group’.

He was away from the capital visiting his parents in Zaporizhzhia when Russia attacked – and unlike Popova, he had left his papers in Kyiv. While the most direct threat at the time seemed to be to Kyiv itself, when a Russian helicopter was shot down close to the family home they decided to move to the relative safety of western Ukraine.

It was summer before Bandrovsky returned to Kyiv, though he was able to work on some projects remotely. He recalls asking himself: ‘Do you have plans to maintain your life where you are, or should you go back to Kyiv?’.

Remote hearings and a greater sense of security enabled Ukraine’s courts to function relatively well, he says, noting that courts in liberated areas also returned to work: ‘By the end of the summer, probably most of the courts… were working quite [well], even complying with the procedural deadlines.’

Nevertheless, delays can occur for many reasons related to the war – including a simple shortage of transcribers or paper. To those challenges, Russian strikes on Ukraine’s energy infrastructure have added electricity supply problems. The courts must work around both planned and unplanned blackouts.

Ordinary people

For the clients of Volodymyr Kistianyk, principal of his own small firm based in Kyiv, the delays have serious and very personal knock-on effects. ‘Mainly, my practice is related to ordinary people,’ he says. His clients’ lives and livelihoods turn on the family, inheritance, land law, and pensions cases in which Kistianyk acts for them. His clients may also have ‘administrative offences’ hanging over them, from traffic offences to custom disputes with the revenue.

On 24 February, Kistianyk recalls: ‘I heard our air defence system in Kyiv. I heard a lot of blasts. I saw a lot of cars going out from Kyiv. I saw a lot of lines at the petrol stations.’

He and his family stayed in the capital. But in the immediate aftermath, he recalls, little could be done: ‘Nobody worked at the court. There [were] no judges, no administrative staff. Therefore, it was impossible to apply [to] the court and make any suggestion or communication with the court.’ The court registries were closed ‘as a matter of security’, he recalls. This meant past decisions could not be accessed by lawyers.

'I heard our air defence system in Kyiv. I heard a lot of blasts. I saw a lot of cars going out from Kyiv. I saw a lot of lines at the petrol stations'

Volodymyr Kistianyk

And now? Kistianyk notes the court system now allows online applications and submissions. But this has not fixed all the problems, especially when physical attendance is required. ‘A lot of cases are delayed,’ he says. And curfews restrict travel times. ‘You cannot go to a certain town or city when you have court hearings before this curfew is ended.’ In common with other lawyers in Ukraine, he notes: ‘In my experience, a lot of court hearings and meetings were postponed due to the lack of electricity.’

Whatever the cause of delays, there is a particular impact on criminal law cases, others note. Under Ukrainian law, indictments must be considered by a court within a strict timetable. Failure to adhere to that may lead to the release of the accused.

Outside eye  

There were no road signs or street lights when professor Kiron Reid completed the 2,000km drive from his home in Serbia to his first stop at a town in north-central Ukraine in early November. Odessa is the nearest point of entry from Serbia, but Reid chose a northern entry point for security reasons. ‘I was worried that Odessa was still the subject of a lot of missile attacks,’ he says, though he later left Ukraine via Odessa.

Reid is a legal academic and election observer with broad experience in the region, including in Ukraine, Moldova, Albania and North Macedonia. After the Russian invasion began, he resigned his position at the Organization for Security and Co-operation in Europe (OSCE) in Serbia, because staff at the international diplomatic body are restricted in the public political comments they can make, and Reid felt very strongly about what was happening.

He made this road trip to look up old contacts, colleagues and former students across Ukraine; to see for himself what was happening, to the legal and academic communities in particular; and to draw as much attention as possible to what he found. We have known each other for more than 30 years, and he has been generous with his time and his contacts.

The Russian assault on Chernihiv, where Reid had been an election observer, convinced him to end his personal diplomatic neutrality. ‘When [the Russians] failed to take Kyiv, they started bombarding Chernihiv and hit military and administration targets. But also they destroyed civilian targets as blatant terrorism,’ he says. ‘Missiles hit the end of the street where I’d had an apartment. They hit the square where I used to go to a nice Georgian restaurant. They blew up one of the shopping malls that I knew. It was shocking – in a city where most people speak Russian [that] is a really important, historic city for that culture.’

Driving east, he followed advice given by the OSCE – avoid staying near police stations, court houses, local government buildings, secret service installations and broadcasters. What did he observe in these darkened towns with their painted-out road signs? Strikingly, he found a country where the rule of law and law enforcement were holding up (he confesses he was pulled over for a minor traffic offence).

‘I saw a lot of young Ministry of Interior cadets,’ Reid says. ‘There were a lot of young people who looked like they were straight out of college or university and have signed up for the police.’ The war has even brought the SBU, Ukraine’s secret service, out of the shadows to some extent, with a public recruitment drive.

Everywhere Reid went he found a culture of volunteering that was new, and which he believes has bolstered civil society in a way that could endure.

‘The young corporate lawyers that you’re in touch with… were fundraising right from the start, for military and civilian aid including importing an ambulance from Poland to Zaporizhzhia,’ he says. ‘Though people weren’t in their home cities [because of internal displacement] they were still doing things to support their home cities as well as where they were living or where they were working professionally.’

'The rule of law has been improving and people tell me it has accelerated during the war'

Professor Kiron Reid

Reid was headed for the university in Zaporizhzhia, where contacts made as an election observer had led to his return to teach at the faculty of law and other faculties. He stayed three weeks and saw explosions from missile strikes on or near the city.

At the university’s volunteer centre, which had displaced the law faculty to another building, Reid ‘met students and staff who were collecting relief supplies for displaced people and supplies for the frontline towns and for the army’.

That, Reid reflects, matters for Ukraine’s future as a democracy supported by the rule of law. It is a perspective based on experience as an election observer in the country.

‘My impression from my professional contacts and from some political knowledge is that the rule of law has been improving and people tell me it has accelerated during the war,’ he says. While the elections he observed in the past were free and fair – in that the candidate lists represented a choice and open competition, and electoral coercion was absent – winning candidates often had the backing of a ‘benefactor’, he explains.

Too many election winners then appointed friends and business associates. Corruption in this context has long been a recognised problem in Ukraine. President Volodymyr Zelensky did make some appointments that were criticised, but there was progress on others. ‘Zelensky did appoint, I think, people who genuinely wanted to support reforms, and that appears to have accelerated,’ says Reid. ‘I think this sea change will now continue as long as, after the war, people keep that sense of common purpose.’

Post-invasion future

For now, any sense of common purpose is focused on keeping Ukraine – and Ukrainians – going. But lawyers to whom the Gazette spoke are nevertheless looking to a post-invasion future. Ukraine’s government is keen to show that it is competent to try many classes of war crime cases to internationally recognised standards, a process which has already begun.

Hladkyi says widespread use is being made of the International Bar Association’s eyeWitness app, designed to capture and preserve verifiable items of potential human rights violations. As of 4 October, 20,000 items had been collected, according to the IBA. ‘It’s a brilliant application that will help to prosecute these war crimes because it collects the information,’ he says, as it includes ‘the metadata about the time and location of where a photo or video was taken’.

Likewise, with cases on damage to property Hladkyi advises clients to record evidence in preparation, in the hope that these claims may one day be able to proceed.

Bandrovsky is also focused on life after the war and on reconstruction. He says lawyers, the legal system, and international courts and arbitration have a part to play. He has identified four forums and procedures for this process: the European Court of Human Rights; litigating and enforcing claims in Ukraine and abroad; investment arbitration; and claims commissions.

‘No approach is flawless,’ he admits. ‘For example, Russia has withdrawn from the jurisdiction of the [ECtHR]. This, and several other procedural hurdles may result in [the court] having no jurisdiction over many cases. In addition, the ECtHR took a stance to first resolve inter-state disputes between Ukraine and Russia and only then proceed to individual cases. At the same time, at least 18 significant Ukrainian companies have already applied to the [ECtHR] seeking recovery of damages [from] Russia.’

Enforcement of judgments may be problematic, he adds, due to Russian sovereign immunity. Most immediately, claims may succeed within Ukraine, where Russia has significant assets: ‘While legislators and Ukraine’s Supreme Court already signalled their intent to in some way limit or lift Russian immunity, we would still require similar moves from other states, where major Russian assets are held.’

Investment arbitration, Bandrovsky notes, is only available for certain types of investor, and could likely only be pursued in relation to losses in areas that had been occupied.

But he does anticipate financing to rebuild from other sources. Bandrovsky and several other interviewees are looking to funding akin to the Marshall Plan that rebuilt large parts of war-torn Europe after the second world war. ‘No discussion,’ he says, ‘happens without reference to the Marshall Plan and expecting that we will have something like that, either from the US, or the European Union, or maybe private players.’

As the experience of Popova shows, there is also a Ukrainian legal diaspora created by Russia’s war. Aside from the human trauma of displacement, there are many who, unlike Popova (who now has a role at energy and aerospace company GE in the UK and may pursue an LLM), are without a job.

One lawyer who contacted the Gazette says: ‘I was fortunate to escape from the war and settled in London through the Homes for Ukrainians scheme.’ An experienced commercial litigator with international experience, she says that her story ‘is not a success’, and that she and many of her peers remain in a difficult position. She has been looking for work in vain.

It must be recorded too that dozens of lawyers who joined the armed forces have been killed (see Interview, page 20). Those serving whom the Gazette attempted to contact either could not be reached, or did not want to talk about their experiences. There are, though, examples of lawyers who are serving using their social media accounts to promote fundraising for vehicles and drones they need in this high-tech-and-trenches war.

There is one further point to note from the interviews conducted. I often end an interview by asking if there is anything the interviewee was hoping or expecting to say that my questions had not covered. This open question is a tactic to guard against getting only what I expect from an interviewee, and the results are often interesting. I always try to report the answers to that very open question. Every subject was keen to give a similar answer: that they appreciated and wanted to say thank you to their peers abroad for the solidarity that had been shown as professionals and as citizens facing an unprovoked conflict.

‘When you publish,’ Bandrovsky says, ‘that will be something really important that will show that English people, and other nations in the United Kingdom, still support us and that they are with us in this.’

‘By talking to you,’ Kistianyk concludes, ‘I want to say thank you to the government of Great Britain, all prime ministers and people of Great Britain.’