Since Russia launched its full-scale invasion of Ukraine in 2022, the country has faced immense challenges to its democratic institutions. How can a country maintain the rule of law when its courts and legal professionals are targeted? In this special episode of LSJ’s Just Chat podcast, guest host and President of the Law Society of NSW, Ronan MacSweeney, talks to Mykola Setsenko and Inna Liniova about the country’s efforts to preserve the rule of law and what lessons there are for Australia.
Dialling in for a video call, the President of the Ukrainian Bar Association (UBA), Mykola Stetsenko, and the Director of the Institute of Human Rights of the UBA, Inna Liniova, painted a picture of a resilient profession in the throes of war. During the conversation, President of the Law Society of NSW, Ronan MacSweeney, makes mention of a Russian attack in Ukraine that took 22 lives, just prior to the time of recording the interview.
“Where we live in Kyiv, in Lviv, Dnipro, Odesa, all the major cities, and smaller cities that are not on the front lines. Life is almost as usual,” Setsenko said, explaining how life continued in those areas, to the exception of the occasional air raids that have become so common, it’s now part of their daily life. “The gruesome reality is that after more than four years of active aggression by Russia against Ukraine, people unfortunately got used to it.”
Liniova explains how dealing with air raids is now part of daily life and has reinforced the capacity of the Ukrainian people to not allow an invasive power destroy their spirit. However, the impact of the conflict on people’s mental health looms large, including when the fighting eventually comes to an end. “[A]s the war continues, people try to do their best … to survive, and not let go of their emotions and deeper feelings,” Liniova says.
Stetsenko says that after the invasion, the UBA set up a hotline, with support from the International Bar Association, for lawyers fleeing the front lines, and it later expanded to provide legal advice to anyone who needed it. The UBA’s role expanded after the invasion to encompass additional responsibilities, becoming the largest professional services NGO in Ukraine, with 8000 members and a presence in every region of the country, tackling major issues, sometimes supporting, other times criticising the government (depending on the situation), and getting involved in international actions.
MacSweeney also addresses an issue he has been advocating for as President of the Law Society: the global adoption of the Luxembourg Convention for the protection of the Profession of the Lawyer, asking Liniova how the UBA deals with threats to lawyers. She explains how, in the face of obvious threats to security and safety, where state authorities, including courts, are targeted by the Russian army, their work continues. But Liniova is also concerned about how the war is affecting lawyers involved in war-related cases. “Unfortunately, we see that there’s a lot of societal pressure to make sure Russian military or Ukrainian collaborators who support Russian narratives are being convicted, and there’s no understanding among the public of the right to a fair trial,” she says. “[the UBA] explains that the right to defence is important, not because we’re trying to protect Russian soldiers, but because this is important for Ukraine to ensure that the right to fair trial is guaranteed in all categories of cases, including and specifically in war-related cases.”
On the topic of how the legal system is coping with the pressure, Liniova says there are over 300,000 cases of war crimes, treason, threats to national security, etc. “It’s a massive amount, and it adds to the normal workload of the justice system of law enforcement, so it’s needless to say that the national law enforcement and justice system is overwhelmed,” she says. But Setsenko explains that, despite all the difficulties and pressure, the rule of law is upheld by a functioning democratic government and legal institutions that continue to operate, in the context of the country’s goal of joining the European Union in the near future. “[N]ot only are we functioning as a state in the middle of the war, but we are also reforming our legislation, the systems, be it an anti-corruption system, or judiciary, or the way government works to comply with the EU regulations,” Setsenko continues. “[A]nd I don’t like really using the word unique, but I think this is one of the rare cases where Ukraine is unique, being in the middle of the war, spending most of its budget towards defence, and yet continuing to do reforms to become even more fit to join the European Union.”
On what Australian lawyers can learn from their Ukrainian colleagues, Setsenko is direct. “My advice is to stand by your values and principles and fight for them, because once you compromise on them, the whole democratic society will start to disintegrate with the first compromises.”
Listen to the full conversation here.
The rule of law in a time of war: the resilience of Ukraine’s legal system
