What is the Future of the World Congress of Ukrainian Jurists?

What is the Future of the World Congress of Ukrainian Jurists?
Myroslaw Smorodsky
Disney World, FL
October 30. 2010
The World Congress of Ukrainian Jurists (WCUJ) was created in 1992 in Kyiv, Ukraine to be a
nonpolitical, nonprofit international organization with a membership encompassing all Ukrainian
lawyers and jurists groups as well as lawyers of Ukrainian heritage from around the world. The
UABA and its members have been participants since its creation. The original goal of the World
Congress was to fashion a modality for interaction between Ukrainian and western lawyers and
jurists to advance the “Rule of Law” in Ukraine and help foster its independence after the fall of
the USSR. The issue has now arisen whether the World Congress has fulfilled its original
purpose in light of its unfortunate dormancy for the past 10 years. The question is now squarely
presented: should the UABA continue its participation and what is the World Congress’s future?
In order to answer these questions, we need to understand some critical facts from the World
Congress’s past and the UABA's role in its genesis.
As the USSR was on its last days, initial contacts were made by Ukrainian lawyers with the
UABA. [Messrs Kolotyj, Betz, Nechyporenko] These attorneys were from an organization called
the “Union of Advocates” [Spilka Advokativ headed by Victor Medvechuk]. At that time, we in
the West assumed that the legal profession in Ukraine was similar to our professional experience.
We were naïvely unfamiliar with the various branches of the legal profession that existed in
Ukraine and the intramural disagreements and intense competition between them. [see attached
1991 article Advocates, Lawyers and Jurists, Soviet Style] We soon learned that in addition to the
Union of Advocates, there was also an Association of Lawyers [Associat’sia Pravnykiv headed
by Serhiy Holovaty] and a Union of Jurists [Souz Juristiv headed by Volodymyr Sumin]. As we
started to interact with these organizations, each group was vociferously and disparagingly
calling the others “communists” and “collaborators with the old Soviet regime” hoping to curry
favor with Western lawyers who obviously did not know any better.
The first meeting with Western lawyers occurred in October 1991 and was hosted by the Union
of Advocates but boycotted by both the Association of Lawyers and the Union of Jurists as well
as by our Canadian brethren. The UABA chose to attend with over 50 delegates traveling to
Ukraine on a most memorable trip. [See attached memo to the UABA Governors from 1991]
After a series of separate meetings with the various competing groups, the UABA was able to
broker an agreement to hold in one year the first all-encompassing convention of Ukrainian
attorneys in which all three competing lawyers groups in Ukraine would be present as well as
lawyers of Ukrainian ancestry from the West.
Thus, in October of 1992, the First World Congress of Ukrainian Jurists was held with great
pomp and circumstance at the Kyiv Opera House and attended by the president of Ukraine,
Leonid Kravchuk, the entire Rada [parliament] with the opening ceremony being nationally
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televised. Although all three Ukrainian lawyers groups were in attendance, it was obvious that
there was intramural rivalry going on with each group fighting for leadership of the World
Congress. Again, the UABA was able to broker an agreement whereby leadership would be
rotated every two years the Ukrainian lawyers groups. The first rotation fell to the Association of
Lawyers headed by Serhiy Holovaty. Simultaneously with his ascending to the presidency of the
World Congress, this lawyers group and Serhiy Holovaty received a very large grant from the
George Soros Foundation to create the Ukrainian Legal Foundation, which duplicated the goals
of the World Congress and diverted the focus of the WCUJ leadership from the World Congress
and made the latter of secondary importance to their activities.
The Second World Congress took place in October 1994, which convocation adopted the official
organic documents of the organization. It should be noted that the organic documents were
recorded officially not only in Ukraine but also in Canada. Unfortunately, the UABA brokered
rotation agreement was not adhered to and a member of Sergey Holovaty’s association,
Volodymyr Stretovych, obtained the presidency. Needless to say, this did not sit well with the
Union of Advocates who refused to participate in the World Congress any further. This refusal
to participate in the umbrella organization continues until today.
The presidency of Sergey Holovaty group [with a dominant focus on the Soros funded Ukrainian
Legal Foundation] continued until 1998 when Valery Yevdukimov from the Union of Jurists
took over the reins of the organization. By this time, a paralyzing malaise inflicted the Ukrainian
Diaspora with a general loss of interest in Ukrainian issues which condition also inflicted our
association, the UABA. [Some have argued that this malaise is an irreversible condition in our
communities with only a brief respite occurring as a result of the Orange Revolution.]
The World Congress held meetings in 2000 and 2002, but these meetings were poorly attended
by western participants and only token delegations were sent by the UABA. Our Canadian
brethren had not been present at any of the World Congress conclaves since Serhiy Holovaty
group gave up the presidential throne. There has been no other World Congress activity
involving western lawyers until the spring of this year. Although the organization seemed to be
dormant, Valery Yevdokimov, much to his credit, has successfully used the World Congress to
establish a personal power base within the World Jurists Association assuming it's presidency for
two terms.
It is obvious that the World Congress as an entity has not been a driving force in establishing the
Rule of Law in Ukraine even during the euphoric period of the Orange Revolution. But we
cannot blame this situation on the Ukrainians alone. The malaise of western lawyers has aided
and abetted the dormancy of the World Congress.
Recently, there has been an effort revive the World Congress and bring it back to life. At the
seventh World Congress held in June of 2010, the UABA played a major role in helping the
reform minded efforts to revive the World Congress. Despite formidable obstacles and last-
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minute politicking. a deal was struck whereby a special meeting of the organization will be held
no later than June of 2011 to elect a new leadership. [see attached article Frost Laden Winds]
The present head of the World Congress V. Yevdokimov and World Congress deputy head, V.
Onyshchuk were invited to participate in a discussion of the future of the World Congress at our
Orlando meeting. However due to scheduling of local elections in Ukraine for October 31, Mr.
Onyshchuk could not attend. Unfortunately, V. Yevdokimov has developed very serious medical
issues which hospitalized him making his participation impossible. His medical condition also
will affect the leadership of the World Congress in the interim until the next scheduled meeting.
One other factor that needs to be considered – this is the change in the geopolitics in Ukraine and
Eastern Europe as a result of the political elections that took place earlier this year. It is
anticipated that the local elections to be held on October 31 will reaffirm the political reality
previously established in the presidential elections. This political reality has a direct impact on
the World Congress’s needed role in fulfilling its original goals.
In light of the above, it is clear that things have not changed in the World Congress; it was a
political magnet in its infancy and will be for Ukrainians a luring entity that, despite its
dormancy, attracts participants and suitors and will always generate -- as an inevitable but
necessary by-product -- the accompanying obligatory political intrigue. It is because of this
nature of the World Congress that it has promise to be an effective vehicle – if properly guided –
to work towards fulfilling its original objectives and mandate. Why else the intrigue and
political games that were played this summer at the 7 th World Congress?
As I stated in 1991 and again in 2010; The UABA has a choice: we can participate and try our
best to help the Ukrainian legal profession to establish the “Rule of Law” in the land of our
ancestors or we can be a mere non-involved bystander. If we choose to be simple observers,
then we will have already lost; if were try our best -- even if we fail – we will at least be able to
say “we tried”. As previously stated, “We can leave the Ukrainians to withstand the slings and
arrows of outrageous fortune by themselves; or we could try to help them defend against the
cold wind that is blowing from the north – I would respectfully suggest the latter.”
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The original article was written by
Myroslaw Smorodsky and published
In the UABA newsletter in April, 1991
ADVOCATES, LAWYERS & JURISTS,
SOVIET STYLE
With the advent of Perebudova, many of us have recently had the opportunity to
meet with lawyers from the Soviet Union and especially from Ukraine. Many of these
meetings were in a business or professional setting with the Soviet lawyers being
representatives of ministries or factories or were designated representatives of "lawyers"
associations.
When one thinks of a Ukrainian or Soviet "lawyer", the average American
envisions a person that has the same rights, privileges and responsibilities as does a legal
professional in the United States. As such, Ukrainian-American attorneys use phrases
such as "advokat", "pravnyk", "jurist", interchangeably. After all, don't the words,
counsellor, solicitor, barrister and attorney all describe the same concept a lawyer? Even
in Roget's Thesaurus, these English words are treated as synonyms.
Unfortunately, when we go beyond the territorial boundaries of the United States,
"a rose by any other name is not necessarily a rose" -- or as we know a rose to be. In
many countries, these various terms are not synonymous and have distinct meanings and
implications. In the American system, the word "lawyer" (as well as all the other terms
we so freely use interchangeably), describes a person who is member of the legal
profession by virtue of his or her admission to one of the bars of these fifty (50) states. It
includes not only the traditional trial attorney or the "Lincoln-style" practitioner, but also
judges, prosecutors, corporate counsel, patent and tax lawyers, and even persons, who are
engaged in other professions but, by virtue of their admission to the bar, are still
considered lawyers. There is easy lateral mobility between these various professional
areas. When a change of career occurs, no great change in professional position or status
happens. Many a lawyer has left the traditional law firm for the greener pastures of the
corporate counsel world. Some trial counsel have even achieved nirvana and gone to
academia or the bench. During this change of careers, they have all remained "lawyers"
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and routinely meet at social or association gatherings as equal members of the same
profession.
This all embracing perception of the legal profession and of the term "lawyer" in
particular, is not followed by the typical civil law country. Quite often in these
jurisdictions, the legal profession is clearly segregated into distinct categories with unique
duties and responsibilities. For example, in Japan there are six categories within the legal
profession: judicial scriber, patent lawyer, tax lawyer, public accountant, notary and
advocate. The categories within the French legal system was amply described by an
American court in Renfield Corp. v. E. Remy Martin & co., 98 F.R.D. 442 (D. Del.
1982).
"The organization of the French legal profession is unlike that in the
United States. In France, there are several categories within the practicing
legal profession and each category performs a different function that, in
the United States, would all be performed by an American lawyer. For
example, the "advokat" provides legal advice to clients and appear in
court, but may not be employed by any person or organization. The
"conseil juridique" is allowed to provide legal advice, but may not appear
in court and may only be employed by, or associated with, other "conseils
juridiques."...Thus, an individual who is employed by a corporation is not
permitted by law to be on the list of "avocats" or "conseils juridiques."
Nevertheless, these individuals are not prohibited from giving legal
advice. Id. at 444 (citations omitted)."
In the Soviet legal system, the legal profession follows the tradition of civil
countries and various professional categories exist within it. Unlike the term "lawyer" in
the English language, there is no analogous word in the Ukrainian language which would
be adequately descriptive of the full range of legal categories. The nearest descriptive
term would be "jurist" which has a connotation of one having a legal training but not
necessarily being a practitioner. For the purposes of this paper, the term "jurist" is used
to describe all professionals in Ukraine who have legal training and, to one degree or
another, perform one of the functions that lawyers in America perform.
The number of jurists in Ukraine is not clearly documented in Western literature.
However, recent discussions with various Ukrainian sources indicates that a good
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estimate would be that there are approximately 45,000 jurists in Ukraine and, of this
number, 4,000 are advokats. The distribution of the remainder by categories is unknown.
The Advokat:
The branch of the Soviet legal profession which is most familiar to the casual
observer is the advokat (advocate), even though the advokatura is only 10% of the entire
legal profession. The advokatura pre-existed the October Revolution of 1917 and
survived the purges of the Leninist/Stalinist Era. The advokatura was rehabilitated by
statute in 1939 and is presently governed by the laws of each of the republics. The duty
of the advokat is to give legal advice and representation to individuals in civil and
criminal matters before the Peoples' Court. According to American researchers, the
advokat did not in the past render business advice to clients but usually was engaged only
when a dispute had already arisen, nor did he appear before administrative bodies. For
his services, the advokat is paid a fee by the client but all fees are regulated and
scheduled by law.
It must be remembered, however, that in the Soviet Union there is no private
practice of law as we know it. All advokats are organized into colleges (collegias) which
have a specific territory such as a city, region or province. Each collegia is independent
of the other with no supervisory structure on the republican level other than government's
ministry of justice.
Allegedly, collegias are self-governing bodies controlled by an elected presidium
which controls the finances and other day to day matters of the association. All fees paid
for services rendered are paid to the collegia which retains certain portions of the fees for
its administrative expenses and thereafter pays the salaries of the advokats. Admission to
a collegia is a pre-requisite to one being an advokat. It is also the collegia that alone
controls the admission of new members to its constituency.
The Jurisconsult:
The jurisconsult sometimes referred to as a "pravnyk" or legal advisor, is an
individual who has graduated from a law school and is employed by a state enterprise.
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The role of the jurisconsult is to render advise to management on legal matters and to
represent the enterprise in disputes with other enterprises or entities. The jurisconsult
represents enterprises in arbitration (arbitrazh) proceedings and is also permitted to give
legal advice and to represent in court the employees of his enterprise. Likewise, an
enterprise may turn to an advokat for representation and legal advice. Thus, the duties of
the jurisconsult and advokat overlap to a degree. Unlike advokats, jurisconsults need not
belong to a collegia as a pre-requisite to performing their legal services.
Judges:
The third category of legal professionals or jurists within the Soviet system are
judges. Unlike American judges, a person enters the judiciary almost immediately after
completing his or her legal education. There are numerous levels of courts, from the
local district to the republican and all-union level. The scope of the jurisdiction of the
various courts and a detailed discussion of the political independence, if any, of the
Soviet bench is beyond the scope of this article.
The Procurator:
The procurator's office, like it's analogous counterpart in the west, is responsible
for the investigation and prosecution of serious crimes and violations of the law. In
addition, it supervises the acts of state officials including the decisions of the judiciary
and has the right to protest their behavior or decisions if in their opinion the behavior is
illegal or the decision of the court erroneous. Since the Soviet system does not have a
checks and balances system among its executive, legislative and judicial branches, it
would be interesting to know who has the authority to supervise the procurator's acts and
decisions.
Arbitrazh Personnel:
Most civil disputes between economic enterprises and ministries are decided not
by the courts, but by arbitrazh - a special system of tribunals. This system, similar to
arbitration, has tribunals on the all-union and republican levels. Many of the
EXHIBIT A

professionals within the system have legal training and, in such capacity, perform
services that western lawyers perform for their clients.
Notaries:
Unlike in the United States where notary publics are merely perfunctory positions,
in the Soviet Union the notary does more than merely certify the authenticity of
signatures. Soviet notaries certify the validity of the various documents and advise as to
the pre-requisites necessary to establish and conclude various transactions. In essence,
they act as legal advisors and perform functions very similar to that of Anglo-American
solicitors or lawyers.
Other Legal Professionals:
In addition to the above, there are law professors engaged in academia and legal
scholars that work in various legal research institutes that publish scholarly material.
Moreover, various ministries have legal staffs of persons who are involved in the
preparation and drafting of legislation. In addition, the KGB, the procurator's office and
the Militia have legal staff that do the investigatory work. All of these various
professionals perform services which in our society would probably be performed by
lawyers.
A most distinctive aspect of the soviet professional categories briefly described
above is that there is very little lateral mobility between them. Most of the soviet
professionals embark upon their careers immediately after completion of their legal
education and stay within their allotted fields for the duration of their careers. It would
be interesting to learn how one chooses a career path within the Soviet legal system. Are
there specific legal training requirements distinctive to any particular category within the
soviet legal profession? What distinguishes the legal education of an advokat from that
of a pravnyk, judge or procurator? Are there special examinations similar to our bar
admission to obtain admission to a collegia? What are the requirements for admission to
law school in the Soviet Union in the first place?
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As a result of "perebudova", there are changes that are beginning to ferment
within the soviet legal system. Advokats from Ukraine have visualized the possibility of
creating legal co-operatives even starting their own private practices. The question arises
as to whether or not advokats alone would be permitted to enter into legal co-operatives
or whether jurisconsults, jurists, law professors and the members of other categories
would be permitted to do so.
In addition, various groups of the legal professionals within the soviet system are
creating associations separate and distinct from those mandated by the existing system.
In 1990, three associations of legal professionals have been created in Ukraine. The
Union of Ukrainian Advokats (Spilka) was created in September of 1990 and its
membership consists of advokats from all of Ukraine. Also, an initiative committee to
create an association of Ukrainian Pravnykiw was created in October of 1990 and has,
among its members, such eminent individuals as Serhij Holowatiy, Lev Lukyanenko and
Yurij Ayvazyan. In addition, the Lviv Club of Jurists has been established in western
Ukraine and has the full range of legal professionals within its membership - from law
professors to advokats and jurists. These new professional organizations are looking
westward to lawyers in the Ukrainian Diaspora for assistance and dialog. After 50 years
of isolation from each other and after an upbringing in two diametrically opposed legal
cultures, the question is raised; are we ready for each other?
EXHIBIT A

MEMO
TO: GOVERNORS AND ORGANIZING COMMITTEE OF THE UABA
FROM: MYROSLAW SMORODSKY, ESQ.
RE: CONFERENCE IN UKRAINE
DATE: AUGUST 12, 1991
____________________________________________________________
Ladies and Gentlemen:
As you know, at present, the participation of the UABA in the
conference scheduled for early October in Ukraine is in extreme jeopardy.
The attorneys from the Professional and Business Persons Association of
Canada (headed by Messrs Zalutsky, and Bardyn) and the Canadian Advocates
Society (headed by Mr. George Danilyw) have concluded that they will not
attend the world conference being hosted by the Spilka. Rather, they
will go as observers to the Rukh Congress (which is being held
simultaneously). While they are in Kiev, they will hold a press
conference and declare that they (the Canadian organizations) want to
work towards the establishment of a world federation of Ukrainian
lawyers. (It is unclear whether this will be a joint press conference or
what). At the time of the dictation of this letter, this was the
information that I have received by telephone from the Canadian groups.
It should be noted that the Canadian actions were precipitated by
the latest fax from Mr. Holovaty as well as the person-to-person
discussions that Ihor Bardyn of Canada had with Mr. Holovaty and Mr.
Nechyporenko. (Christina Maciw of Canada, a P & B lawyer, only spoke
with Holovaty). The essence of the information received from Holovaty is
that disagreement between the Spilka and the Associatia continues with no
resolution in sight.
Unlike our Canadian brethren, we are in a somewhat dissimilar
situation. Our Association is the one which has for an extended period
of time engaged in direct contact with the Spilka in face to face
negotiations, made commitments to programs, committed to travel
arrangements, and we are the ones that received the majority of the faxes
from Mr. Holovaty. We have about 50 people that are going from the US
whereas the Canadian Advocates Society had about 10. The B's & B's of
Canada only recently became aware of the occurrence of this meeting!
The issue before us is --- in light of the above, what do we do?
Do we follow the lead of our Canadian brethren and not attend the Spilka
meeting? Will we attend the Associatia meeting, now scheduled for
January of 92? Do we ignore both the Spilka and the Pravnyky and leave
Ukraine to its own devices, or do we attend the Spilka conference and/or
the Associatia conference? If so, in what capacity and what will our cooperation
with them be in the future? How important is it for us to go
to Ukraine as an organization?
In order to determine which of these choices we make, let us review
briefly the historical development of our interfacing with Ukrainian
legal professionals and what, in the first place, was our purpose in
going to Ukraine.
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EXHIBIT B

HISTORY OF CONTACTS
WITH UKRAINE TO DATE
The initial contacts with Ukraine were initiated last summer by
Messrs. Bazarko, Fylypowych and Ms. O'Brien, who separately visited
Ukraine in July, August and September of last year. Sometime in
September 1991, Mr. Bazarko and Ms. O'Brien attended the organizing
conference of Spilka in Kiev and reported on their meeting at our annual
convention in October. At that time, it was announced that the Spilka
was calling for the creation of a worldwide Ukrainian lawyers association
and projected a meeting for this purpose in the calendar year of 1991.
At our October meeting, we had very little knowledge of the various
branches within the legal profession in Ukraine. To us, an advocate was
the same as a pravnyk or jurist. We viewed the legal profession through
our western point of view. Nevertheless, we created a special committee
to be in charge of this historic endeavor. (Hereinafter referred to as
"committee").
In November of 1990, we were visited by People's Deputies Bedj and
Nechyporenko who met with many of our members. They also propagated the
holding of a world congress of Ukrainian lawyers and emphasized the need
of an ongoing dialog between East & West.
Sometime in November of 1990, the initiating committee for the
creation of the Associatia of Ukrainian Pravnyky was created in Ukraine.
(Hereinafter "Associastia") It had among its members Rukh activists such
as Holovaty and Ayvasyan and Lukyanenko.
In early December 1990, a special meeting was held in Cleveland to
discuss the various ways we could help Ukraine. This meeting was
attended by Mr. Kolotij who represented not only the Lviv Club but also
the Spilka. Various sub-committees were set up to handle the creation of
the Congress and various questions as to the inter-relationship between
Spilka and the Associatia were discussed. It was our position that we
desired the Rukh parvnyky to be part of the world congress of Ukrainian
lawyers.
In January of 1991, I traveled to Ukraine and met with
representatives of the Lawyers Club of Lviv, the Spilka and with Mr.
Ayvasyan of the Associatia. My trip was merely an exploratory trip to
obtain a feeling for the situation in Ukraine. However, I made it clear
that we wanted cooperation from both groups.
The first meeting of our committee was held at Newark Airport in
Mid-March of 1991. If all of you will recall, this meeting was quite
heated. Prior to the meeting we received a fax letter from Mr. Ayvasyan
of the Associatia making various allegations against the Spilka. As the
result of this meeting, Fax invitations were sent to the Spilka and to
the Associatia requesting they send their representatives to our mid-year
conference in Philadelphia. Mr. Nechyporenko attended our meeting. No
one from the Associatia did. However, Mr. Holovaty was at the time in
Edmonton, Canada, and spoke with Mr. Lupan and Mr. George Danilyw of
Canada by conference call. He clearly indicated his approval that the
conference for October go forward with the understanding that his
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association would be participating in this conference. (At the time the
Association had not been established). Also, a video message from Mr.
Holovaty and Mr. Avyasyan was available for viewing by our members. The
Associatia was finally created sometime in late May 1991; we were not
advised nor invited to their founding.
During April and May of 1991, Judge Bohdan Futey and I had the
opportunity to meet with various Rukh leaders, Messrs. Horyn, Lukyanenko,
Yemetz and Chornovil. All supported our participation of the conference.
In May and June of this year, various communications with Ukraine
occurred wherein our Association clearly re-established its position as
to the desired cooperation between the Spilka and the Associatia. Various
discussions with Mrs. Logush occurred and Helen Krystalovych met with
Spilka representatives in Ukraine to again reaffirm our request for
cooperation.
In mid-June of 1991, the Committee held another meeting in New
Jersey and were graced with the presence of three members of the Lviv
Club. We, again, reiterated our position, agreed to a streamlined
program for the conference and reduced this to writing.
Simultaneously, Ihor Fedorowycz was in Ukraine and had discussions
with both Holovaty and Nechyporenko and an agreement as to participation
of the Associatia at the October meeting was reached. This compromise
was approved by the governing body of Spilka. In early July, a fax was
received by our Association from Mr. Holovaty indicating that there was
no cooperation between the Association and the Spilka. In addition, he
announced that the association would be holding a world conference of
Ukrainian Lawyers immediately following the Spilka meeting. To the best
of our information this was done without consultation with anyone in the
West.
In response, our Association sent letters (dated July 18, 1991) via
Mr. Ihor Bardyn to Holovaty, Nechyporenko and to Mr. Onyshko of the Lviv
Club expressing our deep concern as to the lack of cooperation between
the two Associations. We received a letter from Nechyporenko by fax
dated July 17, 1991, indicating disagreement between the Association and
the Spilka over the subject matter of the panel discussions, but stating
that the Spilka would accept the Association as an "equal partner" in its
organization of the conference. A similar letter was sent to Mr. Danilyw
of Canada. Additional copies of the July letter were hand-carried by my
wife to Onyshko, Nechyporenko and Holovaty containing various copies of
correspondence. Thereafter, verbal responses were received from Onyshko
and Nechyporenko via my wife (even though written responses had been
requested).
In early August a Fax had been received from Mr. Holovaty indicated
that the conference of the Associatia originally scheduled for October
was carried to January. On August 7th and 8th, Mr. Lupan and I spoke
with Christy Maciw (who also visited the Ukraine in late July and early
August). (She spoke with Holovaty only) According to Holovaty, his group
was being frozen out. She advised us of the position of the Lawyers
Committee of the Professional and Business Persons Association they were
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not going to the Conference in October. On August 8th, we received a
communication from Mr. Danilyw indicating that his Association would not
be attending the conference.
OUR GOALS
In light of the political developments of Eastern Europe in 1989 and
1990, the UABA obviously saw a need and a duty to become involved in the
transformation process of Ukraine. Our goals could be summarized as
follows:
- To help our members develop individual contacts this would have
social and economic benefits for them.
- To establish a modality for ongoing dialog between legal
professionals in the East and the West.
- To help "lawyers" in Ukraine interface with the western political
and economic entities of influence.
- To help Ukraine establish a democratic society based on just laws
and personal freedoms.
- By doing all of the above, to help Ukraine become sovereign and
independent as a result of its own self determination.
These objectives were echoed by all of the representatives of
Spilka and the Associatia that visited us or that our members met with in
Ukraine. In my mind, there is no question that these organizations are
democratically oriented and have as their objective the transformation of
Ukraine to a pluralistic and free market oriented society. However, it
was also evident from these contacts that there were additional pragmatic
considerations that the Ukrainian counterparts harbored. (The Lviv Club,
the Spilka and the Associatia). As we now know, the legal profession in
Ukraine is not as fluid as in our country but is rigidly structured into
various branches which is common in European systems) to them. The
reconstruction process was also an opportunity to establish their various
branches of the legal profession on a higher social and economic level.
The participation of western lawyers (by their mere presence) was a way
of legitimizing their efforts and those of their branch of the legal
profession in the eyes of their peers (and/or competitors). This type of
competition between is quite common in the west.
From the very beginning, it was our opinion that our goals could
only be achieved if both the Associatia and the Spilka were working hand
in hand in the establishment of the conference. For us, the structured
form of their legal system was unfamiliar and initially not even known to
exist. As we observed the various disagreements, we were at a loss to
understand the cause. We may have assumed that the motivations were
political. One of our constant concerns was that we not be working with
organizations or individuals that were anti democratic or still harbored
the centrist communist ideology. We were confronted with each of the
Ukrainian organizations calling the other as the centrist culprit. Also,
many of our members still continue to believe that merely because the
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Associatia has among its membership individuals who are known leaders in
Rukh, that any failure to follow their call vis a vis the conference
would be acting against the interests of Rukh. (This is somewhat
unusual, in light of the fact that Victor Bedj a Spilka member is on the
advocates team defending Khmara as is Ayvasyan of the Associatia and is
considered by Rukh leaders as one of their best attorneys)
Unfortunately, despite our calls for unity among the Spilka and the
Associatia, this hoped for cooperation is obviously not reachable.
Moreover, as the present behavior of the parties indicates, in all
probability it will never be achieved.
DISCUSSION OF OPTIONS
It is my opinion as a member of this association that the UABA cannot
take the route of our Canadian brethren. Because we have participated in
lengthy ongoing negotiations, by refusing to attend the conference as an
organization, we would be siding with the Associatia and we would become
embroiled in conflicts between the various branches of Ukrainian legal
profession in the future. Will our association, thereafter, refuse to go
to a conference that is hosted by the Associastia if and when one is
actually organized? That would only be right if we are not taking sides.
Are we going to wait until the Spilka and the Associatia develop some of
form of co-operation? Waiting for Godot may be more rewarding.
The most important question is -- By not going in October, how are we
advancing the realization of our goals? I submit that by sitting on the
sidelines we are in effect abrogating our duty and prior efforts and
abandoning the reconstruction process in Ukraine. Granted, our members
can attend the meetings as individuals and develop individual contacts.
But there would be no unified direction to their individual efforts. Nor
would a system for an ongoing dialog be established. There would be no
participation in the interfacing of the Ukrainian legal profession with
the west. Our association would be relegated to the role of a well
intentioned spectator and other entities, such as the ABA, would have the
opportunity to step into the void created by our absence. Clearly, this
should not be an acceptable option.
It may be argued that by going to the Spilka conference as
organized to date, we would be taking sides against the Associatia.
According to this train of thought, even if the risk of injuring the Rukh
movement is slim, the overall gains of attendance are not worth this
risk. Some may be properly concerned that the inefficient manner in
which the Spilka has reacted to our technical requirements makes it
logistically difficult, if not impossible, to have such a large group of
our members attend the conference and that it would behoove us to cancel.
(The method of payment for the Spilka land arrangements may also raise
concerns).
Although these concerns are legitimate, we must remember that our
objectives are so crucial that some risk must be taken. In my opinion,
some middle road must be found that maintains our presence as an
association and begins constructive work NOW rather than waiting for some
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world congress or future conference to occur. If past experience is a
guide, the bickering in Ukraine will not stop; Mr. Danilyw expects the
world congress to occur in July of 1992.
PROPOSED SOLUTION
In the present case, the Gordian Knot cannot be subject to an
Alexandrian cut of the sword. We must have a presence at the conference
and we must develop some form of ongoing dialog with the Spilka and the
Associatia. Full attendance at the October meeting as well as any
planned future meeting of the Associatia would be the best, but also
improbable, solution. In order to avoid the dire consequences of none
attendance and as a means balancing the various concerns discussed above,
the following is proposed for your consideration.
1. The UABA will send a representation to the Spilka conference in
October. The official delegation will consist of the President and a
specific number of officers and governors. All other participants will
be going as individuals if they so choose.
2. The UABA, because of the technical delays, will immediately
advise its members that those that wish to go as individuals are
encouraged to do so, but that all land arraignments must be done through
US travel agents.
3. The UABA will exert its best efforts to obtain speakers for the
program but they will not be in a representative capacity of the UABA.
4. When the Associatia holds its meeting or conference, the UABA
will request that Spilka be given the same role as was requested by the
Associatia of the Spilka in this instance.
5. When the Associatia holds its meeting or conference, the UABA
will send exactly the same representation in size and level of authority
as to the Spilka conference. Also, all other participation in this
conference will be on the same level as described in paragraphs 1 through
3.
6. By September 15, 1991, The UABA will offer the same form of
protocols of co-operation to both the Spilka and to the Associastia. All
future activities will be governed by the terms thereof.
This proposal has the following advantages. We retain our presence
in Ukraine and do not favor one association over the other. THE
ASSOCIATIA AND THE SPILKA WILL BOTH BE TREATED EXACTLY THE SAME. The
UABA cannot be accused of taking sides or favoring one over the other.
By making land arraignments directly through the travel agent, we are
relieved of the restrictions caused by Spilka's tardiness that we have
previously experienced nor are we subject to criticism that hard currency
is being given to one organization or other.
With regard to the protocol's of co-operation, I realize that I am not a
member of the sub-committee in charge of this project. However, since I
deemed the situation with Ukraine so critical, I prepared a draft of a
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proposal for everyone's consideration. Attachment A was a draft of a
form of understanding that could have been the basis of a world
federation of Ukrainian lawyers. Attachment B is the same protocols but
adapted for one-on-one situations with the UABA as the linchpin. These
drafts were based on the ABA form agreements that are utilized by the ABA
with all foreign bars and on the structure and principles of the
Conference on Security and Co-operation in Europe. (I thought that if
the CSCE process worked for NATO and the Warsaw Pact, then it could
possibly work for Spilka and the Associatia). The basic idea is to have
independent and competing parties work together for a common goal without
any central entity or world association being created.
CONCLUSION
We, as an Association are at a crossroads. We can sit back and let
our Ukrainian brethren fight it out among themselves (and with the rest
of the world) along the way to reconstruction. Or we can try to assist
them with our knowledge and experience which requires some painstaking
effort without taking sides. We must remember that non-feasance is
sometimes worst than making a mistake especially so when the stakes and
goals are so great.
I do not feel that this decision can be made over the phone; I
would strongly recommend that a meeting of the Board of Governors and of
the Committee be held as quickly as possible.
Respectfully Submitted
MYROSLAW SMORODSKY
BECAUSE OF THE LENGTH OF THIS LETTER, ATTACHMENTS A & B WILL BE SENT BY
REGULAR MAIL UNLESS FAX COPY IS REQUESTED
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FROST LADEN WINDS ON HOT UKRAINIAN SUMMER NIGHTS
REPORT BY MYROSLAW SMORODSKY ESQ.
ON THE VII BIANNUAL CONFERENCE OF THE
WORLD CONGRESS OF UKRAINIAN JURISTS
As the summer solstice approached, I visited Ukraine to attend the World Congress of
Ukrainian Jurists’ seventh “biannual” conference [the last one occurring in 2002??]. The weather
was blazingly hot, setting new records for Ukraine. During the course of 10 days, I had the
opportunity to meet with a wide spectrum of Ukrainians that ran the gamut in age, social and
economic position, and political affiliation. Despite the scorching heat, one could feel a cold,
frost laden wind blowing from the north chilling the spirit of many Ukrainians -- this chill was as
a result of the most recent presidential elections and the northward political steps being taken by
the new administration. One of the major efforts of the new presidential administration is to have
its loyalists assume control positions not only at all levels of civil government, but also in
professional organizations from the international, national to even the municipal level.
Although much can be said about what I discerned, my observations can be summarized
as follows.
One; the older generation -- 45 years old plus -- which grew up under Soviet rule, still
recalled those past repressions and seemed to have surrendered to what they felt was the
inevitability of fate. 20 years of progress -- in Hegelian fashion -- were reverting back to
repressions of the past and the inertia of this process was predestined.
Two; the middle generation -- 25 years old plus -- who were at the barricades on the
“Majdan” during the Orange Revolution, displayed feelings of enormous disappointment and
openly verbalized that their efforts were in vain. They now have young families and their prime
objective was to secure their families’ immediate well-being and not chasing Pollyanna ideals.
They could no longer risk altruistic efforts to achieve political reform which they believe would
probably result in the same disenchantment as did their past efforts.
Both these generations exhibited very deep and bitter resentment towards the Orange
Revolution leaders for wastefully squandering historic opportunities to improve the daily lives of
Ukrainians and to degenerate and stoop to petty personal political squabbles to achieve
individual opportunistic and selfish objectives at the expense of national interests. The “Majdan”
generation expressed their belief that future political reform, or at least maintaining the level of
freedom achieved to date, will fall on the shoulders of the 25 year old and younger generation.
This generation did not experience soviet repression and were too young to be participants in the
Orange Revolution and thus did not suffer such strong disappointments at its failure. Not having
experienced a lack of personal freedoms that they have now, this 25 and younger generation may
well be the one which will thwart any restrictions placed upon these freedoms. But what this
generation may still need is a few years to ripen into their historic role. I had the opportunity of
visiting a law school in Kyiv and meeting many young students. I am of the opinion that the
above assessment as expressed by older Ukrainians is correct and it is this group that we in the
Diaspora must concentrate upon.
The chilling effect presently being felt by Ukrainians can best be demonstrated by the
events at the World Congress of Ukrainian Jurists or what one may call cirque ukrainien de
juristes.
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As we all know, this organization has been dormant for the past 12 years under the
leadership of Valeriy Yevdukimov and has failed even to attempt to achieve objectives that we
expected at its birth in 1992. The passing of this organization into historical oblivion would not
have been mourned. Recently, however, there was an effort within Ukraine and its legal circles
to revive this entity and to attempt to put it back on course. Towards this end, in April of 2010,
Valeriy Yevdukimov [from the Regions Party] was persuaded to immediately hand over the reins
of the World Congress to Mykola Onishchuk [Minister of Justice in the Julia Tymoshenko
government] whose objective was to create a more balanced membership with all professional
legal organizations having access to participate in the World Congress and its governing body.
The Ukrainian Union of Jurists [headed by Valeriy Yevdukimov] unanimously approved this
transition and a convention of the organization called for June 17 to approve this transition. With
this objective in mind, the UABA sent a delegation [A. Steckiw, P. Kostiw, and M. Smorodsky]
to assist in this transition of power. Unfortunately, no Canadians, other than one ex-pat living in
Kyiv, physically participated in the conference claiming short notice with I. Bardyn and
representatives from other countries giving proxies to Danylo M. Kurdelchuk.
Unfortunately, what was unanimously agreed to by the Union of Jurists in writing in
April and acted upon in good faith by everyone else was in the last minute totally reversed --
apparently on orders from higher authorities within the new presidential administration. The day
before the convention was scheduled to occur, Valeriy Yevdukimov was almost “unanimously”
asked by the delegates of the Union of Jurists to recall his resignation and to renew his candidacy
for president of the World Congress again.
Once we learned of this turn of events, and recognizing that the vast majority of delegates
at the World Congress were loyal supporters of Valeriy Yevdukimov, the UABA delegation
[together with the handful of Ukrainian reform minded lawyers] advised the governing body of
the World Congress that the UABA would walk out if the prior representations, which were the
basis of our mandate, were not complied with. Our actions – if acted upon - would in essence
kill any semblance of internationalism of the organization and leave it merely as an appendage of
the Ukrainian Union of Jurists. We also expressed, in very straight forward terms, our
displeasure at the lack of activity of the organization in the past, the obvious improper political
pressure being exerted, and that our threats to walk were not mere idle chatter.
The reform minded Ukrainian lawyers on the World Congress board, Mykola Onishchuk
and Danylo M. Kurdelchuk, proposed to the UABA delegation a compromise: the World
Congress general meeting would take place but all elections would be scheduled to occur by
June 1, 2011 with Valeriy Yevdukimov continuing as its president and general membership
would be open to other legal professional groups in Ukraine. Despite my strong desire to kill the
dormant entity, we reluctantly agreed to the compromise to give the Ukrainian reform minded
lawyers an opportunity to regroup and try one more time to reform the entity. Even though this
apparent “compromise” was agreed to by everyone, we anticipated further shenanigans from the
Union of Jurists -- and we were not disappointed!
On the day of the conference, June 17, and after the usual introductory speeches, reports
on the compromise, and scholarly lectures [mine is attached in Ukrainian and English] Valeriy
Yevdukimov’s delegates began a barrage of motions from the floor to put the elections back on
the agenda and to immediately reelect him as president for another term. Professors of law whom
I have known for many years and who I expected would be pro-reform -- or at least supportive of
the compromise -- turned and ran like scared rabbits before a hungry wolf echoing support for
the Yevdukimov motions from the floor. The UABA delegation was seated on a higher platform
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in the hall and merely observed the “circus of jurists” and started slowly to pack its papers
preparing to leave. A break in the conference was called and Danylo M. Kurdelchuk spoke
privately with Valeriy Yevdukimov and his leadership. Reportedly, he basically said “the
Americans are not f---ing around, if this circus continues they are out of here and so are we --
with the appropriate press releases.” [See attached press release in Ukrainian that was ready to
go] Needless to say, all Yevdukimov motions were quickly withdrawn and a resolution
approving the compromise was unanimously accepted.
It is noteworthy that the vast majority of delegates were from the older generation, the
Union of Jurists having excluded over these many years younger more progressive young
lawyers and their organizations.
The UABA has now certain choices that it can take vis a vis the World Congress:
One: The UABA can ignore the World Congress as it did in the past and as did the
Canadians and others in the Diaspora. This will merely continue the illusionary façade that the
World Congress is a real international organization and give a platform for its present leadership
from which to trumpet its alleged importance.
Two: We can try to kill the entity now by resigning. This unfortunately, will not have
any PR effect in Ukraine whatsoever and the artificial facade can merely continue in Ukraine.
Three: the UABA can work with reform minded lawyers in Ukraine and try to put the
World Congress back on the right track. If we fail in one year, we can kill it then with the
appropriate and more effective fanfare. The reform minded Ukrainian lawyers have expressed
their appreciation of the UABA’s efforts at the most recent conference as is evidenced by the
attached letter from Mykola Onishchuk.
There is an old saying “You cannot win the game if you are not in the game!” It is my
strong recommendation that the third option be followed by the UABA. However, we need to
take certain steps in preparation for the next conference.
Reestablish communications with the other reform minded lawyers groups in Ukraine to
make certain that they are able to take part in the next World Congress conference.
Communicate with our lawyer brethren in the Diaspora so that we have a coordinated effort
and wider participation in the World Congress.
Pressure the existing leadership of the World Congress to take steps and undertake activities
that would reinforce the concept of the rule of law in Ukraine by actions rather than empty
words.
In anticipation that the northern chill will continue in Ukraine and may ultimately cause the
frostbitten demise of the World Congress, the UABA should quickly develop and undertake
alternative programs aimed at the under 25 generation that will help this generation to
maintain those freedoms that have been achieved to date.
The UABA has a choice: we can leave the Ukrainians to withstand the slings and arrows of
outrageous fortune by themselves; or we could try to help them defend against the cold wind that
is blowing from the north – I would respectfully suggest the latter.
Myroslaw Smorodsky
June 24, 2010
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