Legislation on legal aid (information from the Ministry of Justice of Ukraine)
Article 59 of the Constitution of Ukraine guarantees every citizen the right for legal aid and the possibility of its free rendering in the cases stipulated by law. Yet, the provisions of this article in the part of possibility of obtaining of legal aid free of charge are almost not realized. The fact that the operating system of free legal aid in Ukraine is inefficient can be explained by several factors.
In spite of the wide circle of professionals in the sphere of law, free legal aid today is rendered only by advocates and only in criminal cases.
According to Article 47 of the Criminal-Procedural Code of Ukraine, a person that prosecutes an inquiry, an investigating officer or court can appoint a defender, if his participation is obligatory, but the suspect, accused or defendant does not want to invite a defender, or wants to invite a defender, but cannot do that because of absence of money or because of other objective reasons.
Although a significant part of persons, who need legal aid, are poor, the Ukrainian legislation does not envisage rendering of free legal aid in civil cases or the cases on administrative offences, to say nothing about consultations and compilation of the drafts of documents.
Releasing of citizens of payment for legal aid lays the burden of these expenditures on the state. Yet, the amount of such compensations still remains too small.
According to Resolution of the Cabinet of Ministers of 14 May 1999 No. 821, remuneration of services of the advocates, who render legal aid to citizens in criminal cases, is paid out at the expense of state budget at the rate of 15 hryvnas per one workday. If the advocate worked not full time, then his services are paid depending on the working time, on the basis of the above-mentioned tariff.
Under such conditions advocates, as a rule, are not interested in participation in the cases by appointment. This situation is also aggravated by the mechanism of appointment of advocates through advocates associations, established by Article 47 of the CPC of Ukraine, which has shown its inefficiency in practice.
In order to prove this thesis, we will adduce the following arguments.
Creation of advocates associations, in accordance with the Law “On the Bar”, is a right of advocate, but not their duty. So, the overwhelming majority of advocates have individual practice and are not the members of advocates associations.
The data of the register of advocates associations evidence that such associations exist not in every region of Ukraine, which renders impossible the participation of advocates by appointment in some administrative-territorial districts.
Besides, there are no mechanisms, except ethical ones, which can make an advocate render free legal aid. And, finally, there is merely psychological problem of distrust in the quality of the legal aid, which is rendered free of charge. The opinion exists both among common citizens and among lawyers that it is impossible to obtain the proper level of defense and to demand high professionalism from an advocate, if the services are gratuitous.
Many world countries try to find the balance between the paid legal aid and free one, to make their quality equal. Let us turn to the international experience in order to understand, which legal provisions should be fixed in Ukrainian legislation.
The world criteria, in compliance with which free legal aid is rendered, can be classified as follows:
- financial criterion – lack of means for use of defenders services;
- juridical criterion (“interests of justice”), which includes the potential danger of long-lasting or lifelong imprisonment; juridical or factual complexity of a case; inability of the accused to defend himself because of the objective reasons.
In the majority of countries, in contrast to our state, the concept of free legal aid includes its rendering at the expense of state budget in full or partially, depending on the level of income of the client and his family, including the income from the property owned by them.
Composition of the family is also taken into account: presence of minor children, children-orphans and children deprived of parents guardianship, who are kept and patronized by the person that needs the legal aid.
In our opinion, it is necessary to fix in the Ukrainian legislation the criterion of poverty as the basic one for appointment of the legal aid paid by the state. So, the legislators must develop the adaptable method of calculation of income of a person pretending to free legal aid. Yet, taking into account the demands of Article 22 of the Constitution of Ukraine, which prohibits the contraction of contents and amount of the already existing rights and freedoms, the right for legal aid should be got by certain categories of citizens independently of the level of their income.
Along with citizens, who have no money or have other objective reasons, which make impossible the invitation of an advocate (item 2 of part 4 of Article 47 of the CPC of Ukraine), the right for free legal aid, in accordance with law, must be rendered to the following categories of population:
- rehabilitated persons (part 6 of Article 6 of the Law of Ukraine “On rehabilitation of victims of political repressions in Ukraine”);
- war veterans (part 2 of Article 22 of the Law of Ukraine “On status of war veterans and guarantees of their social protection”);
- persons, who suffered from the illegal actions of the organs of inquiry, pre-trial investigation, prosecutors office and court (item 4 of Article 3 of the Law of Ukraine “On the order of compensation of damage inflicted to citizens by the illegal actions of the organs of inquiry, pre-trial investigation, prosecutors office and court”);
- persons, who undergo psychiatric treatment (part 3 of Article 25 of the Law of Ukraine “On psychiatric treatment”);
- persons, about whom the decision was taken about making of the documents for solution of the question on the status of refugee, or refugees (Articles 18 and 20 of the Law of Ukraine “On status of refugees”);
- minor parents (Article 156 of the Family Code);
- persons unable to self-service in connection with old age, disease, invalidity, and having no relatives, who must provide care and help (part 4 of Article 5 of the Law of Ukraine “On social services”);
- persons, who have difficult life situation because of unemployment and are registered in the state placement service as looking for a job, in connection with natural and other catastrophes, refugees as a consequence of military and interethnic conflicts (part 4 of Article 5 of the Law of Ukraine “On social services”);
- children and youths, who have difficult life situation in connection with invalidity, disease, orphanhood, homelessness, poverty, conflicts and cruel treatment in family (part 4 of Article 5 of the Law of Ukraine “On social services”).
One of the most actual question is determination of the organ, which would take the decisions on rendering of free legal aid. In some legal systems, for instance, in the Great Britain, the question on the appointment of free legal aid in criminal cases is solved by courts. In other countries, in particular in the South Africa and Netherlands, the decision is taken by special governmental organ, created for management of the process of rendering of the legal aid. In the USA two systems exist: courts take the decisions in criminal cases, and the non-profit juridical organizations take the decisions in civil cases.
The majority of experts reckon that such functions in Ukraine should be fulfilled by the Ministry of Justice. At the same time, international experts insist on search of the methods of reduction of state control. The alternative approach to this problem, in the opinion of the experts of the bureau for study of the problems of superiority of right АВА/СЕЕLI, would be the creation of a quasi-independent organ (council), which would take independent decisions and would be responsible to the state structures (something like the organ established by the Act of the United Kingdom on the access to justice, 1999). Membership in such organ should guarantee wide representation to the juridical community.
In spite of attractiveness of such proposition, this variant is hardly acceptable for the Ukrainian practice. The matter is that the legal aid must be rendered in the shortest possible time, and sometimes immediately. So, sittings of the collegial organ (council) should be held at least every three days. Such council can include advocates, heads of juridical firms, lawyers, representatives of public organizations. Obviously, the majority of these people will have no opportunity to take part in the sittings, which will be conducted so often, because of their everyday work.
The problem of creation of the system of free legal aid is based on the question of its financing. American experts assert that there are the following possible sources of financing: legal expenses for bringing a suit to court, payment for issuing of a license for business activities, part of advocates royalties, etc. These financial sources are commonly accepted in many system of legal aid, but without state financing they are unpredictable from the viewpoint of stability and the amount of earnings. Without state financing, which should be the main source of money, the system of rendering of free legal aid runs the risk not to realize the guarantees stipulated by Article 59 of the Constitution of Ukraine.
It is also important to envisage the legislative mechanisms, which would prevent misuses in this sphere. Rendering of free legal aid must be immediately stopped in the case of disclosure of circumstances, which evidence that the person, obtaining free legal aid, has no right to such aid, in case of deliberate presentation by this person of inadequate information on the essence of conflict or criminal case, his/her property or income, as well as in the case of change of the level of income of the person, to which free legal aid is rendered, termination of action of circumstances that gave the person the right for obtaining of free legal aid, etc.
All these questions need to be addressed Draft Law “On legal aid”.
Olga Saenko, a deputy head of the Center of legal reform and draft work
Olena Semiorkina, the head of the Center of legal reform and draft work
Inna Emelyanova, a deputy of the Minister of Justice of Ukraine