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14.09.2005 | Yevhen Zakharov

On the provision of free legal aid in criminal cases

   

In order to establish what the situation really is with legal aid provided by the State in criminal cases, the Kharkiv group for human rights protection turned with formal requests for information to the Ministry of Justice, territorial departments of justice, State judicial administration of Ukraine (SJAU) and to appeal courts. The data obtained in the responses to our requests can be summed up as follows.

Before coming into effect of Law of Ukraine “On judicial system of Ukraine” of 7 February 2002 No. 3018-III, the participation of advocates in criminal cases at the state expense was envisaged in the estimates for maintenance of local and appeal courts, which considered these cases. In compliance with Order of the Ministry of Finance of Ukraine of 3 December 1997 No. 265 “On introduction of new budget classification in Ukraine”, financing of the expenses for remuneration of work of advocates was realized after the code of economic classification of expenditures 1139 “Payment of other expenditures”. This code was synthetic: it was also used for payment of the expenditures for movement and dwelling of victims and witnesses during court consideration, work of experts during investigation, expenses for guard, insurance, payment for professional services, etc.

According to the information given by the Ministry of Justice, in 2001 the appeal courts got 365.1 thousand hryvnas (67.5% of the sum established by state budget) after code 1139, in 2002 – 296.2 thousand hryvnas (75% of the planned sum). The local courts obtained 79.9 thousand hryvnas (3.6% of the plan) in 2001 and 927.9 thousand hryvnas (41.7%) in 2002. Distribution of financing of the appeal courts for 27 regions of Ukraine and really spent sums are represented in the second, third, fourth and fifth columns of Table 1. The KhG got these data from the appeal courts. Unfortunately, 8 appeal courts (the City of Kyiv, the Donetsk, Lviv, Nikolayev, Odessa, Kharkiv, Khmelnitskiy and Chernigiv regions) brutally violated the Law of Ukraine “On information” and did not react to our informational request, even the repeated one. The appeal court of the Zakarpatska region redirected out request to the territorial department of the SJAU, which did not respond. The appeal courts of Sevastopol, the Vinnitsa and Ternopil regions did not give any information about the sums obtained after code 1139 (“???” in the Table), but only wrote that advocates’ services were not paid. The information about the absence of financing is marked in the Table with the symbol “***”. In our opinion, the collected, although not complete, data give the grounds for certain conclusions. Firstly, scantiness of the sums allotted after code 1139 is shocking. Financing of courts is merely pitiful, and it is difficult to speak about independence of courts in such circumstances. Secondly, the system of rendering of free legal aid in criminal cases was practically absent in Ukraine until the middle of 2004.

Beginning from 1 January 2003, in accordance with the Law “On judicial system of Ukraine”, the functions concerning financing and material-technical provision of courts was imposed on the SJAU, so the state budget did not envisage the allotment to the Ministry of Justice of money for remuneration of advocates’ services during 2003 and first six months of 2004. Therefore, the Ministry of Justice stopped the financing of services of advocates working by appointment, but the State judicial administration did not assume these functions contending that this was not established by law. As a result, during 18 months, from 1 January 2003 to 30 June 2004, advocates’ services in criminal cases were not paid.

Law of Ukraine “On introduction of changes into the Law of Ukraine “On state budget of Ukraine for 2004”” of 17 June 2004 No. 1801-IV envisaged financing of these expenses in the second half of 2004 in compliance with separate budget program 3601160 “Rendering to citizens of legal aid in criminal cases at the expense of the state”. The SJAU informed that, according to this program, the budget envisaged allocation of 1915.3 thousand hryvnas in 2004, and the Law of Ukraine “On state budget of Ukraine for 2005” increased this sum to 1960.9 thousand hryvnas.

For the fulfillment of the mentioned state program since July 2004 the State Treasury of Ukraine monthly realized the financing of territorial departments of justice for remuneration of advocates’ work. The sums, obtained and paid by the departments of justice in July-December 2004, are showed in two last columns of Table 1. These data were got from territorial departments of justice. Unfortunately, four departments: Volyn, Kirovograd, Rivne and Cherkassy, did not respond to our requests at all. The Kyiv regional department of justice advised to turn to the Ministry of Justice for information, about which we requested. The Lugansk and Nikolayev regional departments of justice did not give information about the sums obtained from the budget. The absence of financing from the budget of the Crimean Autonomous republic after the program 3601160 attracts attention. Where this money was spent? The decision taken by the Odessa regional department of justice was rather original: it transferred all obtained sum (165600 hryvnas) to the advocates’ association “Odessa regional collegium of advocates”. The department wrote nothing about the further lot of this money.

Well, what is the reason of the fact that only one third of those little sums, which were directed for remuneration of work of advocates in criminal cases, was spent, and the rest was returned to the budget? Well, advocates are partly guilty of this, since they refuse to work at the expense of the state. This is proved by use of these funds in different regions of our country. One can see that in some regions the allocated means were used completely, and in some regions they were not used at all. However, we believe that the main reason is the conditions of payment.

In order to clarify the situation, let us consider Resolution of the Cabinet of Ministers of Ukraine No. 821 of 14 May 1999, which establishes “Order of remuneration of the services of advocates rendering legal aid to citizens in criminal cases at the expense of the state”. In accordance with this order, the ground for remuneration of the work of advocate rendering legal aid is resolution of the person, which conducts inquiry, investigating officer, prosecutor, resolution of court or a judge and the document, made by them, about participation of the advocate in the case. On the basis of these two documents: resolution and reference on participation of the advocate in the case, the advocate compiles the third document – the reference-calculation on the amount of expenses that should be paid to the advocate; this documents is used for payment from the budget. The remuneration of the work is paid out 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.

So, the appointment of advocate for rendering of legal aid in criminal cases fully depends on the organs, which carry out the inquiry or investigation, or on court, and the payment for advocate’s work is so little that, most likely, the advocates do not want to waste their time for compilation of all papers necessary for obtaining the remuneration. The response of the Dnepropetrovsk regional department of justice reads that in the second half of 2004 the department received 249 documents for payment to the total sum of 18191 hryvnas, that is the average fee of an advocate in one criminal case is about 73 hryvnas for the work during almost five full workdays. So, is it surprising that the existing system of rendering of the legal aid in criminal cases almost does not work?

Table 1

Region of Ukraine

Obtained, UAH

Paid, UAH

Obtained, UAH

Paid, UAH

2001

2002

2001

2002

07-12.2004

07-12.2004

Crimean Republic

9 000

14 380

3 048

8 315

***

0

Vinnitsa

?????

?????

0

0

37 800

16 903.26

Volyn

6 480

12 200

0

0

 

 

Dnepropetrovsk

30 951

22 375

2272.5

2606.25

107 000

18 191.00

Donetsk

 

 

 

 

226 200

21 723.00

Zhytomir

7 750

9 180

75

150

18 000

853.00

Zakarpatska

Redirected request

 

 

7 500

0

Zaporozhye

2 836

14 080

0

1 050

68 100

28 400

Ivano-Frankivsk

***

***

0

0

12 000

210

Kyiv region

14 313

11 240

975

555

Formal reply

 

Kirovograd

675

1485

675

1485

 

 

Lugansk

14 700

14 220

11 060

10 810

?????

5 609

Lviv

 

 

 

 

24 000

24 000

Nikolayev

 

 

 

 

?????

150

Odessa

 

 

 

 

165 600

Transferred to advocates’ association

Poltava

10 500

11 720

561

195

7 871

7 871

Rivne

13 000

7 440

0

0

 

 

Sumy

19 460

30 300

255

600

13 800

570

Ternopil

?????

?????

0

0

4 200

0

Kharkiv

 

 

 

 

96 900

0

Kherson

18 045

9 840

Totally

100 hryvnas

49 200

0

Khmelnitskiy

 

 

 

 

14 700

161

Cherkassy

9 000

9 160

2 148

426

 

 

Chernivtsy

12 600

8 600

0

240

7 500

0

Chernigiv

 

 

 

 

9 600

2 600

City of Kyiv

 

 

 

 

28 200

7 000

City of Sevastopol

?????

?????

0

0

7 500

0

Total

169 310

176 220

21069.5 12.44%

26532.25 15.1%

905 671

299 841.26

33.1%

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