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25.07.2008

So is the only free cheese that in a mousetrap?

   

In the best instance Ukrainian courts acquit one in 200 (!) of those accused of a crime.  The right to legal defence is guaranteed each person detained in Article 29 of the Constitution, while Article 59 states that such assistance is provided free of charge in cases envisaged by law. Yet statistics show that those accused are not in too much of a hurry to use this right. According to “Monitoring of the system of free legal aid in the Kharkiv region”, a third of those surveyed prefer to have nothing to do with “free lawyers”, while almost every fifth prisoner thinks that such aid is more likely harmful than beneficial.

In this respect law enforcers are remarkably in agreement with those convicted. “The presence of an appointed lawyer in criminal cases has no impact on the result of the judicial examination of their case and on the sentence itself. There have even been cases where the lawyer on the contrary makes things worse, persuading the person accused to agree with the investigator and sign all necessary documents in order to thus get a lighter sentence”. This is the assessment of the Deputy Head of the Police Human Rights Monitoring Department Yury Bilousov. Prisoners were most negative in their assessment of those lawyers appointed by investigators.  This suggests that the system for appointing lawyers is absolutely ineffective.

Yury Bilousov says that the police can have problems finding a lawyer for people detained. In such cases it’s much simpler to convince the person to turn down defence than to go to the hassle of looking for a lawyer. 40% of those convicted said that they had rejected a lawyer under pressure from the police, while more than a third of the investigators had not once (!) appointed a lawyer. Criminal proceedings had in 69.5% of the cases been without a lawyer’s services.

Yet, having ended up in the punitive machine that goes by the name of the “Ukrainian justice system”, useless for the accused to hope not only for qualified defence, but even just for banal information about his or her rights. 72.7% of the prisoners surveyed said that when being detained, they had not been informed of their rights.  Yet they hadn’t forgotten to inform them how to bypass the law.  In 62.4% of the cases, police officers had suggested “solving the problem” through a bribe.

An effective system of legal aid which imposed stricter demands on the work of the law enforcement agencies could restrain dishonest police officers. After all, if lawyers do their job properly, they force the police to be more thorough in fulfilling their duties. The system in Ukraine is far from that at present, with there being no law ensuring mechanisms for providing such assistance. In the vast majority of cases lawyers are appointed as a formality and don’t protect their clients’ interests. According to the President of the Ukrainian Union of Bar Lawyers, it has always been a problem getting qualified lawyers to follow these cases during the pre-trial investigation and to go to the court hearings.

Lawyers don’t want to work on State appointed cases as well because they receive a pittance (15 UAH or around 3 USD a day). According to Roman Romanov, Director of the Rule of Law Project for the International Renaissance Foundation, lawyers don’t even go to collect this money. “To get a pile of documents to show that you went to the court and took part, with signatures from the investigator and judge is pretty degrading.  It thus turns out that even the money allocated in the State budget for legal aid is not used in full.

How to untie this knot is being demonstrated by the Public Defence Offices [PDO] which have been launched to provide legal aid from grants to people detained in Kharkiv, Khmelnytsky and Bkla Tserkva (Kyiv region).  The Head of the Khmelnytsky PDO, Natalya Vahina explains:  “As part of this experiment, we are working on the basis of agreements between our offices and police departments to provide free legal aid. The main idea is that if the police body in the Khmelnytsky region suspects or detains a person, within two hours of the moment of detention, they are obliged to inform the PDO.”  Within an hour of receiving this information, the PDO provides a lawyer who goes to where the person is being held. The only grounds for not calling the PDO are if the person already has a lawyer.  Since November 2007 when the office began functioning, around 300 people have turned to them, and 180 cases have been taken on.

Anybody detained on suspicion of having committed a crime who wishes to have a defending lawyer is entitled to this aid. Thos who are at liberty or have signed an undertaking not to abscond can also seek assistance however this is only if the level of income of the family is below 500-600 UAH per person. Natalya Vahina explains that a large number of members of staff is needed, and with their present numbers they cannot provide the necessary professional defence to all those needing it. For this reason, they have also employed 6 lawyers who can be called on when there is a particularly high workload, or in cases where the fulltime staff do not have the right to take part.

“It is extremely important that we have succeeded in gaining the support of the authorities, for example, the Ministry of Justice and Ministry of Internal Affairs. They have agreed to sign contracts which effectively regulate their work, connected with the participation of a lawyer before the first interrogation, from the actual moment of detention”, Roman Romanov explains. The importance of this can be seen by comparing the results of the monitoring, where in the Kharkiv region a lawyer had become involved before the first interrogation in only 12% of the cases. Effectively the defence lawyer had begun taking part only after all the necessary information had been received by police officers.

The Deputy Chairperson of the Bila Tserkva City-District Court Nina Bobkova explains that since the PDO began working in the city, the work of judges examining criminal cases has also changed. “During this time there have been virtually no complaints from those convicted about violations of their right to defence. If previously an appointed lawyer, with no interest in providing this legal aid, formally took part in the process, the lawyers working in the PDO treat their cases with a high level of responsibility. They also take part in reviews of the sentences at appeal level.”

However, what about those detained persons who were not “lucky” enough to be in police departments and SIZO [pre-trial detention centres) in Khmelnytsky, Kharkiv and Bila Tserkva?  And what will happen when the project ends? According to a submission from the Ministry of Justice, pay for lawyers on criminal cases should be increased from the New Year. The Director for the Centre for Legal Reform and draft legislation work under the Ministry, Valentina Subotenko says that a draft law has also been prepared on free legal aid and that two meetings on its revision have already taken place.  Lawyers do however say that there are pitfalls in the new law. Tetyana Varfolomeyeva from the Ukrainian Union of Bar Lawyers fears that after its adoption lawyers working and chosen on the basis of competitions and tenders will not be accountable to the State.

How much such measures will assist the thousands of people detained and accused of criminal offences will become clear in the near future. For the moment the main message to State-allocated lawyers is “Do not cause harm”.

Abridged and slightly adapted from an article by Tetyana Pechonchyk at http://human-rights.unian.net

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