Concerns over the draft law “On legal aid”

The Ukrainian Helsinki Human Rights Union has issued an appeal to the Speaker of the Verkhovna Rada, the parliamentary committee on legal policy and the Cabinet of Ministers with regard to Draft Law No. 4406 “On legal aid”.

“Our organization highly values parliament’s adoption in June 2009 in its first reading of the Draft Law No. 4406 “On legal aid”. This is an important step towards creating a system enabling those who cannot afford legal counsel to receive legal aid. We consider this a sign of a turn in government policy towards building systemic elements of a law-based State and reform of the justice system in Ukraine. We are greatly appreciative of the considerable contribution made by the Ministry of Justice in drawing up the draft law and its consistent plans to reform the system of legal aid.

At the same time we cannot but note significant flaws in the draft law which, if they are not removed, could obstruct construction of an effective system of legal aid and impede the objective and task of reform set out in the Concept framework for the formation of a system of [free] legal aid in Ukraine [affirmed through Presidential Decree No. 509/2006 from 9 June 2006.

The law has the important task of coordinating the interests of retaining independence of bar lawyers from the executive and the interests of ensuring effective functioning of the new system. This agreement should not be expressed solely at the level of declarations, but in certain elements of structure of management of the system, in procedure and guarantees clearly stipulated in the law. In our view these tasks are not met by draft law No. 4406.

Of concern is the lack of clear structure of management of the system of legal aid. The draft law contains only a general list of the powers of the Cabinet of Ministers and the Ministry of Justice without setting out any procedure for decision taking. This could lead to the system simply not beginning to function. And if it begins than this activity will not meet the task of the system, this being to ensure high-quality legal aid to people who cannot afford to pay for a lawyer. For over 18 years Ukraine has had a system of legal aid so ineffective that even the pitiful amounts allocated have to a large extent remained unspent.

The effective functioning of a system of legal aid depends not only on the effective functioning of the State body, but also on whether this system gains the trust of lawyers and recipients of legal aid. The lack of clear structure of management and procedure for decision taking, the lack of impact from lawyers on the passing of decision and other features that ensure lawyers’ independence, fundamental safeguards of the profession, including lawyers’ confidentiality and consideration of the interests of lawyers and recipients of legal aid, all this could mean that qualified and conscientious lawyers will not cooperate with the system, fearing loss of independence or even being seen in society as lawyers who are dependent on the State body in their activities.

Insufficient understanding of the nature of legal aid, the independent status of people providing legal aid, and the failure to appreciate the principle of non-intrusion by the State in the content of legal aid, are all vividly clear in the provisions concerning primary legal aid. In these, legal aid is treated as equivalent to the activities of the State in considering citizens’ appeals. This is unacceptable for a number of reasons.

Firstly, in this way legal aid loses certain significant intrinsic features – independence, competence, commitment to the client’s interests and others, and turns into a certain type of State activity.

Secondly, this creates permanent conflict of interests for people who are legal counsellors – a conflict between the interests of the State body whose activities this person answers for and the interests of the client who sought legal aid.

Thirdly, this to some extent destroys the system for reacting to citizens’ appeals since there remains huge scope for officialdom to interpret this or that appeal as demanding resolution or as those requiring legal information. This creates an atmosphere of irresponsibility among executive bodies who, instead of resolving issues, will effectively provide legal advice.

The procedure envisaged by the draft law for providing primary legal aid is a model of bureaucratic procrastination aimed at ensuring that the person loses any desire to seek assistance with basic legal questions.

It is not clear from the draft law what the status and nature will be of secondary legal aid centres. It is impossible, for example, to understand whether they are bureaucratic structures managed by officialdom, or structures managed by lawyers. If these centres are bureaucratic structures, then it is highly dangerous to give them the power of refusing to provide legal aid if “the demands of the person for defence or reinstatement of their rights are not fair” since in this way bureaucrats are being given the powers to exercise justice.

The draft law has serious faults from the point of view of legislative technology, detailed consideration of which would occupy two much space.

The draft law has not taken into consideration important aspects of legal aid provision which could have been easily considered by looking at the experience in Kharkiv, Khmelnytsky and Bila Tserkva, created in implementation of the Concept Framework for forming a system of legal aid in Ukraine by civic organizations in cooperation with the Ministry of Justice.

We are, unfortunately, forced to conclude, together with experts from the Council of Europe that the experience of three years work of these centres was not in any way taken into consideration by the Ministry of Justice in drawing up the draft law which has had a decisive impact on its quality.

We hope that the Verkhovna Rada Committee on Legal Policy will feel able to make use of the experience of legal aid centres, the expertise of representatives of the bar and civic organizations, and will significantly revise the draft law in question before its submission for its second reading.

Arkady Bushchenko

Head of the UHHRU Board