The director of the ‘Accessible Justice’ Center, retired Supreme Court judge, lecturer at the National School of Judges, lawyer, candidate of legal sciences Oleksandr Sytnyk spoke about the reimbursement of legal assistance expenses during a professional development event for lawyers held at the National Academy of Advocacy.
The lecturer thoroughly analyzed the reimbursement of legal assistance expenses with the participants, namely:
- 1. Costs of professional legal assistance.
- 2. Costs of parties and their representatives related to court appearances.
- 3. Costs related to engaging witnesses, specialists, translators, experts, and conducting expert examinations.
- 4. Costs related to obtaining evidence, conducting on-site evidence inspections, and securing evidence.
- 5. Costs related to performing other procedural actions or preparing for case hearings.
Regarding the characterization of reimbursement of legal assistance expenses, the focus is on the following:
1. Costs of professional legal assistance
The constitutional right to professional legal assistance: according to Article 131-2 of the Constitution of Ukraine, the legal profession operates in Ukraine to provide professional legal assistance. Only a lawyer represents another person in court and defends against criminal charges. Exceptions may be made by law regarding representation in court in labor disputes, disputes regarding the protection of social rights, elections and referendums, minor disputes, as well as representation of minors or incapacitated persons recognized by the court or whose capacity is limited.
Legal assistance is multifaceted, varied in content, scope, and forms, and may include consultations, explanations, drafting of claims and appeals, certificates, statements, complaints, representation, including in courts and other state bodies, etc. The choice of form and provider of such assistance depends on the will of the person seeking it. The right to legal assistance is the guaranteed opportunity for every person to receive such assistance in the scope and forms determined by them, regardless of the nature of the legal relationship of the person with other legal subjects.
According to Article 16 of the Code of Administrative Judicial Procedure of Ukraine, parties to a case have the right to legal assistance.
Representation in court, as a form of legal assistance, is provided exclusively by a lawyer (professional legal assistance), except as provided by law.
Types of legal activities include providing legal information, consultations, and explanations on legal issues, legal support of legal and natural persons, state authorities, local self-government bodies, the state; drafting statements, complaints, procedural and other legal documents; representation of the interests of natural and legal persons in courts during civil, commercial, administrative, and constitutional proceedings, as well as in other state bodies, before natural and legal persons.
Free legal assistance is provided in the manner prescribed by law regulating the provision of free legal assistance.
Legal assistance is the provision of legal services aimed at ensuring the realization of the rights and freedoms of individuals and citizens, protecting these rights and freedoms, and restoring them in case of violation.
The concept of ‘providing professional legal assistance’ is not identical to ‘representation of a person in court’.
The Grand Chamber of the Supreme Court in its decision of July 13, 2022, in case No. 496/3134/19 noted that the case is insignificant due to legal requirements. Therefore, in a minor case, representation in court can be carried out by a person who is not a lawyer. However, the concept of ‘providing professional legal assistance’ is not identical to the concept of ‘representation of a person in court’. Professional legal services provided to a party by someone other than a lawyer are not considered professional legal assistance expenses and cannot be reimbursed under the provisions of Article 137, Article 139, and Article 141 of the Civil Procedure Code of Ukraine.
Court practice regarding the representation of a lawyer:
- In the order for legal assistance, the specific name of such an authority, in particular the court, should be indicated, not an abstract state body, as in the Supreme Court’s decision No. 9901/847/18 of June 5, 2019;
- An indication in the order that legal assistance is provided in all courts is sufficient and necessary confirmation that the lawyer is authorized to provide legal assistance to the client and represent their interests in any court in Ukraine, therefore no further clarification/specification of the territorial, jurisdictional, subject-matter, and personal jurisdiction of the courts is required (Supreme Court/Court of Cassation decision No. 686/31892/19 of September 28, 2023);
- The absence of information about a lawyer in the Unified Register of Advocates of Ukraine does not deprive the lawyer of the right to represent the client’s interests in civil proceedings (Supreme Court/Court of Cassation No. 757/213848/19-c of October 21, 2019);
- The lawyer’s authority as a representative is confirmed by a power of attorney or order issued in accordance with the Law of Ukraine ‘On the Bar and Legal Practice,’ so the lack of information about the lawyer in the Unified Register of Advocates of Ukraine is not a reason to refuse to recover legal assistance expenses (Supreme Court/Court of Cassation of September 27, 2023, No. 289/114/23);
- Providing a legal assistance agreement, its copy, or an extract together with the order does not require the current version of the Code of Administrative Proceedings of Ukraine (Supreme Court/Court of Cassation No. P/9901/736/18 of December 5, 2018);
- Originals of the order and power of attorney are proper and admissible evidence of the lawyer’s authority to represent in the court of first instance (ruling of the Appellate Administrative Court of Kyiv of January 24, 2019, case No. 640/1119/19);
- The lawyer’s signature is a mandatory element of the order when applying to the court individually. Decision of the Cassation Administrative Court No. 466/862/22 of December 7, 2023.
2. Costs of Parties and Their Representatives Related to Court Appearances
Expenses related to moving to another locality for parties and their representatives, as well as renting accommodation, are borne by the parties.
The party in whose favor a court decision is made and who is not a subject of official duties, and their legal representative, are compensated by the other party for lost earnings or time away from regular activities. Compensation for lost earnings is calculated proportionally to the average monthly earnings, and compensation for time away from regular activities is proportional to the minimum wage.
The maximum amount of compensation for expenses related to court appearances is determined by the Cabinet of Ministers of Ukraine.
Compensation for expenses related to court appearances:
According to Part 3 of Article 135 of the Code of Administrative Judicial Procedure of Ukraine, the maximum amount of compensation for expenses related to court appearances is set by the Cabinet of Ministers of Ukraine. The Cabinet of Ministers of Ukraine adopted a resolution on April 27, 2006, No. 590 ‘On the sizes and types of expenses related to the consideration of civil, administrative, and economic cases and the procedure for their compensation at the expense of the state,’ which establishes (compensation in administrative cases) that expenses related to moving to another locality and renting accommodation – for the party in whose favor a court decision is made and who is not a subject of official duties, their representative must not exceed the limits of reimbursement set by law for business trips (hereinafter – Resolution No. 590). By the resolution on business trips of February 2, 2011, No. 98 ‘On the amounts and composition of expenses for business trips of civil servants, as well as other persons sent on business trips by enterprises, institutions, and organizations that are fully or partially maintained (financed) from budgetary funds,’ the Cabinet of Ministers of Ukraine approved the amounts of expenses for business trips of civil servants, as well as other persons sent on business trips, according to the attachment 1 (hereinafter – Resolution No. 98). The decision of the Court of Cassation of the Supreme Court of November 30, 2020, in case No. N/806/1943/18.
Regarding the compensation for the time that a lawyer spends traveling to attend a court hearing:
Decision of the Cassation Commercial Court of May 25, 2021, in case No. 910/7586/19:
Participation in a court hearing involves not just being present but also preparing for the hearing, the time spent traveling to the court hearing and back, waiting, and direct participation in the court hearing. These stages of representing interests in court, such as arriving at the court hearing and waiting, are inevitable and do not depend on the lawyer’s will or desire. At the same time, the lawyer cannot perform any other actions on the way to court or during the court hearing and spends their working time on this. Therefore, the panel of judges believes that these stages, such as arriving at court and waiting, are components of legal assistance, which, together with other types of legal assistance, contribute to ensuring the protection of the rights and interests of the client. Conclusions: the time that a lawyer spends traveling to a court hearing is a component of legal assistance and should be compensated on par with other expenses.
Expenses for a lawyer’s attendance at court must be reimbursed in addition to legal assistance expenses:
- The amount of expenses related to moving to another locality and renting accommodation for the party in whose favor a court decision is made and who is not a subject of official duties is determined by the cost of tickets for rail, road, water, air transport, or confirmed fuel costs necessary for the move to court by private transport. The legal position is set out in the Supreme Court’s decision of August 12, 2020, in case No. 826/13271/16.
- Taking into account the above, the time that a lawyer spends traveling to attend a court hearing is a component of legal assistance and should be compensated on par with other expenses. Court of Cassation of December 1, 2021, case No. 641/7612/16-c.
3. Expenses Related to Engaging Witnesses, Specialists, Translators, Experts, and Conducting Expert Examinations
Witnesses called to court are reimbursed for expenses related to moving to another locality and renting accommodation, as well as compensated for lost earnings or time away from regular activities.
Compensation for lost earnings is calculated proportionally to the average wage, and compensation for time away from regular activities is proportional to the minimum wage.
In case of non-compliance with the requirements for the proportionality of expenses, the court may, at the request of the other party, reduce the amount of payment for the work (services) of a specialist, translator, or expert, which is to be shared between the parties. The burden of proving the disproportionality of expenses lies with the party requesting the reduction of expenses to be shared between the parties.
The amount of expenses related to engaging witnesses, specialists, translators, experts:
- For lost earnings: the party in whose favor a court decision is made and who is not a subject of official duties, their representative in connection with appearing in court. It is calculated for each hour proportionally to the average wage of the person, calculated according to the third paragraph of point 2 of the Procedure for calculating the average wage, approved by the Cabinet of Ministers of Ukraine on February 8, 1995, No. 100; the total payment amount cannot exceed the sum calculated for the corresponding time, based on three times the subsistence minimum for able-bodied persons.
- For time away from regular activities: the party in whose favor a court decision is made and who is not a subject of official duties, their representative in connection with appearing in court. It is calculated proportionally to the subsistence minimum for able-bodied persons, established by law on January 1 of the calendar year in which the procedural decision is made or a procedural action is taken, and cannot exceed its amount calculated for the actual hours of time away from regular activities.
- Related to moving to another locality and renting accommodation: the party in whose favor a court decision is made and who is not a subject of official duties, their representative. They cannot exceed the reimbursement limits set by law.
Specialists, translators, and experts receive remuneration for work performed (services provided) related to the case if it is not part of their official duties.
In cases where the amount of payment for the work (services) of a specialist, translator, expert, or conducting an examination has not been fully paid by the parties in advance, the court collects these amounts in favor of the specialist, translator, expert, or expert institution from the party determined by the court in accordance with the rules on the distribution of court expenses established by this Code.
The amount of expenses for preparing an expert opinion at the request of a party, conducting an examination, engaging a specialist, translator, or expert is determined by the court based on contracts, invoices, and other evidence.
The amount of expenses for the work (services) of an engaged specialist, translator, or expert must be proportionate to the complexity of the respective work (services), its scope, and the time spent by them on performing the work (providing services).
Resolution of the Cabinet of Ministers of Ukraine of July 1, 1996, No. 710 ‘On approving the Instruction on the procedure and amounts of compensation (reimbursement) of expenses and payment of remuneration to persons summoned to pre-trial investigation authorities, the prosecutor’s office, the court, or to bodies conducting cases of administrative offenses, and payment to state specialized institutions of judicial expertise for the performance of functions of experts and specialists.’
4. Costs Related to Obtaining Evidence, Conducting On-Site Evidence Inspections, and Securing Evidence
The amount of expenses related to obtaining evidence, conducting on-site evidence inspections, and securing evidence, as well as performing other procedural actions or preparing for a case hearing, is determined by the court based on contracts, invoices, and other evidence.
A person who is not a party to the court process has the right to demand payment of their expenses related to providing evidence at the court’s request or performing other procedural actions.
In cases where the amount of expenses of a person who is not a party to the court process has not been fully paid by the parties in advance, the court collects these amounts in favor of such a person from the party determined by the court in accordance with the rules on the distribution of court expenses established by this Code.
The maximum amount of compensation for expenses related to conducting on-site evidence inspections and performing other actions necessary for the case hearing is established by the Cabinet of Ministers of Ukraine.
Expenses related to conducting on-site evidence inspections and performing other actions necessary for the case hearing cannot exceed 50% of the subsistence minimum for able-bodied persons for a set of actions necessary for the case hearing.
5. Costs Related to Performing Other Procedural Actions or Preparing for Case Hearings
Regarding the maximum compensation amounts for expenses related to the consideration of civil, administrative, and economic cases and the procedure for their compensation at the expense of the state, Cabinet of Ministers of Ukraine resolution of April 27, 2006, No. 590:
Establishing that:
- when both parties in a civil or administrative case are exempt from paying court expenses (except for court fees), they are compensated by the state in their actual amount, but not exceeding the maximum compensation limits for such expenses according to the attachment;
- compensation for court expenses (except for court fees) incurred by those who suffered them is made by transferring funds to their current accounts in banking institutions;
- a court decision is the basis for compensating court expenses (except for court fees).
Compensation for court expenses (except for court fees) in civil and administrative cases is made at the expense of and within the budgetary allocations of the courts that issued the respective decision.
Compensation for court fees in civil, administrative, and economic cases in proportion to the satisfied claims of the party is carried out according to the Procedure for the recovery of debts under decisions on the recovery of funds from the state and local budgets, approved by the Cabinet of Ministers of Ukraine on August 3, 2011, No. 845 (Official Gazette of Ukraine, 2011, No. 61, Art. 2431; 2013, No. 9, Art. 334).
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