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14.02.2022

Legal aid as an element of compliance with the right to access to justice

The establishment by the Constitution of Ukraine of the principles of the functioning of the judiciary and the provision of professional legal assistance in one Section VIII "Justice" carries a deep content and confirms the inextricable connection between the proper administration of justice and the provision of quality legal assistance.

Having foreseen in Art. 131-2 of the Constitution of Ukraine, that only a lawyer performs representation of another person in court, as well as protection against criminal charges (subject to certain exceptions established by law), the legislator obviously took into account that professional legal assistance should and will be provided free of charge to certain categories of citizens.
After all, the principle of competition in combination with the principle of equality of all participants in the legal process before the law and the court means that the court has no right to give advantages to any of the parties, substituting its authority or desire to consider the case properly for the party's improper performance of its procedural duties. In view of the above, those participants in the proceedings who are not provided with legal assistance or are provided with inadequate quality may find themselves in an unequal position.
Summing up, I would like to note that access to justice is ensured not only by the presence of procedural norms that declare it. Access to justice will actually be limited if a party, due to lack of legal knowledge or non-professional representation, finds itself in an unequal position with another party that has such knowledge (for example, the state prosecution, pre-trial investigation bodies).
Complex procedural procedures and the extensiveness of the norms of substantive law usually do not allow individuals to properly interpret, understand and apply them on their own.
In this sense, the institution of free legal aid and the state's provision of its proper quality and smooth functioning are of paramount importance.
It should be mentioned that many documents of the United Nations contain prescriptions regarding the role of lawyers and the mandatory participation of lawyers in criminal cases, in cases involving children, mentally ill persons and persons who have committed offences.
Thus, the Basic Provisions on the Role of Lawyers, adopted by the VIII United Nations Congress on the Prevention of Crime in August 1990, declare that any person has the right to seek help from a lawyer of his choice to assert his rights and defend himself at all stages of the criminal procedure, and also obliges the governments of the states to: guarantee an effective procedure and a working mechanism for real and equal access to lawyers of all persons who live on its territory and subject to its jurisdiction; provide necessary funding and other resources for legal aid to the poor and other disadvantaged people.
An important document in this context is UN General Assembly Resolution 67/187 of 2012 "United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems".
In its decisions of 1991, 1996, the International Bar Association (IBA) also determined that free legal aid is an important element of access to justice, which is a universal human right, and adopted a resolution confirming that the interests of justice require the prevention of harm to a person due to her lack of funds to obtain legal advice, consultation or to prepare the case for the hearing, which requires all countries to create effective programs for the provision of legal aid, which will be financed by the state.
In the 2008 Declaration on Free Legal Aid, IVA recognized that access to justice is essential to freedom, justice, dignity, progress, development and the rule of law, and recalled that access to justice for all is a human right and that governments have primary responsibility for the implementation and protection of this human right through measures such as public legal aid.
The Guidelines on free legal aid in the civil, administrative and family justice systems and comments thereon (hereinafter referred to as the Guidelines), prepared by the Committee on Access to Justice and Free Legal Aid and the Commission on Advocacy of the International Bar Association in 2018, set out the main principles of operation of free legal aid in civil, administrative and family justice systems.
I will give some of them:
"The criteria for applying and the right to receive free legal aid for solving civil, administrative and family matters should be clear, transparent and published. Such criteria should be developed by the government in consultation with other stakeholders.
If representation services are mandatory for access to legal services, courts and tribunals, the state is obliged to ensure that persons who do not have the financial means to pay for the services of a lawyer are represented by competent lawyers.
The body that manages the provision of free legal aid must be legally responsible for the quality of the service provided under its management."
I consider it extremely important to adhere to the following fundamental approach substantiated in the Guidelines: "the body that manages the free legal aid field must be operationally independent from the government, taking into account its accountability obligations."
The phrase "denial of access to justice" is often considered by society only in the aspect of court activity. However, the understanding of access to justice in a broader sense found its reproduction in the above-mentioned Guidelines, in which the comment is appropriate: "Governments are responsible for ensuring access to justice. This principle seeks to emphasize that policymakers who budget the legal aid system should be properly informed and receive evidence/input from various stakeholders, including professional lawyers' organizations and user organizations.'
It is indisputable that the complexity of the legislation puts the low-income, socially unprotected sections of the population in unequal conditions, if at the same time the proper functioning of the system of free legal aid is not ensured in the state.
Much has been done in Ukraine to introduce free legal aid. In the Action Plan of the Council of Europe for Ukraine for 2018-2021, adopted by the Committee of Ministers of the Council of Europe on February 21, 2018, among the achievements of the Action Plan for 2015-2017, in particular, the extension of the system of free legal aid to civil and administrative cases, the provision of rights to free secondary legal assistance for certain additional categories of vulnerable population groups, expanding access to free primary legal assistance; improving the qualifications of the staff of regional and local coordination centers for the provision of legal assistance, lawyers who provide free secondary legal assistance, in matters of applying the ECtHR practice and protecting the rights of IDPs.
Thus, there is no questioning the fact that quality free legal aid as an important element of the right to access to justice is considered both by national legislation and by UN and Council of Europe standards.
However, it seems that currently the state structures, whose authority is responsible for the implementation of these principles, still do not see this inextricable connection.
I would like to emphasize that I do not aim to revise the existing system of providing free legal aid in Ukraine or to give a negative assessment to lawyers who work in the system of free legal aid.
However, certain processes in the organization of the functioning of the domestic system of free legal aid are disturbing, and it is difficult to find a logical explanation for them.
Thus, Article 27 of the Law of Ukraine "On Free Legal Aid" defines the powers of the Cabinet of Ministers of Ukraine in the field of providing free legal aid, in particular, the CMU approves regulations on the Coordination Center for the provision of legal aid .
According to the Regulations on the Coordination Center for the Provision of Legal Aid, approved by the Resolution of the CMU of Ministers of June 6, 2012 No. 504, the Coordination Center for the Provision of Legal Aid (hereinafter – the Coordination Center) was established with the aim of forming and ensuring the functioning of an effective system of free legal aid in Ukraine , ensuring its availability and quality.
The main tasks of the Coordination Center are, in particular:
  • conducting an analysis of law enforcement practice on the provision of free legal aid;
  • development and submission to the Ministry of Justice for approval of quality standards for the provision of free legal aid;
  • management of the system of free secondary legal assistance;
  • formation and maintenance in the prescribed manner of the Register of lawyers who provide free secondary legal assistance;
  • organization of professional development of lawyers who provide free secondary legal assistance.
The importance of proper performance of these functions by the state cannot be overestimated.
The coordination center is headed by a director who is appointed and dismissed by the Minister of Justice. In order to select persons capable of professionally performing the duties of the director, a competition is held to fill the vacant position of the director in accordance with the procedure determined by the Ministry of Justice. The Minister of Justice appoints the director based on the recommendations of the Supervisory Board regarding the candidates who received the three highest competitive points according to the results of the competition and the information about which was submitted to her by the candidate selection commission for the position of director of the Coordination Center for Legal Assistance.
We can learn from open sources that in December 2019, as a result of the dismissal of the director of the Coordination Center for the provision of legal assistance, this responsible position became vacant. Before the competition for the post of director of the Coordination Center, an acting director was appointed.
The order of the Ministry of Justice of Ukraine dated November 27, 2020 No. 3095/7 announced a competition for the election of the director of the Coordination Center for the provision of legal assistance.
However, on December 30, 2020, the Minister of Justice issued an order to cancel the competition due to the fact that there is no information about the three people who scored the three highest points.
Since then, the competition for the position of Director of the Coordination Center has not been announced.
At first glance, there is nothing wrong, because according to Art. 31 of the Law of Ukraine "On Civil Service" dated 10.12.2015 No. 889-VIII, for the purpose of the uninterrupted functioning of the state body, simultaneously with the decision to announce a competition for filling a vacant position in the civil service, before appointing a person to such a position, the subject of appointment may make a decision on temporary entrusting the performance of duties for a vacant civil service position to the appropriate persons.
However, it should be noted that the term of temporary performance of duties for a vacant civil service position cannot exceed three months.
Currently, the temporary performance of the duties of the Director of the Coordination Center lasts for more than two years.
Therefore, from the point of view of normative regulation, it is unjustified that the Ministry of Justice of Ukraine does not hold a competition for the position of director of the Coordination Center for the provision of legal assistance.
In no way do I intend to downplay the importance of the work of the acting director of the Coordination Center, but the clear norms of the Law "On Civil Service" regarding the three-month period of temporary performance of duties require a competition to fill this position.
It is desirable that, based on the results of the competition, the position of director of the Coordination Center will be filled by a person whose activity would be dominated by the view of free legal aid as an important element of a person's right to access to justice.
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