Although by law the victim must be compensated for the costs of legal assistance, a necessary condition for the implementation of this rule is their proper documentary confirmation. In particular, the act of acceptance and transfer of services must contain a detailed description of the time spent by the lawyer for each type of work.
The issue was considered by the Supreme Court in case No. 202/8301/21. The relevant resolution dated September 7, 2023 is included in the recently published Review of the Judicial Practice of the Criminal Court of Cassation as part of the Supreme Court for September 2023.
We will remind, in accordance with the requirements of Part 1 Art. 124 of the Code of Criminal Procedure, in the case of a guilty verdict, the court shall collect from the accused in favor of the victim all documented procedural costs incurred by him. Such expenses consist, among other things, of expenses for legal assistance (clause 1, part 1, article 118 of the Criminal Procedure Code). The current criminal procedural legislation of Ukraine does not establish a clear list of evidence that must be provided to the court to confirm the expenses incurred for professional legal assistance, but obliges to provide evidence to confirm the amount of procedural expenses, including legal assistance, which is part of the subject of proof in criminal proceedings proceedings of Art. 91 of the CCP.
Presenting a civil lawsuit in case No. 202/8301/21, the victim claimed to recover from the accused in his favor 28,000. UAH legal aid costs. To confirm the requirements, he referred to the contract on the provision of legal assistance, a detailed description of the works, a copy of the receipt, as well as the act of acceptance and transfer.
The court of first instance recognized the victim’s civil claim in this part as excessive (the amount of costs, in the opinion of the court, did not meet the criteria of proportionality) and charged the accused only 10,000. UAH
The case reached the Criminal Court of Cassation. Referring to the existing practice, the high judges noted that the mandatory list of documents to confirm the relevant costs, regardless of the jurisdiction of the dispute, is: an agreement on the provision of legal assistance; calculation of the provided services with their detailed description; documents testifying to the payment of fees and other expenses related to the provision of legal assistance, drawn up in accordance with the procedure established by law (receipt for a cash order, payment order with a bank note or other bank document, cashier’s checks, etc.).
When deciding on the issue of reimbursement of expenses for professional legal assistance, the court must take into account the complexity of the case and the work (services) performed by the lawyer; the time spent by the lawyer on performing the relevant work (providing services); the amount of services and works performed by the lawyer; the price of the claim and (or) the value of the case for the party.
When determining the amount of compensation, the court must proceed from the criterion of the reality of attorney’s fees (establishing their validity and necessity), as well as the criterion of reasonableness of their size, based on the specific circumstances of the case and the financial status of the parties.
That is, the court must take into account the reasonableness of the amount of expenses for professional legal assistance, as well as make sure that the declared expenses are commensurate with the complexity of the proceedings, and the amount of services provided by the lawyer and the time spent on providing such services meet the criterion of the reality of expenses.
The judges took into account the fact that in the case file there is an agreement on the provision of legal assistance, as well as documents testifying to the payment of a lawyer’s services. At the same time, according to the information available in the description of the services provided and in the act of their acceptance and transfer, it is stated:
- preparation of a statement of claim, copying and execution of appendices to the statement of claim to four addressees – UAH 8,000,
- participation in court sessions – UAH 20,000.
However, in the opinion of the judges, the specified list cannot be considered a calculation – a detailed description of the work (services provided) performed by the lawyer, because it does not contain a detailed description of the time spent by the lawyer on each of the types of work necessary for the provision of legal assistance, the submission of which is a necessary condition for recovery of costs for professional legal assistance.
The court established that nine court hearings were held in this case, six of which were postponed at the request of the lawyer and the victim, and the drafting of the statement of claim (8 hours) did not require significant effort, since the statement of claim consists of 4 pages and mostly contains references according to the norms of the law. At the same time, there were no examinations in the case, no witnesses were called. It was in view of such circumstances of the case that the court recognized the amount of the cost of the provided services, defined in the act, as disproportionate to the complexity of the case and the amount of services provided by the lawyer to the victim. That is why he did not collect 28,000 from the accused. hryvnias of expenses for legal aid, as requested by the victim, and only 10,000
The panel of judges of the Second Judicial Chamber of the CCS of the Supreme Court agreed with this approach and refused to satisfy the complainant’s demands.