On 15 September 2016 the results of the assessment of the free secondary legal aid (FSLA) system of Ukraine in the light of Council of Europe standards and best practices were presented to the criminal justice actors of Ukraine, international organisations and donors.
The assessment outlines many positive aspects and developments having taken place over the recent years with a view to ensuring effective and accessible FSLA in Ukraine. Along with the progress achieved, needs for additional concerted actions are outlined, specific recommendations and options are put forward.
Main conclusions and recommendations are summarized as follows:
- Accessibility of the free secondary legal aid: the assessment concludes that the Ukrainian free secondary legal aid system envisages a wide range of beneficiaries of FSLA, thus ensuring large-scale access to justice and stronger protection of human rights. There is a great variety of legal aid services that can be used by the beneficiaries. The broadness of scope of the FSLA is also a very positive element. It is recommended however that the regulatory framework is improved so that it clearly defines individuals eligible for legal aid, is more simple and understandable for beneficiaries. The criminal justice actors are recommended to take concerted efforts to ensure that legal aid is provided to any suspect/defendant from the moment of detention, prior to the first questioning, as prescribed by Ukrainian legislation and the case law of the European Court of Human Rights. It is recommended to take comprehensive measures to ensure timely notification of the FSLA institutions on the cases of detention. The need for improvement in providing information on the right to legal aid at the moment of detention is emphasized.
- System of assignment of legal aid lawyers: the assessment underlines the benefits of the assignment system introduced by the Ukrainian Law On the Free Legal Aid. The new system of assignment of lawyers by the Ukrainian legal aid authorities is evaluated as having significantly enhanced the independence of the lawyers providing FSLA and broken the dangerous links between police, criminal investigation bodies, courts, on the one hand, and lawyers, on the other hand. For the sake of ensuring stronger transparency and clarity of procedures, it is recommended that the rules on appointment of lawyers to provide FSLA and allocation of cases should be elaborated and published in each Regional Center for Free Secondary Legal Aid Provision. The assessment report concludes that the Ukrainian legislation and regulations are in line with European Convention on Human Rights standards on the choice of a lawyer. However, improvements are required to the rules regulating replacement of a lawyer. In addition, all criminal justice stakeholders are called upon to ensure, in compliance with the European standards and Ukrainian legislation, consistent application of Article 53 of the Criminal Procedure Code setting forth the involvement of a free legal aid lawyer for a single procedural action within criminal proceedings.
- Quality control and assurance: increased attention is being drawn in Europe to ensuring adequate quality of legal aid. This has been provided in Ukraine by the relevant legislative and regulatory framework. However, it is recommended to reinforce the quality control mechanisms through inter alia making the regulations setting forth the quality standards more comprehensive, conducting more observations of lawyers’ performances in court and more interviews with clients, introducing peer review mechanisms. Recommendations are also provided with regard to carrying on with the positive experience of implementing comprehensive training programmes within the FSLA system.
- System of payment for FSLA lawyers: It is recommended to simplify the current very detailed payment system which according to the assessment report takes a lot of time and puts substantial burdens on the FSLA system and lawyers. In a number of European countries the trend is to apply a fixed fee system. It is also recommended that consideration should be given to the regulation of payment for certain additional actions required for a lawyer to actively fulfil her/his role. Incentives should be provided for lawyers to represent clients in remote areas.
- Independence of the FLA system: The assessment report finds that the Coordination Centre for Legal Aid Provision (CCLAP) and its Director have an acceptable measure of independence with respect to, and accountability for, its resources and staffing to the Executive and the Parliament. The assessment report proposes however that more of the day to day running of legal aid be formally transferred to the CCLAP and that it should have an advisory or supervisory board, composition of which will be approved by the Ministry of Justice. It is considered that the Board members should be selected from a range of stakeholder groups and that no group should supply more than a quarter of the Board. The model of a Board with a majority of lawyers was not supported by the experts since it is very difficult to square with state accountability for public funds and because of the inherent conflict of interest between a Board controlled by lawyers being responsible for paying lawyers significant amounts of public funds. The assessment report finds no evidence in practice of state interference with grants or refusals of legal aid in Ukraine. Nevertheless, taking into account the importance of preventing any external interference (whether from the Executive, the law enforcement or the Bar), it is suggested that consideration be given to a formal prohibition on external forces from interfering with the assignment of legal aid lawyers to clients. It is also recommended that the Director of the CCLAP should be appointed on merit by an independent public appointments procedure and the tenure of the Director of the CCLAP should be enshrined in the Free Legal Aid Law. The latter should also provide the grounds and procedure for his/her removal from office.
- Research and monitoring: The report reveals shortcomings related to the collection and analysis of the data/statistics by the criminal justice system of Ukraine, inter alia, lack of common indicators and proper data exchange between different institutions. It recommends that electronic data traffic between the relevant criminal justice actors/institutions is further developed to ensure stronger consistency of proceedings, their effectiveness and enhanced protection of human rights. Introduction of a comprehensive internal electronic management information system is called upon as a key element of overall administrative effectiveness of the FSLA system. It is recommended that the FSLA system develops a methodology and indicators for data collection and analysis to allow the determination of the level at which the needs for legal aid are met. This would generate important information on the functioning of the criminal justice system and serve as a source for authorities for the improvement of policy or practice.
The assessment has been undertaken by the Directorate General Human Rights and Rule of Law of the Council of Europe in the framework of the Council of Europe Project “Continued Support to the Criminal Justice Reform in Ukraine”, funded by the Danish Government. The assessment was conducted in February-June 2016 by the experts Mr Peter van den Biggelaar (Former Executive Director of the Dutch Legal Aid Board), Ms Nadejda Hriptievschi (Director of Programs at the Legal Resources Centre from Moldova, member of the European Commission Against Racism and Intolerance), Professor Alan Paterson (Chair of the International Legal Aid Group, Director of the Centre for Professional Legal Studies, Strathclyde University, Scotland), Mr Oleksandr Banchuk (Doctor at law, Expert of the Centre for Political and Legal Reforms, researcher at the State and Law Institute of the National Academy of Sciences of Ukraine) and Mr Gennadiy Tokarev (Defence Lawyer, Head of the Strategic Litigation Centre, Kharkiv Human Rights Protection Group).
