Five key drawbacks of the legal aid system – the BCU decision

The legal aid system in Ukraine is inefficient and the proposed reform contradicts the strategy for reforming the judiciary and related legal institutions for 2015-2020, approved by the Decree of the President of Ukraine of 20 May 2015 No. 276/2015.

This was stated in the BCU-approved Opinion on violations of advocates’ professional rights and guarantees and corruption component in the creation and operation of the legal aid system in Ukraine. The document was prepared by the UNBA specialized committee based on the analysis of the current legislation governing the provision of legal aid and the activities of the governmental bodies controlling legal aid system in Ukraine.

The UNBA Committee on legal aid conducted a comprehensive study of the institutional, administrative, financial and legal components of the system and concluded as follows:

- there are gross violations of current legislation in the activities of the Cabinet of Ministers of Ukraine, Ministry of Justice of Ukraine and the Coordination Centre for legal aid providing as represented by their leaders, who adopt legal acts in violation of the Constitution and laws of Ukraine, which regulate the establishment and operation of the legal aid system;

- inefficient expenditure of public funds, which lies in the creation - in violation of applicable law - of the extended legal aid system with the staff overage and cumbersome material and technical basis, which is maintained at the expense of the state budget;

- corruption component, which lies in the use of office for one’s own benefit and the benefit of third parties;

- empowering state authorities, institutions, including the Coordination centre, with functions and powers belonging to the bar as an independent self-governing professional organization;

- complete removal of the Ukrainian National Bar Association and other bodies of the bar self-government from participation in the organization and operation of the legal aid system, which has led and continues leading to violations of advocates’ professional rights and guarantees, violations of rights of advocates who concluded contracts with the legal aid centres, and violations of individuals’ rights to receive legal assistance.

According to the Committee’s Opinion, the aforementioned facts require a detailed investigation by the law enforcement agencies under the procedure prescribed by law.

The legal community not only sees the systemic flaws created by the current legislation but also criticizes the new reform of the system as such that at the legislative level continues to ignore the rights of the bar self-government bodies and advocates’ professional guarantees, and creates artificial basis for further attraction of public funds for unnecessary expenditures, such as the creation of additional state structures. In the course of creation of legal aid bureaus, the qualification and educational requirements for the prospective employees have been significantly lowered. Such persons need not necessarily be advocates or even lawyers.

The Opinion states about the unreasonableness of adoption of the draft law "On amendments of certain laws of Ukraine aimed at facilitation of access to legal aid and raising the quality of its provision", which was introduced by Mr Yatsenyuk’s Cabinet of Ministers. In addition to an unjustified increase to 107 centres and 433 legal aid bureaus, advocates pointed to legislative possibilities for the officials to access the documents covered by professional privilege. Besides, this dependence of advocates on the centres’ employees is strengthened through the monitoring assessment procedure - it is taken into account when appointing legal aid advocates. The draft law virtually excludes the bar self-government bodies from the legal aid system.

"Such policy of the Government and the Ministry of Justice of Ukraine, which disregards the bar self-government bodies and the principles of creation of the legal aid system contradicts the Strategy of reforming the judiciary and related legal institutions in 2015-2020, approved by the Presidential Decree of 20 May 2015 No. 276/2015", - states the BCU decision. The Strategy determines that the directions of reforms should be aimed at strengthening the guarantees of the bar and ensuring the availability of legal aid, strengthening at the institutional level of the UNBA for ensuring proper professional activities of the bar. The objectives in this area include the improvement of the legal regulation of professional rights and duties of advocates, guarantees of practice of law; introduction of effective mechanisms for bringing to liability of officials for the breach of the guarantees of independence of advocates; strengthening the guarantees of advocate-client privilege; and simplification of citizens' access to legal aid by improving the quality standards of legal aid and compliance with them.