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Many times, advocates at different levels put questions before the State agencies about the placement of rooms for advocates in courts and creation of proper conditions for defense counsel in detention facilities. As possible, the State tries to create conditions for advocate’s work; however, there is currently a problem for advocate’s work in the establishments of temporary detention of persons in respect of whom the court chose a preventive measure in the form of detention.

Does the State have to create conditions for an advocate’s work?

10:18 Thu 14.01.16 Author : Ganna Boriak 1170 Reviews 0 Comments Print

Many times, advocates at different levels put questions before the State agencies about the placement of rooms for advocates in courts and creation of proper conditions for defense counsel in detention facilities. As possible, the State tries to create conditions for advocate’s work; however, there is currently a problem for advocate’s work in the establishments of temporary detention of persons in respect of whom the court chose a preventive measure in the form of detention.

An advocate belongs to a category of self-employed persons, to whom the State has delegated authority to defend persons in courts. An advocate independently organizes a format of his activities (self-employed person) and performs a client’s assignment which is documented in the form of a contract.

Given the specificity of work, an advocate during working hours, which are not normalized, is forced to use facilities in special institutions of detention of persons in respect of whom a relevant preventive measure was chosen. The premises in the detention facilities do not always meet the requirements that are sufficient for a proper work of an advocate. The person suffering as the result is the client.

According to Article 13 of the Law of Ukraine "On the Bar and Practice of Law", an advocate who practices law individually is a self-employed person. Therefore, he is covered by the legislation on working conditions, particularly regarding a workplace of an advocate. It follows from the analysis of the criminal procedural legislation that an advocate performs defense functions in courts which have been delegated to him by the State (Articles 42, 45, 46, 47 CCP). Similarly, the State guarantees an advocate a respect for his rights.

According to Article 17 of the above Law, the address of the advocate’s workplace is the location of the organizational form of practice of law chosen by the advocate or address of the actual place of practice of law if it is different from the location of the chosen organizational forms of practice of law.

Meetings with the client held in detention centres take place in the course of practice of law – namely, practice of independent professional activities by an advocate concerning legal defense. Consequently, "the investigation room" is a workplace of an advocate (place of practice of law), and it must meet the requirements for the workplace, as provided by the legislation on labor protection as well as sanitary norms.

The legal concept of a workplace is defined in the Labor Code of Ukraine and in other legislative acts. In view of this, one can define the term of the workplace as a place of permanent or temporary location of the employee during the process of working activity.

It follows from the analysis of regulatory factors in respect of construction, hygienic and sanitary norms, that the State has established the allowable levels of harmful production factors; they have been established by hygienic regulations, consolidated in special documents and duly approve; these are referred to as health standards. The requirements contained in sanitary legislation, are specified in the sanitary rules, regulations, guidelines, recommendations, instructions issued by the Ministry of Health of Ukraine.

Accordingly, the temporary workplace of an advocate in the detention centre must meet sanitary and construction rules and regulations. Lack of proper conditions for an advocate creates in essence an obstacle for meetings with the client, contrary to the rights of suspects and accused imperatively established in Article 42 CCP of Ukraine.

It is clear that an advocate as a self-employed person independently organizes his permanent workplace. But when he performs functions delegated by the State, it is the State that must create conditions for the advocate’s proper work, including modern technical capabilities for the analysis of documents in electronic form.

A room for meetings with a client must not only meet sanitary and technical standards, but also be equipped with access to the Internet, a shelf for a laptop and other technical capabilities for the work with a client in a criminal case.

Otherwise, not only the client but also his advocate will experience social constraints, as the advocate is forced to print out multi-volume cases on paper and to carry them almost at every meeting in the premise in which moisture and fungus are among the least harmful obstacles. For example, in the Odessa detention centre the ceiling dusts down on the head of advocates during their performance of professional duties, the premises are dirty and the smell is unbearable. In such circumstances, it is not only difficult to provide legal assistance, but also to stay there for more than an hour, which may threaten the advocate’s health. In such cases advocates’ strikes, which in particular were provoked by the unbearable working conditions, are justified, because the State does not react to a person’s impaired right to defense due to the lack of appropriate conditions for an advocate in the premises of a detention centre. But how about the State guarantees?

Therefore, we should demand that the governors of detention centres provide proper conditions for advocates’ work and inform the courts about the obstacles for meetings with clients, which entail violations of the right to defense.

 

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