The main issue which one really needs to think about is whether the established system of legal aid has a goal of defending the population in legal matters or whether it is a veiled system of destruction of the independence of the bar.
Authoritarian regime of control over independent legal profession.
Today, there is an increasing interest in the discussion about the introduced system of free legal aid. And, as every discussion, it has both opponents and supporters. The main issue which one really needs to think about is whether the established system of legal aid has a goal of defending the population in legal matters or whether it is a veiled system of destruction of the independence of the bar. These are exactly the questions to which many are trying to find answers; this is exactly what we need to understand and think about. Today, under the State slogans about the protection of human rights, it is exactly these rights that are most often violated. Let us examine this issue.
The legal regulation of the provision of legal aid is governed by the Law of Ukraine "On legal aid» No. 3460-VI of 2 June 2011 (hereinafter – “the Law”).
According to Article 1 of the Law, legal aid is the aid guaranteed by the State and is fully or partially provided at the expense of the State budgetary funds, local budgetary funds or other sources.
The key element in this term is that legal aid is guaranteed by the State and, therefore, the State can in this way or another influence on this system; it can also create unequal conditions of development of legal profession.
In my opinion, implementation of the principles of human rights as well as the creation of a system of their protection by the State can be guaranteed only through the compliance with the legislation, and through the creation of a system of bodies (courts) that could protect and restore the rights of citizens in the event of their violation.
Only recently has the protection system in the form of the bar lost total control of the State. Undoubtedly, with the acquisition of independence of the State we have started to build an institute of independent legal profession, but we are now at risk of destroying it. It is exactly the State interference with a formation of a system of protection in the form of creation of legal aid centers that can have a total impact on the legal profession in general, and this impact will not be positive.
In accordance with Section 5 of Article 5 of the Law of Ukraine "On legal aid", one of the principles of the State policy on legal aid is the financing guaranteed by the State, which, firstly, creates unequal conditions for the existence of legal profession. In essence, this is reflected in its division into two parts which leads to a split due to unequal financial support. Secondly, it leads to a severe control and the possibilities of influence, because the State acts as a "sponsor" of legal aid.
Article 15 of the Law of Ukraine "On legal aid" sets the list of entities empowered by the State to provide legal aid, namely:
1) centers for secondary legal aid;
2) advocates included in the register of advocates providing secondary legal aid.
Centers for legal aid are regional (republican (ARC), regional, in Kyiv and Sevastopol cities) and local (district, inter-district, urban, city and district centers in cities) centers of secondary legal aid, which are created by the Ministry of Justice. Centers for secondary legal aid are the territorial divisions of the Coordination Center for Legal Aid and are created in order to meet the needs of a relevant administrative-territorial unit and individuals for an access to secondary legal aid.
And here comes the most interesting thing. Have equal conditions for the development of legal profession in Ukraine been created? Of course not. Let us try to examine the questions that most frequently arise in this debate.
Undoubtedly, the structures of legal aid created by the Ministry of Justice will be accountable to, and under the control of a public authority. In our opinion, in the future this model can lead to a total control with a possibility of influence on the bar, which will be involved in these centers. Thus, the State under the motto "Let’s help people" pursues the goal of establishing control over the system of protection of these same people.
Our opponents will disagree, but, according to Article 27 of the Law of Ukraine "On legal aid", the Cabinet of Ministers of Ukraine has the powers to approve the procedure and conditions for the competition and the requirements for the professional level of lawyers involved in the provision of secondary legal aid, to establish the procedure and conditions for contracts and agreements with advocates and to set the amounts and the procedure for payment for the activities by a subject of secondary legal aid.
Further analysis of the Law of Ukraine "On legal aid", namely Article 28, provides the understanding of the role and scope of the Ministry of Justice of Ukraine in the field of legal aid which are approved by the Cabinet of Ministers of Ukraine. The thing which sets the most wondering is how the Cabinet of Ministers of Ukraine establishes the conditions and requirements for the selection of professional advocates. In other words, the State executive body assumes the right to select and divide the advocates into the tentative "first" and "second" grades.
In accordance with paragraph 1 of Article 1 of the Law of Ukraine "On the Bar and Practice of Law» (No. 5076-VI of 05.07.2012), an advocate is an individual who exercises legal profession on the grounds and in the manner provided for by this law.
The above law also defines the procedure for acquiring the right to practice law. According to this criterion, the State executive body represented by the Cabinet of Ministers of Ukraine has the right to divide the advocates and to determine the professional level of those who may be involved in the provision of legal aid.
The distribution of cases between advocates also causes many questions. One of the first questions concerns the transparency of the procedure.
In accordance with paragraph 2 of part 1 of Article 28 of the Law of Ukraine "On legal aid", the Ministry of Justice of Ukraine exercises overall management in this area. It is exactly in this way that the State is trying to influence legal profession, since the overall management creates such an opportunity.
Thus, the reality of the situation is apparent. The Ministry of Justice will, in fact, control the independent legal profession. Can we talk now about the independent bar?
The development of legal profession is only possible through the formation of free market for the provision of these services.
The existence and functioning of the legal aid model in the form in which it is now introduced will subsequently lead to the destruction of the institution of the independent legal profession. This will form the authoritarian regime of control in this area and will lead to dependence of advocates on the representatives of the government, and as a result, to the control over the judicial system as a whole.