Amendments to Free legal aid, proposed by the Ministry of Justice, undermine human rights

Draft law №5107 "On Amendments to Certain Legislative Acts to Facilitate Access to Free Legal Aid and Improve the Quality of Legal Aid" is an example of defiant human rights violations.

This was stated by UNBA\BCU Vice-President Valentyn Gvozdiy during the panel discussion "Development of quality standards for free legal aid in civil and administrative cases."

The event took place online as part of the Council of Europe Project "Support to the Judiciary of Ukraine in Ensuring Better Access to Justice".

In his welcoming speech, Valentyn Gvozdiy voiced UNBA official position on the amendnents, which is set out in numerous decisions of the BCU and appeals to Ukrainian authorities and international legal organizations. He stressed that after analyzing the documents, the UNBA is convinced that authors of the proposed changes blindly copied the experience of other countries, without considering the features of national legislation.

«We urge not to blindly copy other countries` experiences. Yes, indeed, such experience is important. However, we must consider our experience and traditions as well, and respect our Constitution. Otherwise, we will not build the sovereign and independent state», - noted Valentin Gvozdiy.

The Deputy Head of the UNBA, the BCU believes that the introduction of a mechanism for assessing the quality of free legal aid provided by attorneys using "peer review" is an attempt to encroach on the legal professional privilege, which is a gross violation of all principles and standards of advocacy.

"Today, free legal aid exists to protect the most vulnerable segments of the population, those people who are unable to provide legal protection and legal aid on their own. This law takes away the last thing from them - the right to the attorney-client privilege and so on. And the cynicism is that with one hand the state will assist, with the other - it will violate people's rights", - Valentyn Gvozdiy stressed.

The UNBA is also concerned about who will evaluate the quality of the provided free legal aid (hereinafter - FLA). Thus, by the provisions of these bills, such an assessment will be conducted by a special commission, to which attorneys-experts will be selected by the Ministry of Justice.

"We believe that the provision of legal assistance by dubious subjects, as proposed in the bill - is a bold mockery of vulnerable groups," - said Valentin Gvozdiy.

He also drew attention to the fact that these bills were prepared without the participation of the direct participants in these changes - the attorneys` community.

«The Ministry of Justice has not addressed us with any inquiries, has not analyzed the work of the commission on the quality of Free legal aid so far. We can say that complaints about the quality of the FLA provided today are minimal. We have proposed different approaches to how the quality of FLA can be improved. And we believe that it is not right to interfere in the attorney-client privilege and to humiliate recipients of FLA through such procedures», - he stressed.

Valentyn Gvozdiy expressed hope for better communication between the Ministry of Justice and the UNBA and the involvement of the attorneys` community in the process of drafting not only bills but also other mechanisms of work in the field of free legal aid.

It will be recalled that in April Bar Council of Ukraine called for the draft laws “On Amendments to Certain Legislative Acts Concerning Simplification of Access to Free Legal Aid and Improving the Quality of Its Provision” №5107  dated  February 19, 2021, and “On Amendments to Certain Legislative Acts Concerning simplification of access to free legal aid and improvement of the quality of its provision ” №5107-1 dated March 9, 2021, were sent for revision, as they were prepared and registered without the participation of the attorneys` community.

After analyzing these bills, the UNBA has identified numerous problems and serious shortcomings that are contrary to international law and should be resolved at the legislative level solely by the joint efforts of state bodies and bar self-government bodies. The UNBA believes that the proposed bills are not aimed at improving the quality of FLA, but other grounds, not excluding obtaining serious leverage over independent attorneys and obtaining additional budget funding to establish and ensure the activities of the commission proposed by the Ministry of Justice of Ukraine or other commissions.

After analyzing these bills, UNBA has identified numerous problems and serious shortcomings that are contrary to international law and should be resolved at the legislative level solely by the joint efforts of state bodies and bar self-government bodies. UNBA believes that the proposed bills are not aimed at improving the quality of FLA, but other grounds, not excluding obtaining serious leverage over independent attorneys and obtaining additional budget funding to establish and ensure the activities of the commission proposed by the Ministry of Justice of Ukraine or other commissions.

The previous draft Law “On Amendments to Certain Laws of Ukraine on Facilitating Access to Free Legal Aid for Children and Persons with Disabilities and Improving the Quality of Its Provision” with similar proposals was registered under №702704 dated December 28, 2019, but was withdrawn on March 14, 2020, after the categorical objections from the Ukrainian National Bar Association.

BCU has repeatedly opposed the introduction of such a mechanism to control the quality of professional legal assistance provided by attorneys in any form.

In the decision №33 of April 1, BCU decided to send an appeal to the President of Ukraine, the Head of the Verkhovna Rada of Ukraine, the Head of the Verkhovna Rada Committee on Legal Policy, the Prime Minister of Ukraine, and the Minister of Justice of Ukraine on the return (revocation, rejection) of bills № 5107 and revision of the bill № 5107-1.