Lawyers found violations of defense guarantees in the in absentia procedure

Since the beginning of the full-scale invasion, the number of crimes against the foundations of national security has increased significantly. Since the suspects are often outside Ukraine, the investigation is carried out in absentia with the involvement of lawyers from the FLA system.

The practice of organizing the provision of free legal aid in such proceedings was analyzed by the Committee of the Ukrainian National Bar Association on Legal Aid and set out in a report presented by the UNBA last week.

In particular, the document notes the facts of systematic implementation of unconstructive positions by the bodies of the FLA system:

• during a joint event with the participation of representatives of the bar, the director of the Coordination Center for Legal Aid Provision (CC) publicly expressed the position of accusing lawyers involved in criminal proceedings in the absence of a suspect (accused) of violating the Rules of Professional Conduct.
• the CC draws conclusions about the agreement or disagreement with the client solely on the basis of the fact of a personal meeting between the lawyer and the client. In fact, the suspects are deprived of the opportunity to coordinate their position with the lawyer by phone or in any other way. Lawyers are forced to meet in person, as the possibility of providing legal aid to a person with whom they have not met in person is denied.
• the FLA authorities created instability in the rules of validity of assignments in cases where a special pre-trial investigation was conducted.
• representatives of the CD publicly state that the powers of the advocate are terminated upon completion of the special pre-trial investigation. According to the power of attorney issued at the stage of pre-trial investigation, the lawyer does not have the authority to participate in the preparatory court hearing. Such a position of the CC caused total concern of lawyers and led to massive postponements of trials to update the powers of defense counsel.
• the positions expressed by the SLC potentially threaten to put pressure on the right of the advocate to choose a procedural position in the case, which consists in independent participation in the hearing in the absence of the client, a statement to the investigating judge that the client is not aware of the petition filed, violation of the method of notification of the suspect, etc. In such cases, the payment for the lawyer's participation in the court hearing is jeopardized, and the FLA client is restricted in his or her rights compared to the client of a lawyer under a contract. The problem was resolved with the UNBA's intervention. The Bar Council of Ukraine, by its decision of 27.12.2022 No. 183, approved the Clarification on the participation of lawyers in criminal proceedings in the absence of a suspect or accused, after which the FLA centers stopped this negative practice.

The report suggests that the proper way to solve these problems is to optimize criminal procedural legislation with the participation of the bar, as well as to establish constructive cooperation between the FLA authorities and lawyers in order to coordinate positions in such new and complex situations.