FLA needs urgent help, - Valentyn Gvozdiy

Twelve years of existence of the free legal aid system in Ukraine is enough to understand the inability of the Ministry of Justice to effectively manage this area.

This was emphasized by Valentyn Gvozdiy, the Vice President of the Ukrainian National Bar Association, the Bar Council of Ukraine, assessing the conclusions of the Report on the current issues of the functioning of the legal aid system in Ukraine.

The report was prepared by the UNBA Committee on Legal Aid. The document demonstrates the cause-and-effect relationships that determine the existence of seven major problems in the FLA system and suggests ways to solve them:

1. Monitoring the quality of FLA provision.

2. Distribution and execution of orders for the provision of FLA.

3. Payment for the services of lawyers.

4. Appointment of a lawyer to participate in a separate procedural action.

5. Participation of advocates in criminal proceedings in absentia.

6. Identification of the advocate with the client.

7. Termination of the provision of free legal aid in suspended criminal proceedings.

«We see that [the Ministry of Justice] has failed. So, something needs to be done, - said the Vice President of the UNBA. - Perhaps it is necessary to withdraw [the system] from the sphere of management of the Ministry and create an independent legal entity under public law, to call it, for example, the Legal Aid Fund. And this legal entity should be governed by an independent board, which, in addition to lawyers, in our opinion, should include a representative of the Ombudsman and the Ministry of Finance».

It is only about guaranteeing and ensuring the right to legal aid. «The task of the state in this case is to guarantee and pay for legal aid to those who are entitled to it. It is not to provide it independently through government officials», - said Valentyn Gvozdiy. The latter conflicts with the principle of the legal aid system. The state has positive coercion, which is necessary for the organization of society. «However, having the tools of positive coercion in the form of law enforcement and judicial systems, the state cannot simultaneously provide services aimed at protecting against such coercion. This is a direct conflict of interest that negates the human right to defense guaranteed by the Constitution», - he explained.

Among other changes that should be introduced, he mentioned ensuring the right to free choice of defense counsel. «All lawyers in the country who want to provide services to citizens in the FLA system should use tariffs approved by an independent body. And it should be the right of the lawyer to work at this rate or not. This is how the world's leading legal aid systems work. This is what ensures transparency, quality and the free right to choose a defense counsel, - said the Vice President of the UNBA. - It is necessary to use as many digital solutions as possible... And this will be the main focus of our proposals, which will lead to significant savings in public funds».

According to Valentyn Gvozdiy, transparency and control of public spending is also extremely important. Systematic collection of data on the number of contracts, categories of cases and costs will allow for effective planning of budget expenditures and ensure a high level of transparency in the use of such funds. The Fund will have its own budget and can be managed through an Independent Council based on a balanced representation of the involved entities. «That is, not only at the expense of the state budget, they [funds] can be provided by the private sector, donors, and sponsors. After all, we understand that many of our international partners today may be willing to finance such assistance, but they doubt it when they see tenders for repairs, imbalances in costs, etc. And they do not believe that these funds will reach the citizens who need such legal aid», - he commented.

Valentyn Gvozdiy also referred to a recent post by Nick Emerson, President of the Law Society of England and Wales (UNBA's counterpart in the UK), who published a publication stating that legal aid itself needs immediate assistance. After all, people abroad are also concerned about human rights violations due to the low standards of legal aid.

«The picture clearly demonstrates the trends and tendencies at the global level, what is happening with the provision of free legal aid. I think that it can be easily applied today to illustrate the content of the presentation of the state of FLA in Ukraine», - said the Vice President of the UNBA.