Ministry of Justice develops standards for free legal aid for minors

Amendments have been prepared to the quality standards for the provision of free secondary legal aid. In addition to purely technical amendments («legal» assistance becomes «legal aid» and «mass media» becomes «media»), requirements are envisaged for assistance and representation of minors.

The Ministry of Justice prepared and submitted two drafts to the Ukrainian National Bar Association:

• «On Amendments to the Order of the Ministry of Justice of Ukraine No. 386/5 dated February 25, 2014» (Quality Standards for the Provision of Free Secondary Legal Aid in Criminal Proceedings);
• «On Amendments to the Order of the Ministry of Justice of Ukraine No. 4125/5 dated December 21, 2017» (Quality Standards for the Provision of Free Secondary Legal Aid in Civil and Administrative Proceedings and Representation in Criminal Proceedings).

With regard to the provision of free secondary legal aid in criminal proceedings (Order No. 386/5), it is proposed to supplement the relevant table of the Standards with a new section on minors. The proposed Standards provide for the following obligations for lawyers:

• giving priority to criminal proceedings in which the center defends minors on behalf of the center, in particular, by taking appropriate actions to transfer participation in other criminal proceedings;
• filing a petition to have a legal representative, a psychologist, and, if necessary, a doctor, participate in the interrogation of minors under the age of sixteen or recognized as mentally retarded;
• explaining to the child in a language accessible to him/her, taking into account his/her age and maturity, and to his/her legal representative the powers of the defense counsel in criminal proceedings, the necessary information regarding the possible consequences of the child's views and/or opinions, as well as the client's procedural right to reconciliation in criminal proceedings and its consequences, and informing about the possibility of participating in the Restorative Justice Program involving minors who are suspects, accused of committing a criminal offense (hereinafter referred to as the Program); taking into account the results;
• submitting a request to the investigator, prosecutor, investigating judge, or court to replace the client's legal representative if the actions or interests of the legal representative contradict the interests of the person he or she is defending;
• Preparing a complaint to the prosecutor and notifying the Ukrainian Parliament Commissioner for Human Rights in case of detention/detention of a minor on suspicion of committing a misdemeanor, minor or medium gravity crime;
• filing, with the consent of the minor, a request to conduct investigative actions and/or interrogation not only at the place of pre-trial investigation, but in child-friendly conditions;
• explaining to the client before the trial the possibility of hearing the case in a closed court session and filing a corresponding motion at the client's request.

It is proposed to set forth similar obligations of a lawyer in the table of Standards approved by Order No. 4125/5.

New standards for representing minors in criminal proceedings may include:

• explaining before the trial that the case may be heard in a closed court session and, at the client's request, filing a corresponding motion;
• giving priority to criminal proceedings in which the center represents minors on behalf of the center, in particular, by taking appropriate actions to transfer participation in other criminal proceedings;
• filing a petition for the participation of a legal representative, psychologist, and, if necessary, a doctor at the pre-trial investigation or during the trial, including in order to minimize investigative (procedural) actions involving the child and the possibility of his or her further participation in the trial without causing retraumatization;
• explaining to the child in a language accessible to him/her, taking into account his/her age and maturity, and to his/her legal representative the powers of the representative in criminal proceedings, the necessary information regarding the possible consequences of the child's views and/or opinions, as well as the procedural right to reconciliation with the suspect, accused in criminal proceedings and its consequences, and informing about the possibility of participating in the Restorative Justice Program with the participation of minors who are suspects, accused of committing a criminal offense, as well as with the
• notifying the prosecutor and the Ukrainian Parliament Commissioner for Human Rights in case of non-compliance with the requirements of the law on conducting investigative (search) and procedural actions with a client who is a minor in a child-friendly environment and in conditions that minimize the consequences of trauma;
• filing a petition before the start of the trial to consider the criminal proceedings without the participation of the minor (unless the minor himself or herself has expressed a desire for such participation);
• ensuring submission to the court of documents regarding the minor's opinion on the sentencing of the accused or when deciding on the application of compulsory educational measures in the case of a trial without the participation of the minor victim.

The Ministry of Justice assures that the implementation of the drafts will ensure that the provisions of the orders are brought into line with the current legislation. The drafts themselves, explanatory notes and comparative tables to them can be downloaded here.