Achievements, Challenges, New Ideas

© Coordination Centre for Legal Aid Provision, 2015www.legalaid.gov.uaandriy.vyshnevsky@legalaid.gov.ua

Legal Basis

Constitution of Ukraine (Art. 59); European Convention on Human Rights (Art. 6, par. 3 с); PACE Resolution dated 05.10.2005 № 1466 (2005) “Honouring of Obligations

and Commitments by Ukraine” (Art. 13.13); Concept of Legal Aid System Formation in Ukraine, approved by Presidential

Decree dated 09.06.2006 № 509; Law of Ukraine dated 02.06.2011 № 3460-VI “On Legal Aid”; Law of Ukraine dated 05.07.2012 № 5076-VI “On the Bar and Lawyer’s Practice”

(Art. 25); Criminal Procedural Code of Ukraine dated 13.04.2012 № 4651-VI

(Art. 49, 52, 53); Law of Ukraine dated 14.10.2014 № 1697-VII “On Prosecution“.

Political Background

“The institutional development of legal aid system in criminal, civil and administrative procedures, strengthening of legal awareness of the population shall be provided." [Coalition Agreement of Parliamentary Factions of 7th Convocation – Petro Poroshenko’s Block, All-Ukrainian Union "Bat’kivschyna", “Narodnyi Front“, Oleh Liashko’s Radical Party and Union "Samopomich", art.7.5, section "Judicial Reform"]

Further development of legal aid system is considered an integral part of judicial reform in the Strategy of Reforming of Judiciary and Judicial Proceedings, and Other Related Legal Institutions preliminary approved by the Board on Judicial Reform on November 18, 2014, and presented by the Administration of the Presidentof Ukraine for international donors on December 3, 2014

"Mutual efforts shall be aimed at further improvement of legal aid quality and support of the implementationof the new Law of Ukraine" On Prosecution“ and the Law of Ukraine" On Legal Aid" [CoE Action Plan for Ukraine for 2015-2017 years, approved on January 21, 2015 by the CoE’s Committee of Ministers]

Assessment of measures required to build peace in Eastern Ukraine including legal aid provision for population, including internally displaced persons. [Project of Assessment Report on Ways of Restoration and Building Peace in Eastern Ukraine, which is being prepared by the EU, the UN and the World Bank under the supervision and with the participation of the Government of Ukraine]

Development of Legal Aid System: 4 Steps

1 Establishment of new institution (2012)

2Access to legal aid in criminalproceedings provision (2013)

Quality of legal aid in criminal proceedings provision (2014)3

Access to legal aid in civil and administrative proceedings – representation of citizen’s interests provision …4

2012 2013 2014 2015 (budget)0

50

100

150

200

250

300

7.3

49.1

78.8

269.6

Year

mln

UAH

Budget of Legal Aid System in 2012 – 2015 (MLN UAH)

4 years х 37 times

207,2;51%

81,5;20%

49,4;12%

66,7;17%

Lawyers' remuneration Salary Other current costs Capital expenditures

Legal Aid System Budget in 2012 – 2015 (by types of expenditures, MLN UAH)

Quality Management in Legal Aid SystemLawyers Selection

Contests

Compliance with the Standards

Contracts termination

GuidelinesIdentification of training needs Cascade Trainings

Analysis of practices

Exclusion from the Register of Lawyers Providing Legal Aid

Selected lawyers contracted by centres for SLAP

Quality Standards

Failure to comply with the standards

Positive results Financial motivation

Analysis of practices

Monitoring and estimation

Quality Standards of Legal Aid in Criminal Proceedings

Standards – a set of basic characteristics of the model of the state guaranteed protection stipulated by international regulations, laws of Ukraine, within which, and considering the agreed legal position of the defence a defender is independent in selection of strategy and tactics of defence in criminal proceedings for active and reasonable protection of rights, freedoms and legitimate interests of the client by all means not prohibited by law.

The purpose of development and implementation: timely, quality and sufficient provision of legal aid criminal proceedings; ensuring efficient use of state budget funds allocated for legal aid lawyers’ remuneration; methodological support and professional development of lawyers providing legal aid in criminal

proceedings

Legal Aid Quality Monitoring – Quality Managers :

1. Questioning of lawyers

2. Selective verifications of questionnaires with actual data

3. Observations in court

4. Questioning of clients

One of the sources for standards – the practice of the ECHR

System of Regular Cascade Training Programmes and Guidelines for Legal Aid System Lawyers

Series 1 - "Criminal Proceedings"

1 ci

rcle

Trainings for Lawyers-Trainers Regional Trainings GuidelinesThe new Criminal Procedure Code: the study and applicationin the light of European standards (6-8 June, 2013)

September-December, 2013 Number of trainings: 73Number of participants: 1685

ІІІ

The methodology of training: planning and training on the useof the new Criminal Procedure Code(5-6 July, 2013)The methodology of preparation of practical tasks of methodological recommendations for lawyers providing legal aid(8-9 August, 2013)Psychology of interrogation(10-11 October, 2013)Actions of the lawyer during the proceedings in the court of the first instance(1-3 February and 1-2 March, 2014)

March-April, 2014Number of trainings: 50Number of participants: 1248

III

Actions of the defender on security of the criminal proceedings, decisions appealing, actions or inactions of the investigator,the prosecutor and the investigating judge, review of court decisions (May 17-19 and June 21-22, 2014)

June-July, 2014Number of trainings: 36Number of participants: 1106

IVVVI

Actions of the defender in criminal proceedings on the basisof agreements, on the application of specific measures of criminal and legal influence, on access to adequate health care(13-15 September and 27-28 September 2014)

October, 2014Number of trainings: 38Number of participants: 1052

VIIVIIIIXX

2 ci

rcle

3 ci

rcle

4 ci

rcle

50+ permanent trainers / moderators

Regular Lawyers Selection Contests

Contests 1st 2nd 3rd 4th 5th 6th 7th

Dates IV-V.2012 X-XI.2012 II-III.2013 IX-X.2013 III-IV.2014 X-XI.2014 II-IV.2015

Number of applications 1190 1770 490 711 353 463 522

Number of selected lawyers 950 1594 434 603 308 323 372

The average passing score(maximum – 5) - 3 3,5 3,6 3,6 3,7 3,7

4401 lawyers in Register

Selected Legal Aid System Indicators

Indicator/ Year 2013 2014 2015*

Annual costs for lawyers’ services (UAH) 22 854 058 52 046 992 10 451 700

Debts for lawyers’ servicesby the end of period (UAH) 15 494 700 7 069 500 3 125 200

Number of orders for legal aid provision issued for lawyersby centres for SLAP

76 878 68 796 15 656

Number of lawyers contractedby centres for SLAP 2 008 2 096 1 688

Average remuneration per 1 order for legal aid provision (UAH) 499 859 -

Average number of ordersper 1 lawyer in Ukraine 38 34 -

Average legal aid lawyer remuneration in Ukraine (UAH) 19 098 28 204 -

* Data on 25.03.2015

Number of Orders for Legal Aid Provision Issued for Lawyersby Centres for Secondary Legal Aid Provision in 2013 and 2014*

defence

of pers

ons deta

ined in

crim

inal order

defence

of pers

ons deta

ined in

administr

ative

order

defence

in crim

inal pro

ceedings

defence

in separa

te pro

cedural

actions o

f crim

inal pro

ceedings

0

5000

10000

15000

20000

25000

30000

35000

40000

45000

20655

9386

38560

2053

17594

8645

38322

2811

2013 2014* Data on Autonomous Republic of Crimea and Sevastopol’ excludedWith above-mentioned data inclusion the number of issued orders is: in 2013 - 76878, in 2014 - 68796.

Total number of orders issued*:2013 – 70654;2014 – 67372.

Indicators of Effectivenessof Legal Aid System’s Lawyers Legal Defence in 2014

140 verdicts of non-guilty

3499 verdicts with softer punishment than specified by the law

760 cases when weight of accusation or criminal offence qualification was decreased

1140 closed criminal proceedings

270 cases when arrest preventive measure was softened as a result of lawyer’s appeal

Efficiency of Legal Aid System’s Lawyers Defence

Lawyers contracted by centres for SLAP/total number of lawyers (2014)

93% (≈30 000)

7% (2029)

Verdicts of non-guilty in legal aid system lawyer’s cases/ total number of verdicts of non-guilty (2014)

43% (140)

75% (365)

Efficiency of legal aid lawyers is 10 times higherthan lawyers out of the system

Challenges (I): Equity vs Political Influence

Legal defence of detained Maidan activists

Legal defence of military men of the 51st Separate Mechanised Brigade of Ukrainian Army; Vitaliy Komar, Commander of the “Prykarpattia” 5th Battalion of Territorial Defence , and other servicemen

Legal defence of persons suspected in separatist / terrorist-related crimes commitment

Challenges (II): Virtue vs Corruption

Risks on interaction level LAWYER – INVESTIGATOR(«pocket lawyers»)

Risks on interaction level LAWYER – LEGAL AID CENTRE(disproportionate distribution of cases)

?

Challenges (III): Independence vs Assimilation

Risk of “raider seizure”, takeover and assimilation of independent, progressive legal aid system by reactionary

forces in Ukrainian National Bar Association to freezethe lawyer’s status quo as the key link in chain of judicial

system’s corruption mechanism

Legal Aid System Impactin Broader Context of Criminal Justice

Next Steps

1. Establishment of 100 new local centres for secondary legal aid provision

2. Re-design of legal aid system as follows: 1st level (front office) – 100 local centres; 2nd level (back office) – 27 regional centres; 3rd (coordination office) – Coordination Centre for Legal Aid Provision

3. IT development to optimise legal aid system administrative costs, increaseits transparency and corruption prevention

4. Independent Expert Assessment of Legal Aid System on compliance with Council of Europe standards and European Court of Human Rights practice (PACE Resolution dated 05.10.2005 № 1466 (2005) “Honouring of Obligations and Commitmentsby Ukraine” )

5. Drafting and adoption of amendments to the Law of Ukraine “On Legal Aid”to broaden access to legal aid, increase its quality and comply with Councilof Europe standards and European Court of Human Rights practice