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Decree of the President of Ukraine No 509/2006

“On the Concept of Reforming the System of Free Legal Aid in Ukraine”

Approved by the President of Ukraine, Decree No 509/2006 from 9 June 2006

SECTION І – Objective of the Concept Paper

This Concept Paper establishes general principles for formation and operation of a legal aid system in Ukraine and complete or partial financing of provision of legal aid from the state budget.

The Concept Paper guarantees a right of an individual to access to justice as provided for in the Constitution of Ukraine, the European Convention on Human Rights, International Covenant on Civil and Political Rights.

Objective of this Concept Paper is establishment of a basis for implementation of a national system for providing accessible and high-quality legal aid that would meet the needs of Ukrainian society.

SECTION ІІ – Contemporary Status of Providing Legal Aid

At present, provision of legal aid in Ukraine is unsatisfactory and fails to meet the minimum requirements for access to justice existing in Europe. Ukrainian legislation contains isolated individual provisions that regulate the procedure for providing legal aid; however, there is no system that would ensure real access to legal aid.

The main causes of this situation are the following:

SECTION ІІІ – Models of Creation of Legal Aid System

Establishment of an efficient legal aid system may be organized as follows:

1. Organization of primary legal aid delivery

Objective of primary legal aid is to inform a person about his/her rights and ways to exercise it, to secure opportunities for pre-trial resolution of conflicts and to prevent unjustified time and financial expenses related to the person’s access to an attorney. The state must organize provision of primary legal aid for everyone.

Primary legal aid must include also legal consultations and advice, drafting of legal documents (appeals, referrals, requests, etc.) except for procedural documents, facilitated access to secondary legal aid and alternative forms of conflict resolution such as extrajudicial dispute settlement (mediation).

Primary legal aid must also be territorially accessible. Law may establish timeframes for delivery of primary legal aid .

Subjects of delivery primary legal aid are/or may be:

As of today, the state and local communities coordinate activities of functioning subjects that provide legal aid by means of informing local community members about their work, facilitate cooperation between these subjects and – if necessary – help to establish new bodies for providing primary legal aid.

2. Organization of secondary legal aid delivery

Objective of secondary legal aid is to ensure equal access to justice for everyone.

Delivery of secondary legal aid includes preparation of procedural documentation, defense and representation in the court and other bodies.

Individual’s eligibility for secondary legal aid is determined with regard to the interests of justice and the individual’s financial status.

Jurisprudence of the European Court of Human Rights with regard to application of Article 6 of the Convention on Human Rights and Fundamental Freedoms provides for the necessity to provide legal aid in the interests of justice based on the following criteria:

The interests of justice require legal aid be provided to every detained or arrested individual. During the tests of eligibility of a person for fully or partially legal aid paid for from the public budget, account should be takes of the person’s financial status. Financial eligibility criteria are to be set by the Cabinet of Ministers of Ukraine. The state may provide for a mechanism for a person’s partially covering expenses related to provision of legal aid in cases envisaged by a special law.

Objectives of this Concept Paper must be achieved on a stage-by-stage basis. Starting form the first stage of implementation and throughout implementation of other stages, a right to secondary legal aid must be guaranteed to:

Taking into consideration the state’s ambition to expand access to legal aid, the number of cases and matters, in which publicly funded secondary legal aid is guaranteed, must be increased.

Relations between the state and the lawyers in the sphere of secondary legal aid must be founded on a contractual volunteer participation of an attorney.

In order to ensure high quality standards for delivery of secondary legal aid providers of secondary legal services must be selected on a competitive basis (tender).

The system of secondary legal aid must envisage various forms of agreements that would take into consideration specifics and guarantees of legal profession, including protection of confidentiality. These agreements must mention a specific amount of provided legal services for specified remuneration, full- or part-time participation of a lawyer providing such assistance, various organizational forms of cooperation between attorneys and the state, etc. The preference will be given to the forms that secure the most efficient access to secondary legal aid on the one hand and take into consideration operations, economic, regional legal ad other factors on the other.

The state is obliged to provide for a decent remuneration for an attorney. This amount must correspond to the actual effort of an attorney and adequately correlate with fees received by lawyers outside the legal aid system.

Specific organizational forms of cooperation between an attorney and the state on a contractual basis in the sphere of legal aid delivery must be provided for in a special law on legal aid and the law on Advocacy

Application of a contractual model for provision of secondary legal aid when compared to the existing “compensation method” is supposed to ensure flexibility of the system and an opportunity to adapt it to the needs of each specific region, raise the professional level of attorneys who will provide such legal aid, and opportunity to control quality of provided services and timely planning of expenses.

SECTION IV – Organization of Management and Financing of Legal Aid System

Successful work of the legal aid system in Ukraine is to be assured through creation of a management model, in which the executive branch is responsible for organization and efficient maintenance of the system as well as changes of approaches to budgeting by means of protecting and guaranteeing its annual financing. 

The Ministry of Justice as a leading body in the process of implementation of state policies is responsible for the work of legal aid system.

There must be created a specialized management body to effectively manage the legal aid system. This body reports to the Minister of Justice of Ukraine and is subordinate and accountable to the Cabinet of Ministers of Ukraine. It must have enough financial and operational independence to fulfill the following tasks:

The leadership of this body should be based on the collegiate principle and involve representative of trade unions (the Bar, judiciary) working in the legal aid system, local self-government, etc. Such model of management of the legal aid system must strengthen social trust in respective state policies, controllability of activities of the management body and transparency of the system’s financing.

Financing of the legal aid system must be sufficient and come from the State Budget of Ukraine. This should be provided for in a separate line of budget expenditures in a law on the State Budget for the current financial year. Additional resources may come from other sources, but allocations from the State Budget may not be reduced by the amount that came from additional sources.

SECTION V – Stages of Creation of Legal Aid System

Preliminary stage includes pilot projects for testing different forms of organization of legal aid delivery on the basis of principles described in this Concept Paper.

After generalization of the results of pilot projects, there will be drafted a bill on legal aid that will be tabled at Ukrainian parliament.

After the bill passes as law, there will be created a functional management body for the legal aid system; by-laws on ensuring implementation of the law drafted and adopted; infrastructure of primary and secondary legal aid established; oversight mechanism for control over quality of legal aid developed.

The order of organization of the legal aid system must be set forth in a law. Legal aid will be introduced through a gradual expansion of the list of administrative territorial units, within which the respective infrastructure is created. Legal aid will be delivered to the extent not less than guarantees by current Ukrainian laws envisaging its following extension.

Accomplishment of each stage will be carries out publicly. We will invite representatives of trade unions and the public to take part in discussions that will be open and accompanied by in going monitoring of work of the legal aid system.