On November 12, ForUm held an online conference with director of the coordination center for legal assistance Andriy Vychnevski, during which the expert explained the system of free of charge secondary legal aid and how to use it.
Here is the text of the conference:
Ukrainian: The National Association of attorneys of Ukraine and the Justice Ministry have signed recently the Memorandum on cooperation regarding provision of free of charge secondary legal assistance. What does this document stipulate for?
- When two years ago we started developing the system of free of charge legal aid, the majority of Ukrainian attorneys were rather skeptical. The fact is that we needed a mechanism to provide legal assistance to the underprivileged class of the population, and according to the law, only attorneys have the right to provide secondary legal assistance. The problem is that the state cannot force them to do it. The only thing the state can do is to offer them attractive terms. Thus, after discussions between the Justice Ministry and the National association of attorneys such terms have been found and legally adopted.
However, in the process of the dialogue it has emerged that there are questions that cannot be solved unilaterally either by the Justice Ministry or by the Association, thus the idea of a Memorandum has appeared. The document provides for five priority areas of cooperation, the key of which is to adopt quality standards of provision of secondary legal aid.
The full text of the Memorandum can be found here: http://legalaid.gov.ua/images/Actual/Memorandum_cooperation_MJU_NAAU.pdf
Iryna: What criteria are used to appoint a lawyer, and if the lawyers works free of charge, what's his benefit from the process?
- Well, lawyers do not work free of charge. The state gives them a good reward for this. All public defenders have been selected by tender.
Elena: Do you work only with criminal trials or any legal cases?
- As of today, only with criminal cases, but starting from January 1 of 2014 all categories of citizens ascertained by statute can appeal with civil and administrative cases.
Here I want to mention that we provide only secondary legal aid, meaning assistance in legal proceedings. We do not provide and will not provide any legal consultations. This service is available in every agency of executive power and local government bodies.
Oleh: What services do you provide now?
- Defense of detainees, suspects and accused of criminal offence.
Ivan: Will the state provide free of charge legal assistance to all categories of citizens, stipulated by the law. What are the risks?
- Considering the coming adoption of the law on prosecutor's office, the expectations are very positive, but the major risk is budget policy. If the state provides proper financing, all stipulated categories of population will have access to free of charge secondary legal aid.
Nikolai: Dear Mr. Vychnevski! Even if people, appealing to the center, believe you may help, I doubt that as a former public servant you will stand against the "terrorists" in power. Thus, you lie to people counting on you. How do you live in such duality?
- As a public servant I was engaged into the development of the new law "On public service", adopted on November 17 of 2011 and coming into force on January 1 of 2014.
The law provides for realization of the principle of political neutrality of a public servant, as well as the principle of loyalty to legally formed authorities. These are the basic principles of the European-style professional public service, and I believe that with the adoption of the new law, Ukrainian civil service will follow these principles.
Olha: As a lawyer, I wonder about payment issue. Shall we expect any salary rise for attorneys? And how do you solve the problem of payment delays? I know that in many regions delays are a common practice.
- Having analyzed the practice of new terms of payment, operating since January 1 of 2013 and having held numerous consultations with attorneys and governors of centers for secondary legal aid, we have worked out amendments to some decrees of the government, regulating this issue.
We propose to double the payments to attorneys for rendering secondary legal aid, as well as to introduce a number of bonuses for successful performance in court (avoidance of pretrial detention, mitigation of punishment, relief from criminal responsibility, judgment of acquittal, etc.).
As for payment delays, I admit the problem exists, but it is common for all state institutions. The Justice Ministry deals with it, and all payments for rendered free of charge secondary legal assistance will be delivered in any case.
Young lawyer: How do you attract young attorneys. Are they interested in working in the system? What are the benefits?
- Interestingly, the majority of public defenders are young specialists with one-two years of experience. It may seem strange, but young lawyers perform better than attorneys with 15-20 years of experience. The fact is that young specialists understand better the new Criminal Code and do not have the "heritage" of the soviet system.
As for benefits, first of all attorneys have a possibility to gain a lot of practical experience. Secondly, they have an opportunity to earn reputation among clients, judges and prosecutors, which will help them to get private clients. Thirdly, thanks to regular holding of trainings and qualification courses for lawyers, as well as free distribution of teaching aids, lawyers have a possibility to share experience, improve defense strategies and hold regular professional communication. And fourthly, lawyers working in the system of secondary legal aid have decent income. Thus, an attorney having about 20 criminal cases in process can earn 8-10 thousand hryvnias per month.
All this improves the status and prestige of a defender and realizes the principle of equality of parties, stipulated by the new Criminal Code.
Ruslan: I quitted my job, and they promised to pay me my last salary the following month, but it's been three months already and I have not received my payment yet. My former boss says I should not even count on it. How can I get my money?
- To realize your right you must appeal to court: if it is a private employer - to the general jurisdiction court, if a state or municipal establishment - to the administrative court.
Oleksiy: We still do not have heating in our apartment. Every year we call a controller and file documents that the service is not provided, but the housing office does nothing and does not conduct any repair works. Why should we pay for air. Where can we appeal to solve our problem?
- In our reality, the question sounds rhetoric, unfortunately. I can recommend you two ways: to sue the housing office or to create an association of co-owners of apartments and take on the responsibility for housing services.
Passer-by: What are these quality standards and how will they be estimated? What is monitoring of the free of charge secondary legal aid system?
– Adoption of quality standards of provision of free of charge legal assistance is provided by the law. Unfortunately, under the old Criminal Code, when this practice was a compulsory service for attorneys, the latter either did not do anything, or used an opportunity to improve their ties with the police and prosecutor's office with all that it implies for their "free of charge" clients. Thus, the only possibility to remove such "puppet" lawyers from the system is to introduce standards of quality.
Both the development of standards and assessment of service quality must be a prerogative of the law society, and the Memorandum signed between the Justice Ministry and the Association of attorneys includes these issues to guarantee the quality of rendered legal services. The system must have instruments to defend interests of clients of the secondary legal aid, and with strengthened influence of the National association of attorneys of Ukraine, the provision of free of charge legal assistance will have better guarantees of quality.
Olena: I called the number of the Center, but was told it does not give any consultations. What for do you have this number and where can I find legal consultation?
- The operator was right. The system of free of charge secondary legal aid does not provide for consultations. The given number is used to receive and register messages on detention of citizens. Legal consultations are given within the so-called free of charge primary legal aid in any body of the executive power or local governments. You can find the contact information of these bodies on the website of the Justice Ministry.
Lawyer: Are you planning to hold more trainings for attorneys, and how can a lawyer participate in them?
- There is a professional net of trainers/moderators on exchange of experience. For the past half a year we have held about 70 trainings on the Criminal Procedure Code and European convention, and participants included 1171 lawyers. We will continue this work, and if you are a public defender working under the contract you can participate in these trainings as well, free of charge obviously.
Oleksandr: Is free of charge legal aid available for all citizens? And can citizens actually trust lawyers, appointed by the state? Wouldn't it be just another, disguised system of public prosecution?
- The system has been established to be independent of public prosecution, internal affairs bodies and courts. It is autonomous. Moreover, public defenders have the same status and rights as private lawyers. They maintain independence and use every professional right and guarantee, provided by the law. Officials of the center have no right to interfere with work of public defenders or influence somehow their legal position.
Citizen U: What does free of charge secondary legal aid include? And who can use it?
- Free of charge secondary legal aid includes three types of services: defense, representation in court, state bodies, local government bodies and assistance with compilation of service documents. The full list of citizens, who have the right for such assistance is stipulated by the article 14 of the law "On free of charge legal aid".
Oksana Mykolayvna: I want to ask you the following - on December 16 of 2009 Ukraine ratified the UN convention on rights of disabled and on December 22 of 2011 the parliament adopted amendments the law "On social protection of disabled in Ukraine", which stipulate that sign language is a way of communication among deaf and mute and is protected by the state. Central and local authorities provide communication means for deaf people in social centers, legal bodies, healthcare facilities, educational establishments, etc. Thus, my question is how the Coordination center plans on solving the problem of communication for deaf people, who appeal for public defender's assistance. As far as I understand any deaf person can appeal to court to defend his or her rights. But what should this person do if lawyers are force to deny assistance due to lack of sign language interpreters?
- First of all, thank you for detailed question. Unfortunately, I must admit such problem indeed exists, but we are working on it. We develop measures for the state to compensate expenses for sign language interpreters. We make every effort to improve the system and to solve this and similar problems.
Galyna: On the Center's website it is written that your organization provides assistance to detainees, but as far as I understood it is police to call the center, not the detainee. How then do you decide who to help and who not to? The explanation is very complicated. Would you please clarify the issue?
- According to the law, an officer who executed arrest must immediately inform the Center on secondary legal aid. All offices of the Center work 24/7. Then, within an hour after receiving the information, a duty officer of the Center must find and appoint a public defender, who in turn must get to his client within the next hour. In practice, it is possible to perform both operations within one hour only.
Unfortunately, informing by police officers is not always timely and one hundred percent. For this, we have introduced a mechanism, enabling a detainee or his/her relatives to call the Center personally to obtain necessary assistance. The Center does not decide who to help or who not to. The center provides legal aid to all detainees without exceptions.
Alina: How much do the services of the Coordination center cost?
- For holders of the right for free of charge secondary legal aid the services of public defenders and personnel of the Center are free of charge - they are financed by the state budget. For taxpayers of Ukraine in general, the work and development of the system of secondary legal assistance cost 72 million hryvnias in 2013, UAH 29 million of which are salaries for attorneys, and 26 million - capital investments into the system development.
Anna: How can I find the Coordination center?
- The Coordination center itself is an establishment managing the system of secondary legal assistance, but the provision of the assistance is carried out by Center's regional offices. Their contact information you can find here: http://legalaid.gov.ua/ua/tsentry-z-nadannia-bezoplatnoi-vtorynnoi-pravovoi-dopomohy
Inna: How can a regular person get legal aid from the Coordination center?
- The Center provides free of charge legal assistance to all detainees, arrested on suspicion of a criminal crime, as well as to official suspects, accused, convicted and acquitted, in case they cannot pay their legal bills. Starting from January 1 of 2014, free of charge legal aid will be provided also in civil and administrative trials for certain categories of population, in particular citizens with low income, minors, orphans, etc.
As for criminal proceedings, a public defender is appointed automatically within two hours after factual detention. If a public defender has not arrived within the stipulated time we recommend to call the Center personally and request assistance. One more recommendation: even if you have your own lawyer, do not disregard the assistance of a public defender within the first hours after the arrest. Within these hours a detainee is the most vulnerable, and his further fate depends on accuracy of the proceeding at this stage. Nobody impedes your to engage your own lawyer later, but it is not said that if you are arrested at night, for example, your lawyer will be available immediately.
Lubov: Will there be any improvements for life-term prisoners or retrials? It is a shame that many people have been convicted unjustly.
- Unfortunately, active legislation on free of charge legal assistance, adopted recently, does not provide for the right of the convicts for free of charge secondary legal aid, but we keep receiving appeals from prisoners, including lifers, with a request to appoint an attorney for them at budget cost. Using the opportunity of consideration of the draft bill on prosecutor's office by the parliament, we have proposed to include the convicts into the law as holders of the right for free of charge secondary legal aid (defense, representation in court, compilation of service documents).
Fortunately, our proposition has been supported and we expect speedy adoption of the law on prosecutor's office as a whole for the convicts to be able to execute this right.
Here is the text of the conference:
Ukrainian: The National Association of attorneys of Ukraine and the Justice Ministry have signed recently the Memorandum on cooperation regarding provision of free of charge secondary legal assistance. What does this document stipulate for?
- When two years ago we started developing the system of free of charge legal aid, the majority of Ukrainian attorneys were rather skeptical. The fact is that we needed a mechanism to provide legal assistance to the underprivileged class of the population, and according to the law, only attorneys have the right to provide secondary legal assistance. The problem is that the state cannot force them to do it. The only thing the state can do is to offer them attractive terms. Thus, after discussions between the Justice Ministry and the National association of attorneys such terms have been found and legally adopted.
However, in the process of the dialogue it has emerged that there are questions that cannot be solved unilaterally either by the Justice Ministry or by the Association, thus the idea of a Memorandum has appeared. The document provides for five priority areas of cooperation, the key of which is to adopt quality standards of provision of secondary legal aid.
The full text of the Memorandum can be found here: http://legalaid.gov.ua/images/Actual/Memorandum_cooperation_MJU_NAAU.pdf
Iryna: What criteria are used to appoint a lawyer, and if the lawyers works free of charge, what's his benefit from the process?
- Well, lawyers do not work free of charge. The state gives them a good reward for this. All public defenders have been selected by tender.
Elena: Do you work only with criminal trials or any legal cases?
- As of today, only with criminal cases, but starting from January 1 of 2014 all categories of citizens ascertained by statute can appeal with civil and administrative cases.
Here I want to mention that we provide only secondary legal aid, meaning assistance in legal proceedings. We do not provide and will not provide any legal consultations. This service is available in every agency of executive power and local government bodies.
Oleh: What services do you provide now?
- Defense of detainees, suspects and accused of criminal offence.
Ivan: Will the state provide free of charge legal assistance to all categories of citizens, stipulated by the law. What are the risks?
- Considering the coming adoption of the law on prosecutor's office, the expectations are very positive, but the major risk is budget policy. If the state provides proper financing, all stipulated categories of population will have access to free of charge secondary legal aid.
Nikolai: Dear Mr. Vychnevski! Even if people, appealing to the center, believe you may help, I doubt that as a former public servant you will stand against the "terrorists" in power. Thus, you lie to people counting on you. How do you live in such duality?
- As a public servant I was engaged into the development of the new law "On public service", adopted on November 17 of 2011 and coming into force on January 1 of 2014.
The law provides for realization of the principle of political neutrality of a public servant, as well as the principle of loyalty to legally formed authorities. These are the basic principles of the European-style professional public service, and I believe that with the adoption of the new law, Ukrainian civil service will follow these principles.
Olha: As a lawyer, I wonder about payment issue. Shall we expect any salary rise for attorneys? And how do you solve the problem of payment delays? I know that in many regions delays are a common practice.
- Having analyzed the practice of new terms of payment, operating since January 1 of 2013 and having held numerous consultations with attorneys and governors of centers for secondary legal aid, we have worked out amendments to some decrees of the government, regulating this issue.
We propose to double the payments to attorneys for rendering secondary legal aid, as well as to introduce a number of bonuses for successful performance in court (avoidance of pretrial detention, mitigation of punishment, relief from criminal responsibility, judgment of acquittal, etc.).
As for payment delays, I admit the problem exists, but it is common for all state institutions. The Justice Ministry deals with it, and all payments for rendered free of charge secondary legal assistance will be delivered in any case.
Young lawyer: How do you attract young attorneys. Are they interested in working in the system? What are the benefits?
- Interestingly, the majority of public defenders are young specialists with one-two years of experience. It may seem strange, but young lawyers perform better than attorneys with 15-20 years of experience. The fact is that young specialists understand better the new Criminal Code and do not have the "heritage" of the soviet system.
As for benefits, first of all attorneys have a possibility to gain a lot of practical experience. Secondly, they have an opportunity to earn reputation among clients, judges and prosecutors, which will help them to get private clients. Thirdly, thanks to regular holding of trainings and qualification courses for lawyers, as well as free distribution of teaching aids, lawyers have a possibility to share experience, improve defense strategies and hold regular professional communication. And fourthly, lawyers working in the system of secondary legal aid have decent income. Thus, an attorney having about 20 criminal cases in process can earn 8-10 thousand hryvnias per month.
All this improves the status and prestige of a defender and realizes the principle of equality of parties, stipulated by the new Criminal Code.
Ruslan: I quitted my job, and they promised to pay me my last salary the following month, but it's been three months already and I have not received my payment yet. My former boss says I should not even count on it. How can I get my money?
- To realize your right you must appeal to court: if it is a private employer - to the general jurisdiction court, if a state or municipal establishment - to the administrative court.
Oleksiy: We still do not have heating in our apartment. Every year we call a controller and file documents that the service is not provided, but the housing office does nothing and does not conduct any repair works. Why should we pay for air. Where can we appeal to solve our problem?
- In our reality, the question sounds rhetoric, unfortunately. I can recommend you two ways: to sue the housing office or to create an association of co-owners of apartments and take on the responsibility for housing services.
Passer-by: What are these quality standards and how will they be estimated? What is monitoring of the free of charge secondary legal aid system?
– Adoption of quality standards of provision of free of charge legal assistance is provided by the law. Unfortunately, under the old Criminal Code, when this practice was a compulsory service for attorneys, the latter either did not do anything, or used an opportunity to improve their ties with the police and prosecutor's office with all that it implies for their "free of charge" clients. Thus, the only possibility to remove such "puppet" lawyers from the system is to introduce standards of quality.
Both the development of standards and assessment of service quality must be a prerogative of the law society, and the Memorandum signed between the Justice Ministry and the Association of attorneys includes these issues to guarantee the quality of rendered legal services. The system must have instruments to defend interests of clients of the secondary legal aid, and with strengthened influence of the National association of attorneys of Ukraine, the provision of free of charge legal assistance will have better guarantees of quality.
Olena: I called the number of the Center, but was told it does not give any consultations. What for do you have this number and where can I find legal consultation?
- The operator was right. The system of free of charge secondary legal aid does not provide for consultations. The given number is used to receive and register messages on detention of citizens. Legal consultations are given within the so-called free of charge primary legal aid in any body of the executive power or local governments. You can find the contact information of these bodies on the website of the Justice Ministry.
Lawyer: Are you planning to hold more trainings for attorneys, and how can a lawyer participate in them?
- There is a professional net of trainers/moderators on exchange of experience. For the past half a year we have held about 70 trainings on the Criminal Procedure Code and European convention, and participants included 1171 lawyers. We will continue this work, and if you are a public defender working under the contract you can participate in these trainings as well, free of charge obviously.
Oleksandr: Is free of charge legal aid available for all citizens? And can citizens actually trust lawyers, appointed by the state? Wouldn't it be just another, disguised system of public prosecution?
- The system has been established to be independent of public prosecution, internal affairs bodies and courts. It is autonomous. Moreover, public defenders have the same status and rights as private lawyers. They maintain independence and use every professional right and guarantee, provided by the law. Officials of the center have no right to interfere with work of public defenders or influence somehow their legal position.
Citizen U: What does free of charge secondary legal aid include? And who can use it?
- Free of charge secondary legal aid includes three types of services: defense, representation in court, state bodies, local government bodies and assistance with compilation of service documents. The full list of citizens, who have the right for such assistance is stipulated by the article 14 of the law "On free of charge legal aid".
Oksana Mykolayvna: I want to ask you the following - on December 16 of 2009 Ukraine ratified the UN convention on rights of disabled and on December 22 of 2011 the parliament adopted amendments the law "On social protection of disabled in Ukraine", which stipulate that sign language is a way of communication among deaf and mute and is protected by the state. Central and local authorities provide communication means for deaf people in social centers, legal bodies, healthcare facilities, educational establishments, etc. Thus, my question is how the Coordination center plans on solving the problem of communication for deaf people, who appeal for public defender's assistance. As far as I understand any deaf person can appeal to court to defend his or her rights. But what should this person do if lawyers are force to deny assistance due to lack of sign language interpreters?
- First of all, thank you for detailed question. Unfortunately, I must admit such problem indeed exists, but we are working on it. We develop measures for the state to compensate expenses for sign language interpreters. We make every effort to improve the system and to solve this and similar problems.
Galyna: On the Center's website it is written that your organization provides assistance to detainees, but as far as I understood it is police to call the center, not the detainee. How then do you decide who to help and who not to? The explanation is very complicated. Would you please clarify the issue?
- According to the law, an officer who executed arrest must immediately inform the Center on secondary legal aid. All offices of the Center work 24/7. Then, within an hour after receiving the information, a duty officer of the Center must find and appoint a public defender, who in turn must get to his client within the next hour. In practice, it is possible to perform both operations within one hour only.
Unfortunately, informing by police officers is not always timely and one hundred percent. For this, we have introduced a mechanism, enabling a detainee or his/her relatives to call the Center personally to obtain necessary assistance. The Center does not decide who to help or who not to. The center provides legal aid to all detainees without exceptions.
Alina: How much do the services of the Coordination center cost?
- For holders of the right for free of charge secondary legal aid the services of public defenders and personnel of the Center are free of charge - they are financed by the state budget. For taxpayers of Ukraine in general, the work and development of the system of secondary legal assistance cost 72 million hryvnias in 2013, UAH 29 million of which are salaries for attorneys, and 26 million - capital investments into the system development.
Anna: How can I find the Coordination center?
- The Coordination center itself is an establishment managing the system of secondary legal assistance, but the provision of the assistance is carried out by Center's regional offices. Their contact information you can find here: http://legalaid.gov.ua/ua/tsentry-z-nadannia-bezoplatnoi-vtorynnoi-pravovoi-dopomohy
Inna: How can a regular person get legal aid from the Coordination center?
- The Center provides free of charge legal assistance to all detainees, arrested on suspicion of a criminal crime, as well as to official suspects, accused, convicted and acquitted, in case they cannot pay their legal bills. Starting from January 1 of 2014, free of charge legal aid will be provided also in civil and administrative trials for certain categories of population, in particular citizens with low income, minors, orphans, etc.
As for criminal proceedings, a public defender is appointed automatically within two hours after factual detention. If a public defender has not arrived within the stipulated time we recommend to call the Center personally and request assistance. One more recommendation: even if you have your own lawyer, do not disregard the assistance of a public defender within the first hours after the arrest. Within these hours a detainee is the most vulnerable, and his further fate depends on accuracy of the proceeding at this stage. Nobody impedes your to engage your own lawyer later, but it is not said that if you are arrested at night, for example, your lawyer will be available immediately.
Lubov: Will there be any improvements for life-term prisoners or retrials? It is a shame that many people have been convicted unjustly.
- Unfortunately, active legislation on free of charge legal assistance, adopted recently, does not provide for the right of the convicts for free of charge secondary legal aid, but we keep receiving appeals from prisoners, including lifers, with a request to appoint an attorney for them at budget cost. Using the opportunity of consideration of the draft bill on prosecutor's office by the parliament, we have proposed to include the convicts into the law as holders of the right for free of charge secondary legal aid (defense, representation in court, compilation of service documents).
Fortunately, our proposition has been supported and we expect speedy adoption of the law on prosecutor's office as a whole for the convicts to be able to execute this right.
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