Legal aid in the context of ensuring access to justice

Aurica Paskar,
Candidate of Law
Associate Professor of Justice
Yuriy Fedkovych Chernivtsi National University

UDS 342.9

Legal aid in the context of ensuring access to justice

This article analyzes theoretical and practical aspects of the human right to legal aid. Based on comparative analysis of civil procedure rules and administrative procedure law, the characteristics and mechanisms of realization of the right to legal aid have been studied. Considering the Convention's provisions, as well as practices of the European Court of Human Rights, the European standards of legal aid, as a factor of access to justice have been also examined. The criteria of person's access to legal aid has been compiled and analyzed here.

Keywords: legal aid, access to justice, primary and secondary legal aid, subjects for legal aid, subjects of legal aid.

According to Article 55 of the Constitution of Ukraine, everyone is guaranteed the right to appeal the court decisions, actions or omissions of public authorities, local self-government authorities, officers and state employees.

Securing the right for judicial protection on the constitutional level, involves a whole system of safeguards implementation. Any issues related to access to justice and effective rights protection, freedoms and interests of the person are the main objectives of the democratic society. Through the prism of global economic crisis the question of access to justice is especially acute today. In terms of critical economic and socio-political situation in Ukraine, this problem is extremely relevant to our citizens who, because of the lack of funds are forced to abandon the judicial protection of their rights, freedoms and interests.

Talking about the state of Ukraine's compliance to international standards of human rights and freedoms, the Ukrainian Parliament Commissioner for Human Rights drew attention to the fact, that legal aid is an important question for vulnerable people, besides not only in criminal, but also in civil and administrative cases. Due to the absence of such aid, today the poorest groups of society can't protect their rights [1].

Forwarding the European integration, Ukraine has chosen the democratic direction of development, and in order to ensure the rights and freedoms of individuals is guaranteeing the access to justice, in particular through the proper implementation of the citizens' right to legal aid.

The main features and general functioning problems of legal aid institute have been studied by the following scholars: O.A. Banchuk, Y.P. Bytyak, O.H. Hamalij, S.V. Goncharenko, O.V. .Zaychuk, V.V. Kovalska, A.M. Kolody, V.V. Kopyeychykov, YI. Rusnak, A.S. Savych, S.Y. Fursa, Y.S. Shemshuchenko, U.T. Shramko, L.N. Shestakov and others. Despite the considerable amount of researches in this area, the examination of legal aid provision mechanisms as one of the factors in access to justice, is still remaining very current and actual. Based on the above considerations, the aim of this research is a comparative analysis of theoretical and practical aspects of the right to legal aid in civil and administrative processes, as well as its role in ensuring the right to fair trial within the meaning of p. 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention).

The role of legal aid in ensuring access to justice is being in the focus of not only national, but also European society. According to the Committee of Ministers of the Council of Europe, an effective system of legal aid and legal advice can significantly contribute to the reduce of barriers for access to justice. [2] The Committee of Ministers has been repeatedly stressing the importance of taking all necessary measures for elimination the economic barriers for access to justice. The appropriate legal aid system will contribute this task, especially regarding economically disadvantaged persons. Herewith, the legal aid should not be considered, as an act of mercy towards the poor, but as a duty imposed on society as a whole [3].

The provisions of Convention on the human right to legal assistance and, if necessary to legal aid (p. 3 (c) of Article 6 of the Convention) [4] apply primarily to protection from prosecutions in a criminal offenses. However, in some cases the European Court of Human Rights (hereinafter - the Court), guarantees the fair court trial (including the right to legal aid) for persons who are subject to disciplinary or administrative liability, including in civil cases. According to Mr. M. de Salvia, the particularly of the problem is the provision of free legal assistance in civil cases [5], as the Convention does not contain such a requirement. In this regard the fatal decision was in the case Airey v Ireland, where the Court recognized that p. 3 (c) of Art.6 of the Convention should be applied only in criminal proceedings. However, despite the absence of such a provision on proceedings in civil cases, in some cases p. 1 Article 6 may oblige the State to provide legal aid, if absence of such assistance could prevent practical realization of the right to trial, where the legal representation is provided on a mandatory basis, as it prescribed by domestic legislation of certain contracting parties, concerning the various types of litigation, or in view of the complexity of the procedure or of the case [6]. This provision was developed in Resolution (78) 8 of the Committee of Ministers of the Council of Europe on legal aid and counseling [3]. In particular, it is noted that no one can be deprived for economic reasons or the possibility of using the protection of their rights in any court authorized to adjudicate in civil, commercial, administrative, social or fiscal matters. For this purpose, any individual should have the right to adequate legal aid during the trial. Let's note that in Ukraine there is no problem of delimitation cases in which a person is entitled to legal aid because the Ukrainian legislation stipulates that it may be provided during the proceedings in the courts of [7] without reference to the specialization or category of cases.

Concerning legal aid characteristics, it should be noted that the general principles of the formation and functioning of legal aid was established by the concept of formation of the legal aid system in Ukraine [8]. The document was approved due to the fact that the state of legal aid in Ukraine was unsatisfactory and did not met basic European requirements for access to justice.

Practical realization of the human’s right to legal aid is detailed in the State target program of forming the system of legal aid for 2013-2017 years. The purpose of this program is the development and implementation of measures of legal, organizational and economic nature, aimed to provide access to legal aid to persons that have constitutional right and require such assistance. [9] As a part of this program, in order to improve the quality of legal aid the following have been planned: improvement of the legal framework governing the functioning of the legal aid system; conducting information campaign among the subjects of the right to legal aid, lawyers, agencies authorized to detention, arrest or detention of persons, local authorities and NGOs; comprehensive information system for ensuring the provision of legal aid; creation and operation of the network of centers for provision the secondary legal aid; introducing a mechanism of continuous training, including training and professional development of lawyers involved in legal aid, workr centers of secondary legal aid and so on.

As the result of State activity in order to ensure access to justice in general, and to legal aid in particular was adopted the law of Ukraine "On legal aid" (hereinafter - the Law). According to its provisions the legal aid - is a free legal assistance guaranteed by the State on the expenses (fully or partly) of the State Budget, local budgets and other sources (Article1 of the Law). Nevertheless, it is important to differentiate primary and secondary legal aid. Under the free primary legal aid, it should be understood a kind of State guarantees, which is to inform a person about his/her rights and freedoms, the order of their implementation, recovery in case of violation and procedure for appealing the decisions, actions or omissions of public authorities, local self-governments, officials and officers (Article 7 of the Law). The direct access to justice for a person guarantee the secondary legal aid, which is in accordance with Article 13 of the Law – is a kind of a State guarantee, which aims to promote individuals with equal opportunities for access to justice. The secondary legal aid includes such legal services as defense and representation of interests of persons who are entitled to secondary legal aid in courts, other State authorities, local self-government, before other persons and preparing the procedural documents (p. 2 Article13 of the Law).

Possibility for a person to obtain legal aid is provided in procedural codes. According to Article 12 of the Civil Procedural Code of Ukraine (hereinafter - the CPC of Ukraine) a person involved in the case, has the right to legal aid, which is provided by lawyers or other experts in the field of law in accordance with law. A similar provision is contained in the Code of Administrative Procedure of Ukraine (hereinafter - the CAP of Ukraine). Thus, Article 16 provides that in court procedures before the administrative court everyone has the right to legal assistance in the manner prescribed by law. The legal assistance in court procedures in Ukraine promotes the advocacy. In cases prescribed by law, the legal assistance may be also provided by other experts in the field of law.

The Constitution of Ukraine declares that everyone has the right to legal assistance (Article 59). Simultaneously, the legislator notes that in some cases provided by law, this assistance is provided free of charge. The list of cases and conditions for obtaining the legal aid is detailed in the Law. In particular, it was established that the State guarantee the primary legal aid for the citizens of Ukraine, foreigners, stateless persons, including refugees or persons who require an additional protection (Art. 3). Instead, the secondary legal aid shall be guaranteed to the persons who are assigned to the subjects, which have the right to legal aid under Article 14 of the Law.

In the explanation of the Ministry of Justice of Ukraine regarding the definition of the subjects of the right to legal aid [10] it is indicated that the right to secondary legal aid, unlike the primary, has only certain categories of persons defined by the Law, accounting two criteria: low income and belonging to the categories of persons for whom legislation already provided the right to legal aid. According to the criterion of low income the right to secondary legal aid have persons, whose average total family income is below the minimum subsistence level, which is calculated and approved in accordance with the law of Ukraine "On living wage" for those, who belong to the main social and demographic groups, as well as disabled people who receive pension or help, appointed instead of pension, in amount of not less than two living wages for disabled persons. Among others who are entitled to the secondary legal aid belong persons who are under administrative detention or administrative arrest, as well as persons suspected in committing a crime, who are arrested by investigative authorities, persons to whom preventive measures in the form of remand in custody has been applied, and persons to whom according to the Criminal Procedural Code of Ukraine a counsel for the defense is mandatory.

Regarding the definition of criteria for legal aid in the law papers it is indicated that the right to legal aid in civil proceedings should depend on the characteristics of the particular case, what should be established in each case (the criterion of the desirability of representative participation). So, the above-mentioned characteristics that can be the basis for recognition a person's right to legal aid include: the complexity of the case, the special importance of the right being protected, persons with peculiarities of emotional and physical state (deaf, dumb, blind), etc. [11]. However, according to P.I. Shevchuk, the legal aid has to be provided by the criterion of the need, rather than categories of cases, or the degree of service to the State, etc. [12]. In different works of foreign researchers it has been noted that the right to legal aid is doubly due to the lack of adequate material resources, and the interests of the proper justice delivery. [13]

According to the practice of application by the European Court of Art.6 of the Convention, the necessity of legal assistance in the interests of justice has been determined, in particular, on the basis of: the severity of the charges, the severity of the potential punishment; the complexity of the legal and factual circumstances of the case; the difficult life circumstances happened to a person [8].

Studying the features of the legal aid institute it is important to establish the subjects entitled to provide such an aid. Their designation depends on the type of legal assistance that they supposed to provide.

Thus, the primary legal aid can be provided by executive authorities, local self-governments, natural and legal persons of private law and specialized agencies (Article 9 of the Law). While the subject of the secondary legal aid provision are the centers for secondary legal aid donation and lawyers included in the register of lawyers who provide this type of assistance on a regular basis under a contract, or on a temporary basis under an agreement (Article 15 of the Law).

Pursuant to the requirements of the Law the Ministry of Justice of Ukraine on 2 July 2012, approved the Decree № 968/5 which established first 27 centers for the provision of secondary legal aid in the Autonomous Republic of Crimea, Kyiv and Sevastopol. During the first quarter of 2014, the abovementioned centers issued 16876 orders to the lawyers, including 5014 - to provide secondary legal aid to persons detained on suspicion of committing a crime; 10747 - for protection for intended purposes; 609 - to provide secondary legal aid to persons who are under administrative detention; 506 - to participate in certain proceedings actions [14].

Under the provisions of procedural law, the legal aid in civil and administrative proceedings may be provided by a lawyer or other experts in the field of law (Article 12 of the CPC of Ukraine, Article 16 of the CAP of Ukraine). According to the Law of Ukraine "On Advocacy and Legal Practice in Ukraine" - it may be an individual, must have a law degree, at least two years of legal experience, pass a qualification exam, complete a six-month internship with a practicing advocate, take the oath and be included in the Ukrainian Advocates register (Article 6).

An expert in the field of law is a term used to refer practitioners with higher education who are not advocates. [15]

The right of "experts in the field of law" to provide legal assistance in court cases, received regulatory consolidation due to the decision of the Constitutional Court of Ukraine in the constitutional claim of citizen G.I. Soldatov; In particular, it was established that the provisions of section 1 of Article 59 of the Constitution of Ukraine concerning that "everyone is free to choose the defender of their rights" should be understood as a constitutional right of a person in defense from charges, as well as, of a person brought to administrative responsibility, in order to obtain legal assistance choose as the defender of their rights a person who is an expert in the field of law and has the right to provide legal assistance personally or on behalf of a legal person. However the provision of s. 2 of Article 59 of the Constitution of Ukraine that "to ensure the right to be protected from prosecution in Ukraine ... the advocacy has been acting" should be understood as one of the constitutional guarantees, giving suspect, accused and defendant an opportunity to exercise their right to freely choose the defense counsel in criminal proceedings a person who is entitled to practice law [16].

The certain issues of possibility of legal aid provision by an expert in the field of law have repeatedly been the subject of consideration by the European Court. Thus, in the case Zahorodnyi v. Ukraine the applicant stated that the restriction of his right to free choice of defender contradicts the Constitution of Ukraine and the decision of the Constitutional Court of Ukraine. After examining the circumstances of the case, the European Court found the violation of Convention rights, as the applicant's right to free choice of defense counsel, has been limited in a manner, that is inconsistent with the requirements of paragraphs 1 and 3 of Article 6 of the Convention. According to the European Court, leaving the question of restricting the right to free choice of defender unresolved for a long time, public authorities created a situation which is incompatible with the principle of legal certainty enshrined by the Convention, which is a key element of the rule of law [15].

During the provision of legal aid in consideration and resolution of cases in courts, the subjects of legal aid obtains the status of a particular participant of the process and grants the appropriate procedural and legal authorities. Scholar note that the procedural institutions, that provide protection of others rights should be considered, as a part of access to justice that promotes the right of access to justice for certain individuals, since the realization of the right to free legal assistance provides a fair trial [17]. The provisions of the CPC of Ukraine provide three forms of protection of rights, freedoms and interests of other persons: legal representation (p. 38-42), participation of those who are lawfully entitled to protect the rights, freedoms and interests of others (p. 45), and providing legal assistance by a person who is an expert in the field of law and has the right to provide legal assistance (Article 56). The CAP of Ukraine, also provide the institute of legal representation (p. 56-59), and participation of persons who legally have the right to protect rights, freedoms and interests of others (Article 60). However, among other members of an administrative process a person providing legal assistance is not specified. Instead, the civil procedural law, as opposed to administrative, provides such an independent participant of the process. In particular, it is noted that legal aid may be provided by a person who is an expert in the field of law and has a right to provide legal assistance in accordance with law (Article 56 of the CPC of Ukraine).

The procedure and conditions for the provision of free legal aid, the rights and duties of lawyers and other legal professionals involved in administrative and civil proceedings, are defined by law. Comparative analysis of authority of representative and of a person who provide legal assistance in civil proceedings, suggests that during the procedural position of representative, attorney or other person can maximize the protection of rights of an individual. After all, according to s. 1 Article 44 of the CPC of Ukraine the representative can perform on behalf of the person he represents all proceedings actions that may be performed by a person. In contrast, a person who provides legal assistance has an exclusive list of powers under s. 2 Article56 of the CPC of Ukraine. Namely, to study the case files, make extracts from them, make copies of documents, attached to the case, to be present in court trials. In this regard, I'm completely agree with the statement, expressed that the person who has the right to perform legal assistance, shall only perform the legal succession function, while the provided legal assistance is supposed to be provided in the form of advice, explanations and consultations on legal issues [17]. A similar situation exists in the administrative process, where the representative has the same rights (Article 59 of the CAP of Ukraine).

In the part of implementation of the right to legal assistance, the European Court, in its practice distinguishes the concept of "defender assistance" and "appointment of defender" [18]. In particular, it is noted that the Convention is intended to guarantee not theoretical or illusory rights, but practical and effective. This is especially true with regard to the right for defense, which occupies a prominent place in democratic society, just as the right to the fair trial, from which it implies (solution in cases Artiko v. Italy, Airey v. Ireland). An access to the justice must be real but not formal [19]. So, the fact of appointment of an advocate for free of charge is not sufficient to ensure adequate and effective protection. In this context, the particularly important duty of the State is the provision of the appropriate level attorney, whilst according to the constant practice of the European Court, the State must ensure a proper qualified protection [20]. These provisions are reflected in the national legislation, which states that government policy in the field of legal aid is based, in particular, on the principle of provision quality legal aid (Article 5 of the Law). That is why, it is difficult to disagree with too categorical conclusions of some experts concerning the entire inadmissibility of state intervention to the bar activity in the field of legal aid. According to S.V. Goncharenko, such intervention is legitimate and one that is consistent with European standards, but only in conditions of strict compliance with two key requirements: 1) the intervention must be such that completely, without any "excesses" corresponds to the objective; it should belong exclusively to the provision of effective legal aid; 2) the intervention must be proportionate, that is so, what is the minimum necessary to the objective achievement [21].

In the view of the above considerations, the key aspect in the implementation of the right to legal aid - is its quality ensuring. The Decree of the Ministry of Justice of Ukraine № 386/5 as of 25 February 2014, which came into force on 1 July 2014, approves the quality standards of the secondary legal aid. These standards are a set of basic characteristics of the model of State guarantees provided by the international legal instruments, the laws of Ukraine, within which the defense counsel is independent in choosing strategy and tactics of effective and smart protection of rights, freedoms and legitimate client's interests by all means not prohibited by law. The compliance with the standards will become mandatory for lawyers providing secondary legal aid under the terms of the contract (agreement) with the center for the secondary legal aid provision. Other attorneys of Ukraine will be able to use the standards willfully.

Thus, the consolidation on the legislative level of the rights of individuals to legal aid confirms the approximation of national justice to generally accept in democratic world the human rights standards.

Criteria for person's access to legal aid should be allocated and considered in two dimensions. Firstly, they might depend on the type of legal aid, which require an individual. In accordance with this, the primary legal aid can be received by everyone. Secondly, the access to the secondary legal aid is conditioned by its own criteria. These criteria are: low income of a person, belonging of an individual to categories of persons who by law are entitled to legal aid, the complexity of the case, and desire of proper justice delivery.

The duty of a State concerning ensuring the access to justice and proper implementation of human right to legal aid includes control over its quality and efficiency by establishing principles and standards of its provision.

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