Publication

About providing free legal assistance in criminal cases

In order to find out actual situation with payment for advocate’s work for their legal assistance in criminal cases paid by the state, the Kharkiv human rights group inquired the Ministry of justice of Ukraine, territorial justice departments, the state judge administration of Ukraine, courts of appeal. The information received as a result of it can be summarized in the following way. 

Until the Law of Ukraine “About judicial system of Ukraine” dated 07.02.2002 №3018-ІІІ has come to force, the costs for paying advocates for participation in consideration of criminal cases for the cost of the state were presupposed in estimates for maintaining local courts and courts of appeal where the mentioned cases were considered. According to the order of the Ministry of finance of Ukraine dated 03.12.1997 №265 “About introducing the new budget classification of Ukraine” financing expenses for payment for work of advocates was accomplished according to the code of economic classification of expenses 1139 “Paying other expenses”. This code is synthetic: it financed also travel and board expenses of victims and witnesses during trial, expert’s services during investigation, expenses for guard, insurance, expenses for paying professional services, etc.  

As the Ministry of justice informed, according to the code 1139 in 2001 courts of appeal received 365.1 thousand hryvnias (67.5% of the presupposed budget sum), in 2002 – 296.2 thousand hryvnias (75% of the plan). Local courts received in received in 2001 79.9 thousand hryvnias (3.6% of the plan), in 2002 – 927.9 thousand hryvnias (41.7% of the plan). Financing distribution for courts of appeal between 27 regions of Ukraine and actually spent sums are introduced in columns two, three, four and five of Charter 1. The Kharkiv human rights group received these figures from courts of appeal. Unfortunately, 8 courts of appeal – those of the city of Kyiv, Donetsk, Lviv, Mykolayiv, Odesa, Kharkiv, Khmelnytsky and Chernihiv regions – rudely violated the Law of Ukraine “About information” and didn’t respond to our inquiry at all, though it was even sent one more time. The court of appeal of Zakarpatia region forwarded our inquiry to the state judge administration of Ukraine that didn’t answer either. Courts of appeal of the city of Sevastopol, Vinnytsia and Ternopil regions didn’t inform us about the sums they received by the code 1139 (it is marked in the Charter with the sign ?????), but just mentioned that advocates’ services were not paid. Information about the absence of financing is marked in the Charter with the sign ***. In our opinion, the gathered information, though it is not full, give reasons for some conclusions. First: miserable sums allotted by the code 1139 are surprising. Financing courts is just miserable, and at these conditions it is difficult to speak about independence of courts. Second: the system of providing free legal assistance in criminal cases in Ukraine until the middle of 2004 was actually absent.  

Since 01.01.2003 according to the Law “About judicial system of Ukraine” functions regarding financing, material and technical maintenance of courts were laid upon the state judge administration of Ukraine, and that’s why costs of the ministry of justice for paying advocates’ services for 2003 and first six months of 2004 were not presupposed by the budget. According to the law of Ukraine “About amending the Law of Ukraine “About the State budget of Ukraine for 2004” dated 17.06.2004 №1801-ІУ these expenses for the second half of 2004 were to be covered according to the separate budget program 3601160 “granting legal assistance to citizens in criminal case for the cost of the state”. According to this program, as the state judge administration of Ukraine informed, the budget presupposed in 2004 1915.3 thousand hryvnias, and the Law of Ukraine “About the state budget of Ukraine for 2004” the sum was increased to 1960.9 thousand hryvnias.

 

Charter 1.


Region of Ukraine  

Received, UAH

Paid, UAH

Received, UAH

Paid, UAH

2001

2002

2001

2002

07-12.2004

07-12.2004 

Autonomous Republic of the Crimea

  9 000

14 380

 3 048

 8 315

***

  0

Vinnytsia

?????

?????

  0

  0

 37 800

 16 903.26

Volyn

  6 480

  0

12 200

  0

Dnipropetrovsk

30 951

22 375 

2272.5

2606.25

107 000

  18 191.00

Donetsk

226 200

  21 723.00

Zhytomyr

7 750

9 180

  75

  150

  18 000

  853.00

Zakarpattia

Forwarded

inquiry

  7 500

  0

Zaporizhia

 2 836

14 080

  0

  1 050

  68 100

  28 400

Ivano-Frankivsk

***

***

  0

  0

  12 000

  210

Kyiv

14 313

11 240

  975

  555

Formal reply

Kirovohrad

  675

  1485

  675

  1485

Luhansk

14 700

14 220

11 060

10 810

  ?????

  5 609

Lviv

  24 000

  24 000

Mykolayiv

  ?????

  150

Odesa

 165 600

Transferred to the Regional advocate’s collegium of Odesa

Poltava

10 500

11 720

  561

  195

  7 871

  7 871

Rivne

13 000

 7 440

  0

  0

Sumy

19 460

30 300

  255

  600

  13 800

  570

Ternopil

?????

?????

  0

  0

  4 200

   0

Kharkiv

  96 900

  0

Kherson

18 045

 9 840

Total

UAH 100

  49 200

  0

Khmelnytsky

  14 700

  161

Cherkasy

 9 000

9 160

 2 148

  426

Chernivtsi

12 600

 8 600

  0

  240

  7 500

   0

Chernihiv

  9 600

  2 600

City of Kyiv

 28 200

  7 000

City of Sevastopol

?????

?????

  0

  0

  7 500

  0

Total

80 141

68 955

4502.5  5.6%

3422.25 5%

905 671

299 841.26 33.1% 

For executing the mentioned state program since June 2004 the State Treasury of Ukraine every month financed territorial departments of justice for payments to advocates. Received and paid sums by departments of justice for July-December 2004 are shown in two last columns of Charter 1. These figures were provided by territorial departments of justice. Unfortunately, four regional departments of justice – those of Volyn, Kirovohrad, Rivne and Cherkasy region didn’t respond to our inquiry at all. The Kyiv regional department of justice advised to apply for the required information to the Ministry of justice. Luhansk and Mykolayiv regional departments of justice didn’t inform about the sums received from the budget. The fact of the absence of financing from the budget of the Autonomous republic of the Crimea on the budget program 3601160 attracts attention. Where were these costs directed? Odesa regional department acted originally: it just transferred all money – 165 600 hryvnias – to the advocate’s association “Regional advocate’s collegium of Odesa”. The department didn’t inform about the future of this money. 

What can explain the fact that even those poor sums of money, which were directed for payments to advocates in criminal cases, were spent only in one third, and the rest was returned to the budget? Partly advocates are responsible for that, they just refuse to work for the state’s cost. It is proved by the picture of using costs in different regions of the country. As one can see, in some regions allotted money was used fully, and in some – were not used at all. However, in our opinion, the main reason – conditions of payment.  

In order to learn this, let’s look into the Resolution of the Cabinet of Ministers No 821 dated May 14, 1999 that approves “The order of payment for advocate’s work on providing citizens with legal assistance in criminal cases at the state’s cost”. According to this Order, the reason for payment for advocate’s work on providing citizens with legal assistance in criminal cases is a resolution of the person conducting inquiry, investigator, prosecutor, decision of court or resolution of a judge and a reference registered by them about advocate’s participation in a case. Based on these two documents – resolution and reference about advocate’s participation in a case – the advocate makes the third document: a reference-calculation about the amount of costs to be paid to the advocate, this document is used for payment from the budget. The payment is done in the amount of 15 hryvnias for a full working day, and if advocate was occupied with the case not a full working day, then payment is done proportionally to the spent time calculated on the day’s payment of 15 hryvnias.   

Thus, appointing an advocate for providing assistance in criminal cases fully depends on bodies of inquiry or investigation, or court, and the payment is so miserable that most likely advocates often just don’t want to waste their time for registering the required papers to get the money. As it is stated in the response of the Dnipropetrovsk regional department of justice, in the second half year of 2004 the department received 249 documents for payment for the total sum of 18 191 hryvnias, that is the average salary of an advocate for his work in one criminal case constitutes about 73 hryvnias for the work of almost five full working days. Is it really surprising that the acting system of providing legal assistance in criminal cases actually doesn’t work?

Yevhen Zakharov,

 the board chief of the Ukrainian Helsinki Human Rights Union,

co-chairman of the Kharkiv Human Rights Group

RUPOR

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