Access to Justice Advances in Ukraine
By Zaza Namoradze & Roman Romanov
On New Year’s Day this year in Kiev, Serhiy Vilkov, a lawyer, arrived at a local police station to provide a client in detention with free legal advice. Serhiy works with the new Kiev City legal aid center; his work is being funded by Ukraine’s new legal aid scheme, available since January 1 to anyone who gets arrested by the police.
Ukraine now requires the police to inform a legal aid center about all arrests, so that anyone who cannot afford to pay for a defense lawyer can be provided with free legal advice by a lawyer from a register drawn up by the Ministry of Justice.
The scheme is the result of an effort that began back in 2005, when the Ukraine-based International Renaissance Foundation (IRF) and the Open Society Justice Initiative began supporting efforts by the Justice Ministry to establish a national legal aid system.
The effort led to an initial pilot scheme being set up in three cities—Kharkiv, Khmelnytskyy, and Bila Tserkva—aimed at developing evidence and arguments for policymakers and practitioners and demonstrating the need for a national system.
The challenges went beyond the small legal aid budget then available. Ukraine emerged from Communism only two decades ago; the notion of ensuring the rights of defendants in criminal trials with an active defence is relatively new. Nor does the country have an established body of lawyers who have built their careers around criminal defence.
The legal aid pilot scheme sought to address these concerns by emphasizing the idea that suspects should enjoy early access to a lawyer as soon as they are detained, and that legal aid lawyers should be zealous and active in defending their client. The IRF sought to reinforce the message with a manual of procedures for those involved in the scheme.
Ukraine’s political turbulence over the last few years slowed the process of legal aid reform down. But the issue also proved one of few examples where political consensus was found: The draft law was tabled before parliament by the government of Yulia Tymoshenko, but it was finally approved by a majority led by her political opponents, and signed by President Yanukovich.
The new scheme is led by a National Legal Aid Coordination Center with 27 regional offices set up in 2012 covering the whole territory of Ukraine. So far, there are over 2,500 lawyers on the legal aid register, with IRF working with the NLACC in providing appropriate training.
The whole process was also supported by IRF’s strategic litigation at the European Court of Human Rights and by the Justice Initiative’s efforts to support legal aid and arrest rights across Europe. In 2008 and 2009, the ECHR identified violations of the right to remain silent, and the right to proper criminal defence in three rulings involving Ukraine (Yaremenko, Lutsenko, and Shabelnik).
In Nechiporuk and Yonkalo v. Ukraine, the court stated that it has “consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against illtreatment, noting the particular vulnerability of an accused at the early stages of the proceedings when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.”
The new legal aid law takes a comprehensive and systemic approach to the provision of legal aid services to include both criminal and civil legal matters. It classifies legal aid to defendants as “secondary” legal aid; there are also 32 community-based “primary” legal aid centers, funded by regional governments and municipalities, which provide legal information and advice for all citizens (watch a multi-media presentation of the work of paralegals assigned to a primary legal aid center).
It will take many years of further work before Ukraine’s new legal aid system ensures the full delivery of the promise of the law. The support of civil society groups is essential to ensure its long term success. To that end, IRF has joined the Ukrainian Bar Association, the lawyers union and the Ukrainian Helsinki Human Rights Union to establish the Ukrainian Legal Aid Foundation, which will be devoted to promoting access to justice, and ensuring the highest standards in the provision of free legal aid in Ukraine.
Zaza Namoradze, director of the Open Society Justice Initiative’s Berlin office, oversees programs on legal capacity development, legal empowerment, legal aid reform, and access to justice.
Roman Romanov is director of the Rule of Law Program at the International Renaissance Foundation.