Free legal aid for convicts

A “round table” on the provision of free legal aid was held in Chernihiv. The work of the round table was attended by: the head of the Main Department of Justice in the Chernihiv region, the deputy mayor, representatives of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv region, employees of the prosecutor’s office, the management of the Chernihiv Correctional Colony No. 44, the Chernihiv Pre-Trial Detention Centre No. 31, the penal inspection of the city of Chernihiv, an assistant to the Minister of Internal Affairs, members of the Chernihiv City Supervisory Commission, and representatives of city and national non-governmental organisations of Ukraine, in particular, the “Donetsk Memorial”, which deal with issues of providing free legal aid to convicts and released persons.

A resolution was adopted in which it was stated that, having become an independent state, Ukraine aims to build a democratic society in which human rights and freedoms, the rule of law, and justice must be fully ensured.

In accordance with Article 59 of the Constitution of Ukraine, everyone has the right to legal assistance, which is provided free of charge in cases stipulated by law, and everyone is free to choose the defender of their rights.

Based on current legislation, the state respects and protects the rights, freedoms, and legitimate interests of convicts, and they enjoy all human and civil rights, with the exception of the restrictions defined by the Laws of Ukraine, the Criminal Executive Code of Ukraine, and the court verdict.

In accordance with the European Prison Rules R(2006)2, convicts have the right to receive legal assistance. It is the duty of the administration of penal institutions to provide an opportunity for access to such assistance. Convicts have the right to use the services of a lawyer, both at their own expense and through the free legal aid system. The European Prison Rules provide for the confidentiality of consultations on legal matters with lawyers. In accordance with these Rules, convicts are granted access to documents concerning procedural actions against them, or the opportunity to keep such documents with them.

According to paragraph 2 of Article 8 of the Criminal Executive Code of Ukraine, every convict is guaranteed the right to legal assistance.

By paragraph 8 of Order No. 33 of the State Department of Ukraine for the Execution of Sentences dated 17 March 2000, which announced the “Regulations on the Social and Psychological Service Department of a penal institution”, the head of the department is directly tasked with receiving convicts regarding personal matters, resolving their applications and complaints, and providing assistance in protecting their rights and legitimate interests.

According to Article 102 of the Criminal Executive Code of Ukraine, “The regime in colonies and its main requirements”—the realisation of the rights and legitimate interests of convicts must be ensured through the activities of regime-operational units.

Furthermore, part 3 of Article 110 of the Criminal Executive Code of Ukraine also provides that a convict is guaranteed the right to legal assistance. To obtain it, upon the written application of the convicts, their close relatives, or public organisations, convicts are granted visits with a lawyer or another specialist in the field of law. At the request of the convict, the lawyer, or another specialist in the field of law, these visits can be held in private. Paragraph 49 of the “Internal Regulations” stipulates that it takes place in the short-term visit room with their security ensured.

In accordance with the Decree of the President of Ukraine “On the Concept of Forming a System of Free Legal Aid in Ukraine”, aimed at realising the human right to access to justice, the goal of which is to create an effective system of free legal aid—primary and secondary—it is implemented through:

- informing the person about the content of their right and the procedure for its realisation;

- ensuring possibilities for the pre-trial resolution of legal disputes;

- preventing time and financial costs for a person to access a lawyer.

Unfortunately, Articles 7 “Fundamentals of the Legal Status of Convicts” and 8 “Basic Rights of Convicts” of the Criminal Executive Code of Ukraine do not enshrine a provision according to which a convict should be recognised as a subject of legal relations in the sphere of sentence execution, as provided for in Article 6 of the Universal Declaration of Human Rights, that everyone, wherever they are, has the right to recognition as a person before the law.

In today's conditions, convicts do not have the opportunity to use the legislation that provides for access to legal aid, as the services of a lawyer are expensive, and a state system that would ensure real access of convicts to such assistance has not been created. In addition, the level of training of the penal service personnel is currently insufficient to meet the needs of convicts in receiving legal assistance. Particularly noticeable is the low professional level of explanations, consultations, and the drafting of requests in the field of civil, family, and housing law, and land legal relations.

There is an alarming lack of knowledge of penal legal relations, especially in the field of observing the rights and legitimate interests of convicts, where, in the opinion of the supervisory commission, heads of various levels, and within the department—the heads of departments and heads of regime services—should act as guarantors of the observance of their rights.

Participants of the round table “From the experience of cooperation between the charitable organisation ‘Chernihiv Women’s Human Rights Centre’, the supervisory commission, executive authorities, and local self-government bodies on the provision of free legal aid to convicts and released persons” decided, following the discussion:

1. To initiate the introduction of amendments to Articles 7 and 8 of the Criminal Executive Code of Ukraine, enshrining the provision according to which a convict must be recognised as a subject of legal relations in the sphere of sentence execution, as provided for in Article 6 of the Universal Declaration of Human Rights, according to which everyone, wherever they are, has the right to recognition as a person before the law.

2. To initiate the introduction of amendments to part 3 of Article 110 “Visits of persons sentenced to deprivation of liberty with relatives, lawyers, and other persons. Telephone conversations” of the Criminal Executive Code of Ukraine and phrase it as follows:

“To obtain legal assistance, upon the written application of the convicts, their close relatives, or public organisations, convicts are granted visits with a lawyer or another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity. A visit of a convict with a lawyer or another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity, is granted in private.

The visit is granted by the colony administration upon the lawyer’s presentation of a warrant or a concluded agreement, and in the case of another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity, another relevant document, as well as documents certifying their identity. The number and duration of such visits are not limited.”

3. To propose to the State Department of Ukraine for the Execution of Sentences to amend paragraph 49 “Visits of convicts with a lawyer” of the Internal Regulations of penal institutions (Order No. 275 of 25.12.2003) and phrase it as follows:

“49. Visits of convicts with a lawyer.

In accordance with the Criminal Executive Code of Ukraine, to obtain legal assistance, upon the written application of the convicts, their close relatives, or public organisations, convicts are granted visits with a lawyer or another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity. Visits of a convict with a lawyer or another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity, are granted in private in specially equipped offices, with their security ensured.

For those sentenced to life imprisonment, visits are granted in short-term visit rooms equipped with booths in accordance with Appendix 17 to these Rules. The visit is granted by the institution’s administration upon the lawyer’s presentation of a warrant or a concluded agreement, and in the case of another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity, an agreement or power of attorney of the legal entity, as well as documents certifying their identity. The number and duration of such visits are not limited.

Visits of convicts with a lawyer or another specialist in the field of law who, by law, has the right to provide legal assistance personally or on behalf of a legal entity, shall not be counted towards the number of visits established by the Criminal Executive Code of Ukraine; their number and duration are not limited, but they shall take place outside the convict’s working hours and only between wake-up and lights-out.”

The participants of the round table decided to send the drafted resolution to:

- The Committee on Legislative Support of Law Enforcement Activities of the Verkhovna Rada of Ukraine,

- The Ministry of Justice of Ukraine,

- The State Department of Ukraine for the Execution of Sentences.

Charitable organisation “Chernihiv Women’s Human Rights Centre”

Chernihiv, vul. Tolstoho, 120

Tel/fax: +380 4622 483 26

e-mail: lepeha _alla @ukr.net