If the defense counsel becomes aware of the client’s actions/inactions under the influence of physical or psychological coercion, he or she (with the client’s consent) must notify the pre-trial investigation body or the procedural prosecutor. This provision was included in the “Quality Standards for the Provision of Free Secondary Legal Aid in Criminal Proceedings” in accordance with the Order of the Ministry of Justice of Ukraine No. 4903/5 of November 3, 2022.
“During the martial law in the temporarily occupied territories, the Russian occupiers often use physical and psychological means of influence on Ukrainian citizens to achieve their own goals. This includes forced mobilization. In particular, this applies to the territories of Kherson, Zaporizhzhia, Donetsk, and Luhansk regions, which the occupiers seized after a full-scale invasion. At the same time, forced mobilization is prohibited by international humanitarian law,” said Oleksandr Baranov, acting director of the Coordination Center for Legal Aid Provision.
Section VIII of the Criminal Code of Ukraine defines circumstances that exclude criminal unlawfulness of an act. If a person, under the influence of these circumstances, commits an act or omission that contains signs of a criminal offense, he or she will not be held criminally liable, as these actions are aimed at protecting the interests of citizens, society and the state, and therefore they are recognized as socially useful or socially acceptable and are not illegal.
Such circumstances include, in particular, the commission of a criminal offense under the influence of physical or mental coercion, as defined in Article 40 of the Criminal Code of Ukraine.
Lawyers providing free secondary legal aid in criminal proceedings must take this into account. According to the updated Quality Standards for the provision of free secondary legal aid, a defense lawyer must, with the client’s consent, notify the pre-trial investigation body or procedural prosecutor that he or she has become aware of the client’s actions/inactions under the influence of physical or psychological coercion.
This standard is based on such sources of law as Articles 51, 147 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, Articles 42, 46, 47, 206, 284, 373 of the Criminal Procedure Code of Ukraine.
“Information that the client committed certain actions under the influence of physical or psychological coercion, for example, was mobilized by the Russian occupiers, should be indicated in the minutes of the first meeting with the client, the lawyer’s file, statements and motions prepared by the defense counsel. This will make it possible to provide timely and high-quality defense in criminal proceedings to detainees and convicts. Including those forcibly mobilized in the occupied territories, who often become defendants in criminal proceedings in Ukraine,” says Oleksandr Baranov.
For reference. Since 2014, the system of free legal aid has been operating under the Quality Standards for the provision of free secondary legal aid in criminal proceedings.
Quality Standards for the provision of free secondary legal aid for a lawyer is an algorithm of his/her actions during defense/representation. This is a unification of the actions of a lawyer who cooperates with the FLA system. Compliance with these Standards is mandatory for lawyers when providing free secondary legal aid.
