KATERYNA VARNALII, attorney at Barristers Law Firm, member of the Criminal Law and Procedure Committee of the Odesa Regional Bar Association

Despite legal safeguards, in practice there are numerous problems that complicate the exercise of the right to reimbursement for the costs of professional legal assistance. To obtain reimbursement, it is necessary to take into account important factors that will help avoid the main difficulties in this process.

Prerequisites for Reimbursement

Professional legal assistance is an integral and vital component of the judicial process. It ensures the protection of the rights of the parties to the proceedings, thereby facilitating the realization of their right to access to justice. However, legal assistance typically requires significant financial resources. At the same time, if a dispute is successfully resolved, the costs of legal assistance may be reimbursed by the opposing party. However, in order for these costs to be reimbursed, they must be documented, meet the requirements regarding their necessity for the case, and be commensurate with the complexity of the legal proceedings.

Despite the existence of legislative

regulations, difficulties arise in practice. Courts often reduce the amounts of compensation, assessing legal aid costs based on their own notions of a “reasonable” fee, which does not always correspond to the actual costs of providing legal services.

Unreasonableness of the Amount of Expenses

One of the most contentious issues is the assessment of whether legal aid costs are reasonable and commensurate. The law does not provide clear criteria by which courts must determine whether expenses are justified. As a result, compensation amounts are often reduced based on a judge’s subjective determination of a “reasonable” fee.

The lack of uniform standards for attorneys’ fees complicates the determination of the reasonableness of costs. Different courts may take different approaches to the issue of the reasonableness of costs, creating legal uncertainty. For example, in some cases, courts reduce the claimed amount if they believe that the attorney spent less time than indicated in the documents, or that the case was less complex than the claimant asserts. These criteria are set forth in Part 4 of Article 137 of the Code of Civil Procedure.

Case law shows that courts often reduce the claimed costs, considering them to be excessive. The Supreme Court has repeatedly emphasized the need to assess the proportionality of legal aid costs in light of the complexity of the case and the public interest in the matter (Resolution of the Grand Chamber of the Supreme Court dated January 18, 2024, in Case No. 9901/459/21).

Insufficient Evidence as a Ground for Denial

The main reasons for denying or reducing reimbursement of costs are insufficient evidence.

To avoid these issues, it is important to properly document the actual costs of legal assistance.

Drafting the Agreement

Be sure to enter into a contract with an attorney for the provision of legal assistance, clearly specifying the scope of services, their cost, and the payment terms. This is the primary document confirming the legitimacy of the expenses.

Collecting Financial Documents

To confirm the actual payment for legal assistance, you should collect all relevant financial documents—receipts, bank statements, and work completion reports. The absence of such documents may serve as grounds for denying compensation.

Documenting Time Spent

If the attorney is paid on an hourly basis, it is necessary to keep detailed records of the time spent performing services (consultations, drafting procedural documents, participating in court hearings). This will allow you to clearly justify the expenses associated with each specific task.

Lawyer’s Report

It is advisable to include a report from the attorney with the documents, in which the attorney provides a detailed justification of the scope of work performed and the complexity of the case. This will help the court assess the amount of expenses and their

proportionality to the complexity of the legal proceedings.

Justification of Expense Amounts

The court has the right to reduce the amount of reimbursement if it deems the costs excessive or unjustified. To avoid such a decision, it is important to properly justify the amount of legal fees, taking into account a number of key points:

Reference to Average Market Rates

You should base your calculation on average market rates for legal assistance in the relevant region. To support the amount of costs, you can cite examples of similar cases from judicial practice where compensation amounts were determined based on these rates.

Justification of Costs in Complex Cases

In complex or protracted cases, it is important to explain to the court why the legal aid costs are justified. This may include arguments that the costs are related to the particular complexity of the case, the volume of work, or the need to engage additional resources or specialists.

Breakdown of Costs by Stage

If the case was heard in multiple courts, the costs must be clearly broken down by each stage of the legal proceedings. This will allow the court to assess whether the costs were reasonable and commensurate with the volume of work at each stage.

Reimbursement of Costs in Criminal Proceedings

In criminal proceedings, the situation is

more complex, as victims often cannot obtain compensation for legal assistance costs unless the court deems them necessary. Suspects and defendants may claim reimbursement of costs only in the event of an acquittal, but the procedure is lengthy and bureaucratic.

Furthermore, state-funded legal aid does not always cover actual costs, which creates additional difficulties for those in need of legal support.

Reimbursement of Costs in Commercial and Civil Cases

In commercial and civil disputes, legal aid costs are theoretically subject to reimbursement, but in practice, courts often reduce the amounts of reimbursement without sufficient justification. The lack of uniform standards and practices leads to significant variations in court decisions, which differ depending on the region. As a result, in some courts, legal aid costs may be reimbursed in full, while in others, compensation amounts are reduced without clear justification. This creates a situation of legal uncertainty and unpredictability for the parties involved, since in similar cases with comparable circumstances, courts may issue conflicting rulings regarding the reimbursement of costs.

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Thus, the issue of reimbursement for legal aid costs is a crucial element of the legal system that ensures the realization of the right to access to justice.

Proper legal regulation and the effective application of judicial precedent can significantly improve the situation in this area. The legislation governing the reimbursement of legal aid costs requires further clarification and refinement.

To avoid problems with reimbursement, it is important to properly prepare all necessary documents substantiating the expenses, as well as to clearly justify the amount of the expenses and the reasonableness of the fees. Equally important is compliance with procedural deadlines for filing reimbursement claims and citing case law to substantiate the legitimacy of the claims.

It is also important to monitor the enforcement of the court decision to avoid delays in the reimbursement process. Adhering to these recommendations not only increases the likelihood of successfully obtaining reimbursement for legal assistance costs but also promotes overall fairness, safeguards citizens’ rights, and ensures access to justice for all parties to the proceedings.