Article 59 of the Constitution is not merely a declaration. It is a real tool for protecting rights, which certain courts have attempted to limit through the formal application of provisions regarding occupied territories—until the Supreme Court intervened.
What Exactly Does Article 59 of the Constitution Protect?
Article 59 of the Constitution is concise but of fundamental importance:
“Everyone has the right to professional legal assistance. In cases provided for by law, this assistance is provided free of charge. Everyone is free to choose a defender of their rights.”
This provision is one of the key elements of the right to a fair trial. It guarantees that any individual or legal entity may seek qualified legal assistance from an attorney to defend their rights in court, during an investigation, or in other legal proceedings. The Constitutional Court has repeatedly emphasized that this right is inalienable and cannot be arbitrarily restricted. It applies even in times of war and even to persons who are formally located in temporarily occupied territory.
Article 59 of the Constitution is implemented through several mechanisms:
the Law “On the Bar and the Practice of Law” guarantees everyone the opportunity to enter into an agreement for legal assistance with a freely chosen attorney;
the procedural codes (the Code of Criminal Procedure, the Code of Civil Procedure, the Code of Administrative Procedure, and the Code of Administrative Litigation) provide that parties to a case have the right to legal assistance, and that representation in court and defense in criminal proceedings are provided exclusively by a lawyer (with certain exceptions);
The Law “On Free Legal Aid” guarantees free secondary legal aid for certain categories of persons.
The right to an attorney is not a privilege but a constitutional guarantee of access to justice. Without it, it is impossible to implement Articles 55, 124, and 129 of the Constitution (judicial protection of rights, adversarial proceedings, equality of the parties, etc.).
How Certain Courts Have Effectively Restricted the Implementation of Article 59 of the Constitution
Until recently, the practice of some appellate courts took a different course. They began returning appeals without consideration, citing Article 13 of Law
No. 1207-VII (“On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”). This article deems legal transactions by business entities located in the occupied territory to be null and void.
A typical example is Case No. 913/768/21. Dibrova LLC (located in the town of Milove, Luhansk Oblast, which is included in the list of occupied territories) appealed a decision by the Commercial Court of Luhansk Oblast to impose a fine of over 2.2 million UAH. The appeals were signed by an attorney based on a contract concluded after the occupation of the relevant territory. The Eastern Commercial Court of Appeal, in its rulings dated November 15, 2023, returned the appeals without consideration (para. 1, part 5 of Art. 260 of the Commercial Procedure Code). The court reasoned that the agreement with the attorney was void because the defendant is registered in the occupied territory. Consequently, the attorney “has no right” to sign the appeal.
This approach by the appellate courts effectively deprived the company of its constitutional right to professional legal assistance. Instead of considering the dispute on its merits, the court blocked access to the appeal solely based on the formal registered address. This set a precedent for thousands of businesses and individual entrepreneurs whose legal addresses remained in the occupied territory and who could have lost the opportunity for judicial protection.
In its ruling of March 26, 2024, in Case No. 913/768/21, the Supreme Court overturned the appellate court’s rulings and remanded the case for a new trial. The court clearly distinguished between:
Article 13 of Law No. 1207-VII restricts specifically economic activities (production, sale, and provision of services for a fee);
receiving legal assistance is not an economic activity of the defendant, but rather the consumption of a service. In this case, the company acts as a client, not as an entrepreneur selling goods or services;
the constitutional right to professional legal assistance (Article 59 of the Constitution) and the right to a fair trial (Article 6 of the Convention for the Protection of Human Rights) take precedence. Restricting these rights solely based on the territorial status of a location is unjustified, especially when the front line is dynamic and the list of occupied territories is changing.
The Supreme Court has explicitly stated that it is unjustified to restrict a person’s right to receive professional legal assistance on the grounds that, in wartime, their place of business or residence has come under occupation.
Why Bill No. 15048 Is Needed Right Now
On February 27, 2026, Member of Parliament Valerii Hnatenko introduced a bill “On Amending Article 5 of the Law of Ukraine ‘On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine’ Regarding Guarantees of the Right to Legal Assistance for Persons Located in the Temporarily Occupied Territory” (No. 15048). The document has already been forwarded to the relevant committee. This is not an abstract initiative, but a direct legislative response to the Supreme Court’s conclusions set forth in its ruling of March 26, 2024, in Case No. 913/768/21.
The aforementioned draft proposes to amend Article 5 of Law No. 1207-VII by adding a new paragraph 13:
“13. A person’s right to receive professional legal assistance may not be restricted on the grounds that the person’s location or place of residence is in a temporarily occupied territory.”
This is a specific clarification that enshrines the Supreme Court’s conclusions in law. At the same time, it does not repeal restrictions on economic activity in the occupied territories, but merely exempts contracts with attorneys from those restrictions.
Consequences of Adoption
If Parliament passes the relevant law:
lawyers will be able to freely enter into contracts with clients from the occupied territories without the risk of those contracts being deemed null and void;
courts will stop returning procedural documents en masse on this basis;
businesses and individuals will gain real, rather than merely formal, access to justice;
the number of complaints to the European Court of Human Rights regarding violations of Article 6 of the Convention will decrease.
Without such clarification, courts could have continued to ignore the Supreme Court’s rulings, citing the “absence of an explicit provision.” Bill No. 15048 closes this loophole.
Conclusion
In Case No. 913/768/21, the Supreme Court restored constitutional justice. Now it is up to Parliament to enshrine this protection in law.
The adoption of Bill No. 15048 will be an important step toward ensuring that the war does not deprive Ukrainians of their right to legal aid—even if their legal address is temporarily located behind the front lines.
Author: Vitaliy Chayun, Barrister
Source: https://zib.com.ua/ua/171387-yak_vs_zahistiv_pravo_na_advokata_navit_na_tot_i_chomu_potri.html