Notary services are unavailable to convicts

One of the important issues not regulated by legislation is the matter of obtaining notary services by persons serving a sentence of imprisonment.
And although the Constitution of Ukraine contains guarantees for providing citizens with legal services, the mechanisms for ensuring such guarantees with regard to convicts are extremely imperfect.
While the procedure for verifying a power of attorney can be carried out by the head of an institution, there are a number of situations where a person’s signature must be verified by a notary, and only by a notary. In such situations, a host of problems arises—both for the administration of the institution and for the convict, as the institution’s administration must somehow ensure that the convict has the opportunity to have their signature verified by a notary.
Furthermore, there is the problem of paying for a notary’s services if the convict’s personal account lacks the funds necessary for payment.
In connection with the existence of these problems, the public organisation 'Donetsk Memorial' appealed to the regional justice department with a proposal to clarify
1) whether a person serving a sentence in places of imprisonment can receive notary services, and in what manner?
2) whether such a person can receive notary services in the absence of funds in their personal account, that is, free of charge?
3) whether a notary can refuse to provide notary services if, in order to provide them, they must visit a penal institution?
In the response from the deputy head of the justice department in the Donetsk region, A. V. Shapovalov, No. 5-16-246 dated 30.03.2010, it is stated that 'a separate algorithm by which the institution’s administration can invite a notary to the colony is not provided for by legislation'. He also states that 'a notary does not have the right to refuse, without grounds, to perform a notary act'.
Moreover, he emphasises that 'the question arises as to who will pay for the notary’s services if the convict is not engaged in socially useful work, does not receive a pension or other social payments, and there are no funds in their personal account necessary for payment'.
Undoubtedly, the state must ensure citizens' access to legal aid (to legal services) in cases where a person, for reasons beyond their control, does not have the ability to pay for these services. The situation being considered may well be such a case.
However, it is unclear from the justice department’s response whether a person serving a sentence of imprisonment, but lacking funds in their personal account, can apply to a notary and request that services be provided to them free of charge. Does a notary have the right to refuse to provide notary services to convicted persons who are unable to pay for them?
It is worth noting that the issue of payment for services is closely linked to paying for the notary’s travel to the institution (if the notary agrees to visit), as there are very likely cases where a convicted person will not have the funds to pay for the notary’s travel to the penal institution either. It is not clear whether the lack of funds to pay for the notary’s travel to the institution can be grounds for refusing to perform notary acts.
After a repeated appeal by 'Donetsk Memorial' to the justice department in the Donetsk region, a response was received stating that 'state notary offices are maintained at the expense of the state budget, and the estimate for their maintenance does not provide for these expenses. According to Article 42 of the Law of Ukraine 'On Notaries', notary acts are performed after they are paid for. Article 49 of this Law provides that a notary may refuse to perform a notary act if the person who has requested the provision of a notary service has not made payment for its performance. Based on this, a notary refuses to provide notary services if the person is unable to pay for them.'
Consequently, convicts in places of imprisonment face significant problems in obtaining notary services. Firstly, it is a problem to attract a notary to the institution and pay for travel if necessary. In the event a notary refuses to visit the institution, there are no mechanisms to compel them to perform the necessary notary acts. And this is in cases where the convict has the funds to make the necessary payments.
The situation is completely hopeless in cases where the convict has no funds. The state does not provide for the possibility of ensuring that convicts receive notary services in cases where they lack funds. 'Donetsk Memorial' has sent inquiries to the Ministry of Justice and the State Department for Execution of Sentences with a proposal to provide official written clarifications regarding the possibilities for persons serving sentences of imprisonment to receive notary services, in particular in cases where these persons do not have the funds to pay for them.
Thus, the realisation of the constitutional right of citizens serving sentences in places of imprisonment to receive legal aid is not ensured by the state.
Obviously, the problem of ensuring that convicts have the opportunity to receive notary services must be solved at the legislative level. And the role of both the Ministry of Justice and the department for the execution of sentences lies in initiating measures to improve legislation on this issue.