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New Approaches to Fostering Access to Justice in Transition Countries
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New Approaches to Fostering Access to Justice in Transition Countries.

Mar 27, 2015

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Page 1: New Approaches to Fostering Access to Justice in Transition Countries.

New Approaches to Fostering Access to Justice in Transition Countries

Page 2: New Approaches to Fostering Access to Justice in Transition Countries.

Access to Justice: A Broad Concept

Standing to sue and other procedural obstacles

Judicial independence and impartiality

Fair trial

ADR and legal literacy

Legal aid

Page 3: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid

In criminal cases, the lack of legal aid:

– affects the outcome of the cases

– reinforces a feeling of subordination vis a vis the state

– hampers civilian control over law enforcement

– reduces public confidence in the legal system

Page 4: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid

In civil cases, the lack of legal aid prevents individuals from:

– protecting their rights when the state does not

– settling their ownership claims

– legalizing their property

– participating in legal and economic exchange

– developing confidence in the legal system

Page 5: New Approaches to Fostering Access to Justice in Transition Countries.

Project on Promoting Access to Justice in Eastern Europe: An NGO-Driven Law Reform Strategy

Project Partners: Bulgarian Helsinki Committee (Sofia) Helsinki Foundation for Human Rights in Poland

(Warsaw) INTERIGHTS (London) Public Interest Law Initiative in Transitional Societies at

Columbia Law School (New York)

Funding provided by: The European Commission Constitutional and Legal Policy Institute (COLPI)

Page 6: New Approaches to Fostering Access to Justice in Transition Countries.

Main Project Activities Needs assessments

– Bulgaria:• survey of 1,000 case files in district courts• opinion survey of 1,000 prisoners on the quality of legal

services• opinion survey of 200 judicial officers:

– Poland:• opinion survey of judges and prosecutors on quality of legal

aid• opinion survey of lawyers• opinion survey of administrative officers and Ombudsman• opinion survey of clients• court monitoring

Page 7: New Approaches to Fostering Access to Justice in Transition Countries.

Main Project Activities (cont’d)

Stakeholders’ forums -- conferences with more than 100 judges, lawyers, prosecutors, members of parliament, governmental officials, representatives of international organizations

• for Bulgaria -- Sofia, early 2002 • for Poland -- Warsaw, spring 2002

Web forum (www.pili.org/access) Regional forum for Eastern Europe -- conference

with stakeholders from other Eastern European countries, Budapest, fall 2002

Page 8: New Approaches to Fostering Access to Justice in Transition Countries.

Clinical Legal Education

Began developing in Europe and Eurasia in mid - 1990s

Soros network now supports more than 60 programs in about 25 countries - each with multiple sections

Topics include civil law, criminal law, family law, refugee law and not-for-profit law

Typical annual grant ranges between USD 15,000 and USD 30,000

Average of 40 to 50 students per year participating in each program

Page 9: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Defense in Criminal Casesin Central and Eastern Europe

Lack of defensecounsel is a serious proce-dural violation and ground

for overruling the judgm ent

Proceeding authority obligedto appoint ex officio counsel

Mandatory Defense

Judgm ent is valid even ifdefendant has not beenrepresented by counsel

Proceeding authority notobliged to appoint counsel

O ther Cases

Crim inal Cases

Page 10: New Approaches to Fostering Access to Justice in Transition Countries.

Common Grounds for Mandatory Defense in Central and Eastern Europe

Defendant is a minor Mental or physical disability Trial in absentia Inability to speak the language of the

court Pretrial detention Severity of the potential sentence

Page 11: New Approaches to Fostering Access to Justice in Transition Countries.

Selected Criteria Triggering Mandatory Defense in CEE Countries

Country Potential Prison Sentence PretrialDetention

Czech Republic > 5 years YES

Hungary > 5 years YES

Romania > 5 years YES

Slovak Republic > 5 years YES

Poland > 3 years for seriouscrimes

YES

Bulgaria > 10 years NO

Page 12: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid in Criminal Cases Other than Mandatory Defense

Vague standards on appointing defense counsel, such as “when required by the interests of justice”

No specific procedure for identifying defense counsel

Lack of defense counsel does not influence the validity of the judgment

Page 13: New Approaches to Fostering Access to Justice in Transition Countries.

Deficiencies of the Current System for Criminal Cases

Relies primarily on mandatory defense

Mandatory defense is limited to a narrow category of cases

Not based on the defendants financial status

Page 14: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid in Civil Cases in Central and Eastern Europe

Codes of civil procedure exempt indigent defendants from the obligation to pay court fees for certain category of cases (alimony, parental rights, labor disputes)

Some laws governing the legal profession declare free legal aid rights for the indigent but without specific guarantees

Page 15: New Approaches to Fostering Access to Justice in Transition Countries.

Procedure for appointment of ex officio lawyers when the defense is mandatory

Court$$

Defendant Lawyer

BarAssociation

Page 16: New Approaches to Fostering Access to Justice in Transition Countries.

Procedure for Appointment of Lawyers for Civil Cases

Court

Defendant Lawyer

BarAssociation

$$

Page 17: New Approaches to Fostering Access to Justice in Transition Countries.

Source: Law on the State Budget for 2001

Bulgarian Budget for the Judiciary: Expenditures (2001)in 1,000 of leva (1 USD = 2.12 leva)

517,252

71,266

207,433

119,683

5,000

300Salaries and remuneration ofstaff employed by the judiciary

Other remuneration andpayments for personnel

Employment benefits

Maintenance

Capital spending

Contingencies

Page 18: New Approaches to Fostering Access to Justice in Transition Countries.

Reimbursement of Ex Officio Lawyers Compared to Privately Hired Lawyers in Bulgaria (1999)

Type of assistance National Bar CouncilFee Schedule

Recommended Fees(remuneration of ex

officio lawyers)

Sofia BarAssociation

RecommendedFees

(remuneration ofprivate lawyers)

For oral advice USD 1 USD 30 per hour

For written consultation USD 3 USD 30 per hour

For legal representationduring preliminaryinvestigation

USD 8 USD 30 per hour

For legal representation atthe trial stage for casessubject to up to 15 yearsimprisonment

USD 50 USD 300 – 1,000

Page 19: New Approaches to Fostering Access to Justice in Transition Countries.

Participation of defense counsel at different stages of criminal proceedings in

Bulgaria

% of respondents answered "no" to the question of whether they had a lawyer

0

5

10

15

20

25

30

35

40

45

50 During thepreliminaryinvestigation

Before the firstinstance court

During the appeal(excluding answersof "there was noappeal")

Page 20: New Approaches to Fostering Access to Justice in Transition Countries.

Source: Survey of the Bulgarian Helsinki Committee (1998)

Representation of Criminal Defendants during the Preliminary Investigation in Bulgaria

37

3

47

13

Private counsel

Ex officiocounsel

No legalrepresentation

Don't know/ Noanswer

Page 21: New Approaches to Fostering Access to Justice in Transition Countries.

Source: Survey of Open Society Fund - Lithuania (1999)

Participation of defense counsel at different stages of criminal proceedings in

Lithuania

% of respondents answering "no" to the question of whether they had a lawyer

0

5

10

15

20

25

30

35

40

45 During thepreliminaryinvestigation

Before the firstinstance court

During theappeal, whereapplicable

Page 22: New Approaches to Fostering Access to Justice in Transition Countries.

Source: Survey of Open Society Fund - Lithuania (1999)

Representation of criminal defendants during the preliminary investigation in Lithuania

310

27

42

Private counsel

Ex officiocounsel

No legalrepresentation

Don't know/ noanswer

Page 23: New Approaches to Fostering Access to Justice in Transition Countries.

Source: U.S. Department of Justice, Bureau of Justice Statistics, Special Report (November 2000)

Representation of criminal defendants in the 75 largest counties in the US (for comparison)

17.6

68.3

13.7 0.4

Privateattorney

Publicdefender

Assignedcounsel

Self (pro se)

Page 24: New Approaches to Fostering Access to Justice in Transition Countries.

Source: Survey of the Bulgarian Helsinki Committee (1998)

Risk of ill-treatment depending on participation of defense counsel during the preliminary investigation in Bulgaria (1998)

% of respondents answered “yes” to the question of whether physical force was used against them

0

10

20

30

40

50

60

When they had adefense counsel

When they did nothave defense counsel

During arrest

Inside the policestation

During thepreliminaryinvestigation

Page 25: New Approaches to Fostering Access to Justice in Transition Countries.

Source: COLPI/Hungarian Helsinki Committee Study in Hungary (1996)

Quality of legal services of ex officio appointed counsel compared to private

counsel

A -- % of respondents who have had contact with their counsel immediately after detention

B --% of respondents who have met their counsel (as of the time of the survey)

C --% of respondents who have had at least one contact with their counsel (as of the time of the survey)0

1020

3040

506070

8090

100

A B C

with exofficiocounsel

withprivatecounsel

Page 26: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid for Non-Mandatory Criminal and Civil Cases in the Czech Republic

Year 1998 1999 2000

Total number of civil cases (excludingappeals)

234,554 239,032 239,378

Total number of civil and criminalcases (excluding appeals)

297,338 311,486 312,719

Total number of cases taken free ofcharge by the Czech Bar Association*

654 1,092 1,739

Percentage of cases taken free ofcharge by the Czech Bar Association

0.22% 0.35% 0.56%

Source: Czech Ministry of J ustice and the Czech Bar Association(Data collected by the Counseling Centre for Citizenship, Civil and Human Rights )

______________________________*This excludes mandatory defense in criminal cases, which is funded by the judicial budget. Data for thenumber of mandatory defense cases is not available.

Page 27: New Approaches to Fostering Access to Justice in Transition Countries.

Legal Aid for Civil Cases in Poland

1999

Total number of civil cases filed per year

7,427,000

Number of cases taken freeof charge by the Polish BarAssociation

10,300

Percentage of cases takenfree of charge as comparedto the total number of cases

0.14%

Source: Ministry of J ustice, Poland, High Council of Barristers and High Council of LegalCounselors (Data collected by the Polish Helsinki Foundation for Human Rights)

Page 28: New Approaches to Fostering Access to Justice in Transition Countries.

Pilot Public Attorney’s Office in Šiauliai, Lithuania (PAO)

A public organization established by an agreement between the Lithuanian Ministry of Justice, the Lithuanian Bar Association and the the Open Society Fund - Lithuania in December 1999

Located in a medium size working class town in Lithuania

Staffed by five attorneys

Covers criminal cases

Funded by OSF - Lithuania/COLPI

Page 29: New Approaches to Fostering Access to Justice in Transition Countries.

First Six Months Evaluation of the Public Attorney’s Office (PAO)

Caseload:– PAO’s 5 lawyers take 50% of all mandatory defense

cases– The other 50% of mandatory defense cases are

taken by 34 private lawyers assigned ex officio

Coordinates the work of ex officio lawyers

Facilitates appointments process (judges report large increase in efficiency)