New Approaches to Fostering Access to Justice in Transition Countries
Mar 27, 2015
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
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
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
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)
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
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
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
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
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
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
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
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
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
Procedure for appointment of ex officio lawyers when the defense is mandatory
Court$$
Defendant Lawyer
BarAssociation
Procedure for Appointment of Lawyers for Civil Cases
Court
Defendant Lawyer
BarAssociation
$$
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
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
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")
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
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
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
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)
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
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
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.
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)
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
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)