Legal Aid Reform Initiatives supported by Justice Initiative in CEE

1. Legal Aid Reform Initiatives supported by Justice Initiative in CEE Nadejda Hriptievschi, Junior Legal Officer, Open Society Justice Initiative 15 November, 2004 Legal Aid Reform Round Table Ulaan Baatar, Mongolia

2. Justice Initiative Legal Aid Programme Objectives • To expand government financial and political backing for legal aid in criminal cases; • To support the development of reliable models for assuring consistently effective legal services; • To improve the quality of counsel afforded indigent defendants; and to promote the development of skilled criminal defense attorneys and advocates; • In appropriate circumstances, to promote the development of paralegal services and other mechanisms for broadening access to legal remedies as a part of institutional reforms on legal aid.

3. Reforming Legal Aid Services and Administration in Lithuania (1) Pilot Public Defender Offices: set up and organizational form: • 2 pilot PDOs: Siauliai (2000) and Vilnius (2002); • Goals: provide qualitative legal aid to indigent defendants at reasonable cost • Founders: Ministry of Justice, Bar Association and Open Society Forum-Lithuania; • Form: Public Institution, overseen by the Board of PDOs; • Staff Lawyers – legal service agreements with the Founders for a fixed monthly honorarium; • Scope of service: criminal cases that fall under mandatory defense provisions

4. Reforming Legal Aid Services and Administration in Lithuania (2) Pilot PDOs: difficulties and interim solutions (selected): • Reluctance from police and investigators to refer cases. • Joint Decree of the Ministries of Interior, Justice and Prosecutor’s Office: ex-officio appointment via Bar Coordinators, the pilot PDOs – coordinators. • Low case referral from pre-trial stage. • Regular meetings with police and investigators; reducing appeal appearances. • Rare private meetings with clients prior to the 1st investigation. • Consistent practice of requests; meetings with police and investigators; • Access to case materials and possibilities to copy materials. • Regular meetings with court officials and judges.

5. Reforming Legal Aid Services and Administration in Lithuania (3) Role of pilot PDOs in reform: • Identifying flaws in the legal aid system: • “Pocket lawyers” phenomenon; • Chaotic appointment of ex officio lawyers; • Ineffectiveness of the payment system via vouchers: premium on formalities rather than rights-based defense. • Offering reliable data and tested solutions: • Demand for legal aid; • Case-related data: duration (for different categories); monthly case targets; methods for calculating costs per case • Offering an alternative to the ex-officio model of delivery: • Mixed delivery system – competition of lawyers and reliable data for comparison

6. Reforming Legal Aid Services and Administration in Lithuania (4): Reform Process • Informal discussions: PDOs and Board, project partners; • Working Group set up by the Ministry of Justice: February 2003 • WG concept paper for reform (July 2003): • Establishment of the National Legal Aid Council: legal aid policy drafting and implementing; • Mixed system of delivery: PDOs (primary) and ex officio lawyers; • Improved provision of primary legal aid, included in the national legal aid scheme; • Simplified eligibility determination procedure (2 levels); • Remuneration of ex officio lawyers: fixed per case system. • MJ submission of the concept paper (amended) to the Parliament (November 2003); • WG draft law on amending the law on state guaranteed legal aid (April 2004);

7. Reforming Legal Aid Services and Administration in Lithuania (5): Reform Process • Draft Law submitted to the Parliament (August 2004, currently under Parliamentary discussions) - Main features: • Categories of legal aid: primary (municipality lawyers) and secondary: criminal, civil and administrative (PDOs and ex officio lawyers); • Players involved in the management of legal aid: • Government: legal aid policy making; • Ministry of Justice: legal aid policy implementation • National Legal Aid Council – advisory body to the MJ for legal aid policy implementation; • Municipalities: organization primary legal aid delivery; • Legal Aid Services: organization of secondary legal aid provision; • Bar: coordination of secondary legal aid provision in areas where no Legal Aid Services are available, in coordination with the latter. • Delivery: lawyers working full time (PDO) and ex officio lawyers.

8. Legal Aid Reform Project in Bulgaria (1) • OSI-Sofia – implementing in partnership with the MJ; • Establishment of one pilot PDO (May 2003); • Studies on the the costs, accessibility and quality of legal aid services (2001 and 2004); • Working group by the MJ – working on the concept paper and the draft law (due end of 2004): • Representatives of the Ministry of Justice, Bar Council, Private criminal defense lawyer, Judge, Civil society, including OSI-Sofia

9. Legal Aid Reform Project in Bulgaria (2): Role of the PDO • Establishment and challenges: • Pilot project of OSI-Sofia; • Private Bar resistance; • Reluctance of police and investigators to refer cases; • Low caseload initially. • Alternative model to the ex officio lawyers: • Joint practice: unified procedures, common standards of practice: economy of scale; • Example of excellence: office standards of criminal defense • Data collection: • Demand in the pilot region: monthly caseload; • Costs per case (no clear legal aid budget); • Model for management of a legal aid office.

10. Legal Aid Reform Project in Kyrgyzstan • Working group set up by the Ministry of Justice (February 2004): • Reform objectives: improve the legal framework on legal aid, establish a specialized body for legal aid policy formulation and implementations, determine the mechanism for financing legal aid; • Draft concept paper: • National Legal Aid Council – statutory body, accountable to the Parliament, members on voluntary basis, scope: legal aid policy development; • Ministry of Justice – implements legal aid policy (1st phase of reform), through the regional departments; • Legal aid providers: ex officio lawyers, appointed by Bar coordinators or law enforcement agencies according to the list (in remote rural areas); • Payment for legal aid lawyers: tariffs based on principles of guaranteed payment for taking the case, and coefficients for case category, case complexity and stage of proceedings. • Further strategy: • Phase 1: legal aid law draft; Phase 2: National LAC establishment; Phase 3: Delegation of some functions to the Bar; Phase 4: Amendments to include provision of legal aid in civil and administrative cases.

11. Conclusions: factors important in a legal aid reform • Process: • Documentation of the deficiencies in the system: management and delivery levels; • Involvement and/or consultation of the main stakeholders in the reform: Ministry of Justice, Bar Association, Judges, Ministry of Finance, Civil Society; • Comprehensive approach to the reform: management of the system and practical implications, and delivery practices; • Demonstration models of delivery: pilot PDOs proved useful in providing an accurate insight into the system of criminal defense and provide an example of excellence; • Testing of the proposed amendments: appointment of lawyers, payment etc • Desired/ Possible Outcomes: • There should be one agency dedicated comprehensively to legal aid policy drafting. Irrespective of the legal status (most appropriate in the local conditions), it should have sufficient human and financial resources to operate effectively and take independent operational decisions; • Mixed system of delivery is most efficient: allows for a balanced system; PDOs cannot cover all cases (conflict of interest, unpredictable increase in caseload); caseload in some jurisdictions do not justify the need for PDO; • The National Legal Aid Scheme should incorporate a system of initial legal advice at community/local level, such as paralegals or law graduates; • Any reform requires gradual implementation, including efficient operational and monitoring procedures, qualified human resources and genuine commitment from the Government; • Any reform needs adequate financial resources.