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 (contd) 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 ( 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 s 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 Cases in Central and Eastern Europe

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

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

Procedure for Appointment of Lawyers for Civil Cases

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)

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

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

Source: Survey of the Bulgarian Helsinki Committee (1998) Representation of Criminal Defendants during the Preliminary Investigation in Bulgaria

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

Source: Survey of Open Society Fund - Lithuania (1999) Representation of criminal defendants during the preliminary investigation in Lithuania

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)

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

Source: COLPI/Hungarian Helsinki Committee Study in Hungary (1996) Quality of legal services of ex officio appointed counsel compared to private counsel n A -- % of respondents who have had contact with their counsel immediately after detention n B --% of respondents who have met their counsel (as of the time of the survey) n C --% of respondents who have had at least one contact with their counsel (as of the time of the survey)

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

Legal Aid for Civil Cases in Poland 1999

Pilot Public Attorneys 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 Attorneys Office (PAO) Caseload: –PAOs 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)