EU 2003 Accession Reports Highlight Legal Aid Deficiencies:

Reports confirm findings of PILI and its partners documented in new series of access to justice publications

2002 news

December 1, 2003 - In early November, in its reports on countries acceding to the European Union, the European Commission emphasized the still unsatisfactory state of legal aid in many of them. In the reports, the Commission describes such negative features as frequent absence of defense counsel, requirements for post-conviction reimbursement of legal aid fees, lack of information on availability of legal aid and legal assistance, and the non-transparent character of the system, findings that are consistent with the information published today by Columbia University's Public Interest Law Initiative (PILI) and its partners in a new Access to Justice in Central and Eastern Europe series.

This year, for the first time, the European Commission issued two types of reports: Comprehensive Monitoring Reports on Preparations for Membership, for those countries becoming EU members in 2004, and Regular Reports on Progress towards Accession, for the remaining countries: Bulgaria, Romania and Turkey. An assessment of the legal aid system figures prominently in both sets of reports.

In the Comprehensive Monitoring Report on Poland, for example, the European Commission states: "The access of the public to the judicial system remains limited, especially access to general information on procedures, legal aid and the state of play of an individual's own pending case." The reports goes on to specify: "The system of legal aid is still under-developed and organized in a non-transparent way, with the result that citizens are not informed about their rights. In the criminal procedure code there is no obligation to inform a defendant about the possibility of obtaining legal aid. This lack may lead to the conclusion that the enforcement of the legal aid provisions is not sufficient in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Ministry of Justice does not have statistical data on the granting by judges of requests for legal aid."

In the Regular Report on Bulgaria, the Commission notes: "Although access to legal aid is supposed, according to the constitution, to be available for everybody from the moment of detention or of being charged, empirical surveys have shown that in practice there was no defence counsel in nearly 50% of criminal cases in first instance. If convicted, the accused must pay the costs of the proceedings, as well as the expenses incurred by the private accuser and the civil claimant. This practice is contrary to the principles generally applied. The reform and further enhancement of the legal-aid system should therefore be a priority, in order to guarantee equal access to justice for all citizens."

The issues highlighted by the European Commission are discussed at great length in a series of publications on Access to Justice in Central and Eastern Europe, resulting from a three-year project on Promoting Access to Justice in Central and Eastern Europe. The project was carried out by four European NGOs: the Public Interest Law Initiative, INTERIGHTS, the Bulgarian Helsinki Committee and the Polish Helsinki Foundation for Human Rights, in collaboration with the Open Society Justice Initiative, and was financed by the European Commission and the Open Society Institute.

The project focused on Poland and Bulgaria, but it also included all accession countries from Central and Eastern Europe. The main goal of the project was to assess the true dimensions of, and develop means toward solving, a crucial problem undermining the functioning of the rule of law and constitutional democracy in the countries of Central and Eastern Europe-the widespread deficiencies in the provision of legal aid, and their disproportionate negative impact on vulnerable groups in society, thereby putting social cohesion at risk. As the European Commission states in the 2003 Regular Report on Romania, "limits to the right to legal representation are a human rights issue that needs to be addressed." Project activities represented a unique effort in accumulating relevant statistical data on the actual provision of legal aid in the target countries, resulting in carefully crafted, evidence-based policy recommendations for decision-makers and stakeholders.

The Access to Justice in Central and Eastern Europe series includes four volumes: Forum Report, Country Reports, Source Book (all in English) and Access to Justice: Problems of Free Legal Aid in Central and Eastern European Countries (in Russian).

Forum Report provides a detailed account of the European Forum on Access to Justice held in Budapest in December 2002 in collaboration with the Open Society Justice Initiative. The European Forum on Access to Justice was the culmination of several years of work by the project partners to assess the state of legal aid in Central and Eastern Europe and in raising awareness of the need for reforms. The European Forum brought together lawyers, activists and government officials from over 20 countries to debate the results of the project, to raise awareness of the need for reforms and to take steps to improve legal aid systems in the region. The volume contains a summary of presentations by leading experts in the field of legal aid.

Country Reports presents the results of the country reports commissioned within the framework of the Project. Country reports on access to justice and the state of provision of legal aid were commissioned in the summer of 2002 for nine countries acceding to the European Union: Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, and Slovakia. A report was also commissioned in Slovenia, where a new Legal Aid Act entered into force, but there was not yet enough legal practice and case law to prepare a comprehensive country report according to the Project's methodology and guidelines. A summary report, prepared by PILI, compares the laws and practices governing the provision of legal aid in each of the countries and provides overall analysis and recommendations.

The Access to Justice Country Reports examine existing laws and judicial and administrative practices, as well as explore the findings of surveys and studies conducted by state agencies, research institutes, and non-governmental organizations. Within the framework of the project, empirical studies on access to justice were conducted in Poland and Bulgaria by the Bulgarian Helsinki Committee and the Polish Helsinki Foundation for Human Rights. These data provide the basis for evaluating the actual extent of legal aid in those countries. The reports identify specific obstacles to effective access to justice by analyzing the relevant laws and different practices in each country. Proposals for legislative modifications are reviewed and summarized at the end of each report.

Source Book is a collection of writings and documents that address the problem of access to justice and the reform of legal aid systems in the countries of Central and Eastern Europe. It consists of six parts, each focusing on different aspects of access to justice and legal aid:

Part I contains an overview of the concept of access to justice as it relates to free legal aid.

Part II explores legal aid systems in selected countries, the mechanisms for delivering legal services to the underrepresented, and strategies for reforming legal aid systems. It also provides overviews of the legal aid systems in the Netherlands, South Africa, Israel, France, Ireland and the United States, as well as some of the history of their creation and development.

Part III provides a general understanding of international documents on access to justice, in particular the standards developed by the Council of Europe and the European Union. Two documents prepared by INTERIGHTS offer a summary of the recent jurisprudence of the European Court of Human Rights on legal aid as well as excerpts of some of the most important judgments of the same court in this field.

Parts IV-V present the results of empirical studies in Bulgaria by the Bulgarian Helsinki Committee and in Poland by the Polish Helsinki Foundation for Human Rights and presents various aspects of the research methodology.

Part VI provides sample legal aid laws and operational documents on legal aid. This section includes detailed and comprehensive documents on the legal reforms in Lithuania, operational documents from Israel and the Netherlands, legal aid acts of Slovenia and Finland, excerpts from the relevant law in France, as well as summaries of the legal aid provisions in France, Germany, Sweden and Finland.

Access to Justice: Problems of Legal Aid in Central and Eastern Europe (in Russian) represents a compilation of the English-language series into one Russian-language volume.
The Access to Justice Forum Report constitutes Part I of the volume.

Part II briefly presents the results of nine Country Reports on access to justice and the full translation of the comparative report, which summarizes and analyzes the findings of all nine reports and contains recommendations for changes to policies and practices of legal aid within that country.

Part III focuses on empirical studies in Bulgaria and Poland and includes various aspects of the research methodology.

Parts IV-VI contain an overview of the concept of access to justice and explore legal aid systems in selected countries such as the Netherlands, South Africa, Israel, France, and Ireland, as well as some of the history of their creation and development. They also provide a general understanding of international documents on access to justice, in particular the standards developed by the Council of Europe and excerpts of some of the most important judgments of the same court in this field and provide sample legal aid laws and operational documents on legal aid.

The full series of publications can be viewed on PILI's website. They can also be ordered from: Bulgarian Helsinki Committee, 7 Varbitsa Street, 1505 Sofia, Bulgaria; bhc@bghelsinki.org

top